Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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ELECTRONICALLY FILED ON AUGUST 28, 2006

UNITED STATES COURT OF FEDERAL CLAIMS

THE BOEING COMPANY, SUCCESSORIN-INTEREST TO ROCKWELL INTERNATIONAL CORPORATION, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 91-1362 C (Judge Lettow)

PLAINTIFF'S RESPONSES TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT

Pursuant to Rule 56(h)(2) of the Rules of the United States Court of Federal Claims Rockwell submits the following Responses to Defendant's Proposed Findings of Uncontroverted Fact. PRELIMINARY STATEMENT The overwhelming majority of Defendant's Proposed Findings relates to (1) the authority purportedly granted to and delegated by the Secretary of Energy, (2) the "process" DOE headquarters allegedly used to determine Rockwell's award fees and (3) the affirmative defenses of impossibility, justification and waiver, which this Court denied Defendant leave

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to assert in its second amended answer (see Pl. Ex. 32 at 13).* None of these proposed findings raises a genuine issue of material fact (indeed, none is even relevant) if the Court rules as a matter of law that the contract entitled Rockwell to award fees determined by the Manager of Albuquerque Operations; that DOE breached the contract when headquarters "determined" and "mandated" Rockwell's award fees; that Rockwell was damaged as a result of this breach; that the Court has power to review Rockwell's claim; and that the government's waiver by acquiescence defense is not embraced by estoppel. Rockwell's specific responses to Defendant's Proposed Findings are set forth below:

THE SECRETARY OF ENERGY'S AUTHORITY 1. In establishing the Department of Energy, Congress provided that "[t]he

Department shall be administered . . . under the supervision and direction of the Secretary." Exhibit ("Ex.") 1, Pub. L. 95-91, Title II, § 201 (August 4, 1977), 91 Stat. 565, 569, codified as 42 U.S.C. § 7131.

RESPONSE: Agree.

2.

Congress authorized the Secretary to "appoint and fix the compensation of

*

References to "Pl. Ex. __" refer to the exhibits attached to the Declaration of Richard J. Ney in Support of Plaintiff's Motion for Summary Judgment, filed May 31, 2006. References to "Pl. Supp. Ex. __" refer to the exhibits attached to the Declaration of Richard J. Ney in Further Support of Plaintiff's Motion for Summary Judgment, filed concurrently herewith. References to "Def. Ex. __" refer to the exhibits attached to the Declaration of John A. Kolar in Opposition to Rockwell's Summary Judgment Motion and in Support of the Government's Cross-Motion, filed July 27, 2006.

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such officers and employees, including attorneys, as may be necessary to carry out such functions." Ex. 1, 42 U.S.C. § 7231(a).

RESPONSE: Agree, with the proviso that all references herein to "the Secretary" refer to the Secretary of the Department of Energy.

3.

The Secretary was empowered to "establish, alter, consolidate or discontinue

such organizational units or components with the Department as he may deem to be necessary or appropriate." Ex. 1, 42 U.S.C. § 7253(a).

RESPONSE: Agree.

4.

The Secretary was given authority to enter into and perform such contracts . . . with private organizations and persons, and to make such payments (in lump sum or installments, and by way of advance or reimbursement) as he may deem to be necessary or appropriate to carry out functions now or hereafter vested in the Secretary.

Ex. 1, 42 U.S.C. 7256(a).

RESPONSE: Agree, with the proviso that the proposed finding includes a minor deviation from the text of the quoted reference ("with private organizations" should be "with public agencies and private organizations").

5.

Congress provided that the Secretary

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may delegate any of his functions to officers and employees of the Department as he may designate, and may authorize such successive delegations of such functions within the Department as he may deem to be necessary or appropriate." Ex. 1, 42 U.S.C. 7252.

RESPONSE: Agree, with the proviso that the proposed finding includes minor deviations from the text of the quoted reference ("to officers" should be "to such officers" and "successive delegations" should be "successive redelegations").

THE SECRETARY'S DELEGATION TO THE MANAGER OF ALBUQUERQUE 6. The Secretary in Delegation Order No. 0204-98 delegated authority over

personnel decisions and contracting decision, including the designation of contracting officers, to the Assistant Secretary, Management and Administration. Ex. 2, Delegation Order No. 0204-98 (June 14, 1982).

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: The Secretary, in Delegation Order No. 0204-98, delegated to the Assistant Secretary, Management and Administration, authority to designate contracting officers and to make certain other personnel decisions and contracting decisions. Def. Ex. 2, Delegation Order No. 0204-98, June 14, 1982.

7.

Delegation Order 0204-98 provided that In exercising the authority delegated by this Order the delegate shall be governed by the rules and regulations of DOE and the policies and procedures prescribed by the Secretary or

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his delegate. Ex. 2, Delegation Order No. 0204-98 at 5.

RESPONSE: Agree.

8.

Delegation Order 0204-98 also provided that

Nothing in this Order shall preclude the Secretary from exercising any of the authority so delegated whenever in his judgment the exercise of such authority is necessary or appropriate to administer the functions vested in him. Ex. 2, Delegation Order 0204-98 at 6.

RESPONSE: Agree.

9.

In Redelegation Order No. 0204-98.1, the Assistant Secretary, Management

and Administration, redelegated authority over contracts to the Director, Procurement and Assistance Management, with a reservation of authority "whenever in his judgment the exercise of such authority is necessary or appropriate to administer the functions vested in him." Ex. 3, Redelegation Order 0204-98.1.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: In Redelegation Order No. 0204-98.1, the Assistant Secretary, Management and Administration, redelegated to the Director, Procurement and Assistance Management, authority over certain contracting decisions, with the

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proviso that "[n]othing in this Order shall preclude the Assistant Secretary, Management and Administration from exercising any of the authority so delegated whenever in his judgment the exercise of such authority is necessary or appropriate to administer the functions vested in him." Def. Ex. 3, Redelegation Order 0204-98.1.

10.

By memorandum dated July 8, 1986, the Director, Procurement and

Assistance Management delegated authority over contracts to the Manager of the Albuquerque Operations Office, with a similar reservation of authority. Ex. 4, July 8, 1986 Memorandum from Burton J. Roth to the Manager of the Albuquerque Operations Office.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: By memorandum dated July 8, 1986, the Director, Procurement and Assistance Management Directorate, delegated to the Manager, Albuquerque Operations Office, authority over certain contracting decisions, with the proviso that "[n]othing in this redelegation shall preclude the Director, Procurement and Assistance Management Directorate, from exercising any of the Director's authority whenever in the Director's judgment the exercise of such authority is necessary or appropriate to administer the functions vested in that position." Def. Ex. 4, memorandum from Berton J. Roth to the Manager of the Albuquerque Operations Office, July 8, 1986.

