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@StateDept’s $1,086,250 Organizational Study: Multiple Contractors Interviewed But Only 1 Offer?

Posted: 1:54 am ET
Updated: May 12, 1:02 pm PT

 

Via CBS News:

The State Department will be spending at least $1,086,250 for the “listening tour” that Secretary of State Rex Tillerson launched Wednesday morning.

The department has contracted Insigniam, a private consulting firm, to conduct the review in a project they are calling the “Department of State organizational study.” The State Department has not replied to requests for comment on the review’s price tag and their decision to use Insigniam to carry out this review.

Tillerson and the Insigniam co-founder Nathan Owen Rosenberg served on the Boy Scouts of America board together in 2011. The State Department has not replied to requests for comment on the review’s price tag and their decision to use Insigniam to carry out this review.

After Bloomberg broke the news on April 27 that Secretary Tillerson is seeking a 9% workforce cut and has hired the consulting company Insigniam to conduct a survey, we started looking for the contract awarded. We wanted to see the scope of work and the statement of work requirement included in this contract. We were able to find a $60M Professional Staffing Support Contract awarded on April 5, an Intent to Sole Source $34K Representational Furnishings on April 24  on FedBizOpps where federal business opportunities are typically posted, but not this one.

We understand that Insigniam was elected under a “sole source” contract. On May 1st, we emailed the State Department’s Bureau of Public Affairs for information on how and when this contract was awarded since we have not been able to find  the agency’s sole source justification for the job. As of this writing, the State Department has neither acknowledged nor responded to our inquiry.

Three contracts

We have since learned of three transactions (thanks Z!) issued to Insigniam LLC, a company based in Pennsylvania’s 2nd congressional district (PA02). The first contract SAQMMA17C0157 dated April 25, 2017 is valued at $850,000. The second contract SAQMMA17C0157 dated April 28, 2017 is valued at $236,250.  The third contract SAQMMA17C0157 is dated April 29, 2017 and does not have an obligated value. The third contract’s “Reason for Modification” is listed as “M: Other Administrative Action.”  All three contracts list May 30, 2017 as the “current” and “ultimate” completion date.

click on image to see the contracts via usaspending.gov

The funding for these contracts have been requested through the Bureau of Administration (State/A) but the Contracting Office is the State Department’s Acquisitions office (AQMMA). This is a definitive, firm fixed price contract.  The cost or pricing data is listed as “W: Not Obtained — Waived.”  The contract description says “Department of State Organizational Study.”

Multiple contractors interviewed but only 1 offer?

Under Competition Information, usaspending.gov lists this contract as “not competed”; the reason for the non-competition is listed as “Urgency.” This section also saysNumber of Offers Received: 1.”

The State Department apparently told CBS News that “they interviewed multiple contractors for the project before selecting Insigniam.”

“Of the proposals reviewed, Insigniam’s was the most cost-effective for the expertise, scope, and timeline needed, including its ability to survey and provide analysis of large organizations,” a State Department official told CBS News.  

So the State Department interviewed multiple contractors but those companies did not compete for this contract? And only one offer was received?

The company is listed on usaspending.gov as a partnership with 49 employees and an annual revenue of $12.7M.  The contracting officer determined it as a “small business”, “woman owned” and a “self-certified disadvantage business.” Under competition information, however, these contracts indicate “no set aside used” and “no preference used.”

The GSA confirmed to us that “the agency will dictate whether they are required to use GSA schedules or directly from a vendor. GSA has no say in how a customer orders needed materials or services.”

We are aware of only one previous organizational study conducted at the State Department (if there’s more, let us know!). There was  a study focused on the Foreign Service and was based on three management conferences held by the Department in 1965. It was conducted by Professor Chris Argyris of Yale University.  There were a few others through the years; we’ll try and see if we can find a good list to post here. 

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@StateDept to Outsource Embassy Life Support, Logistics, Maintenance Services Thru DiPSS

Posted: 3:33 am ET

 

It’s called the Diplomatic Platform Support Services (DiPSS).  On January 10, the State Department’s Office of Acquisition Management (AQM) published a notice for the combined synopsis and solicitation for Diplomatic Platform Support Services. The special focus is on the Middle East and South Central Asia regions but the contract also aims to provide “flexibility to support DoS posts and other U.S. Government activities operating throughout the world.”

The contract requires the Contractor to “support DoS activities and programs that may require DiPSS services in locations outside of the physical boundaries of Embassies and Consulates.”  The types of projects under this contract may include, but are not limited to: “food service, maintenance/repair of facilities, full spectrum operations of man camps, sewage and plumbing operations of facilities, leasing properties, refurbishing properties to include upgrading to meet high security requirements, laboratories, dining facilities and related structures, travel services for personnel, to include medical, limited security as deemed necessary by DoS, and insurance.”

