Agility Attempts to Vault Fraud Charges
Agility, a Kuwait-based multi-billion dollar logistics company spawned by the U.S. invasion of Iraq, is facing criminal charges for over-billing the U.S. taxpayer on more than $8.5 billion worth of food supply contracts in the Iraq war zone. If the lawsuit, scheduled for February 8, is successful, the company could owe the U.S. government as much as $1 billion.
Originally known as Public Warehousing Corporation (PWC), Agility boasts that it once supplied one million meals a day to U.S. soldiers and contractors in the Middle East. The company's Mercedes trucks hauled delicacies from ice cream to lobster tails to feed soldiers living on military bases scattered throughout Iraq. Today it has new contracts to provide food to the U.S. Agency for International Development in Djibouti in the Horn of Africa and - until about a month ago - was supposed to ramp up food delivery to the troops newly posted in southern Afghanistan.
In a lawsuit filed on November 18, 2005, Kamal Mustafa Al-Sultan accuses Agility of cheating him of a share of profits from the lucrative contract because he refused to go along with alleged corruption. A former business partner of PWC/Agility, Sultan is a cousin of the company founder and CEO, Tarek Abdul Aziz Sultan Al-Essa.
After conducting a grand jury investigation, the U.S. Department of Justice (DoJ) joined Kamal Sultan and filed criminal charges against PWC/Agility on November 9, 2009, immediately boosting the original lawsuit's chances of success.
"We will not tolerate fraudulent practices from those tasked with providing the highest quality support to the men and women who serve in our armed forces," said Tony West, assistant attorney general for the District Court for the Northern District of Georgia, in a press release. "As this case illustrates, the Department of Justice will investigate and pursue allegations of fraud against contractors and subcontractors, whether they are foreign or domestic."
Joint Venture Leads to Fall Out
PWC was part of the Sultan family's business empire that is grounded in high-end supermarkets and mega-stores across the Middle East. (See Sidebar.) Starting in the late 1990s, Tarek Sultan teamed up with ex-U.S. soldiers to bid on lucrative U.S. government projects. PWC's first major contract, initially advertised in May 2002, was for a U.S. Defense Supply Center called Prime Vendor Subsistence to supply food eaten on U.S. military bases in the Middle East in anticipation of the invasion of Iraq. (Halliburton/KBR cooks and serves the food, but it does not supply it.)
At the time, Tarek Sultan had no experience in food supply, nor did he have a personal track record with the U.S. military - a requirement for bidding on the contract. However, KMSCO - run by his cousin, Kamal Sultan - had multi-million dollar U.S. military contracts dating back to1996 for "life support, food supplements, and ice." In a January 2007 interview with CorpWatch, Kamal Sultan says he agreed to create a joint venture with Tarek in June 2002 to provide PWC with the qualifications to bid.
A year later in May 2003, PWC won the initial Prime Vendor contract. Soon after that, Kamal Sultan alleges, PWC officials asked him to take part in a scheme to defraud the military. When Kamal refused, Tarek Sultan dropped KMSCO from the contract, thus depriving Kamal Sultan of his expected 30 percent profit share. Over the next four years the two men waged a series of legal battles in Kuwaiti courts, with each side alternately gaining the legal upper hand.
The court cases exposed a scheme of "prompt payment discounts." It works like this: Company A (a shell company) buys a pound of chicken for $1 and gives it to Company B (e.g., PWC) along with a bill for $1.10. Then Company B sells it to the military for $1.10 plus the agreed-on overhead and profits. Next, Company B pays Company A $1.10 and pockets the ten cent mark-up from Company A as a prompt payment discount.
In this case, Company B has effectively earned the agreed-upon (and legal) profits from the military plus an extra ten cents that the military would never have paid if it bought it directly from company A. At the very least, this system is a waste of taxpayer money. And if Companies A and B are owned by the same people, it may constitute fraud.
