[DNFSB
LETTERHEAD]
December 16, 2004
The Honorable Linton Brooks
Administrator
National Nuclear Security
Administration
U.S. Department of Energy
1000 Independence Avenue, SW
Washington, DC 20585-0701
Dear Ambassador Brooks:
On December 1, 2004, the National
Nuclear Security Administration issued a draft Request for Proposal (RFP) for
the Los Alamos National Laboratory (LANL) management and operating contract.
Pursuant to its statutory mandate to review the content and implementation of
standards (42 U.S.C. 2286a), the Defense Nuclear Facilities Safety Board
(Board) has reviewed the RFP with respect to provisions that affect safety at
LANL’s defense nuclear facilities. As a
result of this review, the Board concludes that the draft RFP places
unnecessary and ill-advised limitations on the Department of Energy’s (DOE)
right to inspect and oversee the activities of the contractor, undermines DOE’S
system for identifying and implementing safety requirements, and omits relevant
safety requirements. These observations
are described in the enclosure to this letter.
The Board requests, pursuant to
42 U. S.C. §
2286b(d), a
report within 20 days of the date of this letter that responds to the enclosed
comments and includes a crosswalk of the requirements in Section J, Appendix G
of the RFP with the requirements in the current LANL contract. The Board believes that it would be
preferable to resolve these issues before the final RFP is issued.
Sincerely,
John T. Conway
Chairman
c: Mr. Mark B. Whitaker, Jr.
Enclosure
Enclosure
Observations
Concerning the Draft Request for Proposal
for the Los Alamos National Laboratory
Management
and Operating Contract
Federal Oversight of Contractor
Activities
The Request for Proposal (RFP)
places unnecessary and ill-advised contractual limitations on the Federal
government’s right to inspect and oversee the activities of contractors. Clauses H.1 and H.5 of the RFP are
particularly problematic in this regard.
Paragraph H.1(b), entitled “Clarifying the
Contract Relationship,” provides:
Generally, the
Contractor shall determine how the programs are executed and shall be
accountable for performance in accordance with the terms and conditions of this
contract.
The government should never
place itself in a position subsidiary to its own contractors. At least with respect to contracts executed
under the Atomic Energy Act, the Defense Nuclear Facilities Safety Board
(Board) has taken the position that the government remains the responsible
party in all respects:
The United States
owns the defense nuclear facilities at which its programs are carried out by a
government agency-DOE. Each such
facility is operated by a contractor that was selected by DOE on the basis of
being best suited to conduct the work for DOE at that site. Under the original Atomic Energy Act of 1946
and continuing to date in the Atomic Energy Act of 1954, as amended, the
government officials in charge (i.e., the Secretary of Energy and other line
officers) have a statutory responsibility to protect health and minimize danger
to life or property. In any delegation
of responsibility or authority to lower echelons of DOE or to contractors, the
highest levels of DOE continue to retain safety responsibility. While this responsibility can be delegated,
it is never ceded by the person or organization making the delegation. Contractors are responsible to DOE for safety of their
operations, while DOE is itself responsible to the President, Congress, and the
public. (Recommendation 2004- 1,
emphasis added)
All language in the RFP
suggesting that the contractor determines in the first instance how nuclear
activities are to be carried out should be deleted.
Clause H.5 of the RFP, “NNSA
Oversight,” is intended to set out how National Nuclear Security Administration
(NNSA) will (and will not) conduct oversight of the contractor. This provision attempts to create two classes
of facilities and activities, one defined by “Nuclear Facility Operations,
Projects, Safeguards and Security, and Other High Hazard Activities,” the other
by “Non-Nuclear Facilities.” The former
class, along with undefined “support functions related to these areas,” is to
be managed by NNSA on the “transaction” level as well as the “systems” level,
the latter only on a “systems” level.
There are several obvious
difficulties with these provisions.