Note that the State Department has already done this to our missions in Iraq and Afghanistan.  But it looks like DiPSS could be anywhere in the world as the requirement is for operation & maintenance services at various government installations located “in any country where the U.S. Department of State has a presence.”

 

On April 23, the State Department extended the date for submission of offers from May 5, 2017 to June 15, 2017.

Below is the announcement:

The solicitation may result in multiple awards of an Indefinite Delivery-Indefinite Quantity (IDIQ) type contract in the third quarter of fiscal year 2017. Task orders will be awarded as any type of cost arrangement authorized under FAR Part 16 as appropriate.

The scope of work requires the Contractor to provide Program Management, Procurement of Critical Items, Life Support Services, Logistics Services, Operation and Maintenance Services, Construction and Renovation Projects to U.S. Department of State facilities, and other U.S. Government facilities overseas. The work to be acquired under this solicitation is for logistical service, life & mission support services, and all other operation & maintenance services at various government installations located in any country where the U.S. Department of State has a presence, with a focus on high threat contingency environments. Types of projects may include, but are not limited to: food service, maintenance/repair of facilities, full spectrum operations of man camps, sewage and plumbing operations of facilities, leasing properties, refurbishing properties to include upgrading to meet high security requirements, laboratories, dining facilities and related structures, travel services for personnel, to include insurance.

This acquisition is set aside for small business. The NAICS number applicable to this solicitation is 561210. The Small Business Administration small business size standard is $38.5 million.

The basic contract period of performance will be for 12 months. Each contract contains nine (9) 12-month options for a maximum period of performance of ten years for each contract. The estimated maximum dollar value for all contracts combined, including the base year and all options, is $5,000,000,000. The estimated maximum value may be divided up among contract awardees. The minimum guarantee for a contract is $10,000, which will be paid during the performance period of the contract. Contractors are not guaranteed work in excess of the minimum guarantee.

The Contracting Officer or his properly authorized representative, who will issue written task orders to the contractors, will determine the actual amount of work to be performed and the time of such performance. The only work authorized under the contract is work ordered by the Government through issuance of a task order. The Government makes no representation as to the number of task orders or actual amount of work to be ordered. Each task order issued under an IDIQ contract may have a performance period of up to five years. Task orders will range between $5,000,000 dollars and $50,000,000 dollars on average with the ability to be awarded for as low as $25,000 Task orders may fall below or above this limit; however, contractors are not obligated to accept such task orders under the general terms of the contract.

Overview:

The U.S. Department of State (“DoS,” “State,” or “the Department”) require Diplomatic Platform Support Services (DiPSS) to provide a full range of services for Life Support Services, Logistics Services (LSS&L), and Operations and Maintenance (O&M) services to DoS and other U.S. Government agencies under Chief of Mission Authority and, under special circumstances, non-Chief of Mission activities across the globe. DoS anticipate a large portion of the contract work will focus on locations in the Middle East and South Central Asia contingency environments; however, DiPSS will be available to other Bureaus, Posts, Missions, and potentially agencies operating in other areas.

Minimum and maximum quantities:

The Government, through issuance of Task Order(s) or otherwise, shall pay a one-time minimum of $10,000.00 (inclusive of all direct costs, indirect costs, and profit/fee) within the contract’s period of performance (base period of one year plus nine option periods consisting of one year each).

The combined maximum quantity for the all contracts’ over the potential ten year period of performance (base period of one year plus nine option periods consisting of one year each) shall be any quantity or combination of supplies and services not exceeding $5,000,000,000.00 (inclusive of all direct costs, indirect costs, and profit/fee).

Background:

The DoS operates approximately 250 posts worldwide at any given time; this number changes as global situations dictate. […] Some posts are located in areas that are considered to have a high threat level; including areas with Department of Defense designated contingency operations.

Over the last five years, the AQM awarded 29 acquisition instruments (contracts, purchase orders, blanket purchase agreements, etc.) for Life Support Services & Logistics (LSS&L) and Operations & Maintenance (O&M) services in Middle East and South Central Asia. Several of the acquisition instruments have been relatively narrowly scoped, country or post-specific contracts.
[…]
The DiPSS contract will create opportunities for DoS to augment U.S. Government staff in situations overseas where demand for services exceeds U.S. Mission capacity to support, as well as capture significant savings; achieve economies of scale and promote efficiencies in back-office operations.

The objectives for the DiPSS contract include:

  1. Acquire LSS&L and O&M service and performance outcomes under broad global contracts supporting diplomatic platforms, with a special focus on the Middle East and South Central Asia regions but provide flexibility to support DoS posts and other U.S. Government activities operating throughout the world.
  2. Remove duplicative and unnecessary variations in U.S. Government requirements and inefficient processes to realize cost savings.
  3. Develop a group of highly reliable LSS&L and O&M Contractors, capable of supporting current and future needs of DoS and U.S. Government agencies and offices overseas.

