Free Supplemental Brief - District Court of Federal Claims - federal

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Defendant's Supplemental Exhibit 52

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¯ l)nit~d States Government -

Department of Energy

memorandum
DATE: REPLY TO A3"TN OF:

JUN t t 1989
DP-3 (B.Barker, 6-2181) Albuquerque Operations Office (AL) Award Fee Determination f~r the Period October ], 1988, through March 31, ]989 Manager,.Albuquerque Operations Office Please be advised that I have thoroughly reviewed your findings for each contractor as noted in your May 3], ]989, memorandum to me, subject same as above. Based upon your input and my own personal observations, I concur in your findings for A111ed Signal, Inc., EG&G, Mound Applied Technologies, Inc., General Electric Company, Mason Hanger - $ilas Mason, Inc., a~d Westinghouse Electric Corporation. In the case of Rockwell International Corporation, it would be premature at this time to make a final determination until the Department of Energy investigation of environmental, safety, and health charges are resolved. I have noted my concurrence and concerns .in the attached file copy response.

SUBJECT.

Acting Assistant Secretary for Defense Programs Attachment: Memo to DP-] fm AL dtd 5/31/89

£ 001501

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Defendant's Supplemental Exhibit 53

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1 2 3 4 5 ROCKWELL INTERNATIONAL CORPORATION, ) 6 ) 7 8 )
UNITED STATES COURT OF FEDERAL CLAIMS

) )

Plaintiff, vs.

)

) No. 91-1362 C ) (Judge Yock) 9 UNITED STATES OF AMERICA, ) 10 Defendant. ll 12 13 14 15 16 DEPOSITION OF: 17 18 19 20 21 22 23 Reported by: 24 25 BARBARA K. HARRIS CSR # 93 Twining-Plaintiffs Depo, CICt BRUCE G. TW1NING Tuesday, February 23, 1993 10:00 A.M.

)

)

)

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1 handbook, was actually part of a headquarters task force 2 that did a fairly thorough look at the award fee possess for 3 DOE and made several recommendations to enhance it. 4 Q. Were the individuals at Albuquerque who were

5 involved in the award fee process at liberty to deviate from 6 the handbook as they wished? 7 A. I would view the handbook as a guidance document,

8 especially in a period of transition where the department is 9 changing its award fee process. l0 Q. So anybody in the Albuquerque Division who thought

11 it was a good idea to deviate from the handbook was free to 12 do so? 13 A. The PERB, I believe, was free to use the document

14 as guidance and then do what they thought was right in a 15 specific circumstance. 16 17 Q. So ifthe -A. This doesn't say order. It doesn't say -- I

18 haven't read it. But the handbook is a guidance document. 19 Q. So if the handbook said one thing, the PERB was

20 free to do something else if they thought it was sensible 21 under the circumstances? 22 MR. KOLAR: Could you be more specific about

23 instances, examples? 24 MR. NYE: I will get to that, but right now I

25 am just asking generall~wining-Plaintiff's Depo, ClOt

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16 1 Q. Generally the PERB was perfectly free to deviate

2 from the letter of this handbook. 3 MR. KOLAR: Objection on grounds of

4 vagueness. 5 6 Q. That's fine. You may answer. A. ! would view that handbook as a guidance document,

7 that laid out the process. My opinion on where we were in 8 this process is that this handbook, which was dated 1977, 9 was likely becoming obsolete, and led to this 1990 revision. 10 Q. Would you, Mr. Twining, describe for me how the

1 ! award fee process worked at Albuquerque. Take your time and 12 go from step one to the issuance of the actual fee to the 13 M & O contractor. 14 A. Well, again, ! said the award fee process has been

15 evolving. 16 Q. Let's start with 1988 when you first arrived

17 here. 18 A. In general, my view of how that award fee process

19 worked at that time is that the area manager was responsible 20 for pulling together the award fee report. 21 Q. Now, the area manager in connection with Rockwell

22 would be the manager at the Rocky Flats facility in 23 Colorado? 24 A. Yes. The area manager actually pulled together

25 the report. In pullin~ to~etl~era re~--o-rt,hev)~ul~ have, CICt

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1 considered input from the people in his area office. He 2 would have also been expected to consider input from people 3 in functional divisions in Albuquerque. 4 For example, he would get input from the Weapons

