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PART 4 Alabama Aircraft Industries Sues Boeing



Brandon Moseley

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By Brandon Moseley
Alabama Political Reporter

This is the final chapter in our four part series covering Alabama
Aircraft Industries (AAI)/formerly PEMCO) landmark $100 million
lawsuit against The Boeing Company. AAI alleges that Boeing used bid
rigging, political lobbying, and the theft of trade secrets to drive
an Alabama competitor, AAI, out of business.

In part 3, we discussed
how Boeing allegedly gained access to PEMCO’s processes and
proprietary intellectual property thru the two company’s joint efforts
to bid as partners on the Air Force KC-135 PDM contract.  Boeing then
ended the partnership to pursue the contract on their own.

On June 12, 2006 PEMCO filed a protest with the USAF asking that the Air
Force amend the FY08 KC-135 PDM contract to allow new bidders.  The
USAF agreed, and PECMO was given a 60 day window to make its own
proposal.  The short window to submit a bid meant that PEMCO did not
have time to seek out another industry partner to replace Boeing and
were forced instead to go it alone on the bid.  PEMCO/AAI then
prepared its own bid on the ten year contract to do the programmed
depot maintenance (PDM) on the KC-135 Stratotankers at its Birmingham
facility.  The fate of the company was hanging on winning the PDM
contract to continue to do the work that PEMCO/AAI had performed since
1969.

Boeing had all of PEMCO’s proprietary pricing data and
methodology from the preparation of the joint bid that the two
companies had worked on together in early 2006.  PEMCO however had
never been given access to Boeing’s plans, data, and methodology.
PEMCO/AAI alleges that this inside information gave Boeing an unfair
advantage in the bid for the 2008 KC-135 PDM contract with the U.S.
Air Force.

On September 18, 2006 both PEMCO and Boeing each submitted separate
bids on the contract. On February 23, 2007, both companies submitted their Final Proposal Revisions (FPRs) for the contract.  Boeing reduced
its estimate of labor hours per aircraft substantially.  The Boeing
Company never submitted any technical justification for the last
minute changes in the bid.  PEMCO/AAI alleges that the changes were
based on the use of PEMCO’s proprietary information, not on any new
labor saving methodology.

The USAF procurement officer overseeing the bid process was Ronald
Poussard.  Mr. Poussard had overseen the KC-135 PDM work for many
years and was very familiar with the work done by both Boeing and
PEMCO.  In May 2007, with award of the contract pending by the USAF
Ronald Poussard was replaced without explanation.  Charles Riechers
was made the SSA responsible for making the contract award.  Riechers
had been an Air Force officer and had spent the last four years of his
Air Force career assigned to “concept” projects at the Pentagon, but
had never worked in procurement before and had little knowledge of or
experience with tanker aircraft.  From November 2006 to January 2007
he worked as an advisor for Commonwealth Research Institute (CRI) making $13,400 a month at the secret request of the Air Force.
Instead of doing work for CRI (a defense contractor and Boeing client)
Riechers was actually  working for Sue C. Payton, assistant Air Force
secretary for acquisition, on projects that had nothing to do with
CRI.  CRI was registered with the IRS as a nonprofit, but it was also
one of the 200 largest Defense Contractors at the time.  Joseph Ryan, Trustee for the Litigation Trust
said, “He (Riechers) came to work as a procurement officer from his
job in a think tank (CRI) that was heavily funded by Boeing. Then he
came in as an inexperienced procurement officer.”

On September 7, 2007, the USAF accepted Boeing’s revised bid on the
recommendation of USAF Principal Deputy Assistant for Acquisition
Charles Riechers.  The USAF found that PEMCO was as well qualified as
Boeing, and had a better performance record than Boeing.  Boeing
however was awarded the contract because its total bid price was $15
million less than PEMCO/AAIs.  The difference was just 1.3% over the
long potential life of the contract.  PEMCO had submitted a bid of
$1.18 billion and Boeing had submitted a bid of $1.165 billion.  PEMCO
alleges that Boeing low balled the bid using proprietary information
taken from PEMCO during the preparation of the 2006 joint bid.  PEMCO
also alleges that Boeing at the last minute in the bid process used its
proprietary knowledge of PEMCO’s proprietary information about pricing
and methodology to submit a bid that was very slightly lower than
PEMCO’s.

On September 14th during the official debriefing by the Air Force to PEMCO as to why the contract was not awarded to them PEMCO inquired as  the removal of Mr. Poussard as the SSA in charge of awarding the contract at the last minute and
asked to know why the Air Force had not investigated PEMCO’s
allegations that Boeing had converted and misused proprietary
information belonging to PEMCO in the bid process.

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Following the controversial bid award to The Boeing Company, Charles
Riechers became the subject of a General Accounting Office (GAO)
investigation about his role in and his previous employment with CRI.
CRI’s parent corporation Concurrent Technologies Corporation was a
large Boeing client. On October 1, 2007, Riechers, told the Washington
Post, that all he did at CRI was attend the Christmas Party where he
met the corporate executives for the first time.  “I really didn’t do
anything for CRI,”  Riechers said in the Post interview. “I got a paycheck from them.”  On October
14, 2007 as the scandal was breaking in the press and with a GAO
investigation focusing on his possible misconduct, Charles Riechers
went in his garage, got in his car, turned his ignition, and committed
suicide by carbon monoxide poisoning.

Ryan said, “As you know, he (Riechers) ultimately
committed suicide leaving a note apologizing for creating another scandal.  There was an investigation that was initiated in 2008 in
respect to not only the suicide but also the alleged note. We have made every effort to find it, but the Washington Post reported on the content of the note at the time of the suicide. Nobody has any idea
what the results of that investigation are. It could well be ongoing
but we just don’t know. It is quite a conundrum, I can tell you that.”
In the suicide note Charles Riechers addressed to his boss, USAF
Acquisition Chief Sue Payton, he expressed remorse for having creating
a new acquisition scandal.  Ironically this acquisition scandal and
the one centered around USAF procurement officer Darleen Druyun both
involved The Boeing Company.

On December 7, 2007 the GAO agreed with PEMCO and issued a decision
that the USAF had failed to perform an adequate price realism
evaluation of the Boeing bid.  The revised Boeing bid is a “cost plus”
bid which in theory could actually end up being more than the PEMCO bid of $1.18
billion.  On January 7, 2008 the USAF requested that the GAO
reconsider its decision to sustain PEMCO’s protest of the contract
award.  On February 1, 2008 the GAO denied the USAF request.  On March
3, 2008 the USAF notified PEMCO that they had again awarded the
contract to The Boeing Company.  The Boeing Company bid was
$1,165,138,187 versus the PEMCO/AAI bid of $1,180,186,789.

On March 11-13 2008 PEMCO attended a Program Management Review (PMR)
about the KC-135 PDM program.  At that meeting, the USAF said that
they were having problems doing their in-house PDM work.  Whereas 44
planes a year had been going to Boeing and PEMCO for Programmed Depot
Maintenance, the USAF had been also doing PDM work on a certain number
of planes in house.  Since the Air Force was having difficulty doing
that work itself those planes likely would be sent to Boeing in the
future.  Thus the 2008 KC-135 PDM contract would likely be for more than
the 24 planes a year that PEMCO had been led to believe.  The
reduction in the number of planes was the justification by Boeing for
ending the MOA agreement in 2006.

In July 2007, Boeing agreed to repay more than $1 million it had
overbilled the government from 1998 to 2003 to install new engines in
KC-135 Stratotankers.  On August 11, 2009, Boeing agreed to repay the
government $2 million for false claims of KC-135 work that it had done
from 2002 to 2006 at its San Antonio facility.  On August 13, 2009
Boeing agreed to settle another federal lawsuit for $25 million, this
time involving overcharges and defective work on the KC-10 aerial
tankers.  This work was also done at Boeing’s much criticized San
Antonio facility, where all the KC-135 PDM work is now being performed.

In May 2006 the Department of Defense Inspector General found that
disgraced USAF procurement officer Darleen Druyun had wrongly rushed
the USAF to settle a $119 million Request for Equitable Adjustment
(REA) in favor of Boeing for $35.8 million on the 1998 KC-135 PDM
contract.  Boeing’s poor work and questionable billing practices were
why USAF procurement officer Ronald Poussard had recommended to the
Air Force that they end the 1998 KC-135 PDM contract and rebid it in
the first place with the 2008 KC-135 PDM contract, which is in force
to this day.

It is AAI’s assertion that The Boeing Company has a history of low
balling bids to get defense contracts and then either coming back with
an REA saying they need more money for the work or fraudulently adding
costs to a cost plus work so that even when Boeing is the low bidder
the actual price paid by the government is often more than what was
supposedly bid.

