Washington, DC - Congressman John D. Dingell (D-MI15) sent the following letter to Secretary of Defense Robert M. Gates. The Congressman has questions about the Department’s contract with security contractor Paravant, a subsidiary of Xe – formerly known as Blackwater Worldwide – after a deadly shooting in Afghanistan this past May. Below is the Congressman’s letter.
June 11, 2009
The Honorable Robert M. Gates
Secretary
Department of Defense
1000 Defense Pentagon
Washington, D.C. 20301
Dear Mr. Secretary:
I am writing with regard to media reports on the actions of Defense Department (DOD) contractors in Afghanistan. Of particular concern is an alleged incident involving employees of Paravant, a subsidiary of the private security contractor currently known as Xe, formerly known as Blackwater Worldwide. Paravant is owned by Erik Prince, founder, owner, and former Chief Executive Officer of Blackwater. It has been widely reported that on May 5, 2009, four off-duty Paravant employees opened fire on Afghan civilians. One of the Afghans died and two others were injured in the shooting.
On May 19, 2009, U.S. military spokesman, Lt. Col. Chris Kubik, stated that Paravant violated the terms of its contract with DOD, which bars contractors’ employees from carrying the types of firearms used in the shooting and from possessing any firearms outside of training settings. The employees allege that Paravant supplied them the guns, which also violated the terms of the contract.
The State Department decided not to renew its contract with Blackwater Worldwide (now Xe) after the Iraqi Government, in January 2009, refused to renew its operating license. The Iraqi government cited the company’s involvement in a 2007 shooting incident in Baghdad in which 17 innocent civilians were killed as a reason for its decision. Fallout from that incident prompted Mr. Prince to resign from Blackwater Worldwide in March 2009 and change the company’s name to Xe. Collectively, five of the contractors involved in the September 2007 Baghdad shooting have been charged by the U.S. Depart of Justice with 14 counts of manslaughter, 20 counts of attempted manslaughter, and one count of using a machine gun to commit a crime of violence. A sixth Blackwater employee pleaded guilty in December of 2008 to charges of voluntary manslaughter and attempt to commit manslaughter.
In light of the serious nature of the alleged crime on May 5, 2009, and other reports on Blackwater/Xe’s recklessness in the use of force against civilians, I believe DOD may wish to review its contract with Paravant. The following questions relate to the ability of DOD to terminate its contract with Paravant and to review the past performance of a contractor and its employees in determining the award of a future contract under the Federal Acquisition Regulation (FAR). Please provide answers to the following questions by July 8, 2009:
1. The FAR sets forth the policies and procedures for termination of federal contracts for default or for the convenience of the government. 48 CFR § 49.000 et seq. “The Government has a contractual right to completely or partially terminate a contract for default because of the contractor’s actual or anticipated failure to perform its contractual obligations.” 48 C.F.R. § 49.401 (a). Should the government wish to terminate the contract for default, it “is not liable for the contractor’s costs on undelivered work and is entitled to the repayment of advance and progress payments, if any, applicable to that work.” 48 CFR § 49.402-2 (a).
Given the failure of Paravant to comply with the terms of its contract, does DOD plan to terminate Paravant’s contract for default?
2. The government may also terminate a contract for convenience when it is not in default but has failed to perform due to causes beyond the control or fault of the contractor, or when continued performance by the contractor is no longer in the best interest of the government. 48 C.F.R. § 49.401 (b). Termination for the convenience of the government spares the contractor financial hardship by providing fair compensation “for the work done and the preparations made for the terminated portions of the contract, including a reasonable allowance for profit.” 48 C.F.R. § 49.201 (a).
If DOD will not be terminating Paravant’s contract for default, does it plan to terminate Paravant’s contract for convenience?
3. Subpart 9.000 of the FAR “prescribes policies, standards, and procedures for determining whether prospective contractors and subcontractors are responsible.” The FAR’s policy states that the Government may only enter into contracts with responsible companies. 48 C.F.R. § 9.103 (a) For the contract to be awarded, the contractor must “affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors.” 48. C.F.R. § 9.103 (c). Determination of whether a contractor is responsible is based on several criteria, including the contractor’s having a satisfactory performance record, 48. C.F.R. § 9.104-1 (c), and having a satisfactory record of integrity and business ethics. 48. C.F.R. § 9.104-1 (d).
Agencies may consider the past conduct or performance of key employees of prospective contractors when assessing whether contractors have satisfactory performance records, or satisfactory records of integrity and business ethics, in making responsibility determinations. Comp. Gen. Dec. B-165915, Comp. Gen. Dec. B-248572, Comp. Gen. Dec. B-211353, Comp. Gen. Dec. B-210390, Comp. Gen. Dec. B-205602, Comp. Gen. Dec. B-204928; Comp. Gen. Dec. B-202325, Comp. Gen. Dec. B-270849, Comp. Gen. Dec. B-251533.
Given the past performance of Blackwater/Xe’s CEO and owner, and its employees, why did DOD find Paravant sufficiently responsible to be awarded a contract?
On April 6, 2009, you released a statement in which you called for reshaping the way the Pentagon does business, including an overhaul of its approach to contracting. In addition to questioning the Pentagon’s contract with a specific private security contractor, I believe this letter provides a strong case for reevaluating the Pentagon’s relationship with private security contractors overall. Thank you in advance for your attention to the matter. Should you have any questions please do not hesitate to contact me or have your staff contact Erica Fein at (202) 225-4071.
With every good wish,
Sincerely,
John D. Dingell
Member of Congress
In the 110th Congress, Congressman Dingell exchanged letters with the Department of State regarding the Department’s then-existing contract with Blackwater Worldwide. Five Blackwater guards were involved in a 2007 shooting of 17 Iraqi civilians in Baghdad, as mentioned in the above letter.
Earlier releases on the Congressman’s letters:
