http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202475676076&Whistleblower_Settles_Suit_Against_Lockheed_mdash_But_Now_the_Good_Guys_Are_In_the_Way
The following is more explanation than the article was able to provide
I have been off the blogs for a long time. That was out of respect for the process – in the hopes the good guys would do the right thing. Given the importance of the case, however, the facts need to be known. (And I welcome the Coast Guard responding as well)
Let me try to address some points here and tell you what the article did not.
FOIA is supplanted by discovery. Additionally many docs on both sides are covered by the confidentiality of Protective Orders and/or privileges or exemptions from production. Virtually all of what I write below can be researched in PACER – the nationwide database for lawsuit/court data. As such, everything I will discuss is in the public domain.
Coast Guard’s inexplicable obstruction of our legal efforts – a case which is asserted for the (majority) benefit of 1) the US and 2) a much more modest participation by me and my attorneys.
On Northrop Grumman’s 4th attempt to dismiss my “hull claims,” just days before trial and while we were discussing settlement, the judge entered an Order which stopped the settlement process. The Court believed that allegations of qui tam violations regarding the HM&E (hull structure and design defects) were based upon public disclosures by media and testimony at the April 18, 2007, Congressional Hearing of the Transportation and Infrastructure Committee, and that I had no previous awareness of those problems. But,my claims were not based upon public disclosures, so we filed a motion for the Court to reconsider the dismissal. Moreover, the Court had already denied the Northrop Grumman/ICGS motion on three previous occasions stating I may have know about some of the 123s buckling status from the public/press but there was no evidence I learned about the fraud from public sources.
NG apparently changed the judge’s mind by presenting evidence out of context. For example, they only partially quoting my deposition text so that it looked like I connected most or the key parts at my hearing on 4/18/2007, while the full quote reveals that I qualified my statements by pointing to the preparation and lead up to the hearing which were not public disclosures. At that hearing Rep Cummings stated this case should be referred to the DOJ and that the CG should get all of its money back. In addition to this I had misunderstood some questions at my deposition and provided answers that were not want I would want them to be if I had fully understood the question – this also helped NG confuse the Court. Lastly in 2009 I had provided a declaration where, in addition to writing a confusing key paragraph, I made some recollection errors, because of the passing of time [6 years], and I had been unaware at the time that there were two separate shaft issues that caused shaft misalignment. So the judge took what he saw and made a ruling. (We responded under great stress, as the Court also only gave us 2 days, rather than the normal 21 days, to respond to a motion for summary judgment).
Now why did we want the Coast Guard’s help? We had filed a response to NG’s motion which disclosed my full deposition text. But we also needed to confirm that I learned the key fraud links from USCG personnel well before the 4/18/2007 Congressional Hearing. So we simply needed brief declarations from former CG employees Anthony D’Armiento and Tom Hickman to confirm my pre-hearing knowledge of the buckling hulls and design flaws known to the USCG after its investigations. We have obtained, fortunately, one declaration from the Congressional Committee’s former Lead Investigator, which is mentioned in the article. The investigator completely confirms and supports our position on my knowledge of the hull and shaft issues well prior to the Congressional Hearing, which I helped him organize. I was actually the person who provided Mr. Foushee the name and contact data for the investigations lead hull witness, Mr. Scott Sampson. Mr. Foushee’s Declaration should, standing alone, make clear to the Court its erroneous ruling. As it is always best to gather as much supporting evidence as possible, we also reached out to Mr. D’Armiento and Mr. Hickman, Coast Guard personnel at the relevant timeframe, for additional clarifying declarations.
Tom Hickman, a former WPB-110 XO and CG marine engineer who worked on the Deepwater program volunteered, if the CG would consent, to give us his declaration revealing communications with me about the hull buckling and design defects. Mr. Hickman actually referred to the contractor’s improper performance in the strongest possible terms. These statements in the fall of 2006 helped me support my fraud claims. I actually located the individual, called him to confer and passed his contact data to the CG. Within a short amount of time the agency currently employing him cleared him to help, so long as the CG consented, since the declaration related to a timeframe when the Mr. Hickman was working for the CG. Curiously, although I had no problem locating or talking to the witness, the CG reported that they were having problems locating him. Plleeasse!