Scope:

The Contractor shall provide the services identified in section C.2 for DoS and/or other U. S. Government agencies operating from diplomatic platforms falling under Chief of Mission (COM) authority or other U.S. Government facilities, as authorized by the DoS. The Contractor must support DoS activities and programs that may require DiPSS services in locations outside of the physical boundaries of Embassies and Consulates.

The Contractor must provide all personnel, equipment, tools, materials, supplies, transportation, supervision, and other services necessary to accomplish the requirements of this IDIQ contract and requirements of Task Orders awarded under this contract.

The work to be acquired under this DIPSS contract is for logistical service, life & mission support services, and all other operation & maintenance services at various government installations located in any country where the U.S. Department of State has a presence, with a focus on high threat contingency environments. Types of projects may include, but are not limited to: food service, maintenance/repair of facilities, full spectrum operations of man camps, sewage and plumbing operations of facilities, leasing properties, refurbishing properties to include upgrading to meet high security requirements, laboratories, dining facilities and related structures, travel services for personnel, to include medical, limited security as deemed necessary by DoS, and insurance.

Here is an item on Safeguarding Information:

The Contractor and its employees shall exercise the utmost discretion in regard to all matters relating to their duties and functions. They shall not communicate to any person any information known to them by reason of their performance of services under this contract which has not been made public, except in the necessary performance of their duties or upon written authorization of the Contracting Officer. All documents and records (including photographs) generated during the performance of work under this contract shall be for the sole use of and become the exclusive property of the U.S. Government. Furthermore, no article, book, pamphlet, recording, broadcast, speech, television appearance, film or photograph concerning any aspect of work performed un- der this contract shall be published or disseminated through any media without the prior written authorization of the Contracting Officer. These obligations do not cease upon the expiration or termination of this contract. The Contractor shall include the substance of this provision in all contracts of employment and in all subcontracts hereunder.

On Recruitment of Third Country Nationals:

On contracts exceeding $150,000 where performance will require the recruitment of non-professional third country nationals, the offeror is required to submit a Recruitment Plan as part of the proposal.

 

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US Embassy Kenya’s Local Guards Stage a Demonstration Over “Poor Pay”

Posted: 2:21 am ET

 

Kenya’s local media reports that a couple hundred local guards contracted to guard the US Embassy in Nairobi, Kenya staged a demonstration on Thursday over “poor pay.”  The guards citing the high cost of living in the country reportedly refused to go home after their night duty and demanded that the Aegis/KK Security Kenya’s East Africa Managing Director Nick Arnold address their grievances. Capita FM News said that the guards are asking for a pay increase from their current basic salary of Sh17,000 to Sh38,000 (about $164 to $367 in online forex converter) which they say has not been reviewed for more than a decade.

We understand that the local guard force has between 900-1000 members, and that this dispute has been going on since last month. This contract #SAQMMA17C0012 for a local guard program at US Embassy Nairobi is valued at KES3,837,264,329.27 (or $37M USD) and was awarded on November 23, 2016 to Aegis-KK Security.

The Contractor shall provide the organizational structure, management, and qualified staff at levels adequate to meet or exceed the requirement contained in the Performance Work Statement. The Contractor shall be required to provide services in a manner that prevent loss or injury to U.S. personnel, dependents, property; destruction of assets; to prevent unauthorized access; and deter potential terrorist attacks. Anticipated period of performance is one base year and four one-year options (to be exercised at the sole discretion of the Government).

We should add that in 2016, Canadian security firm GardaWorld International acquired African based KK Security, and incorporated it into its global network. Via Business Daily Africa:

GardaWorld has appointed Nick Arnold as the MD for East Africa. He brings over 20 years experience in Africa and wider Emerging Markets and has held senior management positions in the security industry.  Mr Arnold said GardaWorld’s seeks to grow presence in Africa by extending “our world-class security and protective services to international clients with growing presence on the continent.”

GovConWire notes that Aegis holds positions on DoD’s Reconstruction Security Support Services and the State Department’s potential $10 billion Worldwide Protective Services contract vehicles.

We asked the State Department about the reported new contract with Aegis/Garda, as we were told that the guards think the salary offered them are “peanuts.” We requested the DS bureau for comment and asked what the bureau is doing to ensure security for the mission during the ongoing dispute.

The Bureau of Diplomatic Security politely acknowledged our inquiry but later responded with “Thank you for your query. We are unable to offer any additional comments on this.‎”

This is not the first time that the guards have staged a demonstration or threatened to strike over pay.

