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By Editor Becky Watts
WASHINGTON DC - Clayton Kuhles from MIA Recoveries, Inc. placed a complaint with the Department of Defense (DoD) regarding the award of a contract for recovery work in Northeastern India to a high bidder. Mr. Kuhles has been advised that his complaint has been referred to the Naval Inspector General.
The Department of Defense Hotline can be used to report fraud, waste, abuse, and mismanagement regarding programs and personnel under the purview of the U.S. Department of Defense. $428,000 over a low bid from an experienced company was enough for Mr. Kuhles to place a complaint and ask for an investigation into this matter.
According to its website, the DoD Inspector General's Office "does not accept a complaint for inquiry if the matter is not within DoD OIG purview" so it forwarded the complaint to the Naval Inspector General for its review of the matter.
Background
A solicitation was awarded to Southeastern Archeological Research, Inc. (Search, Inc.) by NAVSUP Fleet Logistics Center Yokosuka, Site Singapore (FLCYS) for follow up on recovery of remains of WWII service members from sites in Northeast India. The bid was for a guaranteed minimum of $10,000 and the maximum contract amount of $1,200,000 per year. The bid from Search Inc. was $428,000 more than that of MIA Recoveries, Inc.
NAVSUP has defended its decision to award the contract to Search Inc. by saying that this bid was the Lowest Priced Technically Acceptable. However, the bid was not the lowest price offered, and that bid was not with a company that had done extensive work in this area of the world since 2003. According to a letter of complaint sent to the DPAA on Sunday, July 30, 2017, MIA Recoveries, Inc. has been operating in northeastern India since 2003 and “has reached, documented and positively identified all of the currently-known US aircraft wreckage sites in northeastern India and has already recovered 4 of our MIA’s from those sites.”
Readers can find more in depth information on this in the article below entitled, "DPAA Awards High Bidder with Contract for Northeastern India Recovery Work - Part I."
Complaint Filed and Referred to the Naval Inspector General
According to the Naval Inspector General's website, anyone--including civilians with no affiliation with the Navy, may file a complaint with the Inspector General "regarding fraud, waste, mismanagement, or reprisal." The website further declares: "Our mission is to inspect, investigate, or inquire into any and all matters of importance to the Department of the Navy and maintain the highest level of public confidence." www.secnav.navy.mil/ig/Pages/Home.aspx
Mr. Kuhles has called for an investigation into the award of a bid to a high bidder on this project.
Naval Inspector General officials include the Naval Inspector General is Vice Admiral Herman Shelanski who began serving as the 40th Naval Inspector General on May 15, 2015. And Master Chief Petty Officer (SW/AW/SS) David L. Graham is the U.S. Navy Office of the Naval Inspector General's Command Master Chief.
Catherine Donovan is the Deputy Naval Inspector General. She began serving on April 30, 2017. The website states that "The Deputy Naval Inspector General particularly is charged with overseeing sensitive investigations involving senior officials and investigations into fraud, waste, abuse and mismanagement at every level of the Department." This could possibly include a high bid that includes an extra $428,000 in tax payer dollars for a government recovery project.
Closing
Under what grounds could this complaint fit the terms included on the Naval Inspector General's website? Under Waste of Funds; Gross FAQs, the question is asked, "What is waste?" The answer? "The extravagant, careless or needless expenditure of government funds or the consumption of government property that results from deficient practices, systems, controls, or decisions. The term also includes improper practices not involving prosecutable fraud."
$428,000 is the difference in the amount bid by MIA Recoveries, Inc. and that of the Lowest Priced Technically Acceptable bid given by Search, Inc.
Pike County Times has requested and received quite a bit of information from NAVSUP in regard to this bid through the Freedom of Information Act, but much of the pertinent information that pertained to this contract was blacked out or masked in a process that is designed to reveal information more quickly. The process of unmasking this and other FOIA information will be long. Pike County Times obtained the same information through a separate source and reported it in the first article below.
Pike County Times looks forward to reading the Naval Inspector General's opinion and decision on this matter.
By Editor Becky Watts
JAPAN - A contract was issued for bid out of the NAVSUP Fleet Logistics Center Yokosuka, Site Singapore (FLCYS) for Archeological Survey and Remains Recovery Work in Northeast India late last year that was awarded in May of 2017. The solicitation was specifically to follow up on recovery of remains of WWII service members from sites in Northeast India.
