Section 8(a) contracting program

Fort Sill Apache Industries Loses In Its Claims of Conversion/Fraud in Government Contracting Dispute

Matthew L.M. Fletcher

Here is the federal court’s order in Fort Sill Apache Industries v. Mott (E.D. Va.):

DCT Order Granting Defendants Motion

An excerpt:

In this civil action, which has been fully tried to the bench, plaintiff Fort Sill Apache Industries (“FSAI”) seeks to recover compensatory and punitive damages from defendant Deborah Evans Mott (“Mott”) based on claims of Conversion (Count I), Breach of Fiduciary Duty (Count II), Deceit by False Representation (Count III), Deceit by Nondisclosure and Concealment (Count IV), Actual Fraud (Count V), and Constructive Fraud (Count VI). During the bench trial, defendant orally moved for judgment as a matter of law under Fed. R. Civ. P. 52(c), on the ground that all of plaintiff’s tort claims against Mott in her individual capacity are actually contractual disputes with Mott’s employer, Team Systems International, Inc. (“TSI”), over the amounts billed for services performed pursuant to several contracts between the two corporate entities. Citing well-established Virginia case law, Mott argues that all of FSAI’s claims against her fail and that judgment should be entered in her favor. FSAI contends in response that Mott personally took on fiduciary duties and other responsibilities for which she is individually liable by acting as FSAI’s Chief Financial Officer (“CFO”) and by virtue of her level of access to one of FSAI’s bank accounts, including the use of a debit card linked to that account. FSAI also orally moved for inferences adverse to defendant because of alleged spoliation of evidence. The Court took both motions under advisement and in the weeks following the bench trial, the parties fully briefed these motions. This Memorandum Opinion constitutes the Court’s findings of fact and conclusions of law supporting the decision to grant defendant’s motion and deny plaintiff’s motion as moot.

 

Defense Contractor Sues Dept. of Defense over SBA Sec. 8(a) Race-Based Contracting (Excluding Indian Tribes)

Matthew L.M. Fletcher

Here is the complaint in Rothe Development, Inc. v. Dept. of Defense (D. D.C.):

Rothe Complaint

An excerpt:

Congressional amendments in 1986 (Pub. L. No. 99-272, § 18015, 100 Stat. 370) and 1988 (Pub. L. No. 100-656, § 207, 102 Stat. 3861, as amended by Pub. L. No. 101-37, § 6, 103 Stat. 72) also added “Indian tribes” and “Native Hawaiian Organizations” to the races deemed presumptively socially disadvantaged by 15 U.S.C. § 631(f)(1). However, ROTHE does not challenge the classifications “Indian tribes” and “Native Hawaiian Organizations” in this action. ROTHE understands the distinction in law drawn between “Native American” as a racial classification, on one hand, and an entity the United States has treaty or trust obligations towards, such as an “Indian tribe” or a “Native Hawaiian Organization” on the other. Cf. Morton v. Mancari, 417 U.S. 535 (1974) (legislation that singles out federally recognized Indian tribes is Constitutional “where the preference is reasonable and rationally designed to further Indian self-government”). ROTHE is only challenging the racial classification of section 8(a), which by definition includes only those groups currently classified by law as being “racial” groups: Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities to be determined by the SBA (to date, Subcontinent Asian Americans).
Update: It appears the court resolved these questions in favor of the constitutionality of Section 8(a) in another case:

Last Week’s SCIA Oversight Hearing on SBA sec. 8(a)

Matthew L.M. Fletcher

Witnesses (with links to written testimony):

Panel #  1

Mr. Joseph G. Jordan [testimony]
Associate Administrator
Government Contracting and Business Development, Small Business Administration, Washington, DC

Mr. Peter L. McClintock [testimony]

Deputy Inspector General,
Office of the Inspector General, Small Business Administration, Washington, DC

Panel #  2

Ms. Jackie Johnson-Pata [testimony]
Executive Director
National Congress of American Indians, Washington, DC

Ms. Julie Kitka [testimony]

President
Alaska Federation Natives, Anchorage, AK

Panel #  3

The Honorable Chief James Allan [testimony]
Tribal Chairman
Coeur d’Alene Tribe, Plummer, ID

Mr. Lance Morgan [testimony]

Chairman
Native American Contractor s Association, Washington, DC, and President and Chief Executive Officer of Ho-Chunk, Inc., Winnebago, NE

Mr. Larry Hall [testimony]

President
S & K Electronics Inc., Ronan, MT

 

The Maze of the Murkowski/Miller Election and the Role of an ANC PAC.

Kate Fort

There is an extensive article out today at the Anchorage Daily News covering how much money the ANC PAC donated to the Murkowski Campaign.  The article is surprisingly well balanced, and puts the PAC spending in the context of the the Citizens United decision, which has been blamed for the dramatic increase in political spending this cycle.  I can only assume there will be more coverage on this at least until December 2nd, which is the next deadline for filings.

In case you’re unfamiliar with the situation, Senator Lisa Murkowski was the establishment incumbent from the GOP.  She suffered a surprise loss in the primary to the Tea Party candidate, Joe Miller.  Miller was backed by his own so-called “super PAC” in the primary, where they spent about $600,000.  After her loss, Murkowski decided to enter the race as the write-in candidate.  Because polling in Alaska is notoriously difficult, and because a write-in campaign by an incumbent is generally unheard of, figuring out who would win the Alaska Senate race became almost impossible.  Some hopefuls even thought that Murkowski and Miller would split the vote, leaving the Democratic candidate in the race just enough breathing space to win.  Murkowski essentially won in a blowout, though the Miller campaign continues to do what it can, including filing a motion on Friday in federal district court, to change the outcome (complaining, inter alia, that write in ballots misspelling “Murkowski” should not be counted).  The federal district court has deferred to the Alaska state courts on the matter.  Here is the order.

Prior to election day, Joe Miller filed a complaint with the Federal Election Commission about the spending by Alaskans Standing Together, the PAC created by the ANC’s.  Miller tried to argue it wasn’t appropriate for the ANC’s to be donating to the Murkowski campaign because of their extensive federal contracts.  Joe Miller had come out against all 8(a) contracting for Native Corporations and against other money that goes to rural Alaska.  This article concludes with the FEC experts the author spoke with agreeing that nothing will come out of the complaint (though this is probably an easy bet given the FEC’s overall difficulty enforcing its regulations due to time, staffing and statutory constraints).

NYTs Article on Alaskan Native Corporations

Matthew L.M. Fletcher

From the NYTs:

The Alaska Native corporations have had Senator Ted Stevens to thank nearly every step of the way.

In 1971, a few years after he was first elected to the Senate, Mr. Stevens helped write the Alaska Native Claims Settlement Act. Also known as the “Billion Dollar Deal,” the act established more than 200 corporations to manage almost 45 million acres and gave $962 million to Alaska Natives in return for their ceding of all aboriginal land rights.

When the Alaska Native corporations struggled in their early years as they tried to turn people who had survived on fishing and hunting into business managers and to teach thousands of villagers to call themselves shareholders, Senator Stevens was there, too.

He helped corporations with financial difficulties by persuading Congress to approve a provision in the 1986 Tax Reform Act allowing the corporations to sell their accumulated tax losses to profitable companies seeking tax write-offs.

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