Kamal Sultan says that in June 2003, PWC officials asked him to use KMSCO to buy local produce, and re-sell it to PWC at an inflated price invoiced to the U.S. military. In his lawsuit, Kamal Sultan alleges that when he "refused to participate in this announced scheme," the Sultan Center supermarket chain agreed to take over responsibility to supply local produce.
PWC/Agility spokesperson Jim Cox told CorpWatch in September 2008 that "prompt payment discounts" were written into the contract and therefore not illegal. In any case, they far exceeded the more typical two percent military discounts.
Asked about the relationship between PWC and the Sultan Center, Cox said that the two companies are distinct businesses, listed separately on the Kuwait stock exchange.
In fact, Tarek Sultan and family head Jamil Sultan al-Essa serve on each other's boards, while Jamil and four other Sultan family members are the largest stockholders the in Sultan Center, and also control a large stake in PWC. The DoJ criminal indictment states: "the two companies had interlocking directorates with at least three directors in common." PWC/Agility's Cox explains that this cross-ownership is common and legal in Kuwait.
In the grand jury documents submitted to the courts in November 2009, however, the investigators cite multiple examples of collusion. An October 15, 2004 email from PWC officials asked the Sultan Center to alter figures so that "the temporary price decline in the catalogue will not be obvious to the DSCP (Defence Supply Center, Philadelphia)." It also quotes emails from Albuquerque-based Professional Contract Administrators (a consulting firm working for PWC) to tell Toby Switzer, the CEO of PWC Global Logistics, to "fire somebody, blame it on them, and cover up" the revisions in the Sultan Center's local market prices "ASAP--THIS IS VERY SERIOUS."
PWC is also alleged to have profited from "prompt payment discounts" from companies in the U.S. In early 2007 the DoJ began a series of investigations into the company's pricing practices, alleging that PWC had overcharged the Pentagon by as much as $374 million "by inserting a related company to inflate the amount billed."
One PWC supplier that the DoJ investigated was American Grocers Inc., which provides foods such as Smucker's peanut butter to the Sultan Center for resale to PWC in Iraq. In July 2009 American Grocers owner Samir Itani, a Houston-based Lebanese-American businessman, was convicted for tacking on "bogus trucking charges."
Another company under DoJ scrutiny is Ocean Direct LLC, owned by Richmond Wholesale Meats Inc. of California. At one point, it was supplying $2.3 million a month worth of raw cold-water lobster tails to the military at $21 a pound while the average wholesale price at that time was between $17.60 and $18.75 a pound.
An October 2007 Wall Street Journal investigation revealed that PWC appeared to have also taken advantage of revolving doors between the military officials who hand out logistics contracts and the vendors that bid on them.
For example, when PWC bought poultry, ham, sausage and bakery products from Sara Lee, the Illinois-based company paid PWC five percent of the purchase price. The agreement, which began in 2003, was negotiated by a Sara Lee executive in charge of military sales, Paul Simmons, who was previously a chief warrant officer for the Army.
One of his counterparts on the military side is David Staples, a senior procurement official for the Army who formerly worked at Sara Lee's Jimmy Dean Sausage unit. Staples went to work for the Army after his predecessor, Emily Prior, quit. Prior now works for Quantum Foods, in Illinois, which supplies beef to troops in Iraq. She also represents Perdue Chicken, another company that sells food to the military.
As the Iraq war dragged on, PWC made billions from its contracts with the military. By late 2005, it had billed the U.S. $4.6 billion under the Prime Vendor contract, according to Kamal Sultan's 2005 lawsuit. Four years later, according to the criminal charges brought by the DoJ, the amount billed had almost doubled to $8.5 billion.
Awash in cash, courtesy of U.S. taxpayers, Tarek Sultan embarked on a buying spree, snapping up companies around the world. In December 2006 PWC changed its name to Agility.
From managing a few warehouses in 2003, PWC/Agility was suddenly in the same league as global logistics giants FedEx and DHL. Like many multinational corporations, it signed on to the World Economic Forum's "Partnering Against Corruption Initiative" where it has committed to zero-tolerance policies toward bribery and pledged to implement anti-corruption programs.
