Last week ABC News Investigative Team, including its chief investigative correspondent Brian Ross, ran a story that seemingly confirmed much of the negative coverage one sees in the media about private military contractor issues. On September 8, it reported that Paul Funk, a former employee of Mission Essential Personnel (MEP), a major provider of translation service, interpreters and cultural advisors to the U.S. government, charged that more than one quarter (28 percent to be precise) of the translators hired by the firm between November 2007 and June 2008 to work alongside American soldiers in Afghanistan failed language proficiency exams but were sent onto the battlefield anyway.
Funk, who worked as Director of MEP’s Pre-Deployment Processing Center in Linthicum, Maryland, outlined his claims in a whistleblower lawsuit unsealed earlier this year against MEP, and co-defendants Language Learning Enterprises, Inc. and Ceiba Enterprises, Inc. dba Gracor Language Services Inc., saying the company turned a blind eye to cheating on language exams taken over the phone and hired applicants even though they failed to meet the language standards set by the Army and spelled out in the company’s contract. Basically Funk is modifying the famous line from the classic move Cool Hand Luke; what we have here is a deliberate failure to communicate.
Essentially Funk is claiming MEP committed Fraud. The relevant part of his complaint, filed April 1, states:
MEP, LLE, and Gracor fraudulently presented and/or caused to present claims to the United States and received therefrom payment for services that were not rendered under an MEP contract with the United States military.
MEP fraudulently presented claims to the United States and received reimbursement of per diem amounts that were not allottable under an MEP contract with the United States military.
If these charges are true it would be enormously serious. Anyone familiar with U.S. military operations in Iraq and Afghanistan understand that without qualified translators and interpreters U.S. military success, however you define it, is virtually impossible. After all, it doesn’t take a rocket scientist to understand that you can’t win the hearts and minds of the local populace if you can’t understand what they are saying.
There is only one problem with the ABC story. The more you look into it the shakier it looks. It seems similar to what Gertrude Stein famously said about Oakland, California, “There is no there there.”
I will detail the reasons for doubting the ABC story in a moment but first some necessary background about the False Claims Act.
The Act, also called the “Lincoln Law” due to its earliest incarnation first being passed back during the American Civil War) is an American federal law that allows people who are not affiliated with the government to file actions against federal contractors they accuse of committing claims fraud against the government.
The False Claims Act, passed by Congress on March 2, 1863, was an effort by the USA to respond to entrenched fraud where the official Justice Department was reluctant to prosecute fraud cases. A reward was offered in what is called the “qui tam” provision, which permits citizens to sue on behalf of the government and be paid a percentage of the recovery. Qui tam is short for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur”, which means, “he who brings a case on behalf of our lord the King, as well as for himself.” In a qui tam action, the citizen filing suit is called a “relator”. As an exception to the general legal rule for standing (law) of a party, courts have held that qui tam relators are “partially assigned” a portion of the government’s legal injury, thereby allowing relators to proceed with their suits.
Persons filing under the Act stand to receive a portion (usually about 15-25 percent) of any recovered damages. The Act provides a legal tool to counteract fraudulent billings turned in to the Federal Government.
The Act establishes liability when any person or entity improperly receives from or avoids payment to the Federal government—tax fraud excepted.
Let’s acknowledge that this is a big contract (number W911W4-07-D-0010) for MEP). MEP’s contract, as initially awarded in September 2007 by the U.S. Army Intelligence and Security Command (INSCOM), included a 5-year ordering period (through September 2012) with a total ordering ceiling of $703 million. At the time of award, the agency estimated that it would need approximately 3,000 linguists to support the military’s operations in Afghanistan. Because MEP’s contract was imminently reaching its $703 million contract dollar ceiling, on March 18, INSCOM modified the contract to increase the ceiling amount by $78.5 million. INSCOM awarded MEP another $679 million dollars, on May 7. This second modification increased the dollar ceiling under MEP’s contract to $1.460 billion.
Note that earlier in the year another firm, WorldWide Language Resources, Inc., protested the decision by INSCOM to modify its contract with MEP. WLR contended that the modification violates the competition requirements of the Competition in Contracting Act of 1984. But last month the Government Accountability Office denied WRL’s protest, noting “the record shows that the agency reasonably concluded that the incumbent contractor was the only firm capable of meeting the agency’s interim need for the services.”
In the years subsequent to MEP’s award, the military’s need for linguists has exceeded the numbers estimated by INSCOM. Presently, MEP’s contract supports approximately 6,826 linguists at up to 200 locations in Afghanistan. The increase was driven by the August 2009 review of the U.S. Afghanistan strategy directed by President Obama. Based on this review, the estimated requirement increased to 5,000 linguists per year in anticipation of greater U.S. involvement in Afghanistan. The second event was the “surge” decision of December 2009, which provided for sending an additional 30,000 U.S. forces to Afghanistan by the end of the summer in 2010. This surge has driven the need for linguists to their current levels since they are an integral component of the expanding U.S. combat operations in Afghanistan.
Thus, MEP has an obvious self-interest in denying Funk’s claims. Let’s also note that the Defense Department Inspector General is investigating the case, per below; although that is standard procedure when a False Claims act is filed:
Implementation of Security Provisions of a U.S. Army Intelligence and Security Command Contract for Linguist Support (D2010-D000JA-0165.001) The DoD OIG is determining whether the security provisions of a U.S. Army Intelligence and Security Command contract for linguist support in Afghanistan (W911W4-07-D-0010) were implemented effectively. This project is one in a series of reviews regarding linguist support in Afghanistan. Report D-2010-079 addresses whether a contract for linguist support in Afghanistan (W911W4-07-D-0010) included appropriate security provisions. The DoD OIG began this project during the 3rd Quarter of FY 2010.
Although what the IG is investigating is whether the MEP translators were properly screened and vetted. This, by the way, is a U.S. government responsibility, not one of MEP.
Let’s also acknowledge that one reason people may be inclined to believe Funk’s charges is that there have been real problems in the past with companies providing translators to the U.S. government. As RFE/RL reported two years ago:
One problem has been for the U.S. military to get qualified Dari and Pashto translators who also meet the Pentagon’s security criteria. For years, the Pentagon required that its translators be American citizens and also have top secret military security clearance.
That was the case through 2005 when translations for U.S. forces in Afghanistan were provided by the private U.S. firm Titan as part of a $4.65 billion contract with the U.S. Defense Department.
Former Titan employees tell RFE/RL the company had great difficulties meeting the demand for Afghan translators with the necessary security clearance. As a result, former employees say Titan appeared to overlook the language deficiencies of many of the translators it provided.
A firm called L-3 Communications Holdings inherited Titan’s translation contract when it bought Titan in 2005. [By year’s end, with numerous complaints on file about Titan translators, L-3 lost the contract for interpreters in Iraq. A new five-year deal for U.S. military translations in Iraq was awarded in February to Global Linguistics Solutions, a joint venture of DynCorp International and McNeil Technologies.]
One can find detailed background on U.S. military use of contractor linguists in this Defense Industry Daily round-up .
All that said, there are several reasons to be skeptical of Funk’s claims
Why should people doubt the ABC story? First, consider the source. ABC News, in recent years has not had a good record when it comes to breaking investigative stories. Brian Ross, in particular, has been wrong on multiple stories, as this Salon article recently detailed.
In 2007, Ross ran an exclusive interview with former CIA officer Jon Kiriakou about, among other things, the efficacy of water-boarding. That story, hyped uncritically by ABC, was picked up in other media and informed the public debate about water-boarding for years — until, of course, it turned out to be bogus.
Last November, Ross reported that the Fort Hood shooter, Maj. Nidal Malik Hasan, had attempted to make contact with “people” associated with al-Qaeda. That turned out to be not true.
In December, he reported that a released Guantánamo detainee was a mastermind of the attempted Christmas Day bombing. As it turned out, the detainee in question had actually been in the hands of Saudi authorities for months and had no role in the plot. That didn’t stop myriad media outlets from picking up the inaccurate story.
Given his recent record if Ross were Treasury Secretary the country would be in a full-blown depression.
Second, the way ABC dealt with MEP when getting its side of the story smacks of a setup. Keep in mind the timeline. ABC’s story ran Sep. 8. But it did not contact MEP until Sep. 1 and then only to say they were doing a story on translators without providing any specifics. It was not until the next day they asked about the allegations made by Funk. MEP officials asked for a meeting so they could rebut the allegations but they did not meet with ABC News until Sep. 7, the day before the piece ran. That smacks more of gotcha accusations, rather than serious journalism. Having done some writing for television myself in the past I know that if one is sure of one’s facts one does not do an interview with a company one suspects of wrongdoing less than a week before your story airs.