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“Stoned” Guy in the Street Ruins U.S. Embassy Kabul’s Supposed Drug-Free Workplace

Posted: 4:10 am ET

 

The AFP reported last week that six employees of the U.S. Embassy in Kabul have been dismissed for drug use or possession.  The State Department confirmed that “six individuals were involved” but that they are not State Department employees according to AFP. The report does not indicate what drugs were used but Afghanistan remains the world’s top opium producer despite billions of dollar spent by the U.S. government there.

It’s not like this is the first time there have been major personnel issues at the U.S. Embassy in Afghanistan.

Some years ago both American and expatriate Diplomatic Security contract U.S. Embassy guard staff members (including supervisors) appeared naked in numerous photographs and were also photographed fondling each other. These photographed activities took place at parties in or around the guard staff housing compound, and were evidence of, not surprisingly, “a pattern of blatant, longstanding violations of the security contract.” See POGO writes to Secretary Clinton about US Embassy Kabul Guards.

In 2013, the Department of State’s Bureau of Diplomatic Security (DS) went looking for a contractor who would be responsible for administering drug tests to the estimated 1,300 security employees in Kabul. Noting that these “armed employees” in Kabul, who were “exposed to extreme conditions,” needed to be “reliable, stable, and show(ing) good use of judgment,” the cyclical drug testing (every six months) for amphetamines, opiates, benzodiazepines, barbiturates, cocaine, and marijuana was required.  So basically new contractors testing other contractors, see more here: State Dept Seeks Drug/Steroid Testing of Security Personnel in Afghanistan and Jerusalem.

But something obviously went wrong somewhere, hey? Sounds like the twice a year screening did not work. A person who appeared to be intoxicated was apparently noticed “wandering around in a state of confusion.” As a consequence, six U.S. Embassy Kabul mission members have been fired for allegedly using, possessing, and even selling illegal drugs. According to the Wall Street Journal, after investigators identified “the drug dealer” involved, his cellular phone was mined for contacts/leads and extensive searches of the embassy employees’ housing complex were launched, which led to the discovery of yet more drugs and more drug users.

According to the Wall Street Journal, most of the employees who were fired were American employees. Furthermore, this number allegedly includes contractors for Aegis/Garda. It is noteworthy that several years ago, dozens of Embassy Kabul guard staff members signed a petition accusing Aegis/Garda guard staff leaders of “tactical incompetence,” and shared that they had “a dangerous lack of understanding of the operational environment.” These American employees further called attention to serious gaps in the manned security of the compound, such as guard shortages at key guard positions.

In 2013, former Embassy Kabul security guards filed a class-action lawsuit against Aegis, claiming that the company refused to pay them for the overtime that they had worked while in Kabul. Though this lawsuit was later sent to arbitration, Senator Claire McCaskill (D-Mo.) noted her opposition to the State Department’s continued reliance on contractors for embassy security. “We’ve seen failure after failure after failure by these contracted individuals to be competent, professional, and thorough,” she stated.

Note that last year, the housing compound for U.S. Embassy Kabul security personnel was also hit by a bomb (see US Embassy Kabul: January 4 Attacks Target USG Employees at Camp Sullivan).  According to the Project on Government Oversight (POGO), the severity of the blast was significant. The blast radius was 100 meters wide, and the explosion left a crater that was fifteen feet deep. Half of the housing compound was rendered uninhabitable.

Aegis, the security contractor discussed above, was purchased by Garda/GardaWorld in 2015. Canada-based Garda, the world’s largest security services provider, acquired Aegis in order to expand their company presence throughout both the Middle East and Africa. Garda bids aggressively for embassy security contracts in places like Kabul. In 2015, it undercut former contractor Hart Security Australia with a three-year $72.3 million bid for Australia’s Department of Foreign Affairs and Trade (DFAT). In this case, Australian Security staff  reportedly faced a 60% wage reductions to keep their jobs. Read more about that here.

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@StateDept Contractor Pleads Guilty to Stealing USG Money by Falsifying Travel Expense Claims

Posted: 2:43 am ET

 

According to the U.S. Attorney’s Office for the Northern District of Florida, a State Department contractor who worked at USCG Jerusalem has pled guilty to stealing money from the U.S. Government by falsifying his travel expenses. When Timothy James Nelson, the defendant first began working in Jerusalem, the U.S. Department of State Regional Security Office made his hotel arrangements at the Waldorf Astoria Hotel in Jerusalem. The nightly rate at that hotel was $360.00 per night, which was the U.S. Government lodging per diem in Jerusalem.  The Government’s statement of facts alleged that beginning on or about July 3, 2015, the defendant elected to stay at a third location for a cheaper hotel rate but asked for travel reimbursements at the maximum lodging per diem. The defendant was reimbursed a total of $59,300 for five stays of different durations at Jerusalem Apartments. Since he was only charged half of that amount by Jerusalem Apartments, the defendant stole or converted for his own use $29,650 from the U.S. Department of State. See the attached documents below:

Navarre Man Pleads Guilty to Stealing Money from the Government by Falsifying Travel Expense Claims

PENSACOLA, FLORIDA – Timothy James Nelson, 36, of Navarre, Florida, has pled guilty to theft of government funds. The guilty plea was announced by Christopher P. Canova, United States Attorney for the Northern District of Florida.

