@StateDept’s Mystery Illness: The “It Depends” Treatment of Injured Personnel

Via NYT:

According to a whistle-blower complaint filed by Mr. Lenzi, the State Department took action only after Ms. Werner’s visiting mother, an Air Force veteran, used a device to record high levels of microwave radiation in her daughter’s apartment. The mother also fell ill. That May, American officials held a meeting to reassure U.S. officers in Guangzhou that Ms. Werner’s sickness appeared to be an isolated case.
[…]
But Mr. Lenzi, a diplomatic security officer, wrote in a memo to the White House that his supervisor insisted on using inferior equipment to measure microwaves in Ms. Werner’s apartment, calling it a “check-the-box exercise.”

“They didn’t find anything, because they didn’t want to find anything,” Mr. Lenzi said.

He sent an email warning American diplomats in China that they might be in danger. His superiors sent a psychiatrist to evaluate him and gave him an official “letter of admonishment,” Mr. Lenzi said.

Months after he began reporting symptoms of brain injury, he and his family were medically evacuated to the University of Pennsylvania.
[…]

The State Department labeled only one China officer as having the “full constellation” of symptoms consistent with the Cuba cases: Ms. Werner, the first evacuee. In an internal letter, the department said 15 others in Guangzhou, Shanghai and Beijing had some symptoms and clinical findings “similar to those” in Cuba, but it had not determined they were suffering from “Havana syndrome.”

Doctors at the University of Pennsylvania said they did not share individual brain scans with the State Department, so the government lacked necessary information to rule out brain injuries in China.

“It seems to me and my doctors that State does not want any additional cases from China,” Mr. Garfield wrote, “regardless of the medical findings.”

New @StateDept Bureau to Take $26 Million, Plus 98 Staffers From the Medical Services  Bureau

Updated 1:24 pm PDT 
We just learned that the Under Secretary for Management Brian Bulatao is pushing for the formation of a new bureau called Crisis and Contingency Response (CCR) under the Management umbrella. This would expand the “M” family to 14 bureaus and offices (including a more recent creation called Office of Management Strategy and Solutions (M/SS). 
We understand that Mr. Pompeo has formally signed off on this new office.  CCR will reportedly take $26 million funding from the Bureau of Medical Services (MED). It will also  pull 98 positions from MED and it will share EX and IT services with the Medical Services bureau.   
We also learned that the “7th floor loves Dr. Will Walters” because he and his Directorate of Operational Medicine are reportedly not only “providing OpMed flights during COVID, repatriation flights, logistics flights, but have also provided the Secretary with medical support during his travels.”
“Very sexy stuff, whereas what MED providers do is the more mundane day-to-day care of diplomats and their families overseas.”
Many medical providers are said to be up in arms about the rapid formation of this new Bureau — which happened in a span of just four months — with apparently no input from the field.
“Medical services to diplomats and their families abroad may suffer.”
We asked what are the potential consequences to MED and its patients, and we’re given a quick rundown by Sender A:
    • Since MED and the CCR Bureau share EX and IT, there is widespread concern that MED staffing and funding will be given short shrift in this new configuration.
    • What might happen is fewer FS medical providers whom MED is allowed to hire, leaving positions overseas unfilled.
    • Other critical “back office” functions in MED, if not supported by the new shared EX, might become understaffed.
    • If sections such as MED Foreign Programs (authorization and funding of Medevacs and hospitalizations, referrals to WDC medical providers) do not have sufficient staffing and funding, service to FSOs and EFMs abroad will certainly be noticed in terms of delayed or denied authorization and funding cables.
    • If the MED/GSO section does not receive sufficient funding/staffing, delivery of essential medications and vaccines will be delayed or nonexistent.
Our source said that a town hall was held last week concerning this new bureau.  Many medical providers reportedly submitted questions ahead of time, but “the vast majority of the one-hour time slot was taken up my monologues from Bill Todd and Will Walters.” 
Source added that “both were very good at smoothly blowing by the concerns raised by MED.”
We understand that Todd did not explain why a separate Bureau was being created, but almost everyone in MED apparently viewed this as “the ultimate bureaucratic power play.”
Bill Todd is the Deputy Under Secretary for Management (formerly Acting M, Acting DGHR going back to Tillerson’s fun times in Foggy Bottom).  He is awaiting committee and Senate vote to be the next U.S. Ambassador to Pakistan. Time’s running out. 
Dr. William Walters’ February 2020 bio posted in congress.gov says that he is a member of the Senior Executive Service (and former US Army medical officer). His bio says he is the Acting Deputy Chief Medical Officer for Operations and the Acting Executive Director for the Bureau of Medical Services. Further, it says that “As the Managing Director of Operational Medicine, Dr. Walters is responsible for the Office of Protective Medicine and the Office of Strategic Medical Preparedness and manages the care of the Secretary of State and traveling delegation while traveling abroad.”
The MED Bureau was last inspected by State/OIG in mid 2000 and the OIG issued a report in June 2006. So it is due for a new review. According to OIG, in 2006 (lordy, that’s 14 years ago!), MED had the following:

“192 health units in embassies and consulates abroad. MED’s direct-hire overseas staffing includes 45 regional medical officers (RMO), who are physicians, 16 regional psychiatrists, 72 health practitioners, 10 laboratory technicians, and three regional medical managers, supplemented by 250 locally employed staff. […] Overseas, MED serves patients from 51 U.S. government agencies. This patient population includes approximately 50,000 direct-hire employees and family members who are full beneficiaries of the program and about 70,000 locally employed staff, for whom MED provides treatment for on-the-job injury and illness. In 2004, there were 230,000 health unit visits and MED facilitated 635 medical evacuations to the United States and 350 medical evacuations to overseas centers.”

We understand that current staffing includes 250 Foreign Service Medical Specialists ( RMO, MP, RMLS, RMO/P) plus LNA nurses and Social Workers in some posts. MED’s workforce reportedly also includes around 1000 LES staff who work in health units abroad. This staffing number does not include the Civil Service employees working for MED in Washington, D.C.
Under current staffing, how many employees will be left at MED after 98 employees are pulled to staff the new CCR bureau?
What will be the direct consequences of gutting MED’s fund by $26million in order to fund the new CCR bureau?
What is the rational justification for creating a new bureau like CCR separate from MED? Why now? Is this a case of strike now why the iron is hot, there may not be another mass evacuation due to a pandemic soon?
What is the issue with keeping the Directorate of Operational Medicine as the arm for crisis and contingency response under MED? 
Why are they calling this the Crisis and Contingency Response (CCR) Bureau and not the Medical Crisis and Contingency Response (MCCR) Bureau, hmmmn? Will this new bureau be headed by an assistant secretary level appointee subject to Senate confirmation?
Hey, wait, wait a minute –is some hombre considering this new bureau as the crisis and contingency response lead in medical and non-medical crisis? The name is kind of a tell.  We’d like to hear the big picture, tell us more.
You know, we’ve heard of the Crisis Management and Strategy arm that’s operating out of Ops Center for decades. They do great work. We’ve never heard those folks start a new bureau.
Update 1:24 pm PDT: 
It looks like the State Department needs to send Congressional notification to create a new bureau. In May 2019, the State Department merged the Bureaus of Public Affairs (PA) and International Information Programs (IIP) to create the new Bureau of Global Affairs. That merger did not happen overnight:
“In the summer of 2018, a task force of PA and IIP colleagues collaborated with bureaus and offices Department-wide to design a proposal for the new merged bureau. Extensive consultation with Congress as well as key leaders and organizations both inside and outside of the Department continued throughout 2018 and early 2019. Following State Department approval and congressional notification, the new Bureau of Global Public Affairs became a reality in May 2019.”
So how fast do you think State can do all that and its congressional notification obligation for this new entity? 
It’s 13 days, 8 hours, 31 minutes to Election Day. Go VOTE!

