Afghan Yar Int'l Constr. Co. v. United States Dep't of State
| Decision Date | 06 August 2021 |
| Docket Number | Civil Action 21-1740 (CKK) |
| Parties | AFGHAN YAR INTERNATIONAL CONSTRUCTION COMPANY LIMITED d/b/a ACCL INTERNATIONAL, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Afghan Yar International Construction Company Limited and Afghan Yar International Logistics Services Company (collectively doing business as “ACCL International”) are diversified multinationals that contract with the United States government, including with the State Department, in Afghanistan. On June 30, 2021, ACCL International sued the State Department claiming that it caused a de facto debarment of ACCL International, in violation of certain federal debarment regulations. ACCL International simultaneously moved for a preliminary injunction to reverse the effects of the State Department's alleged de facto debarment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, [1] the Court will DENY ACCL International's [4] Motion for a Preliminary Injunction.
The State Department is responsible for funding and overseeing numerous international programs and contracts. But before financing these global programs and contracts, the State Department understandably requests that its various bureaus “assess the likelihood” that such government funding will incidentally benefit terrorists or terrorist organizations. ACCL-UC at 1. To safeguard against this concern, the State Department directs its bureaus to establish risk mitigation measures, which will neutralize the risk of inadvertent terrorist financing. See id.; Farrell Decl., ECF No. 10-1, at ¶ 4. One such mitigation measure that the State Department has developed is a counterterrorism namecheck vetting system for government contractors, operated by the Office of Risk Analysis Management (“RAM”), within the State Department's Bureau of Administration. See Farrell Decl., ECF No. 10-1, at ¶¶ 2-4. RAM currently conducts counterterrorism namecheck vetting “for certain programs and activities in Afghanistan, Syria, Pakistan, Iraq, Lebanon, the West Bank/Gaza, Yemen, and for the Near East Regional Democracy Program and programs implemented by the Global Engagement Center.” Id. at ¶ 3. Counterterrorism namecheck vetting, however, is not required for all State Department programs within these countries, nor is RAM namecheck vetting required for all State Department programs globally. Id. at ¶ 4.
To administer its system of namecheck vetting, the State Department's RAM office collects contractor personnel data and cross-references it against relevant databases reflecting known terrorist organizations, members, and affiliates. See ACCL-UC at 4. Where applicable, RAM conducts namecheck vetting before the State Department awards contracts and periodically thereafter, including in the event of significant personnel change by a government contractor. See id. at 5. If namecheck vetting uncovers “derogatory” information, then RAM will inform the State Department bureau responsible for the particular contract or program under review. See id. at 4; Farrell Decl., ECF No. 10-1, at ¶ 6. It is then the responsibility of that specific State Department bureau, at the direction of its Assistant Secretary, to determine the ultimate effect of the “derogatory” material uncovered. See Farrell Decl., ECF No. 10-1, at ¶ 5; ACCL-UC at 4. Based on the risk factors associated with the State Department program in question, a bureau may decide to refuse a government contract because of derogatory material or, instead, to issue an award despite the existence of that material. See Farrell Decl., ECF No. 10-1, at ¶ 5. “The State Department does not maintain a ‘blacklist' of prohibited partners based on counterterrorism namecheck vetting.” Id. at ¶ 10.
Afghan Yar International Construction Company Limited (“Afghan Yar Construction”) and Afghan Yar International Logistics Services Company (“Afghan Yar Logistics”) are diversified multinational companies incorporated under the laws of Afghanistan and headquartered in Kabul, Afghanistan. See Pirzada Decl., ECF No. 4-1, at ¶ 4. Afghan Yar Construction and Afghan Yar Logistics, known collectively as “ACCL International, ” carry out global operations and maintain offices in Germany, Iraq, and the United Arab Emirates. Id. at ¶¶ 3-4. Mr. Habibullah Pirzada, a native and citizen of Afghanistan, is the President and owner of ACCL International. Id. at ¶¶ 1-2. Mr. Pirzada runs ACCL International with the assistance of his brothers, Mr. Mukhsen Mokhammad, who oversees ACCL International's operations in the UAE, and Mr. Mahmood Pirzada, who oversees ACCL International's operations in Afghanistan. Id. at ¶ 3.