Documents introduced at the time of the guilty plea reflect that, between July 1, 2015, and April 1, 2016, Nelson submitted false travel expense claims for hotel stays to steal $29,650 from the U.S. Department of State. Nelson did so while working as a contractor in Jerusalem for a security company installing and repairing communication equipment in vehicles operated by employees of the U.S. Department of State.

Nelson faces a maximum of 10 years in prison. The sentencing hearing is scheduled for June 16 at 1:00 p.m. at the United States Courthouse in Pensacola.

The case was investigated by special agents from the United States Department of State’s Office of Inspector General (DOS-OIG), Steve A. Linick inspector general. It was prosecuted by Assistant United States Attorney J. Ryan Love.

The United States Attorney’s Office for the Northern District of Florida is one of 94 offices that serve as the nation’s principal litigators under the direction of the Attorney General. To access public court documents online, please visit the U.S. District Court for the Northern District of Florida website. For more information about the United States Attorney’s Office, Northern District of Florida, visit http://www.justice.gov/usao/fln/index.html.

Financial Fraud
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Taliban Attacks German Consulate, Building Previously Abandoned by USG For Being “Too Dangerous”

Posted: 2:04 am ET

In December 2009, the US Embassy in Kabul announced that Ambassador Karl W. Eikenberry and the Foreign Minister of the Islamic Republic of Afghanistan, Dr. Rangin Dadfar Spanta, signed a new agreement under which the United States would lease an historic 1930’s hotel in Mazar-e-Sharif for use as the new U.S. Consulate. At that time, the United States has agreed to invest approximately $26 million to renovate the Mazar Hotel facility so that it may be used as an office building and housing for consulate employees (see US Consulate in Mazar-e-Sharif Moving Forward and DIY Home Renovation Opportunity in Mazar-e-Sharif.

After signing a 10-year lease and spending eventually more than $80 million on a site envisioned as the United States’ diplomatic hub in northern Afghanistan, American officials were reported to have abandoned their plans, deeming the location for the proposed compound too dangerous according to WaPo in May 2012. The WaPo report cited an internal memo written by Martin Kelly, then acting management counselor at the U.S. Embassy in Kabul saying that the facility was far from ideal from the start:

The compound, which housed a hotel when the Americans took it on, shared a wall with local shopkeepers. The space between the outer perimeter wall and buildings inside — a distance known as “setback” in war zone construction — was not up to U.S. diplomatic standards set by the State Department’s Overseas Security Policy Board. The complex was surrounded by several tall buildings from which an attack could easily be launched.[…] Responding effectively to an emergency at the consulate would be next to impossible, Kelly noted, because the facility does not have space for a Black Hawk helicopter to land. It would take a military emergency response team 11 / 2 to 2 hours to reach the site “under good conditions,” he said.”

Also this:

In December (2011), embassy officials began exploring alternative short-term sites for their diplomatic staff in northern Afghanistan. A Western diplomat familiar with the situation said the United States has sought, so far in vain, to persuade the German and Swedish governments to sublet it. The diplomat, who spoke on the condition of anonymity because he was not authorized to speak about the matter, said European diplomats have found the prospect laughable.”

Read more US Consulate Mazar-e-Sharif: $80 Million and Wishful Thinking Down the Drain, and Not a Brake Too Soon.

In June 2013, the German Consulate opened at the old Mazar Hotel in Mazar-e-Sharif.

Last Thursday, a suicide bomber rammed a truck into the German Consulate in Mazar, killing at least six civilians and wounding 120.  The Telegraph reported that Afghan special forces have cordoned off the consulate, previously well-known as Mazar Hotel, as helicopters flew over the site and ambulances with wailing sirens rushed to the area after the explosion. On November 12, the US Embassy in Kabul announced that it will be closed for routine services on Sunday, November 13 as a temporary precautionary measure.

We don’t as yet know if this property with a 10-year USG leased was sublet by the German Government or purchased by the Germans from its owners. We will update if we know more. There were local casualties but there were no reported casualties for German consulate workers. We understand that this was a reasonably secure building after all the fit-out and upgrade work was done prior to the USG suspending the project in 2012 but that the site is hemmed in by other structures and too close to high-traffic venues like the Blue Mosque. Then Ambassador Ryan Crocker decided that the location was too risky when he arrived in Afghanistan and so the USG abandoned this building.