The solicitation for N40345-17-T-0004 was issued by Wendy Wah of the NAVSUP Singapore Office on October 28, 2016 with an ending date of December 8, 2016. The solicitation was for Mission Preparation and Coordination for up to 4 sites per year, Archeological Field Surveys for up to 4 sites per year, Archeological Recovery Activity for up to 4 sites per year, Host Nation Support for up to 4 sites per year not to exceed $36,000 per year, and Land Compensation for up to 4 sites per year not to exceed $60,000 per year. It solicited for one year with the option to renew for years 2 and 3.
The bid was for a guaranteed minimum of $10,000 and the maximum contract amount of $1,200,000 per year. The contract was signed by NAVSUP with Search, Inc. on May 5, 2017 with a bid that might have been the Lowest Priced Technically Acceptable, but it was not the lowest price offered, and the bid was not with a company that had done extensive work in this area of the world since 2003.
According to a letter of complaint sent to the DPAA on Sunday, July 30, 2017, MIA Recoveries, Inc. has been operating in northeastern India since 2003 and “has reached, documented and positively identified all of the currently-known US aircraft wreckage sites in northeastern India and has already recovered 4 of our MIA’s from those sites.” However, the bid was given to a company that bid $428,000 more per year than MIA Recoveries, Inc.
Background
Pike County Times has covered the story of the repatriation of 1st Lt. Robert “Eugene” Oxford over the course of the past ten years. 1st Lt. Robert "Eugene" Oxford and the entire crew of the B-24J Liberator named "Hot as Hell" flew on their final flight on January 25, 1944. The plane crashed and the entire crew was declared Missing in Action and then Killed in Action with no word of the remains of the aircraft until Clayton Kuhles of MIA Recoveries, Inc. found the wreckage site in 2006.
Kuhles documented his finding and filed an archeological site report form with the Joint Prisoner of War/Missing in Action (POW/MIA) Accounting Command (JPAC has since been restructured and renamed the DPAA) on December 7, 2006 showing that the plane had been located near Damro Village, Arunachal Pradesh Province in India. This was not the first WWII recovery site that MIA Recoveries, Inc. had found in this area of India and it was not the last.
[Note from the Editor: I didn't know Clayton Kuhles before I began work this article (we had only spoken by email for quotes on my articles in the past). I began discussing this contract with Clayton Kuhles in depth after I found out that a higher bidder had been given the award of this contract in May. I tried to obtain information through my normal channels with the DPAA and received no reply for several weeks before learning the rules and regulations of filing a Freedom of Information Act (FOIA) request, and obtaining information that way. It has been a very difficult journey compared to other Open Records Requests that I have obtained on a local and state level.]
When Pike County Times found out that a higher bidder had received the bid for this recovery work, I went into action to ask the DPAA and the Navy why this could have occurred. There were four companies who put in a bid for this recovery work, but I have not been able to obtain the information on who they were or what their bids were despite putting in a FOIA request to obtain this information. I've been told that a FOIA request could take up to a year to go through the system, but this work is of the essence because monsoon season will affect when the recovery effort can be done. Read my article below entitled, "Bring Them All Home: The Continuing Story of the "Hot as Hell" Crash in India" to find out more about this from MIA Recoveries, Inc. that has done extensive excavation and helped with repatriation in this area of the world.
The results of this investigation are not complete because Pike County Times has not received all of the information requested. Updates will be added as more information becomes available.
The Solicitation and Award of the Contract
According to U.S. Defense Department estimates, there are approximately 400 unrecovered US airmen in the Arunachal Pradesh area who gave their lives in the service of our country who remain along the Hump in India where their planes crashed. This contract was to excavate specific sites in India to bring our service members home.
The maximum contract amount is $1,200,000 per year for up to 4 sites with an option for the DPAA to renew for years 2 and 3. The solicitation was awarded based on the Lowest Priced Technically Acceptable Offer to Southeastern Archeological Research, Inc. (Search, Inc.) a company out of Florida that has a lot of experience in Florida according to their website at searchinc.com/pages/nationwide and has experience in 17 countries around the world though not in India. The bid was for the total amount of $1,196,000 per year. Dividing that number by 4 sites per year would bring the total amount on the contract per year to $299,000 per site.