“Since 2006, the majority of ACCL International's business [has been] U.S. government-related.” Id. at ¶ 17. In particular, ACCL International has performed services in support of the United States government and its operations in Afghanistan, through subcontracts with prime contractors of both the State Department and Defense Department. Id. at ¶ 5. For example, ACCL International has “provided food and other vital life support to United States diplomats and armed forces personnel serving . . . in Afghanistan pursuant to subcontracts with prime contractors of the State Department.” Id. And “[o]ver the past decade, ACCL International has received more than 60 letters from a variety of sources, including the State Department, commending, recommending, or otherwise praising ACCL International's performance and expertise.” Id. ¶ 6.
The present case involves a dispute over ACCL International's subcontracts with two of the State Department's prime contractors in Afghanistan. First, ACCL International maintained a subcontract in Afghanistan with a prime contractor called DynCorp International LLC (“DynCorp”). The State Department originally awarded a prime contract to DynCorp in 2014 for the Afghanistan Life Support Services (“ALiSS”) contract, to service the United States embassy in Kabul. See Stever Decl., ECF No. 10-5, at ¶¶ 4-5. Although performance on this prime contract ended in September 2020, see id. at ¶ 5, DynCorp is currently serving on an interim “bridge” contract for the ALiSS prime contract, until the Department of State is able to award a new competitive “follow-on ALiSS contract, ” id. at ¶ 8. On this ALiSS bridge contract, DynCorp has subcontracted with ACCL International for “food services” to be provided to the embassy in Kabul. Id. at ¶ 9; see also Merrill Decl., ECF No 10-4, at ¶ 5; ACCL-UC at 425. ACCL International's current ALiSS subcontract is operative between August 20, 2020 and August 19, 2021. Id. According to ACCL, however, “[t]he State Department will soon award a renewal of the ALiSS contract” that has an expected “base period commencing on 20th August 2021, with four option years” thereafter. Pirzada Suppl. Decl., ECF No. 12-1, at ¶ 7.
ACCL International also maintained subcontracts with another State Department contractor called Pacific Architects and Engineers, Inc. (“PAE”). In 2018, the State Department awarded PAE a task order, labeled as the “SaSS Task Order, ” under which PAE was to provide “security and mission support services” for the State Department in Afghanistan. Menard Decl., ECF No. 10-3, at ¶¶ 4-5. Under the SaSS Task Order, PAE subcontracted with ACCL International to provide “facility, operations, maintenance, and life support services” for the State Department's Criminal Justice Task Force and its Counter Narcotics Justice Center, Sensitive Investigative Unit, and National Interdiction Unit Compounds in Kabul, Afghanistan. Pirzada Decl., ECF No. 4-1, at ¶ 14. ACCL's most recent subcontract with PAE on the SaSS Task Order was originally to remain operative until September 18, 2021. Pirzada Suppl. Decl., ECF No. 121, at ¶ 10.
Finally, in addition to the SaSS Task Order, PAE also holds a prime contract with the State Department for “operations and maintenance” services at the embassy in Kabul (the “O&M Contract”). Jackson Decl., ECF No. 10-2, at ¶ 4. In support of its O&M Contract, PAE awarded ACCL International two small subcontracts. See id. at ¶ 6. One of ACCL's O&M subcontracts was to perform painting work on the exterior of the United States embassy in Kabul. Id. Similarly, ACCL's second O&M subcontract involved painting work on the Marine Security Guard Quarters and Arian Buildings in the U.S. Embassy Compound in Kabul. Id. Both of ACCL International's O&M subcontracts with PAE terminated on July 31, 2021. Id.
Each of ACCL International's subcontracts with DynCorp and PAE was subject to a personnel background vetting provision. Section H.16 of ACCL's ALiSS subcontract with DynCorp states: ACCL-UC at 478. Section H.17 of PAE's O&M Contract with the State Department contains an identical vetting provision. See id. at 679. Lastly, Section 8.8.1.1 of the SaSS Task Order with PAE subjects all subcontractors thereunder to security vetting requirements, including that “all personnel meet the approved criteria and satisfactorily complete all screening and selection process requirements.” Id. at 572.
The State Department's RAM office conducted counterterrorism namecheck vetting on ACCL International, with respect to certain of its contracts and awards. See...
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