Well the CG played “communications excuses” for a couple of weeks, losing critical procedural days. All the while, we clearly explained how and where Mr. D’Armiento could be contacted. In addition we provided sample declaration text for the CG and/or Mr. D’Armiento to edit in order to speed the process along, and we did edit the declaration per the CG’s comments. We knew that the Court could rule at any time, and we wanted the Court to have the proper evidence before it. After weeks or promising assistance, as the procedural deadlines continued to run, the Coast Guard issued a letter saying they were not going to help. (I then sought assistance from the current and former Commandants and received no response.) The Coast Guard’s key (frivolous) reasons for their dramatic change of course is repeated in the article. One of the points was that they did not have enough time. Well they had over three weeks. The reason we did not send them the Touhy agreement earlier was that Mr. D’Armiento was working for the DCMA at the time, and we wanted to make sure we followed the appropriate process. We specifically asked the CG to help by telling us how it wanted to process to proceed. They did, and we followed their requests. For reasons unknown, they strung us along, feigning cooperation, with no actual intention of providing any of the declarations. They misled us and Senator Cantwell’s office by telling both of us they were trying to assist us in the process. The matter could have been completely resolved by the CG in a matter of days, not weeks. The witnesses had already confirmed the facts that we needed them to confirm. We provided the draft declarations. All they had to do was “markup” or accept the drafts.
False guarantees issues were discovered weeks after the formal discovery cutoff.
In the summer, weeks after the formal discovery cutoff, we were finally allowed [by the defendants] to take the oral depositions of the Corporate Representatives of Northrop Grumman We learned that the contractors had misled the CG at the time (September 28, 2001) that they submitted to the CG their formal proposal for the construction phase of the IDS contract. The contractors in the contractual documents represented that guarantees of ICGS’ performance had been 1) executed and 2) delivered to the CG. But the guarantees were never executed or delivered to the CG. The contractors’ documents also confirmed that the award of the IDS Phase 2 contract was conditioned on the contractors providing the guarantees to the CG. Everyone knew that without the guarantees being provided to the CG, ICGS would not be awarded the Deepwater Phase 2 contact. Nonetheless, no guarantees were ever executed and delivered to the CG, and the contractors knew that fact. So, reality is that the CG awarded a prime contract to ICGS, a new and unestablished entity with grossly insufficient capitalization ($400,000) for a multi-billion dollar contract. As I write, the CG has demanded (2007) the repayment by ICGS of the $96.1 million that was wasted on eight completely unseaworthy 123s, now destined to become “scrap” according to the CG witnesses. So, how effective or good are the promised, but non-existent, guarantees, since ICGS hasn’t repaid a “thin dime?” If a real guarantee had been in place, the CG could have demanded the contractors’ performance of their guarantees. But there is nothing in place. Even worse for the U.S., ICGS, according to the contractors’ official witnesses, couldn’t pay a mere $10 million judgment, because it only has about $6 million. The U.S. is screwed unless our claims are allowed to proceed on the hull issues and the false statements about the guarantees. The CG has no money back, and it has 8 crappy 123s that it can’t even give away because of the dangers of operating the 123s. It’s just awful, and I and my lawyers are the ones spending the money and time, making huge investments, to get the money back for the United States
The internal contract documents show that the Coast Guard was assured that ICGS was a Joint Venture of Lockheed Martin and Northrop Grumman, another representation that was, apparently false, since the contractors denied the Joint Venture in Court—no denial in their contract proposal or in the contract documents, not on the ICGS website, not in media releases—just in the Court. So, we are also trying to straighten out that issue.
We included the guarantee and joint venture claims in the parties’ pretrial order, but we also requested that we be allowed to amend the complaint as a result of some comments by the Court during a pretrial conference. We have additionally requested some assistance from the Coast Guard to help them overcome the non-existent guarantees and the denial by the contractors of the Joint Venture which is prominently proclaimed on the contract documents and ICGS website.
Go ahead, Google “Joint Venture and ICGS and Lockheed and Northrop,” and you decide whether the contractors represented that they were a Joint Venture as they claimed to the CG, or not a Joint Venture as they told our Judge. Yes, it is amazing. Even so, the CG has little interest in cooperating with us in order to recover the huge losses to the U.S. taxpayers.
Does the U.S. have deficit problems and shortage of taxpayer money for virtually every federal program, anyone? Can the U.S. afford to waste the money [$96.1 million or more] that the CG wasted on the eight crappy 123s that are unseaworthy? Can we really afford to the have the Coast Guard “turn its head” in order to accommodate the contractors; no doubt, a relationship far too friendly given the virtual refusal to hold the contractors accountable? And, why is the CG obstructing our very expensive efforts to help them? Go figure… Well, it’s impossible to rationalize all of the bad decisions that the CG has made during our legal process. If they aren’t going to make the contractors pay back the money, when are they going to demand that the contractors fix the 8 pieces of crap floating in the CG’s Baltimore yard?
Do you need more examples of the Coast Guard putting up completely inappropriate road blocks? The Coast Guard produced late in the discovery period large and corrupted, in material part, a critical document that was one of the most important documents in the case. That document had been possessed by all of the Defendants for years and could and should have been produced much earlier. We literally spent many hundreds of thousands of dollars and wasted critical time doing work that the CG had already done and compiled. After we pointed out we had found the document and how critical it was the Coast Guard tried to suppress it; they “clawed it back,” until we badgered them to withdraw their suppression of the document in the last week of discovery.
Lastly, for the trial, the key CG witness who had confirmed in his Declaration that the CG was misled by the contractors on the hull structure issues was properly subpoenaed. Yet, immediately before trial we learned that the CG, who knew he was the “key witness” on the major issues had assigned him immediately before trial to a patrol boat in the Pacific. The boat where the witness was transported was in parts unknown, according to the CG, and it had no communications ability to enable even a telephonic testimonial presentation. Yes, at the last minute, the key CG witness jerked away from the legal process, designed to recover the CG losses of almost $100 million, to the Pacific to parts literally unknown, and he was shockingly unavailable for trial. The Court was highly concerned and commented from the bench that if we could find precedent for his Court to Order the CG to produce, immediately, the witness in Dallas, he would take whatever action was necessary
Screw up, screw up, screw up. When will government ever be held accountable for this kind of misbehavior? Only Congress controls the purse strings, and if Congress won’t intervene to persuade the CG to cooperate with the process, a good outcome will be difficult—not impossible, but much more difficult than necessary.
The Coast Guard has helped us only when mandated by law and subpoenas or when doing so was not critical to us. And even when forced to help, like providing documentary discovery, they fought us that as demonstrated by using the “clawback” to suppress the availability of one of the most important pieces of evidence in the case. Incredible as it may sound, all of the contractors had possessed the same document for years!
Why would the Coast Guard do this? Difficult to justify, so it is difficult to speculate. However, let’s acknowledge that it doesn’t like my whistleblowing, nor me, personally, as their representatives have candidly stated. Second, I believe they are being politically pressured by “others.” You can speculate about who is influencing the wave of poor decisions that we have suffered. Third– they have no interest in the public being reminded of their past failings and now finding out about the fraudulent guarantees. Imagine the concerns of Congress, the IG and the press if they known that the whole contract was awarded on the basis of a false statement regarding the execution and delivery of [CG] mandated guarantees, never executed or delivered as represented.
In addition to the pathetic 123s debacle, this also means that at least the first 3 NSC’s are covered by a false, non-existent guarantee – and depending on the contract mechanism – maybe all of the rest of the NSCs. The Coast Guard just announced that it awarded the 4th NSC to NG in a contract outside of Deepwater. Was there a competition? Is that boat guaranteed? How do you offer and award a contract to a company who has treated the Coast Guard the way ICGS et al have done so far? The 123 debacle is open with no money returned for the hulls, and the CG was duped into signing the entire Phase 2 IDS contract when there was no executed and delivered guarantee as expressly represented by the contractors. In addition to the qui tam violations, is there is a FAR issue here? Senator Cantwell’s staff wonders, too.
I find it very unfortunate that the Coast Guard would be behaving this petty, vindictive and short sighted because of their animosity towards me and towards transparent governance. The CG knows that our case is their best shot at getting recovery of the refund for the boats losses and other losses arising from the contractors’ fraudulent inducement of the IDS contract. My attorneys have already committed millions of dollars in services and expenses in order to help the U.S./Cost Guard secure their refund.
The taxpayers shouldn’t continue to be plagued with the $96.1+ million in absolute waste. Who else speaks for the taxpayers? Taxpayers are going through enough hell. The government is reportedly considering more taxes, while the CG gives a basic [$96.1 million or more] free pass to non-performing contractors in our case. Given these hard times – with universal federal deficits as far as the eye can see, reported Coast Guard, budget shortages and this being a post 9/11 world, isn’t it right to do everything they can to help us help the taxpayers get a decent recovery? We requested only cooperation (attitude check) and a review and revision, if needed, of a couple one or two page documents/declarations– not any real work at all. Hours, not days. Hours, not weeks.
We are hopeful that the Court has enough evidence before it to come to the right decision, but it won’t be due to any assistance from the CG. We will pursue the right outcome, as we have pursued everything else in this case. Take the CG’s excuses with a grain of salt and check the record if you want to be sure that YOU are not misled.