However, the amount bid by Search Inc. is $428,000 higher than the bid from MIA Recoveries, Inc. Clayton Kuhles from Missing In Action, Recoveries, Inc. (MIA, Inc.) is one of three other groups that put in a bid on this solicitation. Click here to read more about this company. Mr. Kuhles was happy to send an unredacted copy of his bid to Pike County Times with an amount of $192,000 per site for a maximum amount of $768,000 per year. And MIA Recoveries, Inc. offered an additional 2% discount for any invoice paid within 10 days of the invoice date.
Why would a higher bidder be awarded the bid over a bidder with a lower amount and less experience in the area of proposed operation? This was a question that I have dug into and tried to find answers since May. It hasn't been easy.
When I first asked for information on this contract and what looked bad to me, the Director of Corporate Communications at NAVSUP Fleet Logistics Center Yokosuka, Tina C. Stillions, advised that a FOIA request was required to get detailed information on this solicitation. She also advised the following: “Please be aware that the contracts team followed the Source Selection Plan and awarded the contract to the Lowest Priced Technically Acceptable offeror.” [Note from the Editor: That is a technical term and not a typographical error.] Just what is the Lowest Price Technically Acceptable and how does it work?
According to the rules regarding Lowest Price Technically Acceptable at www.acquisition.gov/far/html/Subpart%2015_1.html, this process is “appropriate when best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price.” (Section 15.101-2) When this process is used, there are factors that apply. First, the proposal has to say that this rule will be used—it did—and then the DPAA would not be required to factor in past performance or the lowest bid cost. “Solicitations shall specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors.” Tradeoffs are not permitted, proposals are evaluated for acceptability but not ranked using the non-cost/price factors, and clarifications can be made.
The Dismissal of a Low Bid
MIA Recoveries, Inc. was notified that it did not receive the bid despite being the low bidder on this project because his narrative on how he would obtain permits in India was not sufficient. On May 7, 2017, Mr. Kuhles sent an email to Susan Harris and Wendy Wah, Contract Specialists for NAVSUP Fleet Logistics Center Yokosuka, Site Singapore, saying, “I am amazed that DPAA would decline the proposal from MIA Recoveries, Inc. in favor of the proposal from Search, Inc. just because our narrative on permits was not as lengthy and detailed as theirs, and we wish to protest this action as being unfair and inappropriate.”
During this email, he reiterated the many successful, legal MIA searches that MIA Recoveries, Inc. has been involved in since 2003. He also pointed out that MIA Recoveries, Inc.’s local agent in India—that was specifically noted in the bid for this contract—is a contractor with DPAA and with the previously named JPAC. He said that obtaining authorizations are “very routine matters for us” and that MIA Recoveries, Inc. has never been refused a permit or authorization in India. “To assert that we haven’t demonstrated knowledge on how to obtain legal access and governmental permits and authorizations in India wholly inaccurate,” he said. Contractor Harris acknowledged this Agency-level protest on May 8, 2017.
On May 15, 2017, Jerome T. Conway, Supervisory Contract Specialist in Singapore, advised that it was the decision of the Agency “to deny your Protest in its entirety.” His reasons? He said that while the information presented may have been relevant to the technical evaluation of this proposal, the proposals were due on December 8, 2016. He stated that the proposal from each Offeror was evaluated to determine if “the Offeror provides a sound, compliant approach that meets the requirements as detailed in the PWS as set forth within Exhibit 1, Technical Evaluation Criteria Checklist, and demonstrated a thorough knowledge and understanding of these requirements.” According to this criteria, MIA Recoveries' original proposal was unacceptable and was not considered for award of the bid.
Mr. Kuhles then replied to the response from Supervisory Contract Specialist Conway through both Contract Specialists Harris and Wah on May 15, 2017 and told them that his protest was not intended to amend any information that had already been presented. “Our protest letter was meant to emphasize that our proposal as submitted by the deadline on 08 December 2016 contained more than adequate information to demonstrate that MIA Recoveries has a clear understanding on how we plan to obtain all necessary permits required under applicable national, local and other laws and regulations in the Republic of India to perform the work described in the solicitation and detailed in the PWS as set forth in Exhibit 1. Listing the specific names of governmental agencies, departments and government employees who we will be working with to obtain the needed permits would be folly, as they are subject to frequent change in India.” He went on to say that it should have been “abundantly clear” to anyone who read the proposal that MIA Recoveries knew how to obtain these permits. He concluded his email by saying, “In our opinion, for DPAA to decline our very fair, reasonable and competent proposal and instead award the contract at higher cost to the US taxpayers to a company with no prior operational experience in northeastern India would almost appear that the awardee was preselected for contract award under the solicitation.”