How @StateDept Handles Domestic Violence Overseas: One Example and Some Questions

 

In the many years that we’ve watched the State Department, or asked questions about assaults, harassment, or domestic violence, we seldom see a public accounting of how the agency handles these cases, particularly overseas.  State had such a case in 2018. And we’re only seeing it now because the case landed in the U.S. Equal Employment Opportunity Commission.  The EEOC case came from a complainant who was previously assigned to an overseas post in the Bureau of Near Eastern Affairs (NEA).
On November 7, 2018, Complainant filed an EEO complaint alleging that the Agency [State Department] subjected him to discrimination and a hostile work environment/harassment on the basis of sex (male), status as a parent, and in retaliation for “whistleblower activity”. The EEOC notes that “With respect to Complainant’s allegations on appeal of violations of the U.S. Constitution, whistleblower protection laws, criminal laws, and tortious laws not addressed by EEO laws, these laws are not within the purview of the EEO complaint process.”.
The State Department concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On March 13, 2020, the EEOC issued a decision which affirmed the Agency’s final decision. Excerpt from Appeal No. 2019005790:
The Agency accepted the complaint as to the alleged basis of sex and conducted an investigation, which produced the following pertinent facts:
Complainant was assigned to the Agency’s facility [/], accompanied by his spouse (“Spouse”) (female) and children. He and his family resided in U.S. government-supplied housing.
On September 21, 2018, Spouse reported an incident of domestic violence to the Deputy Regional Security Officer (Deputy RSO), alleging Complainant assaulted her. The alleged assault occurred on September 9, 2018, while they were on vacation in Poland. Deputy RSO attested that, based on Spouse’s report, it was reasonable to believe that domestic violence had occurred, and he reported the situation to the front office and the Office of Special Investigations (OSI), as required by Agency policy.
The Agency’s Family Advisory Team (FAT) was advised of Spouse’s report of domestic violence and they recommended that, in the best interest of the family, Complainant and Spouse be separated for a cooling down period. One factor in the decision was Spouse’s comment that she was afraid of Complainant’s finding out that she made the report. Members of the FAT recommended the separation out of concern for further violence, without a determination as to the veracity of Spouse’s allegations, until a decision could be made as to the next steps. The Deputy Chief of Mission instructed that Complainant be removed from the residence, pending further deliberations by the FAT.
On September 21, 2018, Deputy RSO and two other Agency employees went to the residence Complainant shared with his Spouse and their children and informed Complaint that he was being relocated to a hotel. Complainant and Spouse were instructed not to contact each other until a decision was made about the alleged domestic violence incident. Complainant cooperated and was escorted to a hotel.
On September 25, 2018, Complainant reported to Deputy RSO that Spouse was the aggressor in the domestic violence incident. Deputy RSO instructed Complainant to communicate with OSI, as they had jurisdiction.
In the instant complaint, Complainant alleged sex was a factor because he was required to leave the residence, while Spouse remained in the home with their children.
On September 26, 2018, Complainant met with a Human Resources Officer (HRO) and Agency security personnel and was informed that he must immediately leave the post and return to the United States. He was given the choice of voluntary or involuntary curtailment. He was informed that the issues facing his family could not be addressed locally and resources were not available to manage his family situation. Complainant agreed to a voluntary curtailment because the official reason would be classified as personal and there would be no discipline. He also attested that he selected voluntary curtailment because, even though he was the victim of Spouse’s assault, he did not believe he would have any support at the post.
