Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:91-cv-01362-CFL

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Defendant's Supplemental Exhibit 84

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UNITED STATES COURT OF FEDERAL CLAIMS

ROCKWELL INTERNATIONAL CORPORATION,

Plaintiff,

UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) )

No. 91-1362 C (Judge Yock)
NOTICE OF DEPOSITIONS

PLEASE TAKE NOTICE that, pursuant to Rule 30 of the Rules of the United States Court of Federal Claims, plaintiff Rockwell International Corporation will take the deposition upon oral examination of defendant United States of America, by the former employee Gregory Fess, on January 14, 1993, at the offices of Vorys, Sater, Seymour & Pease, 52 East Gay Street, Columbus, Ohio 43216, before an officer authorized to administer oaths. PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 30 of the Rules of the United States Court of Federal Claims, plaintiff Rockwell International Corporation will take the deposition upon

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oral examination of defendant United States of America, by the employees or former employees named below, on the dates indicated, at the offices of Chadbourne & Parke, ii01 Vermont Avenue, Washington, D.C. 20005, before an officer authorized to administer oaths.
Deponent James M. Barr John L. Meinhardt Troy E. Wade, II John C. Tuck W. Henson Moore James D. Watkins
January 19, 1993 January 20, 1993 January 21, 1993 January 22, 1993 January 26, 1993 January 27, 1993

Each deposition will begin at 9:30 a.m. and continue from day to day and on such adjourned dates as may be necessary until completed. Dated: December 29, 1992
CHADBOURNE & PARKE RICHARD J. NEY WILLIAM J. KELLEY, III

Willia~ J. Kel ley~I I I Attorneys for Plaintiff Rockwell International Corporation 601 South Figueroa Street 16th Floor Los Angeles, California 90017 (213) 892-1000

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CERTIFICATE OF SERVICE

I certify under penalty of perjury that I am in the employ of Chadbourne & Parke, attorneys for plaintiff Rockwell International Corporation ('Rockwell"); my business address is 601 South Figueroa Street, 16th Floor, Los Angeles, California 90017; I am over the age of eighteen years; and on December 29, 1992, I served on defendant United States of America Rockwell's NOTICE OF DEPOSITIONS by mailing a true copy of the same to the office of Allen D. Bruns, Esq., Attorney of Record, Commercial Litigation Branch, Civil Division, United States Department of Justice, Attn: Classification Unit, 2nd Floor, 550 llth Street, N.W., Washington, D.C. 20530. Executed this 29th day of December, 1992, at Los Angeles, California.

Patricia Meade

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Defendant's Supplemental Exhibit 85

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA and UNITED STATES OF AMERICA, ex rel. 4 JAMES S. STONE,
3 5 6 7 8 9 i0 TRIAL TO JURY - DAY 15 TRANSCRIPT OF PROCEEDINGS
VS.

Plaintiffs,

ROCKWELL INTERNATIONAL CORPORATION, et al., Defendants.

) ) ) ) ) 89 ) ) )

M 1154

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12 13 14 Proceedings held before the HONORABLE RICHARD P. MATSCH, U.S. District Judge for the District of Colorado, beginning at 8:30 a.m. on the 16th day of March, 1999, in

15 Courtroom C-204, United States Courthouse, Denver, Colorado.
16 17 For the Plaintiffs: APPEARANCES Maria T. Vullo, Esq. JeannieS. Kang, Esq. Matthew Chevez, Esq. Robert E. Montgomery, Jr., Esq. Pau!, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas Suite 2607 New York, New York 10019

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19

2O
21 22 23 24

Proceedings recorded by electronic sound recording; transcript produced by transcription service.

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Nelson - Direct

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you used to be an area manager. Can you just briefly describe the distinction or difference? A Sure. Sometime after the FBI raid in June of 1989 and

prior to my coming to Rocky Flats, there was a decision to separate the Rocky Flats federal office, the DOE office, out from under the Albuquerque operations office, and to make it

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separately reporting directly to headquarters. And when Admiral Watkins asked me to go there, he designated me as manager of that what would now be a new office in the Department of Energy, new in the sense of title, and new in the sense of reporting responsibility. Q Basically a restructuring of the organization? Yes. Did you have an understanding that you had the right and

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Q

responsibility to make the award fee determination for Rockwell's last award fee? Yes, I did° I'd draw your attention to Exhibit 2707, which I believe

17 A 18
Q

19 is a stipulated exhibit. 20 21 22
MS. BENSON:. It is. THE COURT: It is. MS. BENSON: It's stipulated, Your Honor. THE COURT: Thank you. All right, 2707. Q A (by Mr. Hesch) Can you explain what this letter is? This is the letter I sent to Rockwell as a--identifying