This email received no response until Mr. Kuhles sent a follow up email on June 11, 2017 to Contract Specialists Harris and Wah. The response was a simple, one sentence email from Ms. Harris that said, “The Navy stands by its decision per the attached letter dated 16 May, 2017 from Carolyn McCloskey.”
In the meantime, Mr. Kuhles sent his protest to NAVSUP Fleet Logistics Center Yokosuka, Site Singapore. Director of Contracting, Carolyn McCloskey acknowledged his email received on May 15, 2017 which requested that his protest be “moved up the chain of command.” She cited a regulation from the solicitation that and stated that his proposal was not complete at the time of submission because it failed to provide a narrative of how he would obtain permits that specifically addressed the requirements of Country Access, Permitting, and Land-Use Compensation.
MIA Recoveries, Inc. wrote in the proposal, “MIA Recoveries, Inc. will obtain all needed permits and authorizations from the national government of India and from the appropriate state and local government agencies. These permits and authorizations will be obtained through the services of our trekking agent located in Itanagar, Arunachal Pradesh. Our trekking agent will also arrange insurance for us.” Director McCloskey said that MIA Recoveries, Inc.’s statement that it will rely on its subcontractor to obtain the permits without providing “additional substantiating information” in the proposal as to how this subcontractor plans to obtain the permits and without including additional information in the technical proposal that demonstrated an understanding of the laws and regulations that would apply “does not provide a sufficient basis for the Contracting Officer to find the technical proposal acceptable.”
She went on to say that, “The past performance information that was submitted was helpful but, because it does look to past efforts, does not substitute for an explanation of how MIA Recoveries intends to satisfy the permitting requirements for the tasks covered by the solicitation.”
The detailed description of his past work in the unredacted copy provided to Pike County Times by MIA Recoveries, Inc. advised that in the past 5 years, MIA Recoveries, Inc. “has reached, documented and positively identified four (4) long-missing US military aircraft crash sites along the Hump route in the former China-Burma-India theatre of WWII.” He gave details through a link to his website as well as stating that MIA Recoveries, Inc. obtained necessary government permits to enter and explore these sites as well as hiring local guides and porters to read the sites. Each site was “thoroughly documented and pertinent information was gathered to establish the positive identification of the aircraft.” He further states that a site report was prepared and provided to JPAC (the former name of the DPAA) along with photos of each site.
Furthermore, MIA Recoveries also stated in its Past Performance section of the bid narrative that it has recovered and delivered partial human remains from 2 military crash sites in northeastern India to the DPAA. This resulted in the repatriation of 4 WWII airmen to their families for burial.
But NAVSUP said that the narrative section did not provide enough information to show the reviewing officer that MIA Recoveries, Inc. knew how to obtain the permits needed to complete archeological and excavation for the DPAA. Clayton Kuhles of MIA Recoveries, Inc. protested to me by phone about the futility of writing out specific information on obtaining permits. “That information could change in a moment’s notice,” he said.
Protest by MIA Recoveries, Inc.
MIA Recoveries, Inc. filed a protest on the award of this to Search Inc. with the Department of the Navy on June 13, 2017. However, his protest was dismissed by the U.S. Government Accountability Office (GAO) on June 14, 2017. Susan Poling, General Counsel for GAO, wrote the following: “We dismiss the protest as untimely because it was filed more than 10 calendar days after the protester received actual or constructive knowledge of initial adverse agency action on its protest.”
She noted that MIA Recoveries, Inc. did file an agency-level protest to the Department of the Navy, Naval Supply Systems Command on May 7, 2017, and protested that the agency “improperly rated its proposal as unacceptable for failing to explain how it would obtain the government permits to compete the archeological survey and excavation services” and that the Department of the Navy denied the protest on May 15, 2017 by letter explaining that MIA Recoveries, Inc. “did not provide sufficient information.”
