Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:91-cv-01362-CFL

Document 202-2

Filed 09/14/2006

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Exhibit 50

Case 1:91-cv-01362-CFL

ORiGiNAL
STATES COURT

Document 202-2

Filed 09/14/2006

Page 2 of 11

IN

THE

UNITED

OF FEDERAl

ROCKWELL INTERNATIONAL CORPORATION,

APR 28 ]994
Plaintiff, v. THE UNITED STATES, Defendant. DEFENDANT UNITED STATES' MEMORANDL~ IN OPPOSITION TO MOTION OF PLAINTIFF ROCKWELL INTERNATIONAL CORPORATION FOR A PROTECTIVE ORDER AND MOTION FOR LEAVE TO TAKE THE CONTESTED DEPOSITIONS OUTSIDE OF THE COURT-ORDERED DISCOVERY PERIOD Defendant tion's 1994. depositions and Chief opposes plaintiff For Rockwell International Order, will dated inquire of the CorporaApril in 18, the No. 91-1362C (Judge Yock) ....

U. S, COURT OF FEDERAL CLAIMS

("Rockwell") The of

Motion into R.

A Protective defendant Rockwell's Sam F.

matters Donald

which

Beall, and and matter

Chairman Iacobellis, Major the

Board

Executive Vice to the

Office,

Rockwell's Programs, action to the are

Executive "relevant

President subject appear

Deputy involved

for in

pending to are

land/or] discovery and proper

reasonably evidence,

calculated therefore, their

lead

of admissible under upon of the the RCFC key

" and, . Indeed,

permissible will interof award has in

26(b) issue

(i)

testimony the the

directly pretation Energy fee

in this provision

proceeding: regarding authorized reason that

proper

contract

Department the

("DOE")

official It is

or officials for of this

to make the

determination. the

Government not

noticed order as

depositions Rockwell in

these waste

two the

Rockwell time in

officials, top

to "harass

and

of its

offiders," Accor~

Rockwell

asserts

its

Memorandum 1

Support

(at

4-5).

Case 1:91-cv-01362-CFL

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dingly,

the

Court that

should the

deny

Rockwell's deny

protective

order

motion. defendant

Assuming moves period for

Court

does

Rockwell's

motion, the

leave May

to

take

these

depositions

outside

discovery

ending I. A.

i, 1994. To Motion For A Protective Order

Opposition

The Depositions Of Beall And Iacobellis Are Relevant Both To The Issues Rockwell Has Raised In The Complaint And To The Government's Defenses filed under the this action to recover alleged ("the breach of

Rockwell contract with plant from the damages DOE

Contract operation

DE-AC04-76DP03533 of the Rocky Flats

Contract") weapons for and type. to be DOE its DOE paid (See,

for

nuclear plant

near 1975

Denver, to

Colorado. 31,

Rockwell pursuant a cost

managed to plus the the

the

December The the its

1989, was

Contract fee fee

modifications. paid all of for

Contract and

award award

costs,

determined efforts on

Rockwell e.g.,

management ~ 13.) that,

a~semi-annual

basis.

Complaint, Rockwell

contends in field

during

fiscal

year

1989,

officials influenced New

in or

DOE

headquarters DOE

Washington, officials and the ~

D.C. in the

"improperly Albuquerque, Flats office 31,

coerced" Operations its award

Mexico

Office fees the

[ALOO]

Rocky 13, seeks

[RFO] and award

to reduce thereby fees in it the

(Complaint, Rockwell DOE

26-28, to

35), the

breached alleges award

Contract. when

recover

it fee

lost

headquarters

officials

intervened

decision. avers be the that, under the Contract, the of award the fee was of

Rockwell required to

"subjective

determination"

Manager

2

Case 1:91-cv-01362-CFL

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ALOO,

but

that,

during and and

the

two

semi-annual in argues one fee. and

award question, that only This

fee it

periods was not. indiDOE who of

(10/1/88-3/31/89 (Complaint, vidual, was the ~ 12 Manager to

4/1/89-9/30/89) 13.) Rockwell was the

a single person is in

of ALO0, decide the

permitted

award

a question

contract

interpretation. 54, entitled M087 "Allowable Contract, Costs, Base Fee and Award Fee," a

Clause

of Modification copy of which (a)

of the

effective A, provided

January

i, 1986, part:

is attached

as Exhibit

in pertinent

Compensation for Contractor's Services. Payment for the allowable costs as hereinafter defined and of the base fee and so much, if any, of the award fee as may be determined by the Contracting officer . . . shall constitute full and complete compensation for the performance of the work and furnishing of services under the this contract. [Emphasis added.] M087 defines the Contract defines the

Clause

1 of

Modification Officer" as

"Contracting

a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings.' The that the subsection the Manager to of Clause of ALOO 54 was upon the which single fee Rockwell individual relies in arguing under

permitted

Contract (b)

decide (I)

the

award

states:

Base Fee and Award Fee. The amount of the award fee actually to be paid to the Contractor shall be determined by the Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations)

3

Case 1:91-cv-01362-CFL

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~ [Emphasis Thus, by the Clause 54(a) states that

added.] the and of award that DOE fee term decision is is to be made in such a

Contracting as to include

Officer, a class James Clause

defined arguably

manner then

officials and states as the The

including DOE

Secretary

of Energy officials.