Former AAI Chairman Harold T. Bowling said, “If you go back to the original
contract award that we talked about earlier, they (Boeing) bid it in a
way that they couldn’t perform, so when they began to have the
extraordinary costs that they probably knew they were going to have
made, they knew that they could go back to the government and ask for
this request for equitable adjustment and recover their costs. That
has been their pattern throughout all of their contracting history and
I think it was their strategy, their tactic, knowing that Alabama
Aircraft had a lower price potential based on having lower overhead
and the business situation that we had in Birmingham.  They
couldn’t meet that, but they went ahead and did it anyhow, knowing what
our prices were going to be, thinking that from the business view
standpoint they would go back and try to recover it as they have in
other cases.”

Trustee Joe Ryan said, “There is a pattern and practice here for
Boeing asking for requests for equitable adjustments. They did it with
Druyun. In about 2000 she awarded them about $35.8 million which the
Defense Department found to later be excessive and undeserved, but so
what. There is a pattern here of Boeing coming in on a contract,
bidding X. For example, the contract they won by underbidding by 1.5
percent on a $1.3 billion contract and that was done with Mr.
Riechers. And then coming in with requests for equitable adjustments
which would essentially make up for the amounts they underbid or by
the amounts by which they underbid us in order to get the contract.”

After losing the 2008, bid on the KC-135 Stratotanker PDM contract to
Boeing, AAI agreed to continue to do some of the KC-135 PDM work for
Boeing.  Under the ongoing bridge contact AAI/formerly PEMCO agreed to do PDM work on up to ten KC-135s
per year for Boeing.  AAI agreed to do the work for Boeing at the
price of $6 million per airplane.  On March 17, 2008 Boeing wrote AAI
saying that the USAF only had $26 million to spend on the PDM work and
that AAI had just 24 hours to agree to the new pricing of $3.25
million per plane.  AAI wrote back to Boeing reluctantly agreeing to
the new pricing.  AAI later learned that Boeing was actually charging
the USAF $4,769,460 per plane.  These facts were concealed by Boeing.
During this six month bridge contract, AAI contends that Boeing
continued to delay parts and materials to AAI costing the Alabama
Company “delivery fee awards” under these contracts.

In 2008, AAI reported only $53.5 million in revenue and a loss of $5.8
million.  In August 2010, the company reported a loss of just $21,000;
but revenues had plummeted to just $11 million.  The loss of the
KC-135 business (over 90% of AAI’s total business) was devastating.
Every KC-135 Stratotanker in the USAF fleet had been through
Hayes/PEMCO/AAI’s hangers at least once.  Without the KC-135 work, the
company could not meet it long term pension obligations to its
employees.  On February 15, 2011 the company filed bankruptcy.  A bond
fund affiliated with Michael Tennenbaum’s Tennenbaum Capital Partners
was also owed $2.5 billion by Alabama Aircraft at the time of the
bankruptcy.

Kaiser Holding Company bought some AAI assets and contracts out of bankruptcy in September 2011.  The court approved the Section 363 sale over the objections of The Boeing Company.   AAI officials assert that if Boeing had
been a better joint venture partner there would never have been a
bankruptcy.  A week later, AAI filed suit against Boeing.  The AAI
filing said that, “Boeing was throughout this relevant time period a
lawbreaker and chiseler of the government and its business partner
and engaged in patterns of misconduct.”

Today the massive Hayes/PEMCO hanger sits largely empty.  Salesmen are
struggling to find contracts for the company to do.  At the time of
our interview last month, Chairman Bowling said that there were one
C130 transport and some helicopters receiving maintenance.  Where once
1,600 skilled Alabama workers drew a union wage, there are now just 50.
The company is looking for P3 Orions, C-130s, helicopters, and other
military work that it can perform at Birmingham.

Trustee Ryan said, “The principals of Kaiser have every intention of
having Kaiser Aircraft operate in the future as a viable defense
contractor in the Birmingham area. They want to add employees. They
want to get planes in those hangers.  They did not buy it out of the
bankruptcy simply to have a series of causes of action against Boeing
or whomever.  They bought it to run a business and it so happened, that
they had these claims as well but this is not a liquidation
proceeding.  Kaiser is in business to maintain aircraft.”

AAI is asking the court for a $100 million in damages for Boeing’s
pattern of misconduct against the small Alabama company.  Boeing has
asked that this case be dismissed. Judge David Proctor has set a
hearing on whether or not to grant Boeing’s request to dismiss for May
23 in Jefferson County.

There are allegations in the article that are taken wholly from the complaint filed by AAI and do not necessarily reflect the opinions of the author or publisher.

Brandon Moseley is a senior reporter with six and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook.

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Elections

League of Women Voters of Alabama sue over voting amid COVID-19 pandemic

Eddie Burkhalter

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The League of Women Voters of Alabama on Thursday filed a lawsuit against Gov. Kay Ivey, Secretary of State John Merrill and several Montgomery County election officials asking the court to expand Alabama’s absentee voting and relax other voting measures amid the COVID-19 outbreak. 

The nonprofit is joined in the suit by 10 plaintiffs who range in age from 60 to 75, many of whom have medical conditions that put them at greater risk for serious complications or death from COVID-19. 

“Voting is a right, not a privilege, and elections must be safe, accessible, and fairly administered,” the League of Women Voters of Alabama said in a press release Thursday. “Alabama’s Constitution specifically requires that the right to vote be protected in times of ‘tumult,’ clearly including the current pandemic.” 

Currently, to vote absentee in Alabama, a person must send a copy of their photo ID and have their ballot signed by a notary or two adults. The lawsuit asks the court to require state officials to use emergency powers to waive the notary or witness requirement, the requirement to supply a copy of a photo ID and to extend no-excuse absentee voting into the fall. 

Among the plaintiffs is Ardis Albany, 73, of Jefferson County who has an artificial aortic valve, according to the lawsuit. 

“Because she fears exposing herself to COVID-19 infection, Ms. Albany has already applied for an absentee ballot for the November 3, 2020, general election,” the complaint states. “Her application checked the box for being out of county on election day, and she is prepared to leave Jefferson County on election day if necessary to vote an absentee ballot.” 

Another plaintiff, 63-year-old Lucinda Livingston of Montgomery County suffers from heart and lung problems and has been sequestered at home since March 17, where she lives with her grandson, who’s under the age of five, according to the complaint. 

“She fears acquiring COVID-19, given her physiological pre-morbidity, and she fears spreading the virus to her grandson at home,” the complaint states. “She has never voted an absentee ballot, but she wishes to do so in the elections held in 2020. She does not have a scanner in her home, cannot make a copy of her photo ID, and has no way safely to get her absentee ballot notarized or signed by two witnesses.” 

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In response to the COVID-19 outbreak, Gov. Ivey pushed the Republican runoff election back until July 14. Although Merrill has allowed those who may be concerned about voting in person in the runoff to vote absentee by checking a box on the ballot that reads “I have a physical illness or infirmity which prevents my attendance at the polls.”

Merril has not extended that offer for voters in the municipal and presidential elections in November, however. 

Meanwhile, the number of confirmed COVID-19 cases in Alabama continue to rise, while testing for the virus has remained relatively flat in recent weeks. 

“We’re extraordinarily concerned about the numbers that we have been seeing,” said Alabama State Health Officer Dr. Scott Harris, speaking during a press briefing Thursday. 

Harris said the department continues to see community spread of the virus and have identified several hotspots. He’s concerned that the public isn’t taking the virus seriously or following recommendations to wear masks in public and maintain social distancing, he said Thursday. 

“One hundred years ago the nonpartisan League of Women Voters was founded to protect and preserve the right to vote and the integrity of the electoral process,” said Barbara Caddell, President of the League of Women Voters of Alabama, in a statement. “The unexpected risks posed by the novel coronavirus SARS-CoV-2 (COVID19) challenge our election system to the utmost.  Today, we ask that Alabama’s courts use Alabama’s laws to make it safe and possible for all citizens to vote.”

The League of Woman Voters of Alabama’s lawsuit is similar to a suit by the Southern Poverty Law Center, the NAACP Legal Defense Fund and Alabama Disabilities Advocacy Program which asks the court to require state officials to implement curbside voting for at-risk citizens during the coronavirus pandemic and to remove requirements for certain voter IDs and witnesses requirements.

The U.S. Department of Justice on Tuesday filed a brief in that suit that states the department doesn’t believe Alabama’s law that requires witnesses for absentee ballots violates the Voting Rights Act.

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Health

Two patients at Mary Starke Harper Geriatric Psychiatric Center die from COVID-19

Eddie Burkhalter

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Two patients at the state’s Mary Starke Harper Geriatric Psychiatric Center have died from COVID-19, the Alabama Department of Mental Health confirmed to APR on Thursday. 

There remained 17 active coronavirus cases among patients at the state-run facility, said ADMH spokeswoman Malissa Valdes-Hubert in a message Thursday. 

One patient at the facility has recovered from the virus, Valdes-Hubert said. Two nurses at the facility have also tested positive for the virus, Valdes-Hubert said on May 15. 

There were no confirmed cases at ADMH’s two other facilities in Tuscaloosa, Bryce Hospital and the Taylor Hardin Secure Medical Facility as of Thursday, Valdes-Hubert said.

Among the preventative measures being taken at the Mary Starke Harper facility are staff temperature checks and screening for other symptoms, and workers are required to wear FDA approved masks, Valdes-Hubert previously said.

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News

Inmate at Elmore prison dies after attack from another inmate

Eddie Burkhalter

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A man serving at the Elmore Correctional Facility died Wednesday after being assaulted by another inmate, the Alabama Department of Corrections confirmed Thursday. 

Jamaal King, 33, died Tuesday from injuries he received after an attack from another inmate, ADOC spokeswoman Samantha Banks wrote in a message to APR.  

“The ADOC condemns all violence in its facilities, and the fatal actions taken against King by another inmate are being thoroughly investigated,” Banks said in the message. 

King was serving a 22-year sentence after being convicted of murder, according to ADOC. His exact cause of death is pending an autopsy.

 

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National

Alabama includes antibody test results in total test counts

Chip Brownlee

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The Alabama Department of Public Health is combining some antibody test results with diagnostic test results in its total tested count on the state’s public coronavirus dashboard, potentially complicating the picture of the virus’s spread.

Alabama State Health Officer Dr. Scott Harris said Thursday that some antibody test results have been included in the state’s “total tested” count on its public dashboard, but that the state is working to separate the two categories of tests.

“I think the total number does include some antibody tests, although I’ve asked our staff to sort of ferret those out and start reporting those separately,” Harris said.

Diagnostic PCR tests, which are the vast majority of tests performed currently, check for a current infection, while antibody tests, which use blood and are sometimes called serologic tests, check for a past infection.

The acknowledgment that Alabama has combined the two types of tests on its public dashboard comes after several states faced a backlash from public health experts who say the two types of tests should not be combined.

Combining the two types of tests muddies the picture and could mislead the public and policymakers about where and when the virus spread. Depending on how many antibody tests have been included, it may also falsely inflate the total tested count.

Several other states — including Texas, Virginia and Vermont — said they also recognized the issue and have been working to fix them. The CDC also came under fire for combining the two types of tests in its public reporting of testing numbers.

Harris said he was not sure how many antibody tests have been included in the total tested category, but that the state is working to separate the tests into two different counts.

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“I’m not sure what that number is but we’re going to start reporting that separately just to make that clear to the public,” Harris said.

The state health officer also said the state does not use antibody test results to calculate the percent of tests that are positive, an important metric used to determine if the state is doing enough testing and if increased cases are the result of increased testing or community transmission.

“When we look at the percent of positive tests, those are not including antibody tests at all. We’re only looking at people who were tested with a PCR (diagnostic) test to see if they were actively infected,” Harris said during a live-streamed town hall with U.S. Rep. Terri Sewell Thursday. “And so that percent positive rate, which is the one we’re monitoring the most, is the one that does not include the antibody tests.”

On Wednesday, the CDC urged caution when seeking antibody tests because the tests could be wrong up to half of the time.

The CDC also warned that antibody tests are not accurate enough to use to make public policy decisions or personal safety decisions, despite calls from some policymakers who say the tests can be used to give people an all-clear to return to normal life.

Experts warn that getting a positive antibody test should not be taken as a license to think you are now immune from the virus. There is limited evidence about how long immunity lasts, and the test could be a false positive.

“Serologic testing (antibody testing) should not be used to determine immune status in individuals until the presence, durability, and duration of immunity is established,” the CDC said.

The CDC also cautioned against using antibody tests to make decisions about returning to work or school.

“Serologic test results should not be used to make decisions about grouping persons residing in or being admitted to congregate settings, such as schools, dormitories, or correctional facilities,” the CDC said. “Serologic test results should not be used to make decisions about returning persons to the workplace.”

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