MIA Recoveries, Inc. restated its disagreement on the same day and requested that this protest be “moved up the chain-of-command.” The letter states that one day later, MIA Recoveries, Inc. advised by email that it would continue to pursue this protest with the agency’s inspector general and other investigators. “Since it [MIA Recoveries, Inc.] received its notice of initial adverse agency action on May 15, MIA was required to file its protest with our Office no later than May 25 in order to be timely pursuant to our Bid Protest Regulations. Because MIA failed to file the protest in our Office until June 13, the protest is untimely and will not be considered.”
General Counsel Poling finished the letter by giving case law on this matter from 1991 to support GAO’s case that even though MIA Recoveries, Inc. was pursuing this matter at the agency level before filing its protest at GAO, the 10 day window is still applicable and a delay in the filing of a protest will result in dismissal. “Thus, even though MIA pursued its protest up the “chain of command” or with the agency’s inspector general, our Bid Protest Regulations still required MIA to rile its protest by May 25 in order for the protest to be considered timely. The protest is dismissed.”
Closing
NAVSUP Fleet Logistics Center-Singapore advised the Office of the General Counsel of GAO that two attorneys have been assigned to this protest on June 15, 2017. However, MIA Recoveries, Inc. has heard nothing from this protest at this time.
MIA Recoveries, Inc. filed a complaint with the Department of Defense Office of the Inspector General in late June.
Pike County Times contacted the Defense POW/MIA Accounting Agency (DPAA) for information pertaining to the bidding process and was advised by Public Affairs Officer Major Jessie Romero that the DPAA does not comment on the bidding process and that the bidding process is being handled by Fleet Logistics Center-Singapore. Pike County Times contacted the Fleet Logistics Center in Singapore and was advised by Corporate Communications Director Tina Stillions on June 15, 2017 that “…we are not able to provide information publically on a contract or solicitation without a FOIA request.” [Note from the Editor: This paragraph was changed to show the exact date that Director Stillions replied to me.]
Pike County Times has since obtained a FOIA along with the information contained in this article and contacted Director Stillions and Contract Specialists Harris and Wah on July 30, 2017 for comment on this matter but has received no reply to its inquiry.
Pike County Times contacted Director Stillions and Contract Specialists Harris and Wah again on August 2, 2017 with a list of questions to be answered to ensure that I haven't missed anything in my work and advising that my article would go online today. I have received no reply.
Two of the questions that I asked were as follows: Would you like to respond to Mr. Kuhles’ accusation that “the awardee was preselected for contract award under the solicitation”? Is there something that I have missed that would have justified the award of this bid to a higher bidder based on what looks to me to be nothing more than a technicality?
The fact of the matter remains that there are US service members who died for their country in this area of the world during WWII who have not been brought home to their loved ones and their loved ones are dying here in the states while they wait. The DPAA went to the "Hot as Hell" site four times and brought home the remains of one person before discontinuing the effort completely by saying that "the crash site is located in an extremely hazardous environment" and they won't go back. Read "Bring Them All Home: The Continuing Story of the "Hot as Hell" Crash in India" for more information on this.
How long will it take for the DPAA and the Department of the Navy to resolve this matter and get someone on the ground in India who can bring our people back home? Will the relatives of those who lost their lives serving our country in WWII flying the Hump see their loved ones home any time soon?
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Military.com has been following the DPAA over the years. It has reported both the repatriation efforts and noted some of the bureaucratic problems that have been involved even after the reorganization of JPAC into the DPAA. You can read this article at https://www.stripes.com/news/dpaa-still-plagued-with-problems-after-reorganization-report-says-1.470784 A search of their website will pull up various articles on the DPAA.
Stars and Stripes has been covering JPAC and the DPAA for years as well. Here is a link to a March 2014 article that tells about the restructuring of these two organizations from 2014.
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To read more from Pike County Times about the repatriation of 1st Lt. Robert "Eugene" Oxford, click on the following links:
BREAKING NEWS: Bringing 1st Lt. Robert "Eugene" Oxford Home - Part I
BREAKING NEWS: Bringing 1st Lt. Robert "Eugene" Oxford Home - Part II
BREAKING NEWS: Bringing 1st Lt. Robert Eugene Oxford Home: A Celebration of A Hero from Two Cultures
Chinese Community Pays Its Respects to a Long-Lost Hero,
By Guest Columnist Al Zhang, Courtesy of Atlantachineselife.com
Atlanta Chinese Welcome Pike County Visitors to Johns Creek
Bring Them All Home: The Continuing Story of
the "Hot as Hell" Crash in India