D. Watkins 54(b) (i)

other that

high-level the award

headquarters

is to be determined "anyone contract case acting as

by the the

AFDO,

defined [of key

Manager meaning

of ALOO, of in

or

Manager are

ALOO]." to

these this

provisions

- which

Rockwell's

claim

- is subject It is

to interpretation. that, must in construing from the the terms of a

well-established parties' intent

contract, as Ct.

"the

be gathered Corp.

instrument States, 201

a whole." Cl. 282,

Kenneth 288,

Reed 475 the any

Construction F.2d 583, 586

v. United

(1973).

Moreover, interpretation entitled United to of great 867

determining a contract, weight. F.2d 212 488

intent, before

parties' disputi

contemporaneous has Serv. Truonq arisen, Corp. Xuan is v. Truc States,

Lear-Siqler 603 (Fed.

Manaqement Cir. 1989);

States,

600, Ct. F.2d

v. United 203 Ct. v.

States, Cl. 347,

Cl.

51 (1976); (1973);

Petrof~ky Inland 424

v. United Empire F.2d 1370

1394 191

Builders, (1970).

Inc. The

United and and this key

States, statements

Ct.Cl. of

742,

actions Beall when of the

Rockwell's the

top period

executive just on the prior

officials, to the time

Iacobellis, dispute

during bear

arose,

directly

interpretation

i Language found in Appendix

similar

to

that

found Fee

in

Clause

54(b)

(i)

is

D entitled

"Award

Plan."

Case 1:91-cv-01362-CFL

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provisions By sent DOE way

of

the

Contract. on award March May fee 31, 31, 1989, the Manager for the of ALOO

of

background, his

headquarters I, 1988

recommendations 1989 for various

period

October under Troy his E.

through

contractors of days, Defense that held 5.)

supervision Wade, (whom II,

including the Acting

Rockwell. Assistant this

Within

a couple for was

Secretary week), Plant who

Programs the up The FBI the

Rockwell to raid award of by until

is deposing the fee Rocky

aware

planned Rockwell

Flats

on June

6, 1989, B, p.

determination. award fee

(See was

Exhibit

determination advisement issued the

Rockwell's DOE

subsequently and the

taken decision C.) converMoore award and

under was

headquarters September, Beall and and

officials, 1989. (See had

not

late

Exhibit numerous

During sations about fee. Moore with a wide

interim,

Iacobellis Deputy

Secretary range of

Watkins contract

secretary

w. Henson Rockwell's Iacobellis

issues

including the FBI

In mid-June had

1989,

shortly ~ after "regarding award i, 1988 that by

raid,

a conversation of

the fee for

status the

of the most

Department's completed . o has by " been the

determination evaluation Moore

Rockwell's [October

recent

period

through final

March

31, 1989]

informed

Iacobellis receipt team you

"the the

determination of the report

suspended special added: with

pending department

Secretary

that

he

dispatched our will need make 1989

to Rocky to its review

Flats." this

Moore matter as to

"I care,

am

sure

understand

and

the

Department (See

determination from Moore

promptly Iacobellis

as

possible."

June

20,

letter

attached

as Exhibit

D hereto.)

5

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On August raise certain

17,

1989,

Iacobellis by Rockwell for

initiated about the

contact exposure of the E.)

with of

Moore

to

concerns

Rockwell

employees laws at

to criminal the of Rocky

liability Plant. 1989, action

violations (See Exhibit advised be to

environmental In Moore's that Plant in

Flats 28,

response Rockwell's compliance Moore bring as

August course the "We

Moore would laws that

Iacobellis operate the

best with

of

environmental fully of We expect Rocky be F.) Beall that it

as required all actions full with

by the will be

Contract. taken to

stated: the

operations

Flats

into

compliance you to

as quickly this

possible. (See

will

working

achieve

objective."

Exhibit 6, 1989,

On September ating Rocky (See call Rockwell's Flats Exhibit to

wrote

to Secretary to suspend from

Watkins

reiterat

position

intended

operations prosecution.

unless G.) On

Rockwell September

received 18,

immunity Beall

1989,

initiated to

a phone 15

Secretary

Watkins. Secretary by

~Beall Watkins stating

alluded had

a September

conversation threat the

in which

responded "DOE

to Rockwell's terminate advised for the

to suspend if

operations Rockwell

that

might Beall

contract that

shopped

operations." with

Watkins time

Rockwell Watkins "[i]f

intended stated could

to continue DOE might his

operations Rockwell the Rocky

being.

that not

replace eye on

as the Flats

contractor operations

Beall

keep H.)