Today, Agility operates ports in Dubai, and runs shipping companies out of New Orleans. The company boasted to the Los Angeles Times that it was capable of "hauling giant mining equipment through the jungles of Papua New Guinea, or erecting stage sets in Asia for touring rock groups such as the Doobie Brothers."
The U.S. "war on terror" continues to be a profitable source of business for the company. In 2008, Matrix, an Agility subsidiary in the United Arab Emirates, was contracted to fly turbines and transformers from Germany and Mexico to a power plant in Afghanistan. That contract is now the subject of a $20 million dispute with the company building the plant: Black & Veatch of Kansas. (For more on the power plant, see "Black & Veatch's Tarakhil Power Plant: White Elephant in Kabul.")
In 2009, Agility announced revenues of $6.8 billion, a staff of 37,000 employees with 550 offices in 120 countries around the world, making it one of the world's eight biggest logistics companies.
Supporters and Critics
The company has powerful supporters in the military. Its brochures quote Gen. David Petraeus, now the head of U.S. Central Command: "Agility has performed a miracle across Iraq."
Some see less miracle and more profiteering. Rory Mayberry, a Halliburton/KBR food production manager for a dining facility at Camp Anaconda testified before Congress in June 2005: "For example, tomatoes cost about $5 a box locally, but the PWC price was $13 to $15 per box. The local price for a 15-pound box of bacon was $12, compared to PWC's price of $80 per box. PWC charged a lot for transportation because they brought the food from Philadelphia," he said.
"They get options, privileges, that no one else can get, because they used to be part of the (Kuwaiti) government," says Saad Salem Al-Qattan, a Kuwaiti business man who owns Al-Rakeb Company Petroleum Electricity & Construction Services (RAPICO) which is involved in a land dispute with PWC/Agility. Asked about the U.S. military contracts, he shrugs: "They (PWC/Agility) are greedy, and the (U.S.) military doesn't know where to go."
Several lawsuits have been filed against the company. Beth Hanken, an Iowa businesswoman, sued PWC/Agility when she lost contracts to supply pork to the military. The case was dismissed. The only lawsuit that has so far stuck is Kamal Sultan's 2005 charge against PWC and its top officials - Tarek Sultan, Toby Switzer, and Emad Al-Saleh, PWC's deputy director (who now heads an investment management company called North Africa Holding).
After the court unsealed the records in November 2009 when the DoJ joined Kamal Sultan's lawsuit, PWC/Agility posted a statement on its website: "Kamal Mustafa Sultan, owner of Kamal Mustafa Sultan Company ... has a long history of strong animosity towards PWC, its officers and its employees." PWC/Agility added that Kamal has filed more than 40 court actions against PWC, its executives and its employees in Kuwaiti courts, but that "all of the court actions have been unsuccessful."
But whether or not Agility wins in court, it is already losing at the cash register. Immediately after the DoJ joined the case, the Pentagon barred PWC/Agility and its subsidiaries - including Taos of Alabama and Matrix from the UAE - from federal contracts by placing it on the "Excluded Parties List System." DynCorp, a business partner, followed suit in late December by dropping PWC/Agility from a major U.S. military logistics contract in southern Afghanistan.
In November, PWC/Agility said it "is confident that once these allegations are examined in court, they will be found to be without merit." Since then PWC/Agility has attempted to reach a settlement with the DoJ by offering to pay a $600 million fine, according to reports in the Kuwaiti press. "No agreement has been reached so far and there is no guarantee these negotiations will lead to a solution," the company stated at the end of December.
A criminal arraignment of PWC/Agility scheduled for early January has been postponed five times so far, the latest delay coming at the eleventh hour on January 29. U.S. Magistrate Christopher Hagy agreed to a new date of February 8, although he expressed exasperation. "There's a point at which this stops," Hagy said.
Unless these settlement discussions bear fruit, the arraignment could lead to a trial in which spectators can expect a fascinating view into the extent of corruption engendered by the U.S. occupations of Afghanistan and Iraq.
* This article was produced in partnership with Inter Press Service News Agency.