5 Quality Division that would deal with the quality of the 6 product that Rockwell was producing in the plant. He would 7 have been expected to get input from our ES & H people to 8 reflect the kind of reviews and appraisals that had been 9 done by both our people and headquarters people. And then 10 he would incorporate that into a draft report. 11 He would then come to the PERB meeting, and be

12 prepared to talk to that report. The other members of the 13 PERB, which were -- and I'm not sure whether at tiffs time 14 the PERB was chaired by Jim Culpepper or Charlie Troell, but 15 there was a chairman and other functional assistant managers 16 on the PERB, and the PERB as a whole would listen to what 17 the area manager had to say, make an assessment on whether 18 it fairly characterized the input from their own functional 19 people, as well as whether it, you know, fairly 20 characterized Rockwell's performance from their point of 21 view. 22 23

Q.

Who were the members of the PERB?

A. Well, typically it would be the chairman, and I'm

24 not sure whether at that time it was Charlie Troell or Jim 25 Cull~epper; the assistant--ma}la~er f~r-O~er~.~i-~n~-and We~.~ns

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18 1 would be on the PERB, the assistant manager for 2 ES & H, all of our assistant managers that have a functional 3 interest in what went on at the site. 4 There is, I believe, a PERB secretariat which is

5 from the Contracts Division, but the board itself is the 6 decision-making body. I think we probably have an attorney 7 advisor to the PERB. Again, that was changed over time, I 8 think. 9 But the PERB reviews what the area manager has to

10 say, changes it if appropriate, and then ! was given and am 11 still given a report with a proposed award fee determination 12 and a briefing. ! look through that, ask my questions. If 13 my concerns haven't been reflected, the PERB may or may not 14 meet again to reflect the input ! have or the questions I 15 ask. But when we are all finished, I make an award fee 16 determination. 17 And at the time of this award fee, we had just

18 gotten into a process of formally sending those proposed 19 determinations to headquarters for concurrence. 20 Now, over time, we have gotten much more formalized

2! about determining what the performance objectives are that 22 we are going to be interested in in the award fee process, 23 and I am not sure what the practice was back in this period, 24 but today we review those performance objectives, or 25 performance criteria, th~-PI~RB a~:r~s }o t~-~n, i-hey run-~i~e-m

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22 1 Q. If you would look at the handbook that superseded

2 the 1977 handbook, which is Exhibit 30, if you would look at 3 page Roman III-10, it bears Bates number E 001096, and is 4 entitled, there is a paragraph entitled, "Role of Fee 5 Determination Official," and ! would ask that you read that, 6 Mr. Twining. 7 8 A. Yes. Q. And on the following page there is a summary of

9 the steps involved in the award fee process, and I would ask 10 if you would look at that. 11 12 A. Yes. Q. Now, does that paragraph comport to your

13 understanding of how the process worked as well as the 14 summary? 15 A. I think that paragraphs is fairly consistent with

16 what I said. 17 Q. All right. So that the handbook, as it existed

18 prior to the February 16, 1990 edition, makes no reference 19 to headquarters' concurrence. 20 21 A. That's right. Q. And the February 16, 1990 edition, which is

22 Exhibit 30, does make explicit reference to headquarters' 23 concurrence. 24 25 A. Yes. O. And I believe vot~ h~v~ test~-fi-ed th~.t-~he ~rocessClCt

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1 of headquarters' concurrence was an evolving one; is that 2 fair? 3 A. Yes. Basically there was a task force that looked

4 at the whole award fee process. One of their 5 recommendations was that there ought to be a formalized 6 headquarters' input, and it was not unusual for me to call 7 and get input or the PERB to call and get input from 8 headquarters before. But a formalized headquarters' input, 9 I don't know exactly when we got guidance from headquarters 10 that said, "From here forward you will send these forward 11 for concurrence." But once we got that guidance, we did 12 it. The handbook revision would have come later. 13 Q. So at some point before the February 1990

14 handbook, you would have received some directive from 15 headquarters saying that award fee recommendations would 16 have to go to headquarters for concurrence; is that correct? 17 18 A. I believe that's the case. Q. Now, let's go back to 1988 when you arrived on the