Snapshot: State Department Workforce Composition By Employment Category – 2016

Posted: 12:13 am ET

Via state.gov:

The State Department says that it employs a workforce of over 80,000 employees. The figure below shows the composition of the 2016 workforce by employment category. Total number of agency employees excluding contractors: 74,721 (FS: 13,948 includes Generalist – 8,196; Specialist – 5,752; Civil Service at 11,037) and Locally Employed Staff at 49,736 (includes Foreign Service Nationals (FSNs)and Personal Services Agreements/Contracts). We have not been able to locate a good number for contractors.

In April 2016, there were 11,861 adult family members overseas, of which 29% or 3,436 FS family members were employed by the USG at missions overseas.

via state.gov

via state.gov

 

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#Benghazi News: What did the ARB and Benghazi Committee know about Alamir, Eclipse and Xpand?

Posted: 3:53 am ET

 

Via HuffPo:

A middleman the State Department relied on to hire unarmed guards at the U.S. facility in Benghazi, Libya, previously worked with a company that’s now at the center of a massive international bribery scandal.

The FBI and law enforcement agencies in at least four other countries are investigating allegations ― first published by The Huffington Post and Fairfax Media ― that a Monaco-based company called Unaoil bribed public officials to secure contracts for major corporations in corruption-prone regions. In Libya, Unaoil partnered with a Tripoli-based businessman named Muhannad Alamir. A former Unaoil employee who served as a confidential source for the FBI told investigators that Unaoil and Alamir bribed Libyan officials. Unaoil and Alamir deny they bribed anyone.

Alamir started working with the State Department in early 2012, less than three years after cutting ties with Unaoil. He provided Blue Mountain Group, the small British security firm that won the Benghazi guard contract, with the license it needed to legally operate in Libya.
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Despite the damning internal review and seven prior congressional probes, House Republicans voted overwhelmingly in 2014 to establish a special committee to further investigate the 2012 attack. Two years and $7 million later, the committee released an 800-page report. Democrats dismissed it as a partisan attack on Clinton, by then their expected presidential nominee.

The report echoed earlier criticisms of security lapses, but revealed little substantive information about the contracting process that contributed to the problem. The Benghazi committee report mentioned Blue Mountain 12 times. Alamir, Eclipse and Xpand weren’t mentioned once.

 

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Sexual Assault at a State Dept-Leased Apartment: If This Isn’t Abysmal Failure, What Is It?

Posted: 7:01 pm ET

 

This is not a new case but we have not been aware of this case until we started digging around.  In 2009, a Policy Analyst with the Department of Homeland Security (DHS) worked as a liaison to the State Department (the Agency).

According to EEOC records, in and around May 2009, the DHS employee (Complainant) was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was a State Department contractor. The incident took place in a State Department-leased apartment in Prague, Czech Republic. The EEOC decision dated June 16, 2011 notes that the accused individual subsequently became a permanent employee of the Agency.

The complainant had to make several attempts to report the sexual assault. She was eventually directed to contact the EEO office at DHS, who took no action, and refused to take her case because the attacker was not a DHS employee. She was sent to the Violent Crimes Unit of Diplomatic Security, who investigated the case and referred it to DOJ for prosecution. DOJ took no action. A DS investigator advised her to contact State/OCR. She interacted with that office for 6-7 months but these “activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications” according to the EEOC.

Whiskey Tango Foxtrot!

Then State/OCR dismissed the case for failure to state a claim and untimely contact with an EEO counselor.

Sexual assault is a crime punishable by law. Sexual assault and sexual harassment are not the same.  Sexual assault describes the catch-all crime that encompasses unwanted sexual touching of many kinds, with links to state penal code and federal law on related crimes.  It includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact) or attempts to commits these acts.

FindLaw notes that Federal law directs judges to examine a number of factors, including the defendant’s criminal history and his or her acceptance of responsibility, when setting a punishment. The federal law criminalizing sexual assault sets a maximum sentence of 20 years in prison, and also provides for fines. In addition, federal law provides that those convicted of sexual assault must compensate their victims for any expenses directly related to the crime. This can include costs for medical care, physical or occupational therapy, attorney’s fees, and other related expenses.

But first, you’ve got to investigate, charge the perpetrator and find him or her guilty.

The complainant here alleged that she was sexually assaulted in USG-leased housing, why did people send her to an Equal Employment Opportunity office for godsakes? Why did DOJ take no action? If there was probable cause for Diplomatic Security to refer this case to DOJ for prosecution, how did the contractor become a State Department employee? This incident happened in 2009, the victim did not get to file her case until a year later, and the EEOC did not make a decision until 2011. At some time during this lengthy process, the victim resigned from federal service. The unnamed alleged attacker may still be in the bureaucracy.