11.

48 C.F.R. § 3.101-1 provides that Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation,

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with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. While many Federal laws and regulations place restrictions on the actions of Government personnel, their official conduct must, in addition, be such that they would have no reluctance to make a full public disclosure of their actions. Ex. 5, 48 C.F.R. § 3.101-1.

RESPONSE: Agree.

12.

48 C.F.R. § 1.602-2 (b) provides, among other things, that "[c]ontracting

officers shall­ . . . [e]nsure that contractors receive impartial, fair, and equitable treatment." Ex. 5, 48 C.F.R. § 1.602-2 (b).

RESPONSE: Agree.

CONTRACT PROVISION ON TERMINATION 13. The Termination Clause of the contract, clause 84(b)(5) of Mod M124, states: If performance of the work under this contract is terminated in whole by the Government, the base fee and award fee of the Contractor shall be prorated to and including the effective date of such termination. The Contracting Officer shall then determine the portion, if any, of the prorated maximum available award fee which shall be awarded to the Contractor for the evaluation period, or part thereof, which ends on the effective date of the termination. Ex. 6, Mod M124, clause 84, p. 178.

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RESPONSE: Agree, with the proviso that the proposed finding includes minor deviations from the text of the quoted clause ("performance of the work" should be "performance of work" and, in the last sentence quoted, "date of the termination" should be "date of termination").

THE AWARD FEE PROCESS FOR ROCKY FLATS PRE-JUNE 6, 1989 14. During the period prior to June 6, 1989, the purpose of the award fee process

was to make sure that the people most knowledgeable about the performance of the contractor during the relevant time period were given substantial weight in assessing the award fee. Ex. 7, Trial Testimony of Bruce Twining in Stone v. Rockwell, 3/15/99, p. 3253.

RESPONSE: Disagree. The main purpose of the award fee plan is set forth in the 1989 Contract. See Pl. Ex. 3 at Attach. A, page 1 of 9 (¶ 1, "PURPOSE"). PROPOSED REVISION: According to the contract, the purpose for the award fee plan was "to provide an incentive, in the form of an available award fee, which is sufficient to encourage the attainment of, and to reward the Contractor for, increased proficiency in the performance of the contract." See Pl. Ex. 3 at Attach. A, page 1 of 9 (¶ 1, "PURPOSE"). Rockwell agrees that in requiring award fees to be the subjective determination of the Manager, Albuquerque Operations, it "bargained . . . to have award fees determined by persons with close, on-the-ground knowledge of Rockwell's performance." Gov. Br. at 27.

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15.

DOE's Area Manager at Rocky Flats would prepare a draft "award fee report"

and provide it to Albuquerque Operations officials sitting on a board called the Performance Evaluation Review Board (PERB). Ex. 8, Deposition of Bruce Twining in this proceeding, 2/23/89, pp. 16-18. It was appropriate that DOE people at Rocky Flats prepare the initial draft of the award fee report because they were on site and could see first-hand Rockwell's operations. Ex. 7, Trial Testimony of Bruce Twining in Stone v. Rockwell, pp. 3137-3138.

RESPONSE: Disagree. The proposed finding is overly broad. Moreover, the cited deposition of Bruce Twining took place on February 23, 1993, not February 23, 1989. Rockwell refers to the parties' contract and the Albuquerque Operations Office (AL) Handbook for Award Fee Performance Evaluation and Review Process, dated June 24, 1977 (Pl. Supp. Ex. 44), for a full explication of the award fee process. PROPOSED REVISION: Mr. Twining testified that the Rocky Flats area office provided input which was set forth in a draft report submitted to Albuquerque personnel sitting on a board called the PERB [Performance Review Evaluation Board]. Mr. Twining also testified that it was appropriate that people on site prepare a draft report for submission to the PERB because the people on site could see the conditions under which Rockwell was operating, including funding and other constraints. See Def. Ex. 8, Dep. of Bruce G. Twining, Feb. 23, 1993, at 16-18; Def. Ex. 7, Stone Trial, Mar. 15, 1999, at 3137-38.

16.

The PERB would then provide a report to the Manager of Albuquerque

Operations, Bruce Twining, and he would make an award fee determination. Ex. 8,

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Deposition of Bruce Twining in this proceeding, 2/23/89, p. 18.

RESPONSE: Disagree. The proposed finding is overly broad. Moreover, the cited deposition of Bruce Twining took place on February 23, 1993, not February 23, 1989. Rockwell refers to the parties' contract and the Albuquerque Operations Office (AL) Handbook for Award Fee Performance Evaluation and Review Process, dated June 24, 1977 (Pl. Supp. Ex. 44), for a full explication of the award fee process. PROPOSED REVISION: Mr. Twining testified, "[T]he PERB reviews what the area manager has to say, changes it if appropriate, and then I was given and am still given a report with a proposed award fee determination and a briefing. I look through that, ask my questions. If my concerns haven't been reflected, the PERB may or may not meet again to reflect the input I have or the questions I ask. But when we are all finished, I make an award fee determination." Def. Ex. 8, Dep. of Bruce G. Twining, Feb. 23, 1993, at 18.

17.

At some point after Admiral James D. Watkins became Secretary of Energy,

that is sometime in early 1989, Mr. Twining received a directive from DOE Headquarters requiring him to obtain formal Headquarters concurrence before issuing an award fee. Ex. 8, Deposition of Bruce Twining in this proceeding, 2/23/89, pp. 21-24.

RESPONSE: Agree, with the proviso that (1) the directive was issued after the effective date of Rockwell's contract and (2) the cited deposition of Bruce Twining took place on February 23, 1993, not February 23, 1989.

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18.

However, prior to that directive, Mr. Twining typically called DOE

Headquarters to get their input as part of the process of determining the award fee. The members of the PERB also typically obtained input from DOE Headquarters in arriving at a recommended award fee, inasmuch as Albuquerque was meeting a Headquarters program. Ex. 8, Deposition of Bruce Twining in this proceeding, 2/23/89, pp. 23-25.

RESPONSE: Disagree. The proposed finding is overly broad. Moreover, the cited deposition of Bruce Twining took place on February 23, 1993, not February 23, 1989. PROPOSED REVISION: Mr. Twining testified that "it was not unusual for me to call and get input or the PERB to call and get input from headquarters before [a task force recommended obtaining formalized headquarters' input]." See Def. Ex. 8, Dep. of Bruce G. Twining, Feb. 23, 1993, at 22-23. Mr. Twining also testified that, for the 1988 award fee periods, "[t]hose kind of inputs [from headquarters] could also have typically been developed by individuals on the PERB, in areas that were of interest to headquarters, because, of course, what we were doing in the plants was to meet a headquarters program. That process was not formalized." See id. at 24-25.