First, in order to apply them NNSA would have to compile a list of
facilities and activities falling under one or the other oversight regime. There are many facilities and activities that
would fall partly in one category and partly in another. For example, how would this bifurcation
affect the Emergency Operations Center, or the Los Alamos Fire Station? Likewise, there are many contractual
activities not necessarily associated with any facility or project, such as
training and qualification. Speaking more
generally, it is not clear what governmental interest is served by placing
limits on its ability to oversee the contractor’s work, and worse, limits that
are ill-defined.
Application of DOE Standards to
Contractor Work
Clause H.9 of the RFP, entitled
“Standards Management,” appears to be an addition to, or modification of,
Department of Energy Acquisition Regulation (DEAR) 970.52-4-2, Laws, Regulations, and
DOE Directives, which
has been incorporated into the RFP in Clause 1.93. Paragraph (a) of Clause H.9 sensibly directs
the contractor to “benchmark with industry to incorporate best commercial
standards and best business practices.” But
Paragraph (b) directs the contractor to use this benchmarking as follows:
Where best
commercial standards and best business practices are identified that conflict with
a DOE Directive or DOE/NNSA requirement, the Contractor will submit a proposal to NNSA in
accordance with the Section H Clause entitled “Application of DOE Directives.” (emphasis added)
Clause H.9 as a whole directs
the contractor to search out commercial standards and practices to replace
those now prescribed in the DOE Directives System. The Board supports the DOE Directives System
and opposes initiatives that could undermine the effectiveness of the
Directives System:
DOE has a long and
successful history of nuclear operations, during which it has established a
structure of requirements directed to achieving nuclear safety. That structure is based on such methods as
defense in depth, redundancy of protective measures, robust technical
competence in operations and oversight, extensive research and testing, a
Directives System embodying nuclear safety requirements, Integrated Safety
Management, and processes to ensure safe performance. (Recommendation 2004-1, Oversight of Complex, High-Hazard
Nuclear Operations)
There is no inherent reason to
believe that when a “conflict” is identified, the commercial practice is
superior to the practice required in a DOE directive. Improvements to the Directives System should
be made, not in individual contracts, but according to the procedures set forth
in DOE Order 251.1A, “Directives System.”
Clause H.10, “Application of DOE
Directives,” envisions a contract-specific method by which the contractor may
propose, and the Contracting Officer may approve:
…an alternative
procedure, standard, system of oversight, or assessment mechanism… to the
requirements in a Directive by submitting to the Contracting Officer a signed
proposal….
The Contracting Officer is
granted sole discretion to grant such requests in whole or in part, without any
requirement to consult with subject matter experts or program management at the
site or in DOE headquarters. This
provision, which is another de
facto amendment
of the Laws,
Regulations, and DOE Directives clause, opens a “back door” by which safety requirements
stated in the RFP (Section J, Appendix G in this case) can be eroded after the contract
is awarded. The Board objected to this
identical provision when it was included in the draft RFP for the Idaho Cleanup
Project; it was removed in the final RFP.
It should be removed from this RFP as well, because its use could lead
to a fragmentation of requirements throughout the DOE complex that would prove
highly detrimental to safety.
The Board calls to your
attention the fact that the clauses discussed above are drawn from NNSA’s
Model
for Improving Management and Performance, published March 2004.
The Board has not formally reviewed this document, but notes that for
the most part the oversight philosophy it espouses runs directly counter to the
Board’s Recommendation 2004-1, which the Secretary accepted on July 21, 2004.
Section J, Appendix G
Requirements
The requirements listed in this
portion of the contract differ substantially from the requirements in the
existing Los Alamos National Laboratory contract. It is difficult to assess the adequacy of the
RFP directives list without an understanding of how it evolved from the requirements
in the existing contract. When the
Board’s staff requested a crosswalk of the RFP requirements as compared to the
existing contract, the response was that no such crosswalk has been
performed. Our review to date discloses
that DOE-STD-3013-94, Criteria
for the Safe Storage of Plutonium Metals and Oxides, has been deleted, and more
omissions may be found upon further review.
As stated in the cover letter, the Board expects that a crosswalk
comparing existing contract requirements with those listed in Appendix G will
be prepared and provided to the Board for its review and comment.