Updated 10/19/20 4:12 pm PST with the potential value for the design build construction contracts in Thailand and in Namibia. See below.
In October 2009, State/OIG issued its Audit of the Design and Construction of the New Embassy Compound in Baghdad, Iraq (PDF):
“…[W]e found that although the construction of the approximately $600 million NEC in a war zone in 34 months was a significant accomplishment, considerable construction deficiencies remained because designs for the facilities had not been completed and approved and quality control and commissioning procedures were inadequate.
We recommend the Department attempt to recover an estimated $43.2 million from First Kuwaiti to bring construction deficiencies to contract standards.
we estimated that approximately $33 million should attempt to be recovered from First Kuwaiti for incomplete and undocumented design work. Also, we identified that as a result of First Kuwaiti’s inadequate quality control program, it should be held accountable for additional maintenance charges of approximately $38 million that could carry over into future years. Further, we estimated recovering approximately $3.8 million from First Kuwaiti because commissioning activities either were not performed or were performed incorrectly.
In it’s response, the State Department’s Bureau of Administration said:
“The Contracting Officer will prepare a letter to the Contractor, detailing each of [the OIG] recommendations and request consideration from the Contractor in each amount recommended by the OIG.” The A Bureau requested that OIG provide the Contracting Officer information detailing the basis for computing the $132 million in costs recommended for recovery from First Kuwaiti. The A Bureau also stated, “The formal process to recover any funds from the contractor will be assessed in terms of overall benefit to the government.”
At that time, State/OIG said:
“The A Bureau’s response meets the intent of OIG’s recommendations to recover $132 million from the contractor attributable to construction deficiencies; incomplete and undocumented work; additional maintenance charges incurred because of inadequate quality control and commissioning procedures; and contract noncompliance, including liquidated damages and interest for an unauthorized advance. OIG and USACE will provide the contracting officer the requested support for the $132 million in questioned contract costs.”
We don’t know what happened to that recommendation for recovery of funds in 2009.
Fast forward to April 23, 2013, the Civilian Board of Contract Appeals (CBCA) issued a decision in First Kuwaiti Trading & Contracting W.L.L. v. Department of State contract dispute (CBCA 3069):
See the April 23, 2013 full decision (CBCA 3069) here.
Below are the New Embassy Compound Baghdad Contracts that the OIG audited in 2009. Note that the contract numbers cited by the CBCA decision are SALMEC-06-0049 and SALMEC-05-0020 for the New Embassy Compound in Baghdad. In the 2009 OIG audit, the two contracts are listed as SALMEC-06-C0049 and SALMEC-05-C0020; we note the appearance of the letter “C” in the two contracts listed in the 2009 OIG audit of the New Embassy Compound in Baghdad. (If you know what that means, do let us know).
So that was 2013. For more litigative payments, see @StateDept’s Litigative Payments FY2018-FY2020 Via Judgment Fund-$72,634,701.57.
Five years later, on December 3, 2018, the CBCA issued a “Motion for Partial Summary Judgment Granted In Part” in the First Kuwaiti Trading & Contracting, W.L.L. v. Department of State new contract disputes marked “CBCA 3506, 6167”:
“First Kuwaiti Trading & Contracting, W.L.L. (FKTC) appealed the denial of its claims by the Department of State (DOS) arising from the construction of the embassy compound in Baghdad, Iraq. FKTC presented approximately 200 cost claims that totaled $270 million. DOS moved for summary judgment on thirteen of those cost claims, challenging FKTC’s reliance upon the War Risks clause, the superior knowledge doctrine, the Changes clause, and the implied duty of good faith and fair dealing as the basis for these claims. DOS also asserts that actions underlying FKTC’s changes claims constitute sovereign acts, precluding liability pursuant to the sovereign acts doctrine.
We grant DOS’s motion regarding the scope of the War Risks clause and superior knowledge doctrine, thereby denying seven of FKTC’s claims that are premised solely upon these bases. We deny DOS’s motion regarding the claims that are also based upon the Changes clause or the implied duty of good faith and fair dealing, finding that there are disputed issues of fact. We also deny DOS’s motion regarding the sovereign acts doctrine, finding that DOS has not established the applicability of that doctrine on the current record. Six of the thirteen claims subject to the motion survive DOS’s challenge on this basis.”