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Nelson - Direct

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to them the award fee that i had decided to allow under the contract for them. Q What is the period of time that this award fee covers? It covers the period from April I, 1989 through

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September 30, 1989. Q You weren't at the plant in September of '89, were you? No. Were you able to make an award fee determination? Yes. And how were you able to do that if you weren't there at

7 A 8 Q 9 A i0 Ii 12 13 14 15 16 17 18
Q

the time? A Well, in any of the award fee efforts, evaluations,

there is a group of people, a performance board of one of a number of names, but it's a board of the plant people who are there in the DOE office reporting generally to the manager, in this case, to the award fee official, whoever that might be, and it is the manager, who are really familiar with work going on at the site, and they go through a fairly lengthy

19 process of looking at reports and making evaluations, 20 ultimately making a recommendation to the fee determining
official, and it's up to that official, in this case me, to feel comfortable, probe at maybe the evaluations, and come to a judgment which makes sense for the facts and the contract and the amount of award fee. Q Were you comfortable with relying on information from

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Nelson - Direct

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others to make the determination? A Yes. And why is that? Well, they were people who reported to me on the staff.

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They were people who had been at Rocky Flats, some for a long time, some for shorter times, and they were people who I trusted in the day to day work. Q Is it unusual to receive input from other people to make

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award fee determinations? A No, it's the way it has to. be done. The manager, the

award fee official has to rely on others for information. I mean, I as the senior person there would perhaps deal with the senior contractor person there, but I don't dea! with all the levels of work that these--that the contractor does. There are, perhaps at that time, in the order of 6,000 employees, contractor employees on the site, and a small number of federal employees. So it would be impossible to do it without that kind of review and evaluation by the staff people. Q And input from headquarters, would that be something

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that would be important or-A Certainly. It's another set of facts to use to try in

this case to come up with an evaluation and an award fee. ~ Q Did you ultimately decide for yourself what amount

Rockwell should earn for that period?

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Nelson - Direct

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A

Yes, I did. And can you point out from this letter what the amount

was that Rockwell received? A Sure. It's the third line down, an award fee of

$1,241,604. And this was based upon your assessment of their

6 Q

performance of work? A Q Yes, that's correct. At the time that you made this award fee, were you aware

of any fraud or knowing concealment by Rockwell relating to its work under the contract? A Q° No. Would that have been a concern to you if there were

allegations of knowing concealment? A Q A Yes, it would. Why is that? Whenever Watkins asked me to go there, my job presented

to him--or presented from him was to get the plant back in operation. It had been stopped with the FBI raid. I knew that the only way we would ever resume operation was to relish credibility with the public and our regulators, and for me, it was extremely important that we be honest about s going on. And I had established, particularly with public affairs folks, kind of a rule chiseled almost on walls that said tell on yourself, even if it hurts. That

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Defendant's Supplemental Exhibit 86

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"JUL ~ 6 lggO
90.-DOE-7564 Mr. John F. McNett Associate General Counsel Rockwell International Corporation P. O. Box 464 Golden, CO 80402-0464

Dear Mr. McNett:
This is in response to comments provided to the Rocky Hats Office concerning the Department of Energy's Award Fee Evaluation of Rockwell International's performance for the period of April 1, 1989 through September 30, 1989. Due consideration was given to your written comments provided by letters dated May 3 and lune 7, 1990, and your and Mr. Hood's oral comments presented at our meeting on July 10, 1990. I have determined, based upon review of the data presented, that my original determination of an award fee in the total amount of $1,579,639.00 for the performance period noted above shall remain the same. I should also note that, since the original determination was made, it has been brought to my attention that in 1988 and 1989 Rockwell did not comply with the leak testing interval for final-stage HEPA filters in Pu plenums.spedfied in either the applicable OSR (annual testing) or in the alternative that had been proposed by Rockwell (testing at a 2 to 3 year interval). Rockwell International may submit a voucher for payment of this amount to the Albuquerque Operations Office. Sincerely,

Original Signed By Robert M. Nelson, Jr.
Robert M. Nelson, Jr. Manager

B. G. Twining, Manager, AL FMD, AL J. A. Smut, OCC/AL Ted Hill, CPD/AL T. Agy, Admin. Div., RFO
RECORD NOTE: This acdon is the AFDO's final decision on the amount of fee awarded to Rockwell as a result of its last award fee evaluation under Contract DE-AC0476"DP03533. As allowed by the specific contract language the contractor was allowed to provide a written response and an oral presentation to the FIX) for reconsideration of his
original determination.

C&S BR Agy:jk

C/C&S BR Miller

D/AMD~9~K, OOM ../ OOM/" ',. MANAGER Bishop~ Simonson PanO'le

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