Sure, we could call this abysmal systems failure.

But just about every part of this process was deplorably bad. And the people who worked in the system made it so.

Excerpts below from the EEOC decision (we underlined some parts for emphasis):

Reporting sexual assault — Whiskey Tango Foxtrot!

In and around May 2009, Complainant was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was an Agency contractor.1 This individual subsequently became a permanent employee of the Agency. The record does not indicate in what capacity he was employed or the date his employment began.

After making several attempts to report the sexual assault and being redirected to various components in DHS, Complainant was eventually directed to contact DHS’ EEO office, which she did on June 1, 2009. The record suggests that DHS engaged in limited EEO counseling, but took no action to process Complainant’s allegations as a potential EEO complaint.  Instead, approximately a week after her June 1 contact, DHS effectively dismissed Complainant from the EEO process, concluding that it could not entertain her issues because the alleged attacker was not its employee.  DHS then advised Complainant to contact the Agency, which she did on June 11, 2009.

Soon thereafter, a criminal investigation was initiated by the Violent Crimes Unit of the Agency’s Office of Diplomatic Security. Complainant was cautioned to refrain from discussing the May 10 incident until the investigation was complete. In October 2009, the Agency referred the matter to the Department of Justice (DOJ) for prosecution upon finding probable cause to believe Complainant’s allegations were true. For reasons not reflected in the record, DOJ took no action.

On October 23, 2009, pursuant to the advice of the Violent Crimes Unit investigator, Complainant contacted the Agency’s Office of Civil Rights (OCR). During the next six or seven months, she interacted with various OCR representatives whose activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications.  On May 24, 2010, Complainant filed a sparsely worded formal complaint which contained a single averment of discrimination relating to the sexual assault and several items of requested relief.

In a September 28, 2010 FAD, the Agency dismissed the May 24 complaint upon finding that it failed to state a claim and that Complainant failed to timely contact an EEO counselor.  The instant appeal followed. We note that Complainant is pro se.

Contentions on appeal

In a statement accompanying her appeal, Complainant argues that the chronology of relevant events belies the Agency’s finding that she was untimely in initiating EEO counseling. She also appears to raise questions regarding the trustworthiness of the FAD (final agency decision) by noting several errors of fact reflected in the Agency’s reasoning. The Agency filed no response.

EEOC reversed the State Department’s dismissal

The Agency does not dispute that the alleged assault occurred on May 10, 2009.  Nor does it dispute that Complainant first sought counseling on June 1, 2009 with DHS. The Agency’s finding that Complainant was untimely is premised on the apparent view that her DHS contact had no significance under subsection 105(a)(1). We conclude that it did. To rule otherwise would require the Commission to ignore the plain wording of the subsection, which provides only that aggrieved individuals contact “a” Counselor within the stated time. There is no requirement that the Counselor be from the agency that receives the complaint.3  In this case, Complainant logically initiated contact with a Counselor in the agency where she was employed.

It is self-evident that June 1, 2009 is within 45 days of May 10, 2009. We, therefore, find that Complainant’s counseling contact was timely and reverse the Agency’s dismissal on this ground.

Alleged perpetrator went from contractor to employee

The Commission’s regulation at 29 C.F.R. § 1614.107(a)(1) authorizes an agency to dismiss a complaint that fails to state a claim that can be remedied through the EEO process.  In its FAD, the Agency concluded that Complainant failed to assert a remediable claim because neither she nor her alleged attacker was functioning in work status when the “event in question” occurred. The non-work status of Complainant and her alleged attacker, on May 10, 2009,  would likely be dispositive of this appeal were we to find that the “matter” in question, when the complaint was filed, was clearly confined to the alleged assault.4 Such a finding cannot be made, however, on the basis of the current record.

We are mindful, initially, that the counseling process was unduly erratic and prolonged in this case. Indeed, more than a year had elapsed before Complainant was provided the opportunity to file a formal complaint. Several events occurred, in the interim, which are potentially relevant to the sufficiency of her complaint.

For instance, by the time the complaint was filed, there had been a change in status of the individual the Agency believed had “probably” assaulted Complainant. He went from being an Agency contractor to an Agency employee. Although it is not clear whether, as a DHS “liaison” to the Agency, Complainant had (or would have)  been required to work with (or for) this individual, we find it significant that, at some point prior to filing the complaint, Complainant resigned from federal service. The record suggests that the resignation was under duress and may have related to a requirement that she refrain from discussing her ordeal.  See Complaint File, April 21, 2010 email from Complainant to named Agency official (“I don’t want to be forced to keep [the attacker’s] secret when I’m the one being hurt and losing.”)