Even so, according to a statement MEP released, “Prior to airing this erroneous story, MEP provided ABC extensive information on the record - both in-person and in writing. With willful disregard, ABC chose to ignore the facts, doing a grave disservice to the public, and to many good people in the field.”
Third, and fairly important, Charles Miller, a Justice Department spokesman, who I reached by phone last Friday, said, that the Justice Department “has not joined the suit by the relator [Funk]. Now that is not to say it couldn’t do so later on. Still, if Justice thought Funk had a slam dunk case it likely would have already joined in the suit.
Fourth, a hearing is expected to take place on September 23 where a judge will consider the motion by MEP attorneys to dismiss the case. Speaking on background, sources close to Funk’s legal team acknowledge that they may have to replead their suit and add more specificity to the charges, tacitly acknowledging that they understand the motion to dismiss will likely succeed. Thus, this would mean that Funk’s lawyers are asking for a third chance to amend their complaint, after failing two times in the past.
Fifth, the ABC piece uses weak, secondary sources. ABC used a video clip depicting an interpreter doing a bad job, from the British Guardian, but that interpreter was not an MEP employee.
ABC cited several other sources to bolster the claim that MEP linguists are flawed. One source is a former military Pashto linguist who says she witnessed bad translation. But her online bio says she was wounded and sent home in 2006, the year before MEP won its Afghanistan contract. Hence, she never worked with MEP linguists.
The next source is an Afghan politician who says he has seen examples of poor Army translators. His comments are general and vague and there’s no indication he has ever worked with MEP linguists.
In its online version, ABC quotes a British journalist saying he believes unskilled translators take the jobs because they are lucrative, referring to a linguist who became “the rock star of his village.” This reference makes clear the journalist is referencing linguists who are Afghan locals, not the US-hires discussed in the lawsuit.
Sixth, ABC seems not to understand basic contract types. ABC suggested MEP is motivated to fill positions with weak linguists because “The more they recruit, the more they make.” But MEP’s contract is cost plus award fee, meaning MEP is reimbursed for its costs. MEP’s profit comes from its award fee which is tied to its performance rating from the Army. Award fee is based on the number of qualified linguists, as well as the quality of the linguists deployed. If MEP provided poor linguists, its rating, and therefore its profitability, would decline.
Finally, in his complaint Funk says the defendants conducted Oral Proficiency Interview (OPI) testing of linguist candidates over the telephone, rather than in person, which is the industry standard and the only way to prevent fraud by the person being tested. But he fails to note that this was just the first of a three prong system MEP employs, the other two being a written test and an integrity test that occurs by video conference or in person, which MEP put in, above and beyond the terms of the contract. The phone tests and written tests are catalogued and saved for review by the military.
It is worth noting that MEP’s contract with INSCOM does not actually call for doing in person interviews. Thus, at the time Funk worked for MEP translator candidates would undergo an OPI and written test. Later, after MEP instituted its integrity test, the candidate, if he passed the other two tests, would have to do an interview with a MEP employee who is a native speaker of the required language, such as Dari or Pashto.
The standards for these language tests are set by the U.S. Government and are based on the Department of Defense’s Inter-Agency Language Roundtable (ILR) standards.
MEP’s language testing programs were audited in 2008 and 2010. Back when Funk worked at MEP the OPI and the written test were the assessment tools used. Since then, MEP added the integrity test, a final assessment, which includes an in person or video teleconference interview with a native speaker who is an MEP employee.
As noted earlier there has never been anything in MEP’s contract with INSCOM specifying the means by which it is supposed to test its interpreters. To the extent that this is a real concern government can easily solve it by specifying in its contracts the means for doing so, just as it specifies the means by which private security firms must confirm the qualifications of those they hire.
Finally, the people in the best position to judge, MEP’s client, seem satisfied with its performance. At a July 26 hearing of the Commission on Wartime Contracting, MEP CEO Chris Taylor noted MEP has received ratings of “outstanding” from the US Government for the last eight quarters.”