The “Statement of Facts” include:
- A. Contract Price and Provisions Allowing for Adjustment of Contract Price
- B. War Risks Clause
- C. Security Requirements and Warnings
II. FKTC’s Claims Challenged by DOS (it’s quite a read):
- A. Duck and Cover Alarms
- B. Rocket Attacks—Three claims
- C. Equipment Repositioning
- D. Extra Security
- E. Retention Bonuses and Danger Pay
- F. Air Transport—Labor Hours
- G. Sand and Gravel Double-Handling
- H. Truck Convoy Delays, Truck and Driver Protection Requirements, and Truck Convoy Support Requirements
- I. Superior Knowledge Claims
The CBCA’s discussion includes:
- I. War Risks Clause Does Not Provide for Recovery on the Thirteen Challenged Claims
- II. FKTC Has Failed To Identify a Sufficient Basis for Its Superior Knowledge Claim
- III. Disputed Issues of Fact Preclude Summary Judgment on FKTC’s Changes Claims
A. FKTC Has Shown Disputed Issues of Fact with Regard to Changes Clause on Six Claims
B. DOS Has Not Provided Evidence to Support a Sovereign Acts Defense
- IV. Disputed Issues of Fact Preclude Summary Judgment on FKTC’s Implied Duty of Good Faith and Fair Dealing Claim
- V. Purported Lack of Contemporaneous Documentation is not Grounds for Summary Judgment
The Board’s decision is that “Respondent’s motion for partial summary judgment is GRANTED IN PART. Appellant’s claims based solely upon the War Risks clause and the superior knowledge doctrine challenged by Respondent are denied. The hearing in this matter will commence on January 22, 2019.”
See the December 3, 2018 decision (CBCA 3506, 6167 ) here.
HOLD ON. We’re just getting to the best part.
On Monday, April 1, 2019. the Civilian Board of Contract Appeals issued “GRANTED IN PART: April 1, 2019” judgement in First Kuwaiti Trading & Contracting, W.L.L. v. Department of State (CBCA 3506, 6167) dispute:
“On March 28, 2019, the parties submitted to the Board a joint motion for judgment on a stipulated settlement. The parties requested that the Board enter judgment in the amount of $62,500,000, with payment to be made through the permanent indefinite judgment fund in accordance with 31 U.S.C. § 1304 (2012). The amount includes all the interest to which appellant is entitled under the Contract Disputes Act. 41 U.S.C. § 7109. The parties have agreed that they will not seek appeal of, reconsideration of, or relief from the Board’s decision.
Decision: The Board GRANTS IN PART these appeals. In accordance with the parties’ joint motion, the Board awards appellant, First Kuwaiti Trading & Contracting W.L.L., the stipulated judgment amount of $62,500,000.”
See the April 1, 2019 decision (CBCA 3506, 6167) here.
So the CBCA document says the contractor presented approximately 200 cost claims that totaled $270 million. It got $62,500,000.
We’re sure the government would argue that this is a win, yeah? On the other hand, $62.5 million is more than the expected US investment in the local economy for the construction of US Consulate General Chiang Mai in Thailand at $45 million plus change. Or three times the USG investment in the local economy for the construction of the US Embassy in Namibia at $17 million.
(Correction: The US Embassy Namibia design build construction contract has a potential value of $173.4million; the New Consulate Compound (NCC) design build construction contract in Chiang Mai, Thailand has a potential value of $156.8 million. Thanks A!).
Oh … what’s that?
Pompeo threatens to close the US Embassy in Baghdad if Iraqi leaders don’t stop Iran-backed militias from firing rockets at Americans. The Iraqi prime minister now says European diplomats are also considering leaving. w/ @jakesNYT @EricSchmittNYT. https://t.co/OfXvrnZw2H
— Edward Wong (@ewong) September 29, 2020
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