HRO explained that when there is a conflict between two members of a household and one or more of the individuals are direct hires, the Agency policy is to curtail the direct hire. She further explained that this approach is preferred as there is an unwillingness to involve the local police in a potential domestic violence situation. She explained that the post cannot adjudicate claims and make a determination, as that authority rests with OSI. She explained that the post has no authority to require a family member of a direct hire to leave the country and the only viable option is to require the direct hire to curtail, which then will require the spouse or other family member to vacate the government-supplied housing.
The Deputy Chief of Mission attested that she made the decision to curtail Complainant, as this was the third occasion of serious behavioral incidents involving Complainant since he arrived, less than a year ago and, based on the advice from FAT, she instructed that he be given a choice of voluntary or involuntary.
On September 28, 2018, Complainant returned to the United States. Spouse and their children remained behind to pack their belongings and arrived in the United States on October 17, 2018.
Upon his arrival in the United States, Complainant was informed by Diplomatic Security that an update for approval of his security clearance had been initiated “for cause.” Complainant’s security clearance was not scheduled to expire until June 2021. Complainant alleged that the review of his security clearance was initiated by the post to support their decision to remove him from [post].
The Office Director of DS/SI/PSS explained that he was, in part, responsible for the investigation and adjudication of security clearances for the Department and Complainant was subject to an “out of cycle” investigation regarding his security clearance because of the reports received from a Diplomatic Security investigation alleging potential misconduct. He explained that the investigation was “for cause,” non-routine, and pursuant to regulations.
With respect to the alleged harassment, Complainant attested that, on November 7, 2018, the Agency notified him that he was the subject of an administrative inquiry into allegations that he was a harasser.
He explained that he learned that, during a social setting, he made a comment about Spouse that might have been considered a distasteful joke but did not rise to the level of harassment. He also alleged that, during a meeting with the American Foreign Service Association and Human Resources, a Human Resources representative asked him when he anticipated retiring.
[…]
The Agency explained that, following Spouse’s report of domestic violence, the Agency felt it in the best interest of the family that Complainant and Spouse be separated for a cooling down period, pending a determination as to what steps were next. The Agency further explained that there is an unwillingness to involve local authorities in such matters and it lacks the authority to adjudicate such matters. The Agency explained that in such situations involving a direct hire employee and an accompanying spouse, it is the Agency’s policy to curtail the direct hire, which would then cause the spouse and family to be required to vacate the government-supplied housing. The Agency also explained that Complainant was subject to an “out of cycle” investigation regarding his security clearance because of the reports of alleged potential misconduct. We note that, although Complainant and Spouse disagree as to who initiated the domestic violence, Complainant does not deny that the domestic violence occurred. We find the Agency’s actions of separating the spouses, sending the employee back to the United States, and subjecting him to another security investigation to be reasonable under these circumstances. Therefore, although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to any of these claims.
The links to the related regs are below. In this case, State told the EEOC that “there is an unwillingness to involve local authorities in such matters and it lacks the authority to adjudicate such matters.” And yet, 3 FAM 1815.2 says:

d. If the initial report is substantiated, action may include one or more of the following: (1)  Post may call upon local authorities or resources in certain cases; […] (5)  Post may be asked to call upon shelter and child protection resources or find alternative shelter within the post community for the victim and any children.

Seriously though, why are these options decorating the FAM if they are never real options? In certain cases? Which cases would there be a willingness for post to call upon local authorities to settle a domestic violence case?
Perhaps the most striking thing here — well, a couple of things. 1) “Complainant agreed to a voluntary curtailment because the official reason would be classified as personal and there would be no discipline”; and 2) the Agency’s point that “the only viable option is to require the direct hire to curtail, which then will require the spouse or other family member to vacate the government-supplied housing.”
And then what?
The spouse and children returns to the United States. To where actually? To get back with the spouse? To a halfway house? To a homeless shelter? What actually happens to the family upon return to the United States following a report of domestic violence overseas? Folks do not always have houses in the DC area, spouses may be foreign born with no families in the DC area. In most cases, the household effects and those on storage are also under the employee’s name only (unless the spouse made prior arrangements).
So what happens next? Could ‘what happens next’ be one of the main reasons why folks do not report these cases?  

Related items:
3 FAM 1810 FAMILY ADVOCACY PROGRAM (CHILD ABUSE, CHILD NEGLECT, AND DOMESTIC VIOLENCE)
3 FAM 1815  DOMESTIC VIOLENCE

US Embassy Iraq Contractor Gets $62 Million in @StateDept Contract Dispute Settlement

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):
“Appellant, First Kuwaiti Trading & Contracting W.L.L. (First Kuwaiti), filed the instant appeal from a decision of a Department of State (State) contracting officer dated August 10, 2012, denying a claim by First Kuwaiti relating to two unpaid invoices for work performed for State under two contracts at the United States New Embassy Compound in Baghdad, Iraq, contract number SALMEC-06-0049, and its modifications, and contract number SALMEC-05-0020, and its modifications. The parties entered into a settlement agreement with respect to the appeal and filed with the Board a stipulation of settlement, reflecting their amicable resolution of the issues that are the subject of the appeal. The parties have jointly moved the Board to issue a judgment in favor of First Kuwaiti in the amount of $2,547,745.20, to be paid from the permanent indefinite judgment fund, 31 U.S.C. § 1304 (2006). Under their settlement agreement and stipulation, they have agreed that Contract Disputes Act (CDA) interest shall accrue on said judgment amount, beginning on March 23, 2012, and continuing until payment of the judgment is made, and that such interest shall be paid to First Kuwaiti together with payment of the judgment amount.
First Kuwaiti has waived any other claim to interest and/or for any attorney fees and expenses incurred in connection with the appeal. The parties, in their joint motion and under the terms of the stipulation, have agreed that neither party will seek reconsideration of, or relief from, this Board’s decision under Board Rules 26 and 27, respectively, and that neither party will appeal this Board’s decision.”
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?

 


@StateDept’s Litigative Payments FY2018-FY2020 Via Judgment Fund-$72,634,701.57

 

The Civilian Board of Contract Appeals (CBCA) is an independent tribunal housed within the General Services Administration. The CBCA presides over various disputes involving Federal executive branch agencies. Its primary responsibility is to resolve contract disputes between government contractors and agencies under the Contract Disputes Act. 
Contract Disputes (CDA) claims paid by the Judgment Fund are reimbursed by the agency whose appropriations were used for the contract in dispute. The No FEAR Act requires agencies to reimburse the Judgment Fund for payments made on their behalf to employees, former employees, or applicants for federal employment arising out of claims of actual or alleged violations of Federal anti-discrimination laws, Federal whistleblower protection laws, and/or retaliation claims arising from the assertion of rights under those laws.
For Suits in Admiralty Act, see USDOJ’s Aviation, Space & Admiralty Litigation Section of the Torts Branch which handles aviation, space, and maritime cases and claims. “Our clients include the Federal Aviation Administration, the U.S. Army Corps of Engineers, all military services including the Navy and the Coast Guard, the Maritime Administration, the Transportation Security Administration, NASA, NSA, and the Departments of State, Interior, Transportation, and Commerce.  In its admiralty practice, the Section represents the United States in the government’s role as ship-owner, regulator, and protector of the nation’s waterways and maritime resources. Its admiralty litigation concerns collisions involving U.S. vessels and warships, grounding of vessels while using U.S. government-produced charts, challenges to the boarding of vessels on the high seas during national security and drug interdiction activities, and maritime-based pollution incidents, including vessel oil spills.  Affirmative admiralty actions seek compensation for the loss of government cargo; damage to locks, dams, and natural resources; and the costs associated with maritime pollution cleanups.”
The largest settlements below for the State Department are in contract disputes, one for $62 million, and another for $4.5 million. We’ve figured out where that $62 million settlement went, have you?
Second largest settlements are in payments under the Suits in Admiralty Act; two payments in 2018 and 2019 respectively for $2.5 million and $2 million each.
There are several foreign claims, and federal tort claims in US courts related to traffic (settlements are larger than in administrative payments). Also two notable cases for Title VII Discrimination in Federal Employment, both in the District of Columbia, one with a $14K settlement and the other with $200K.