" (See 20,

Exhibit

On September that that "[a]fter an award [a] fee

1989,

Wat~kins review,

wrote the

to

Beall

informing has of

him

thorough that

Department 40%

concluded the total

reflects

approximately

6

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possible dingly,

award Rockwell

fee

is

the in fee

proper the near

determination future, be

.... advised Department procedure."

Accorof the

will, award

particulars appropriate Exhibit C.)

of the

determination as is the

of the normal

by the (See

contracting

officer,

This Rockwell

course and the

of

dealing

between of the

the DOE

highest reflects

officials the

of

highest

officials of

parties" upon

contemporaneous which Rockwell's were

interpretation claim initiated respect such the by turns. by to

Contract the fact

provisions that some is the DOE in

Indeed, Beall the and issue only fee and and

of these itself

contacts

Iacobellis of whether echelon

significant-with should were be

Contract officials Thus, the upon

interpreted to make

that award

lower

allowed

determination. Iacobellis their bears

information the central

possessed issue under note at

Beall case, (i)~

directly are

in this RCFC 26(b)

depositions

clearly

authorized

We also in Support

that,

contrary

to Rockwell's and Beall were of

argument kept the

(Memorandum apprised of

3),

Iacobellis to an "the

information Plant." Plant ''2 others,

relating I is

operations 5, 1988 to

[Rocky from

Flats]

Exhibit President, entitled

August Sanchini,

memorandum

Rockwell's among

D.J.

Iacobellis

and Flats

Beall, Plant.

"Monthly

Activity

Report--Rocky

2 This memorandum was provided to counsel for defendant by the Environment and Natural Resources Division of the Department of Justice from the non-grand jury criminal investigative files on April 19, 1994, subsequent to the conversation alluded to in Rockwell's Memorandum in Support at 3, in which defendant's counsel stated that he did not intend to depose Beall and Iacobellis on the day-to-day operations of the Plant. In view of the reference to 7

Case 1:91-cv-01362-CFL

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Thus, and top

it

is

clear not to

that

the

Government Rockwell and at

seeks waste

to the

depose time

Beall of its these to

Iacobellis, officers" have

"harass in

(Memorandum information lawsuit.

Support,

4-5), and

but

because

officials the issues

that

is directly

clearly

relevant

in this

Rockwell's Burdensomeness Objection Should Be Rejected By This Court Rockwell's order and for is that that it only Beall be this the other and argument in are and See support Rockwell's of a protective officers" to sit

Iacobellis

"top for

would in of

"burdensome matter. that of

oppressive" In

them

deposition In view on the

Memorandum officials Contract high

Support, have

at 4-6.

fact

these the the no

information upon which in be in top

bearing

interpretation claim turns, is

provision they

Rockwell's the Rockwell an of

breach

positions the

occupy should true the

organization to

reason them. will

Government is especially

denied light

opportunity the of fact DOE, that former

depose

This

Rockwell Secretary

this

week D.

be deposing former and

officers Secretary Acting (See

James

Watkins, C.

Deputy former

Moore,

former Secretary Notice

Undersecretary for Defense

John Programs attached

Tuck, John L.

Assistant Rockwell's

Meinhardt. as Exhibit

of

Deposition,

hereto

J.)
pondcrete on page 1 of Exhibit I, defendant's counsel now intends to question Beall and Iacobellis regarding pondcrete, which is one subject of defendant's theory that Rockwell officials concealed and misrepresented environmental problems at the Plant. See Defendant United States' Motion And Memorandum In Support Of Motion To Determine The Sufficiency Of Plaintiff Rockwell International Corporation's Objections To Discovery And To Compel Responses, dated April 18, 1993. 8

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Exhibit 51

Case 1:91-cv-01362-CFL

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No. 91-1362C

MAY 4 Igo~ ) 2
ROCKWELLINTERNATIONAL CORPORATION MAY 4 ~994 2.
Vo

TIlE UN1TEDSTATES ORDER OnApril 19, 1994, the plaintiff filed a Motionfor a Protective Order. On April 28, 1994, the defendant filed its Memorandum Opposition to Motionof in Plaintiff Rockwell/ntemationalCorporation for a Protective Order and Motionfor Leave to Take the Contested Depositions Outside ofthe Court-Ordered Discovery Period. The plaintifffs Motionfor a Protective Order is hereby denied. The defendant's Motionfor Leaveto Take the Contested Depositions Outside of the Court-OrderedDiscovery Period is hereby allowed. The deposition~s of Mr. DonaldR. Beall, plaintiffs Chairmanof the Boardand Chief Executive Officer, and Mr. SamF. Iacobellis, plaintiffs Executive Vice President and Deputyfor Major Programs, shall be completedon or before July 29, 1994. 1T IS SO ORDERED.

Robert J. Yock Judge