THE FBI/EPA RAID AND DOE HEADQUARTER's RESPONSE THERETO 19. On June 6, 1989, approximately 70 agents of the FBI and EPA served a search

warrant on the Rocky Flats Plant looking for evidence of alleged environmental crimes being committed by Rockwell and possibly by DOE officials. Ex. 9, Deposition of Ed Goldberg in

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Stone v. Rockwell, 4/23/98, pp. 12-14; Ex. 10, Deposition of W. Henson Moore ("Henson Moore") in Stone v. Rockwell, 4/15/98, p. 16; Ex. 11, Search Warrant Affidavit, pp. 1, 14-15, 65, 96 and 100.

RESPONSE: Agree.

20.

Shortly prior to the raid, the Department of Justice informed Secretary of

Energy Watkins, Deputy Secretary W. Henson Moore, and Under Secretary John Tuck-collectively known as "DOE's Secretariat"­about the upcoming raid. Ex. 12, Deposition of James D. Watkins in Stone v. Rockwell, 4/29/94, pp. 104-105; Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, pp. 11, 13; Ex. 13, Deposition of John C. Tuck in Stone v. Rockwell, 4/27/98, pp. 14, 23-24.

RESPONSE: Disagree. The proposed finding is overly broad. Moreover, the cited deposition of James D. Watkins took place on April 28, 1998, not April 29, 1994. PROPOSED REVISION: Admiral Watkins testified that he recalled learning about the Department of Justice's intent to raid Rocky Flats "within the week before" the raid. See Def. Ex. 12, Dep. of James D. Watkins in Stone, Apr. 28, 1998, at 104. Henson Moore testified that "we understood" the term "secretariat" to consist of the Secretary, Deputy Secretary, and Under Secretary. See Def. Ex. 10, Dep. of W. Henson Moore in Stone, Apr. 15, 1998, at 11. Mr. Moore also testified that he recalled learning that the FBI raid would occur "only a matter of weeks, maybe a month" before the raid took place. See id. at 13. John Tuck testified that he recalled first learning about the

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impending Rocky Flats raid in April or May of 1989. See Def. Ex. 13, Dep. of John C. Tuck in Stone, Apr. 27, 1998, at 23.

21.

DOE's Secretariat was informed about the raid ahead of time on the condition

that they not inform anyone else lest the investigation be stymied. Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, p. 14. Mr. Twining was not to be told in advance. Ex. 14, Deposition of Troy Wade in this proceeding, 9/21/94, p. 28.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Moore and Mr. Wade testified that DOE's Secretariat was informed about the raid ahead of time on the condition that they not inform anyone else lest the investigation be stymied. See Def. Ex. 10, Dep. of W. Henson Moore in Stone, Apr. 15, 1998, at 14; Def. Ex. 14, Dep. of Troy E. Wade, Sept. 21, 1994, at 28.

22.

Secretary Watkins was briefed on the contents of the search warrant affidavit

by the Justice Department. Ex. 12, Deposition of James D. Watkins in Stone v. Rockwell, 4/29/94, p. 119.

RESPONSE: Disagree. The proposed finding is overly broad. Moreover, the cited deposition of James D. Watkins took place on April 28, 1998, not April 29, 1994. PROPOSED REVISION: Admiral Watkins testified that he was briefed on the contents of the search warrant affidavit by the Justice Department. See Def. Ex. 12,

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Dep. of James D. Watkins in Stone, Apr. 28, 1998, at 119.

23.

The search warrant affidavit alleged, among other things, that there was

probable cause to believe that DOE officials and/or Rockwell had committed environmental crimes, and had concealed and made false statements about those violations. Ex. 11, Search Warrant Affidavit, pp. 14-15, 65, 96, and 100.

RESPONSE: Agree, with the proviso that the search warrant allegations were ultimately "discredit[ed] and found "baseless." See Rockwell Int'l Corp., 02-2 BCA ¶ 32,018, at 158,211 (¶ 24), 158,222 (col. 1) (DOEBCA Oct. 31, 2001).

24.

Approximately concurrently with the raid at Rocky Flats, pursuant to the

criminal investigation, federal agents came to the Albuquerque Operations Office to search for documents. Ex. 15, Deposition of Bruce Twining in Stone v. Rockwell, Vol. I, 4/7/98, p. 20.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Twining testified that approximately concurrently with the raid at Rocky Flats, pursuant to the criminal investigation, federal agents came to the Albuquerque Operations Office to search for documents. See Def. Ex. 15, Dep. of Bruce G. Twining in Stone, Apr. 7, 1998, at 20.

25.

Deputy Secretary Moore was aware that DOE field employees faced the risk

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of indictment as a result of the raid. Those employees were very concerned about potential exposure, and some threatened to retire from DOE due to their concern. Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, pp. 33-35.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: In his April 1998 deposition in Stone, Mr. Moore was asked if he recalled whether any DOE employees faced the risk of indictment as a result of the raid. See Def. Ex. 10, Dep. of W. Henson Moore in Stone, Apr. 15, 1998, at 33-35. He responded, "Yes, and that risk went on for some years afterwards, not just Rocky Flats. . . . [W]e were faced with a substantial walkout of our own DOE personnel at these sites . . . . People were saying, 'I'm going to retire. I'm leaving. I am not going to run this plant on behalf of the government and do what I'm asked to do and go to jail. I'm not going to do that.' These people were very concerned, very worried. I remember meeting with them." Id.

26.

Albuquerque Manager Twining himself was personally concerned that he

might be indicted. Ex. 16, Deposition of Bruce Twining in Stone v. Rockwell, Vol. II, 4/8/98, p. 272.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Twining testified that he was personally concerned that he might be indicted. See Def. Ex. 16, Dep. of Bruce G. Twining in Stone, Apr. 8, 1998, at 272.

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27.

Secretary Watkins believed that Mr. Twining was a potential "party" to the

investigation underway at Rocky Flats. Ex. 17, Deposition of James D. Watkins in this proceeding, 4/29/94, at 27.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Admiral Watkins testified that he believed that Mr. Twining was a potential "party" to the investigation underway at Rocky Flats. See Def. Ex. 17, Dep. of James D. Watkins, Apr. 29, 1994, at 27.

28.

Secretary Watkins believed that when a superior in the chain of command

(Mr. Twining) is potentially involved, you have to "bypass that system" and "take more positive control of the situation." And that is what he decided to do in regard to Mr. Twining and the Albuquerque office. Ex. 17, Deposition of James D. Watkins in this proceeding, 4/29/94, pp 27-29.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Admiral Watkins testified, "My own experience has been when you have a situation where the superiors in the chain of command are potentially involved, you have to bypass that system without jeopardy at the time and take more positive control of the situation. And that is what I did." Def. Ex. 17, Dep. of James D. Watkins, Apr. 29, 1994, at 27-28.