 


 

 

 

@StateDept Changes Post Allowances – Which Posts Are Up, Down, or Now Zero

 

Via state.gov:

SPECIAL NOTICE FOR POST ALLOWANCE (COLA) CHANGES EFFECTIVE OCTOBER 11, 2020 WITH TL:SR 1005

“The majority of the Post Allowance (COLA) changes effective 10/11/2020 are the result of a revised COLA process that was an outcome of a GAO audit, Congressional inquiries, and a 2017 OIG recommendation that the Department develop an objective method of generating COLA rates.
The major change in the process from the prior method is with respect to collection of market data.  Rather than task posts with collecting the data, the Department’s contractor now obtains it for 210 locations, including Washington, D.C. suburbs, from Mercer, AirInc, and ECA International.  These three companies provide similar support to major U.S. multinational enterprises with worldwide presence.  The contractor then used a uniform methodology, adjusting for costs of housing and utilities since these are provided by USG agencies for their employees assigned to foreign posts, to calculate an index that assigned a base score of 100 to the Washington, D.C. suburbs and compared other locations to that base.  The rate for each post is based on how the post index compares to the base index.
The data for the foreign post’s expat basket of goods and services is compared to that of the Washington, D.C. suburbs.  The contractor will provide updated index information to the Department of State’s Office of Allowances every August.  New COLA rates based on that data will be implemented in the first full pay period of each Fiscal Year.  Post indexes will be reviewed on a biweekly basis for exchange rate fluctuations and post allowances will be adjusted when necessary.  Posts determined to have hyperinflation will be adjusted biannually.  More information about how COLA levels are determined is available in DSSR 228.”
*
The announcement says that the contractor now obtains data for 210 locations including Washington, D.C. suburbs. We should note that posts identified by the Office of Allowances include over 700 locations overseas.
According to the Office of Allowances, post allowance, commonly referred to as the “cost-of-living” allowance is an allowance based on a percentage of “spendable income,” i.e. money you can really put your hands on to spend on goods and services. The amount varies depending on salary level and family size. The post allowance is calculated by comparing costs for goods and services in 11 categories – including food (consumed at home or in restaurants), tobacco/alcohol, clothing, personal care items, furnishings, household goods, medical services, recreation, public transportation, vehicle-related expenses, and household help – to the cost of those same goods and services in Washington, D.C.
The Office of Allowances notes that if the overall cost of goods and services at a foreign post, taking into account expenditure patterns, is at least 3% above the cost of the same goods and services in the Washington, D.C. area, a post allowance is established. See DSSR section 220 for more information.
The State Department announcement does not identify the contractor but one of its sources is Mercer.  Hong Kong listed by Mercer as the most expensive city for expatriates in its 2020 Cost of Living ranking is up from 42% to 60% in the new State Department post allowance listing.
Ashgabat, Turkmenistan listed by Mercer as the second most expensive place for expatriates for 2020 went from a COLA of 30% to 50% as of October 11.
Tokyo and Zurich were ranked by Mercer at #3 and #4 . Tokyo’s allowance went from 50% to 70% while Zurich (other) went from 80% to 100%.
Singapore ranked by Mercer as 5th most expensive in its 2020 cost of living ranking is up from 20% to 42%.
We understand that the COLA changes are affecting a host of posts, with some losing allowances in double digits and others ending up with zero for their cost of living allowance.
Zimbabwe went from 70% to 50%. Angola went from 50% to 30%. Benin went from 20% to 5%. Port-au-Prince from 25% to 5%; Bulgaria from 15% to zero. Ethiopia from 15% to zero.  El Salvador went from 10% to zero.
Burkina Faso went from 20% COLA last month to zero post allowance effective October 11. Other posts which previously received similar post allowance of 20% but are now reduced to zero are: Havana, Cuba; Amman, Jordan, Lilongwe, Malawi; Casablanca, Morocco; Kigali, Rwanda; Paramaribo, Suriname; Chiang Mai, Thailand;  Tashkent, Uzbekistan; Bujumbura, Burundi; Lusaka, Zambia.
UK posts like London and Edinburgh went from 50% to 42%. Canadian posts like Toronto and Vancouver went from 42% to 25%. Some Australian posts went from 30% to 10% while others like Darwin and Adelaide went from 25% to 5%.
According to the Mercer survey, the world’s least expensive cities for expatriates are Tunis (#209), Windhoek (#208), and Tashkent and Bishkek, which tied for the #206 spot.
Tunis and Bishkek both have zero COLA in the old and new State Department allowances listing but Tashkent has now gone from 20% to zero and Windhoek from 15% to zero effective October 11.
Meanwhile, other posts saw double digit increases: Posts in China went from 5-25% to 15-42%.  Bangui in the Central African Republic is now up to 50% from 25%. Finland went from 35% to 50%. Libreville, Gabon is now 50%  from 30%. Posts in Israel went from 30% to 50%. Increases for posts in Japan range from 7% to 20%. South Sudan went from 42% to 70%.
Post allowances remained unchanged for some posts: Greenland (60%), Denmark (50%), Bahrain (20%), Barbados (35%), Bermuda (60%), Chad (42%), Qatar (25%), Djibouti (30%), Iceland (10%), Kuwait (15%).
Below are the most expensive Foreign Service assignments based on the new cost of living allowances effective October 11, 2020:

#1. SWITZERLAND (Geneva, Other) — 100%

#2. SWITZERLAND (Bern)  —————- 80%

#3. JAPAN (Tokyo, Fukuoka) ————— 70%

#4. SOUTH SUDAN (Juba, Other).——-  70%

#5. AUSTRIA (Vienna, Other).————-  60%

#6. BERMUDA (Bermuda).—————–  60%

#7. GREENLAND (Nuuk).——————- 60%

#8. HONG KONG —————————-  60%

#9. JAPAN (Kyota, Nagoya Sapporo
(Osaka-Kobe, Yokohama).——————  60%

#10. ZIMBABWE (Harare, Other).——- 50%

#11. CENTRAL AFRICAN REPUBLIC
(Bangui).     ————————————- 50%

#12. DENMARK
(Copenhagen, Other).———————— 50%

#13. FINLAND (Helsinki).—————— 50%

#14. GABON (Libreville, Other).———- 50%

#15. ISRAEL
(Tel Aviv, Jerusalem).———————–  50%

#16. ITALY
(Florence, Milan, Turin).——————- 50%

#17. TURKMENISTAN
(Ashgabat, Other). ————————–  50%


 

@StateDept’s Administrative Payments FY2018-FY2020 Via Judgment Fund

The U.S. Treasury Department’s Judgment Fund pays court judgments and compromise settlements of lawsuits against the government. Federal agencies may ask the Bureau of the Fiscal Service to pay from the Judgment Fund for:
  • Most court judgments and Justice Department settlements of actual or imminent litigation against the government
  • Administrative claim awards (settlements by agencies at the administrative level, not involving a lawsuit)
In most cases, the agency does not have to reimburse the Judgment Fund. However, reimbursement is required when the case comes under either the Contract Disputes Act or the No FEAR Act. Below is a list of administrative payments from the Judgement Fund for the State Department. Majority of the description says tort claims in unnamed foreign countries related to traffic. The amount of payment ranges from $2,914.77 to $36,000. We will have a separate post for litigative payments. 

(Click image above for larger view)

 

 

 

State/OIG: EUR’s Workforce Diversity Data-Below Department Averages #42outof43

 

Via State/OIG:

 

BUT the seats in question are 0.3 inches wider than regular economy seats!!!