19 scene in Albuquerque, and I believe you testified you were 20 involved in both award fee determinations for the six months 21 of fiscal year '88. At that point in time, was there a 22 formal requirement for headquarters' concurrence? 23 A. I don't recall, but I don't think so. I can't be

24 absolutely sure. I do not believe that first award fee 25 determination went to h~adm~.rter~laintiff's Depo, CICt

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1 2 Q. In '88. A. The determination that would have been made right

3 after I got there, which would have been for the period that 4 ended in March of'88. 5 Q. And what about the second half of 1988, that would

6 be the award fee going from April 1 through September 30, 7 1988, did that go to headquarters for concurrence? 8 A. I don't recall. I don't know. I don't know for

9 sure. I would say no because the task force was really 10 started under the new administration, which came in in 11 January of'89. 12 Q. As of the time that Admiral Watkins became the

13 Secretary. 14 15 16 17 18 A. Yes. MR. KOLAR: Give me a second, please. (WHEREUPON, there were proceedings held offthe record.) Q. Now, it's your testimony, or your recollection,

19 that for the two award fee periods in 1988, concurrence from 20 headquarters is not required. Was headquarters informed at 21 some point of the determinations that were being made for 22 Rockwell, as well as the other M & O contractors under the 23 supervision of Albuquerque? 24 A. It was not -- before I came to Albuquerque, there

25 had been a technical safe-tv ~.p~rais~l-at-Roc]<-~ve]~, at Roc-k-v2t

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66
1 experience with Rocky Flats prior to June 6, 1989? 2 A. Mr. Goldberg was in the plutonium business at

3 Richland. There was a lot of interaction among all the 4 plutonium facilities in the department. From that 5 standpoint, Mr. Goldberg would have been familiar with 6 Rocky. I don't think he had personal day-to-day knowledge 7 of what went on there, at the time he entered. 8 Q. Subject to dealing with Rocky Flats in his

9 position at Hanford, do you have any information as to any 10 other personal knowledge Mr. Goldberg would have concerning 11 the Rocky Flats operations prior to June 6? 12 13 A. No. Q. And how long did Mr. Goldberg serve as area

14 manager? 15 !6 17 18 19 20 21 22 A. I don't recall. Q. A year? A. I would say most of a year, but I don't know. Q. Do you know who replaced him? A. I would say either Dave Nelson or -Q. Simonson? A. Dave Simonson or Bob Nelson. Q. After Mr. Goldberg became acting area manager at

23 Rocky Flats, did you have a lot of dealings with him? 24 A. Not very many, but as this memo points out, we

25 were expected to continue t~ suppo-rt-tl~e o~~-~e,-and we ~]i-d~t

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1 that in a number of areas, but in operational areas or major 2 ES & H areas, there was a period of very little interaction 3 between our staffs. 4 Q. This memo states that Mr. Goldberg will report to

5 the Undersecretary of Energy, John C. Tuck, with regard to 6 operations of Rocky Flats. 7 8 A. Yes. Q. Was that a change of prior procedures, or prior

9 reporting responsibilities? 10 11 to me. 12 Well, prior to this memo that area office reported

Q.

Who do you report to, or in 1989 who did you

13 report to as manager at Albuquerque? 14 A. I believe at that time all the field managers

15 plugged into the box that had the secretary, the deputy 16 secretary, and the undersecretary, and I did have some daily 17 interactions with John Tuck. 18
Qo

When did you first hear about the raid at Rocky

19 Flats? 20 A. The day before it happened. It might even have

21 been the morning it happened. 22 Q. Were you told at that time that Mr. Goldberg would

23 come in as area manager? 24 25 A. Yes, ! was. O. Were you also to~d ~t t]aat t~e ~hatl~ w~uld beClCt

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68 1 reporting directly to headquarters? 2 3 A. Yes. Q. After Mr. Goldberg's appointment, did you consider

4 Rocky Flats still to be under the supervision of 5 Albuquerque? 6 A. I considered this memo to be the effective

7 document. That office reported to headquarters, and we were 8 to do everything we could to help make things work. 9 10 11 12 13 Q. So the answer is no, you did not consider -A. No, I did not -Q. -- Rocky Flats to be tinder your jurisdiction. A. No. Q. Let me show you a document that has been marked as

14 Plaintiff's Exhibit 49. It's a memorandum from Mr. Troell 15 directed to you, dated July 10, 1989. 16 17 18 19 20 A. Okay. Q. Have you seen this memorandum before? A. Yes, I think I have. Q. Why did Mr. Troell draft this memorandum? MR. KOLAR: Objection, lack of foundation.