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29.

Secretary Watkins appointed Ed Goldberg as Acting Manager of the Rocky

Flats Office in order to have someone in charge there who was not a "party" to the criminal investigation, and who would not be perceived by the FBI as interfering with the investigation. Watkins wanted Goldberg to report directly to DOE Headquarters outside "the Twining circuit." Ex. 17, Deposition of James D. Watkins in this proceeding, 4/29/94, pp 27-29.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Admiral Watkins testified that he appointed Ed Goldberg as Acting Manager of the Rocky Flats Office in order to have someone in charge there who was not a "party" to the criminal investigation, and who would not be perceived by the FBI as interfering with the investigation. Admiral Watkins also testified that he wanted Goldberg to report directly to DOE headquarters outside "the Twining circuit." See Def. Ex. 17, Dep. of James D. Watkins, Apr. 29, 1994, at 27-29.

30.

Accordingly, on June 6, 1989, the day of the raid, Under Secretary John C.

Tuck issued a memorandum to Bruce Twining and Ed Goldberg, who theretofore had been Deputy Manager of DOE's Richland, Washington Office. Mr. Tuck's memorandum designated Mr. Goldberg as Acting Manager of the Rocky Flats Office. Mr. Tuck's memorandum further stated that Mr. Goldberg would report directly to DOE Headquarters regarding plant operations, rather than to Mr. Twining. Ex. 18, June 6, 1989 Memorandum from John C. Tuck to Bruce Twining and E.S. Goldberg.

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RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: On June 6, 1989, the day of the raid, Under Secretary John C. Tuck issued a memorandum to Bruce Twining and Ed Goldberg, who theretofore had been Deputy Manager of DOE's Richland, Washington Office. Mr. Tuck's memorandum designated Mr. Goldberg as Acting Manager of the Rocky Flats Area Office. Mr. Tuck's memorandum further stated that Mr. Goldberg would report to Mr. Tuck regarding operations of the Rocky Flats facility. See Def. Ex. 18, memorandum from John C. Tuck to Bruce Twining and E.S. Goldberg, June 6, 1989.

31. One of Mr. Goldberg's tasks when he arrived at Rocky Flats was to try to calm concerns about DOE Rocky Flats employees that they might be arrested. Goldberg communicated to DOE Headquarters that field employees had this concern. Ex. 19, Trial Testimony of Ed Goldberg in Stone v. Rockwell, 3/22/99, pp. 4409-4411.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Goldberg testified that one of his tasks when he arrived at Rocky Flats was to try to calm concerns of DOE Rocky Flats employees that they might be arrested. Mr. Goldberg also testified that he communicated to DOE headquarters that field employees had this concern. See Def. Ex. 19, Stone Trial, Mar. 22, 1999, at 4409-4411.

32.

On June 9, 1989, Under Secretary Tuck designated an interim organization,

known as the Rocky Flats Area Office, which would report directly to DOE Headquarters,

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and not to Albuquerque Operations. Ex. 20, June 9, 1989 Memorandum from John Tuck to Edward Goldberg. There was a substantial infusion of people into the Rocky Flats Area Office in an effort to bring up the level of technical expertise overseeing Rockwell. Ex. 21, Deposition of Jon Barr in this proceeding, 9/23/94, pp. 42-43.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: A June 9, 1989, memorandum from Under Secretary Tuck approving an interim organization for the Rocky Flats Area Office had an attached diagram indicating that that Office would be organized under the Area Manager, who was under the Under Secretary. See Def. Ex. 20, memorandum from John Tuck to Edward Goldberg, June 9, 1989. Jon Barr testified that "[t]here was a substantial infusion of people trying to bring up that level of technical expertise that we mentioned and a substantial investment in training people to oversee." Def. Ex. 21, Dep. of Admiral Jon Michael Barr, Sept. 23, 1994, at 43.

33.

After Mr. Goldberg's appointment, Mr. Twining's substantive oversight

responsibilities for Rocky Flats ended. Ex. 8, Deposition of Bruce Twining in this proceeding, 2/23/93, p. 68; Ex. 15, Deposition of Bruce Twining in Stone v. Rockwell, Vol. I, 4/7/98, p. 115; Ex. 21, Deposition of Jon Barr in this proceeding, 9/23/94, pp. 42-43. Thereafter, Mr. Twining's only role was the ministerial task of continuing to provide administrative assistance to Mr. Goldberg. Ex. 22, Deposition of Ed Goldberg in this proceeding, 11/10/92, pp. 36-37.

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RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Twining testified that after Mr. Goldberg's appointment, Mr. Twining's substantive oversight responsibilities for Rocky Flats ended. See Def. Ex. 8, Dep. of Bruce G. Twining, Feb. 23, 1993, at 68; Def. Ex. 15, Dep. of Bruce G. Twining in Stone, Apr. 7, 1998, at 115. Mr. Barr testified that "by the time I had gotten there the Albuquerque Operations Office no longer had responsibility for oversight of the Rocky Flats Plant . . . from the time I was there, I think it is fair to say that all of the substantive oversight of the Rocky Flats Plant was accomplished by the Rocky Flats Office." Def. Ex. 21, Dep. of Admiral Jon Michael Barr, Sept. 23, 1994, at 42-43. Mr. Goldberg testified that after his appointment, he and the Rocky Flats Plant were to receive administrative and technical assistance from Albuquerque. See Def. Ex. 22, Dep. of Edward S. Goldberg, Nov. 10, 1992, at 36-37.

34.

Secretary Watkins took measures after the June 6, 1989 raid to ensure that

DOE Headquarters had in-depth knowledge regarding environmental conditions at the plant, and the quality (or lack thereof) of Rockwell's performance. Ex. 23, Trial Testimony of James D. Watkins in Stone v. Rockwell, 3/16/99, pp. 3369-3370.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Admiral Watkins testified that he sent an assessment team in to Rocky Flats to report the "ground truth" to him (i.e., "to understand the technologies that were involved. Were safe practices being followed? Was there a strict conduct of operations? Was there radiologic controls in being and in place? Was there

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oversight?"). See Def. Ex. 23, Stone Trial, Mar. 16, 1999, at 3369-70.

35.

For example, when Mr. Goldberg arrived at Rocky Flats on June 6, 1989, Mr.