The Civilian Board of Contract Appeals (CBCA) is an independent tribunal housed within the General Services Administration. The CBCA presides over various disputes involving Federal executive branch agencies. Its primary responsibility is to resolve contract disputes between government contractors and agencies under the Contract Disputes Act. In addition to contract disputes, the Board also adjudicates cases related to travel and relocation.
The following case relates to a Department of State employee assigned overseas who requested reimbursement of travel expenses for extended economy seating (EES) which was authorized on his orders. The agency denied his request after determining that the circumstances of his travel did not meet the agency’s requirements for reimbursement. The Board granted the claim.
This was a claim from a few years ago, but we were tickled by the 0.3 inches wider economy seat argument. Given what we’re seeing these days, my gosh!
Via CBCA 5686-RELO
Claimant is a foreign service officer currently assigned to Vietnam. On August 15, 2016, claimant and his spouse traveled twenty-three hours from Washington, D.C. to Ho Chi Minh City, Vietnam pursuant to permanent change of station (PCS) orders. Claimant’s orders authorized extended economy seating at the rate of $300 per person. Although the trip was booked on American Airlines,1 the leg from Boston, Massachusetts to Tokyo, Japan was operated by Japan Airlines (JAL). At the ticket counter in Boston, claimant inquired about upgrading his seats to extended economy, consistent with his authorization. The agent confirmed that such seats were available and reassured claimant that the seats were located in economy class. Claimant upgraded his seats for the sum of $600. His request for reimbursement of the cost of extended economy seating was denied.

I understand that you were authorized extended economy seating on your [travel orders], however, per guidance set forth by TTM-A/LM Transportation Branch and the guidance cable you have attached, not all airlines have economy seating available. In addition, TTM informed us that “premium” economy [programs] are not reimbursable as we are not reporting this under the Department’s mandatory annual Premium Class Travel Report. Based on our research on the Japan Airlines website and the seat guru site, Japan Airlines offers “premium” economy with extra services . . . and the seat guru showed that all Japan Airlines aircraft[] have [a] distinct premium economy cabin.

In response to the denial, Claimant requested a review of the decision, stating:

JAL Extended Economy is still Economy Class seating in [an] economy cabin with additional leg room, and seems to fit within [the] definition . . . My travel was over 14 hours at the allowable cost, and I did not take a rest stop or purchase business lounge [access]. . . The claim reviewer has only stated her reason [for denial] as JAL providing additional entertainment services in extended economy. Nowhere does the [Foreign Affairs Manual] or guidance mention entertainment services as something to preclude use of extended economy seating.

Continue reading

State/OIG Questions $201.6M in AF’s Trans-Sahara Counterterrorism Partnership Spending

 

Via State/OIG:

“AF is not monitoring TSCTP contracts in accordance with Federal and Department requirements. Specifically, OIG found that contracting officer’s representatives (COR) had approved invoices for four contracts without adequate supporting documentation. In addition, they relied on Department of Defense (DoD) partners to monitor contractor performance; however, these DoD partners were not delegated authority to serve in this role, nor were they trained to be government technical monitors or alternate CORs. Furthermore, none of the six TSCTP contracts reviewed had the required monitoring plans, and five contracts were missing Government quality assurance surveillance plans; both plans are essential oversight tools. Lastly, AF was not ensuring that the assistance provided to the host countries was being used to build counterterrorism capacity. AF officials stated that the lack of clear guidance and limited staff contributed to these weaknesses. Because of these weaknesses, OIG considers the $201.6 million spent on these six contracts as potential wasteful spending due to mismanagement and inadequate oversight. OIG is specifically questioning almost $109 million because the invoices lacked supporting documentation. With respect to the grant and cooperative agreement reviewed, both had required monitoring plans included in the files.

OIG also found that AF is not effectively coordinating with stakeholders to execute a whole-of-government initiative. Although TSCTP partner agencies meet to formulate strategic priorities, the execution of activities among the partners in the host countries receiving assistance is insufficient. For example, U.S. Air Force officials said they were not consulted on the plans and construction of a C-130 aircraft hangar on a base that they share with the Nigerian military. Government officials stated that undefined roles and responsibilities, the lack of knowledge management, and staffing shortfalls hinder effective coordination.

The deficiencies identified in this audit have occurred, in part, because AF has not adequately attended to longstanding challenges with the execution of foreign assistance, including the TSCTP. AF officials acknowledged the lack of progress made to address these challenges but stated that the Department has not appropriately prioritized the bureau’s needs. Until these deficiencies are addressed, the Department will have limited assurance that TSCTP is achieving its goals of building counterterrorism capacity and addressing the underlying drivers of radicalization in West and North Africa.”