21 It calls for testimony about what was in Mr. Troell's mind. 22 23 Q. Go ahead. You can answer. A. As I recall this process, we got a recommendation

24 from Mr, Goldberg based on the period of time that he had 25 been at Rocky Flats, an~-w~ aiso ha-d- tlie no-~on-currenc~ }'r~m

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Defendant's Supplemental Exhibit 54

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00001 1 2 3 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA ex rel. James S. Stone, 5 Plaintiff, 6 v. 7 ROCKWELL INTERNATIONAL CORPORATION, THE BOEING CORP., BOEING 8 NORTH AMERICAN, INC., 9 10 11 12 13 14 15 16 PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, this 17 deposition was: 18 19 2O REPORTED BY: MARY ABERNATHY SEAL, RDR, CRR, NM CCR #69 Bean & Associates, Inc. Professional Court Reporting Service 22 500 Marquette, Northwest, Suite 280 Albuquerque, New Mexico 87102 23 21 24 5434-2 MAS 25 TAKEN BY: MR. CHRISTOPHER J. KOENIGS ATTORNEY FOR THE DEFENDANTS VIDEO DEPOSITION OF BRUCE TWINING VOLUME I April 7, 1998 9:00 a.m. 500 Marquette, Northwest, Suite 280 Albuquerque, New Mexico 87102 Defendants. No. 89-M-1154

Twining-Defendant's Depo, Volume I

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00115 1 received widespread press coverage, to your recollection? 2 3 A. Yes, they did. Q. And to your recollection, did they harm DOE's

4 reputation? 5 6 7 MR. HESCH: Objection. Foundation, form. A. I think they hurt DOE's reputation. Q. (By Mr. Koenigs) Do you think they also hurt

8 Rockwell's reputation? 9 10 11 MR. HESCH: Objection. Form, foundation. A. Yes. Q. (By Mr. Koenigs) After the raid I think you

12 indicated that your oversight responsibilities with respect to 13 Rocky Fiats were either diminished or eliminated. I don't mean 14 to characterize it, but is that correct? 15 16 A. I think "eliminated" is closer than "diminished." Q. Do you recall how you learned that that was going to

17 be the case? 18 A. John Tuck, who was the under secretary at the time,

19 telephoned me either the day.before the raid, or the morning of 20 the raid, and told me that the raid was going to happen, and 21 told me about how they were going to rewire the organizational 22 chart. 23 Q. By rewiring it, you're referring to placing

24 Mr. Goldberg as area manager of the plant and having him report 25 directly to headquarters?

Twining-Defendant's Depo, Volume I

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00116 1 A. Yes. 2 3 4 Q. Did he tell you why that was being done? A. It's just something the secretary wanted to do. Q. Did he indicate to you in that conversation any

5 dissatisfaction with Albuquerque's oversight of the plant? 6 7 A. No. Q. Did you subsequently come to understand that

8 headquarters was dissatisfied with Albuquerque's oversight of 9 the plant? 10 A. I think they were dissatisfied with what happened to

11 Rocky Flats and that we had a share in that. 12 13 14 Q. At that point in time -- strike that. (Exhibit 852 marked for identification.) Q. Before we look at this document, Mr. Whiteman was

15 already area manager at Rocky Flats when you became the manager 16 of Albuquerque? 17 18 A. Yes, he was. Q. Okay. Was part of your responsibility to assess his

19 performance as area manager? 20 21 A. Yes, it was. Q. And did you conduct any kind of regular, such as

22 annual, evaluations of Mr. Whiteman's performance? 23 24 A. Yes, I did. Q. Were they, in fact, annual, or were they more

25 frequent than that?