Goldberg brought with him a team of 50 or so experts to establish an environmental, safety and health baseline and give him an idea of what was going on at the Rocky Flats Plant. This team presented Mr. Goldberg and DOE management officials with information on a daily and weekly basis. Ex. 22, Deposition of Ed Goldberg in this proceeding, 11/10/92, pp. 55-56; Ex. 19, Trial Testimony of Ed Goldberg, 3/22/99, p. 4410.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Goldberg testified that when he arrived at Rocky Flats on June 6, 1989, he brought with him a team of 50 or so experts to establish an environmental, safety and health baseline and give him an idea of what was going on at the Rocky Flats Plant. Mr. Goldberg also testified that this team presented Mr. Goldberg and DOE management officials with information on a daily and weekly basis. See Def. Ex. 22, Dep. of Edward S. Goldberg, Nov. 10, 1992, at 55-56; Def. Ex. 19, Stone Trial, Mar. 22, 1999, at 4410.

36.

After his arrival at the plant, Mr. Goldberg reported to Secretary Watkins on a

daily basis, mostly through the Under Secretary John Tuck and a special assistant to the Secretary named Leo Duffy. Ex. 22, Deposition of Ed Goldberg in this proceeding, 11/10/92, pp. 103-104; Ex. 19, Trial Testimony of Ed Goldberg in Stone v. Rockwell, 3/22/99, p. 4411.

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RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Goldberg testified that after his arrival at the plant, he reported to Secretary Watkins on a daily basis, mostly through the Under Secretary John Tuck and a special assistant to the Secretary named Leo Duffy. See Def. Ex. 22, Dep. of Edward S. Goldberg, Nov. 10, 1992, at 103-104; Def. Ex. 19, Stone Trial, Mar. 22, 1999, at 4411.

37.

Beginning as early as June 16, 1989, the Rocky Flats Office began sending

daily report memorandum, as well as bi-weekly reports and weekly highlights of the operations at the Rocky Flats Office, to DOE Headquarters. Ex. 24, Samples of Reports.

RESPONSE: Disagree. Rockwell agrees that the Rocky Flats Office issued "Daily Report" memoranda dated June 16, 1989; July 10, 1989; July 11, 1989; July 12, 1989; July 13, 1989; July 24, 1989; August 2, 1989; August 4, 1989; August 9, 1989; August 18, 1989; August 21, 1989; and a "Weekly Highlights" memorandum dated July 10, 1989, but disagrees that this establishes that reports were sent daily, bi-weekly, and weekly.

38.

On June 22, 1989, Rocky Flats Area Office Manager Goldberg wrote a

memorandum to Under Secretary Tuck stating that DOE lacked confidence in Rockwell management's ability to manage the facility because there was considerable evidence of a lack of clear lines of responsibility for safe operations, a lack of adequate procedures to

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assure safe operations, and a lack of conformance to procedures at the plant. Ex. 25, June 22, 1989 draft Memorandum from Edward S. Goldberg to John Tuck.

RESPONSE: Disagree. Defendant's Exhibit 25 is a draft memorandum. PROPOSED REVISION: Acting Area Manager Goldberg signed a draft memorandum to John Tuck dated June 22, 1989, stating, "We have lost confidence in Rockwell management's ability to manage this facility because there is considerable evidence of lack of clear lines of responsibility for safe operations, lack of adequate procedures to assure safe operations, [and] lack of conformance to procedures." See Def. Ex. 25, draft memorandum from Edward S. Goldberg to John Tuck, June 22, 1989, at 1.

39.

Also on the day of the raid, June 6, 1989, DOE Headquarters formed a

"special assignment team," later referred to as a "Tiger Team," to provide DOE Headquarters with an independent evaluation of operations and practices at the Rocky Flats Plant. The Tiger Team included approximately 50 skilled personnel, including DOE officials and contractor personnel from all over the county. The teams began gathering data regarding the Rocky Flats Plant operations in early June and were onsite from June 19 through July 14, 1989. Ex. 26, Assessment of Environmental Conditions at the Rocky Flats Plant, August 1989 (hereinafter "Tiger Team Report"), Introduction, pp. 1-1 - 1-5.

RESPONSE: Disagree. The proposed finding includes statements ("later referred to as a 'Tiger Team,'" "The Tiger Team included approximately 50 skilled

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personnel, including DOE officials and contractor personnel from all over the county.") that are not supported by the cited reference. PROPOSED REVISION: Also on the day of the raid, June 6, 1989, DOE Headquarters formed a "special assignment team" to provide DOE Headquarters "with an independent evaluation of operations and practices at the Rocky Flats Plant." The team began gathering data regarding the Rocky Flats Plant operations in early June and was onsite from June 19 through July 14, 1989. See Def. Ex. 26 at 1-1 to 1-5.

40.

Deputy Secretary Moore accompanied the FBI and EPA agents onto the

Rocky Flats site on the day of the raid, June 6, 1989, and remained there for two weeks personally observing conditions at the plant. Moore visited Rocky Flats again for another week a month or two later. Within a couple of days after the raid, Deputy Secretary Moore became aware of many important infractions that were not being resolved. Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, pp. 11, 20, 24.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Moore testified that he accompanied the FBI and EPA agents onto the Rocky Flats site on the day of the raid, June 6, 1989, and remained there for two weeks personally observing conditions at the plant. Mr. Moore also testified that he visited Rocky Flats again for another week a month or two later. Mr. Moore also testified that within a couple of days after the raid, they began to find what they considered important infractions that were not being resolved. See Def. Ex. 10, Dep. of W. Henson Moore, Apr. 15, 1998, at 11, 20.

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41.

Beginning about July 5, 1989, DOE Headquarters also conducted an audit of

the Rocky Flats Plant compliance with the National Environmental Policy. Ex. 27, July 7, 1989 Bi-Weekly Report from D.J. Sanchini to S.F. Iacobellis, p. 3.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: A July 7, 1989, Bi-Weekly Status Report states that beginning on July 5, 1989, personnel from DOE headquarters arrived to conduct an audit of the Rocky Flats Plant compliance with the National Environmental Policy. Def. Ex. 27 at 3.

42.

On July 21, 1989, Under Secretary Tuck issued a memorandum directing that

the Area Manager of the Rocky Flats Area Office would report to the Assistant Secretary for Defense Programs in DOE Headquarters, as opposed to being a direct report to the Under Secretary. Ex. 29, July 21, 1989 Memorandum from John C. Tuck to Bruce Twining and E.S. Goldberg.

RESPONSE: Agree.

43.

On August 19, 1989, the Tiger Team appointed by DOE Headquarters issued

its final written report titled, "Assessment of Environmental Conditions at the Rocky Flats

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Plant." Exs. 26 through 26-E.1

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: The Special Assignment Environmental Team appointed by DOE headquarters issued a written report titled, "Assessment of Environmental Conditions at the Rocky Flats Plant," which is dated August 1989.

44.

The Tiger Team report assessed Rockwell's environmental, safety and health

deficiencies in far greater detail than had Albuquerque's May 1989 award fee evaluation. Compare Exs. 26 through 26-E, The Tiger Team Report to Ex. 30, (the PERB's May 17, 1989 Award Fee Performance Review.