At this juncture, we do not know how (if at all) Complainant’s employment may have been affected by the May 2009 incident. The record is wholly undeveloped in this regard. However, we can say that, if the Agency had directed Complainant to remain silent in order to protect the alleged attacker or facilitate his employment, it could hardly be found (as the Agency did) that the incident did not “involve” any term or condition of her employment. Without suggesting that the known facts in this case, by necessity, implicate a potential claim of “sexual harassment,” it is relevant to note that the Commission has recognized that harassment which occurs outside of work may state a claim when the effect of the off-duty incident creates an “intolerable influence on the employee’s working conditions.” Kokangul v. Department of the Army, EEOC Appeal No. 01A61380 (July 6, 2006)

Deficient EEO processing — looking at you S/OCR

We make no finding with regard to the existence of a viable discrimination claim arising from the May 2009 incident. We merely find that deficiencies in processing, as well as the record, render it impossible to determine the full measure of the concerns Complainant sought to pursue through the EEO process.  The quality of the EEO counseling, provided by the Agency and DHS, left much to be desired in terms of ensuring the record would be adequate to assess the sufficiency of any formal complaint that Complainant might file.

Incomplete files

It is unclear, for example, why the Complaint File does not include the Violent Crime Unit’s report, given its obvious relevance to the matter that prompted Complainant to seek EEO counseling. Also inexplicably missing from the record is a “statement” Complainant apparently prepared during the course of the counseling process.6 The absence of this and other information renders the record insufficient to determine the nature of any claim Complainant may have sought to assert.

Should have – what, whose contractor?

Finally, we note that the Agency also relied on 29 C.F.R. § 1614.106(a) as a ground for dismissing the complaint, finding that Complainant should have filed it against DHS because the alleged attacker was a DHS contractor.7 This ground is also found to be without merit. There is nothing in the record that contradicts the statements made by Complainant and others that her attacker was a contractor (and later an employee) of the Agency—not DHS.

*

The complainant here would have been under chief of mission authority in Germany where she was assigned a tour of duty. We don’t know what would have been her status in the Czech Republic where the alleged attack took place. But the incident occurred in a State Department-leased apartment. So we expect that the State Department would have been the investigating authority.  This case happened in 2009 and decided by the EEOC in 2011.  This got us thinking on what procedure is in place for reporting sexual assault in the Foreign Service.

We’ve spent the last several days trying to locate the Foreign Service Manual or Foreign Affairs Handbook for the procedure in reporting sexual assault in the Foreign Service, but have been unsuccessful, so far. We were able to find 7 FAM 1940  REPORTING CRIME VICTIM CASES, but this section only apply to non-official, private Americans and the reporting covers only crimes reported to a consular officers abroad by victims, their families or by the host country government and which result in a consular officer or officers providing substantial assistance to the victim.

We’ve asked the State Department for its sexual assault regs and guidance; we’ve received a response but it deserves a separate post.

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OPM’s Security Clearance Backlog Now At 500,000+ Govt-Wide

Posted: 4:14 am ET

 

The State Department recently sent an agency-wide message from the Under Secretary for Management which provide timelines for job applicants and employees who are in the process of applying or renewing their security clearances. The Bureau of Diplomatic Security adjudicates security clearances and renewals for all State Department employees but we understand that contractors are mostly processed by the Office of Personnel Management (OPM).  The message notes that OPM currently has a backlog of more than 500,000 clearances government-wide.

In terms of length of adjudication, apparently 60% of the Department’s initial Top Secret investigations are completed within six months while 66% of its initial Secret investigations are completed in four months. When compared government-wide, the Department adjudicates security clearances much faster than the government-wide average. So that’s good, except, of course, if you’re the one waiting for it, six months is a loooong time. We don’t know what is the average wait time for the remaining 40% awaiting their TS clearance or the 34% awaiting for their Secret clearance?

But the OPM backlog of more than 500,000 clearances government-wide? Not so good.  With a new administration transitioning in next year, waiting for a security clearance may just be like Beetlejuice waiting at the DMV without an appointment.

Via reactiongifs.com

Via reactiongifs.com

In related news, OPM is also in the news because the House Oversight and Reform Committee released its report yesterday on The OPM Data Breach: How the Government Jeopardized Our National Security for More than a Generation (read PDF or read below).  The report details the  exfiltration by two hacking teams of the security background data on 21.56 million individuals, the personnel files of 4.2 million former and current US government employees and the fingerprints for 5.6 million of them.

You will not be surprised to hear that OPM/OIG has warned since at least 2005 that the information maintained by OPM was vulnerable to hackers. US-CERT had also warned the department of a malware  operating on its servers in 2012, and again in 2014, CERT warned that a hacker had managed to get information out of the OPM servers. The report notes that the damage could have been mitigated if the security of the sensitive data in OPM’s critical IT systems had been prioritized and secured.

Read the report here:

 

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