Twining-Defendant's Depo, Volume I

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Defendant' s Supplemental Exhibit 5 5

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EXKCUTIVE SUMMARY
SUBJECT: Award Fee Determination for the Period October I, 198~, through March 31, 1989, Rockwell International Co_rpQratlon Ac~In~ Area Mana_~ero RFAO

Technical Monitor/Division:

Contractor/Contract No:
Action Iniliator/Phone:~Ted Hili/4-9189

Action Requested:

Sign ~emorandum to John L. Meinhardt, Acting Assistant Secr~~ar¥ for Defense ProKrams Descriptlon/Nature of Action/Background
On May 31, 1989, the Manager, Albuq~erque Operations Office (AL), submitted tentative findings for each Management and Operating award fee contractor for the period October i, 1988, through March 31, 1989, to the Acting Assistant Secretary for Defense Programs for his review and concurrence/nonconcurrence. On June 21, 1989, Troy E. Wade, Acting Assistant Secretary for Defense Programs, responded with concurrence for the proposed Award Fee Determinations for all award fee contractors except Rockwell International Corporation, stating that "it would be premature at this time to make a final determination until the Department of Energy investigation of envlronmental, safety, and health charges are resolved." Subsequently, Edward S. Goldberg, Acting Area Manager, Rocky Flats Area Office, made an on-site review of Rockwell's performance for the period October I, 1988, through March 31, 1989, and submitted his observations to the Manager, AL, in a memorandum dated July 27, 1989. Mr. Goldberg further proposed an award fee amount of $3,628,622, which equates to an overall grade of "87" and 53.19% of the total available award fee versus the Performance Evaluation Review Board's (PERB's) recommendation of $5,326,482, equating to a grade of "91.20o"

Mr. Goldberg's observations, along with the AL Manager's tentative determination, are being sent to the Acting Assistant Secretary for Defense Programs for concurrence/ nonconcurrence. Although the Performance Evaluation Report has been revised to reflect Mr. Goldberg's observations, the PERB's initial recommendation to the Manager, AL, has not been changed. The PERB did sen& a memorandum to the Manager dated July I0, 1989, stating that "in light of these new expectations, if the PERB was to reassess Rockwell's performance for the period October I, 1988, through March 31, 1989, it would, in all likelihood, recommend a lower overall razing. Therefore, the PERB would not object to Ed Goldberg's proposed overall numerical rating of '87'."

MOCB:3-89-696

E 000972

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Defendant's Supplemental Exhibit 56

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1 2 3 4 5 ROCKWELL ~TERNATIONAL CORPORATION, ) 6 ) ) UNITED STATES COURT OF FEDERAL CLAIMS

)
7 8 Plaintiff, )

)
vs.

)No. 91-1362 C ) (Judge Yock) 9 UNITED STATES OF AMERICA, ) 10 Defendant. 11 12 13 14 15 16 DEPOSITION OF: 17 18 19 20 21 22 23 Reported by: 24 BARBARA K. HARRIS 25 CSR # 93 CHARLES EDWARD TROELL Tuesday, March 2, 1993 9:30 A.M.

)

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Troell-Cl Ct Depo

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39
1 Q. Do you have any reason to believe that Mr. Hill's

2 minutes of the meeting are not an accurate reflection of 3 what took place at the meeting? 4 A. Ted Hill was probably the best secretary I ever

5 had in the performance evaluation review board, and 6 generally it was impeccable. I never had occasion to find 7 him make a mistake on one. He really was very thorough and 8 very competent, but certainly a human being, he could have 9 made a mistake. And when Ted Hill says there was 10 considerable discussion, believe me, there was considerable 11 discussion. 12 Q. Mr. Troell, I'm handing you a document which has

13 previously been marked as Exhibit 9, which is a memorandum 14 from Claude Broxmeier to James Beiriger dated May 23rd, 15 1989. 16 17 18 A.
Yes,

Q.

Have you ever seen this document before?

A. I don't recall seeing it. I never heard of

19 Beiriger. I wouldn't say -- it's possible I saw it, but I 20 sure don't recall it. This was between two fairly low staff 21 members, and probably never got to my level. 22 Q. The last sentence of the memorandum talks about

23 directing questions about the Albuquerque HQ role with 24 Theetis Hill. 25

A. Yes.

Troell-Cl Ct Depo

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