RESPONSE: Disagree insofar as there is any inference (1) that the Tiger Team and Award Fee Performance Evaluation Review Board ("PERB") assessed Rockwell's environmental, safety and health performance ("ES&H") for the same purpose, (2) that the Tiger Team complied with the award fee plan in assessing Rockwell's ES&H or

1

We have divided the Tiger Team Report into parts under different exhibit numbers due to its volume. Exhibit 26 consists of the title page, the Executive Summary, the Introduction (Section 1.0), and the audit findings on air (Section 2.0). Exhibit 26-A consists of the audit findings on surface water (Section 3.0), and groundwater (Section 4.0). Exhibit 26-B consists of the findings on waste management (Section 5.0). Exhibit 26-C consists of the findings regarding toxic and chemical materials (Section 6.0) and radiation (Section 7.0). Exhibit 26-D contains the findings on quality assurance (Section 8.0) and inactive waste sites and releases (Section 9.0). Finally, Exhibit 26-D contains the audit findings on the National Environmental Policy Act. Pages of the report which the writers intentionally left blank have been omitted from the copy submitted herewith.

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(3) that in evaluating Rockwell's ES&H, the Tiger Team considered the directives, funding, priorities and other constraints imposed by DOE, which the PERB had considered.

45.

Also in August 1989, a DOE Headquarters Criticality Assessment Team

completed a review of the Rocky Flats Plant Criticality Safety Program. Ex. 28, August 17, 1989 Bi-Weekly Report from Edward S. Goldberg to John L. Meinhardt.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: An August 17, 1989, Bi-Weekly Report states, "The Criticality Safety Assessment Team held their closeout meeting August 11 with the RFO and Rockwell." Def. Ex. 28 at 2.

46.

Mr. Twining himself believed that Mr. Goldberg and the teams of experts

from DOE Headquarters learned of conditions at Rocky Flats that Twining did not know about, and that they had gone down to a deeper level of detail than Twining and the PERB had in assessing ES&H performance there. Ex. 7, Trial Testimony of Bruce Twining in Stone v. Rockwell, 3/15/99, pp. 3283-3284.

RESPONSE: Disagree insofar as there is any inference that "Mr. Goldberg and the teams of experts from DOE Headquarters," on the one hand, and Mr. Twining and the PERB, on the other, assessed Rockwell's ES&H for the same purpose or (2) that in evaluating Rockwell's ES&H, "Mr. Goldberg and the teams of experts from DOE

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Headquarters" considered the directives, funding, priorities and other constraints imposed by DOE, which Mr. Twining and the PERB had considered. Further disagree on the ground that the proposed finding lacks context. Mr. Twining testified that he did not recall any discussions with Mr. Goldberg regarding Mr. Goldberg's recommendation of 87 as the award fee grade for the 89/1 Period. See Pl. Supp. Ex. 45, Dep. of Bruce G. Twining, Feb. 23, 1993, at 70-71. Mr. Twining also testified that he did not believe he was in a position to offer an informed alternative to Mr. Goldberg's proposal in that "at this point there were many more people looking at that plant in intimate detail than there had been before the raid, and that since Albuquerque was no longer in the loop and we didn't have access to the site, I didn't have any way to validate what they are finding. So I was accepting what other federal employees, who were on site, were discovering during this period after the raid." See id. at 73, 90-91.

47.

Prior to the issuance of the Tiger Team's formal report, Deputy Secretary

Moore was receiving verbal briefings from the Team. Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, pp. 67-68.

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Mr. Moore testified, "Whether we had the [Tiger Team's] written report in or not, we would very often get briefings." Def. Ex. 10, Dep. of W. Henson Moore in Stone, Apr. 15, 1988, at 67-68.

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48.

Moore believed that the Tiger Team was looking more deeply into Rockwell's

ES&H deficiencies than Goldberg had been able to do, and that DOE Headquarters acted on Rockwell's award fee with better information than Goldberg had available. Ex. 31, Deposition of Henson Moore in this proceeding, 4/29/94, pp. 41-43; Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, pp. 67-68.

RESPONSE: Disagree insofar as there is any inference (1) that the Tiger Team or Mr. Goldberg complied with the award fee plan in assessing Rockwell's ES&H, (2) that in evaluating Rockwell's ES&H, the Tiger Team or Mr. Goldberg considered directives, funding, priorities and other constraints imposed by DOE, which Mr. Twining and the PERB had considered, (3) that DOE headquarters had a contract right to determine Rockwell's award fee, or (4) that the award fee determined by DOE headquarters was "better" than the award fee determined by the AFDO. Further disagree that the citation to Def. Ex. 10 supports the proposed finding.

49.

In deciding what award fee DOE Headquarters felt should be awarded to

Rockwell, Deputy Secretary Moore took into account the Tiger Team report. Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, pp. 133-134.

RESPONSE: Disagree insofar as there is any inference (1) that the Tiger Team complied with the award fee plan in preparing its report, (2) that the Tiger Team considered directives, funding, priorities and other constraints imposed by DOE or (3) that DOE headquarters had a contract right to determine Rockwell's award fee.

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50.

Moore believed that the decision Headquarters made on the award fee fairly

reflected Rockwell's performance given all of the deficiencies he had observed and the Tiger Team had reported. Ex. 10, Deposition of Henson Moore in Stone v. Rockwell, 4/15/98, p. 138.

RESPONSE: Disagree insofar as there is any inference (1) that Mr. Moore or the Tiger Team complied with the award fee plan in their observations or (2) that DOE headquarters had a contract right to determine Rockwell's award fee.

THE 89/1 AWARD FEE DECISION 51. On May 31, 1989, prior to the FBI/EPA raid, Bruce G. Twining, DOE's

Manager of the Albuquerque Operations Office, had submitted his recommendation that Rockwell be awarded an award fee of $5,176,482 for plant operations for the 89/1 period. Ex. 32, May 31, 1989 Memorandum from Bruce Twining to Troy E. Wade, II.

RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. PROPOSED REVISION: On May 31, 1989, prior to the FBI/EPA raid, the AFDO, Bruce G. Twining, DOE's Manager of the Albuquerque Operations Office, concluded that Rockwell's award fee should be $5,176,482 for plant operations for the 89/1 Period. See Def. Ex. 32; Pl. Ex. 5, Stipulation, ¶ 1. This was consistent with the

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contract's requirement that the award fee be determined by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he 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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) . . . will determine the amount of award fee to be paid the Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO.").

52.

Mr. Twining submitted his recommendation to Mr. Troy Wade, DOE

Headquarters' Acting Assistant Secretary for Defense Programs, and asked for Mr. Wade's concurrence. Plaintiff's Ex. 5, Stipulation ¶ 1; Ex. 32, May 31, 1989 Memorandum from Bruce Twining to Troy E. Wade, II.

RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. The contract required that the award fee be determined by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he 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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) . . . will determine the amount of award fee to be paid the

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Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO."). PROPOSED REVISION: The AFDO, Mr. Twining, forwarded his conclusion as to Rockwell's award fee for the 89/1 Period to DOE headquarters for concurrence. See Def. Ex. 32; Pl. Ex. 5, Stipulation, ¶ 1.

53.

Mr. Twining was comfortable with that recommendation based on the

information he had up to that point. Ex. 8, Deposition of Bruce Twining in this proceeding, 2/23/93, p. 53.

RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. PROPOSED REVISION: The AFDO, Mr. Twining, testified that he was comfortable with his award fee determination "[b]ased on the information I had up to that point." See Def. Ex. 8, Dep. of Bruce G. Twining, Feb. 23, 1993, at 53.

54.

At the time he received Mr. Twining's May 31, 1989 award fee

recommendation for Rockwell, Mr. Wade was aware of the criminal investigation underway at Rocky Flats that was to lead in the June 6, 1989 raid. Mr. Wade had been asked not to inform Mr. Twining of the criminal investigation. Ex. 14, Deposition of Troy Wade in this proceeding, dated 9/21/94, pp. 28.-29

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RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. The contract required that the award fee be determined by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he 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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) . . . will determine the amount of award fee to be paid the Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO."). Further disagree on the ground that the proposed finding is overly broad. PROPOSED REVISION: Mr. Wade testified that at the time he received Mr. Twining's conclusion as to Rockwell's award fee, Mr. Wade was aware of the criminal investigation underway at Rocky Flats that was to lead to the June 6, 1989, raid. Mr. Wade also testified that he had been asked not to inform Mr. Twining of the criminal investigation. See Def. Ex. 14, Dep. of Troy E. Wade, Sept. 21, 1994, at 28-29.

55.

Mr. Wade concluded that it would be prudent to make a final award fee

determination for Rockwell based on Mr. Twining's recommendation in view of the ongoing investigation. Mr. Twining's May 31, 1989 recommendation never became a final award fee determination. Ex. 14, Deposition of Troy Wade in this proceeding, 9/21/94, pp. 28-29.

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RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. The contract required that the award fee be determined by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he 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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) . . . will determine the amount of award fee to be paid the Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO."). Further disagree on the ground that Mr. Twining's May 31, 1989, determination was the final award fee for the 89/1 Period. Further disagree on the ground that the proposed finding is overly broad. PROPOSED REVISION: Mr. Wade testified that he felt it was not prudent to allow Mr. Twining's award fee determination to proceed until the issue of the Rocky Flats investigation had been resolved. See Def. Ex. 14, Dep. of Troy E. Wade, Sept. 21, 1994, at 28-29.

56.

Sometime during the early period after the raid, DOE Headquarters asked Mr.

Goldberg to review Mr. Twining's recommendation for the award fee for the 89/1 period in light of new information that was being uncovered by the team he had brought to Rocky Flats. Ex. 22, Deposition of Ed Goldberg in this proceeding, 11/10/92, pp. 40-42, 45-46, 66.

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RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. The contract required that the award fee be determined by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he 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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) . . . will determine the amount of award fee to be paid the Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO."). Further disagree on the ground that the proposed finding is overly broad. PROPOSED REVISION: Mr. Goldberg testified that sometime during the early period after the raid, DOE headquarters asked him to review the award fee for the 89/1 Period in light of new information that was being uncovered by the team he had brought to Rocky Flats. See Pl. Supp. Ex. 46, Dep. of Edward S. Goldberg, Nov. 10, 1992, at 40-42, 45-46.

57.

In July 1989, Mr. Goldberg made a recommendation to Mr. Twining of an

award fee of $3,628,622 for plant operations for the 89/1 period. Plaintiff's Ex. 5, Stipulation, ¶ 5; Ex. 8, Deposition of Bruce G. Twining in this proceeding, 2/23/93, pp. 69-70, 76, 93.

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RESPONSE: Disagree on the ground that the proposed finding lacks context. Mr. Twining testified that (1) prior to Mr. Goldberg, Mr. Twining had never had an area manager recommend a different award fee grade after the process had already gone through the PERB and (2) it was not the responsibility of an area manager to review the proposed award fee after the PERB had already reached a decision. See Pl. Supp. Ex. 45, Dep. of Bruce G. Twining, Feb. 23, 1993, at 80-81. PROPOSED REVISION: In July 1989, Mr. Goldberg proposed an award fee for Plant Operations at Rocky Flats for the 89/1 Period in the amount of $3,628,622 to the AFDO. See Pl. Ex. 5, Stipulation, ¶ 5. Mr. Twining testified that it was not the responsibility of an area manager to review a proposed award fee after the PERB had reached a decision. See Pl. Supp. Ex. 45, Dep. of Bruce G. Twining, Feb. 23, 1993, at 80-81.

58.

Mr. Twining believed Mr. Goldberg was more fully informed about

Rockwell's performance than Mr. Twining had been when Twining made his initial May 1989 recommendation of an award fee of $5,176,482 for plant operations. Ex.8, Deposition of Bruce Twining in this proceeding, 2/23/93, pp. 69-70, 76, 93.

RESPONSE: Disagree. The proposed finding's use of the word "recommendation" is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. The contract required that the award fee be determined by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he amount of the award

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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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) . . . will determine the amount of award fee to be paid the Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO."). Further disagree insofar as there is any inference that (1) Mr. Goldberg and Mr. Twining assessed Rockwell's performance for the same purpose or (2) that in evaluating Rockwell's performance, Mr. Goldberg considered the directives, funding, priorities and other constraints imposed by DOE, which Mr. Twining and the PERB had considered. Further disagree on the ground that the proposed finding lacks context. Mr. Twining testified that he did not recall any discussions with Mr. Goldberg regarding Mr. Goldberg's recommendation of 87 as the award fee grade for the 89/1 Period. See Pl. Supp. Ex. 45, Dep. of Bruce G. Twining, Feb. 23, 1993, at 70-71. Mr. Twining also testified that he did not believe he was in a position to offer an informed alternative to Mr. Goldberg's proposal in that "at this point there were many more people looking at that plant in intimate detail than there had been before the raid, and that since Albuquerque was no longer in the loop and we didn't have access to the site, I didn't have any way to validate what they are finding. So I was accepting what other federal employees, who were on site, were discovering during this period after the raid." See id. at 73, 90-91.

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59.

Mr. Twining felt there were many more DOE people looking at the plant in

intimate detail than there had been before the raid. Ex.8, Deposition of Bruce Twining in this proceeding, 2/23/93, p. 90.

RESPONSE: Disagree insofar as there is any inference (1) that Mr. Twining and the additional DOE people "look[ed] at the plant" for the same purpose or (2) that in "looking at the plant," the additional DOE people considered the directives, funding, priorities and other constraints imposed by DOE, which Mr. Twining and the PERB had considered. Further disagree on the ground that the proposed finding lacks context. PROPOSED REVISION: Mr. Twining testified that "at this point there were may more people looking at that plant in intimate detail than there had been before the raid, and that since Albuquerque was no longer in the loop and we didn't have access to the site, I didn't have any way to validate what they are finding." Def. Ex. 8, Dep. of Bruce G. Twining, Feb. 23, 1993, at 90.

60.

Mr. Twining concluded that he and the PERB had graded Rockwell too high

on Environmental, Safety and Health (ES&H) performance in May 1989. Ex. 8, Deposition of Bruce Twining in this proceeding, 2/23/93, pp. 73, 111-112; Ex. 22, Deposition of Ed Goldberg in this proceeding, 11/10/92, p. 61.

RESPONSE: Disagree. The proposed finding is overly broad.

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Further disagree on the ground that the proposed finding lacks context. Mr. Twining testified that he did not recall any discussions with Mr. Goldberg regarding Mr. Goldberg's recommendation of 87 as the award fee grade for the 89/1 Period. See Pl. Supp. Ex. 45, Dep. of Bruce G. Twining, Feb. 23, 1993, at 70-71. Mr. Twining also testified that he did not believe he was in a position to offer an informed alternative to Mr. Goldberg's proposal in that "at this point there were many more people looking at that plant in intimate detail than there had been before the raid, and that since Albuquerque was no longer in the loop and we didn't have access to the site, I didn't have any way to validate what they are finding. So I was accepting what other federal employees, who were on site, were discovering during this period after the raid." See id. at 73, 90-91. Further disagree insofar as there is any inference (1) that the PERB, Mr. Goldberg, and DOE headquarters reviewed Rockwell's ES&H for the same purpose or (2) that in reviewing Rockwell's ES&H, Mr. Goldberg and DOE headquarters considered the directives, funding, priorities and other constraints imposed by DOE, which Mr. Twining and the PERB had considered. Further disagree that the cited testimony of Edward Goldberg supports the proposed finding. Mr. Goldberg testified that he didn't "specifically recall the details that my recommendation was agreed to by Mr. Twining" and that he didn't recall specifically any conversations with Mr. Twining where the award fee might have come up. See Pl. Supp. Ex. 46, Dep. of Edward S. Goldberg, Nov. 10, 1992, at 61-64.

61.

In August 1989, Mr. Twining modified his original May 1989

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recommendation to reflect the input by Mr. Goldberg, and recommended to DOE headquarters that Rockwell receive an award fee of $3,628,622--the same amount recommended by Mr. Goldberg--for plant operations for 89/1. Mr. Twining was comfortable with the lower grade of 79 for ES & H that Goldberg gave Rockwell. Ex. 8, Deposition of Bruce G. Twining in this proceeding, 2/23/93, pp. 69-70, 76, 91, 93, 111.

RESPONSE: Disagree. The proposed finding's use of the word "recommend[ation]" with respect to Mr. Twining is inconsistent with the government's Stipulation. See Pl. Ex. 5, Stipulation, ¶ 1. The contract required that Rockwell's performance be evaluated, and Rockwell's award fee be determined, by the AFDO, Manager of Albuquerque Operations. See Pl. Ex. 3 at 2 ("[t]he 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)" (clause 62(b)(1))); id. at Attach. A, page 1 of 9 ("The Award Fee Determination Official (Manager, or anyone acting as Manager, Albuquerque Operations) (AFDO) shall evaluate the Contractor's performance during each evaluation period and will determine the amount of award fee to be paid the Contractor for that evaluation period."); id. at Attach. A, page 2 of 9 ("Final award fee determination shall be made by the AFDO."). Further disagree on the ground that the proposed finding lacks context. Mr. Twining testified that he did not recall any discussions with Mr. Goldberg regarding Mr. Goldberg's recommendation of 87 as the award fee grade for the 89/1 Period. See Pl. Supp. Ex. 45, Dep. of Bruce G. Twining, Feb. 23, 1993, at 70-71. Mr. Twining also

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testified that he did not believe he was in a position to offer an informed alternative to Mr. Goldberg's proposal in that "at this point there were many more people looking at that plant in intimate detail than there had been before the raid, and that since Albuquerque was no longer in the loop and we didn't have access to the site, I didn't have any way to validate what they are finding. So I was accepting what other federal employees, who were on site, were discovering during this period after the raid." See id. at 73, 90-91. Further disagree insofar as there is any inference (1) that Mr. Twining and Mr. Goldberg reviewed Rockwell's performance for the same purpose or (2) that Mr. Goldberg considered the directives, funding, priorities and other constraints imposed by DOE, which Mr. Twining and the PERB had considered.

62.

Admiral Jon Barr assumed the position of Deputy Assistant Secretary for

Military Applications beginning in June 1989, contemporaneous with the FBI/EPA raid. Prior to taking the position at DOE, Admiral Barr had served in the Navy Nuclear Power Program for 27 years. Ex. 21, Deposition of Jon Barr in this proceeding, 9/23/94, pp. 7-9.

RESPONSE: Disagree. The proposed finding includes statements that are not supported by the cited testimony. PROPOSED REVISION: Jon Barr testified that he assumed the position of Deputy Assistant Secretary for Military Application on July 5, 1989. Admiral Barr also testified that during his career in the United States Navy, he went through the Nuclear Power Training Pipeline, was an instructor at the Navy Nuclear Power School, and was

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a Commanding Officer of the Navy Nuclear Power School. See Def. Ex. 21, Dep. of Admiral Jon Michael Barr, Sept. 23, 1994, at 7-9.

63.

During the latter half of 1989, Admiral Barr traveled to Rocky Flats

approximately once per month. Beginning in early 1990, he traveled there once every two or three months. Ex. 21, Deposition of Jon Barr in this proceeding, 9/23/94, p. 40. Admiral Barr also received information from people in his office who made trips to Rocky Flats, and from on-site people like Mr. Goldberg. Those reports reflected things that had occurred at the plant during the 89/1 award fee grading period from October 1, 1988 through March 31, 1989.2

RESPONSE: Disagree. The proposed finding is overly broad. PROPOSED REVISION: Admiral Barr testified that he traveled to Rocky Flats approximately once per month during the latter half of 1989 and once every two or three months thereafter. See Def. Ex. 21, Dep. of Admiral Jon Michael Barr, Sept. 23, 1994, at 40. He testified that he also received information from peopl