REVIEW OF THE UNIVERSITY OF CALIFORNIA’S

MANAGEMENT CONTRACT FOR LOS ALAMOS

NATIONAL LABORATORY

HEARING

BEFORE THE

SUBCOMMITTEE ON

OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

MAY 1, 2003

Serial No. 108–14

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

REVIEW OF THE UNIVERSITY OF CALIFORNIA’S MANAGEMENT

CONTRACT FOR LOS ALAMOS NATIONAL LABORATORY

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REVIEW OF THE UNIVERSITY OF CALIFORNIA’S

MANAGEMENT CONTRACT FOR LOS ALAMOS

NATIONAL LABORATORY

HEARING

BEFORE THE

SUBCOMMITTEE ON

OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

MAY 1, 2003

Serial No. 108–14

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

2

COMMITTEE ON ENERGY AND COMMERCE

W.J. ‘‘BILLY’’ TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

RICHARD BURR, North Carolina

Vice Chairman

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

CHARLES F. BASS, New Hampshire

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

ERNIE FLETCHER, Kentucky

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

DARRELL E. ISSA, California

C.L. ‘‘BUTCH’’ OTTER, Idaho

JOHN D. DINGELL, Michigan

Ranking Member

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

CHRISTOPHER JOHN, Louisiana

TOM ALLEN, Maine

JIM DAVIS, Florida

JAN SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

DAN R. BROUILLETTE, Staff Director

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

JAMES C. GREENWOOD, Pennsylvania, Chairman

MICHAEL BILIRAKIS, Florida

CLIFF STEARNS, Florida

RICHARD BURR, North Carolina

CHARLES F. BASS, New Hampshire

GREG WALDEN, Oregon

Vice Chairman

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

(Ex Officio)

PETER DEUTSCH, Florida

Ranking Member

DIANA DEGETTE, Colorado

JIM DAVIS, Florida

JAN SCHAKOWSKY, Illinois

HENRY A. WAXMAN, California

BOBBY L. RUSH, Illinois

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

C O N T E N T S

Page

Testimony of:

Atkinson, Richard C., President, University of California ............................ 60

Brooks, Hon. Linton F., Under Secretary for Nuclear Security and Acting

Administrator for Nuclear Security, National Nuclear Security Administration, U.S. Department of Energy ......................................................... 9

Darling, Bruce B., Senior Vice President, University Affairs, Interim

Vice President for Laboratory Management, University of California;

Accompanied by Anne Broome, Vice President for Financial Management, University of California; and Patrick Reed, University Auditor,

University of California ................................................................................ 64

Friedman, Gregory H., Inspector General, U.S. Department of Energy ...... 43

McSlarrow, Hon. Kyle E., Deputy Secretary of Energy, U.S. Department

of Energy ....................................................................................................... 8

(III)

(1)

REVIEW OF THE UNIVERSITY OF CALIFORNIA’S MANAGEMENT CONTRACT FOR LOS

ALAMOS NATIONAL LABORATORY

THURSDAY, MAY 1, 2003

HOUSE OF REPRESENTATIVES,

COMMITTEE ON ENERGY AND COMMERCE,

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:40 a.m., in room

2123, Rayburn House Office Building, Hon. James C. Greenwood

(chairman) presiding.

Members present: Representatives Greenwood, Walden, Tauzin

(ex officio), Deutsch, and Schakowsky.

Also present: Representatives Radanovich, Markey, Eshoo, Stupak, and Udall.

Staff present: Ann Washington, majority counsel; Michael

Geffroy, majority counsel; Yong Choe, legislative clerk; and Edith

Holleman, minority counsel.

Mr. GREENWOOD. Good morning. This hearing of the Oversight

and Investigations Subcommittee of the House Energy and Commerce Committee will come to order. We welcome our witnesses

and our guests, and the Chair recognizes himself for the purpose

of an opening statement.

The subcommittee meets today for the third time this year to

hear testimony related to the management situation at Los Alamos

National Laboratory. Currently operated by the University of California, the lab is one of the Nation’s premiere research facilities on

matters critical to our safety and security. Yet, as we have learned

in the course of our investigation, the lab has also been a premiere

site of serious property mismanagement and even theft.

Our February and March hearings concentrated on concerns

raised by current and former lab employees about lab procurement

and property management systems. I believe the issues identified

at those hearings as well as the continued diligence of this committee prompted the unprecedented Department of Energy announcement yesterday that forms the backdrop to this hearing. The

DOE announced its decision to put the Los Alamos contract up for

competition for the first time in the lab’s 60-year history. This decision is long overdue and one that members of this committee on a

bipartisan basis have been calling for for many years.

The University of California has operated Los Alamos under contract with DOE since 1943. At no time during its long reign as operator of the facility has UC ever been faced with the possibility

2

of having to compete for this privilege. Given the length of time UC

operated without the threat of competition, it appears that it has

been lulled into a state of irresponsible complacency.

Let me add that progress has been made to improve the situation. The university has become much more involved in the daily

operations of the lab in the past 6 months, and I am pleased with

some of its efforts to get lab management back on track by replacing much of the senior staff, but it remains to be seen if those efforts will effect any meaningful change at the lab.

We heard at our last hearing from Joe Salgado, the former principal deputy director of the lab, who said that Federal money was

treated like monopoly money, which is hardly a description of the

kind of fiduciary responsibility expected and required of DOE contractors.

The lab argues that the amount of identified abuse of Federal

money is just a drop in the bucket when compared to the lab’s

budget as a whole, and that perhaps is why the abuses have not

garnered the required attention. I appreciate the point, but this

multibillion dollar facility is operated on taxpayers’ money, and as

a steward of that money for the American public I am not comfortable with that explanation. As I have said before, when this

same lab is responsible for safeguarding not only taxpayer money

but the Nation’s most sensitive nuclear secrets there is little room

for error.

So I salute the Department’s decision to compete this contract,

to identify the best administrator for the lab. These are steps that

the prior administration and prior secretaries have been too afraid

to take, even in the face of repeated scandal and repeated promises

of reform. In the testimony today we will hear from both the Department and the university on factors associated with this decision and exactly what will be sought in the competitive process.

On our first panel we will hear from Deputy Secretary of Energy

Kyle McSlarrow and Ambassador Linton Brooks of the National

Nuclear Security Administration. These gentlemen have been involved in the decision to compete the contract, and they will explain their rationale for their decision. I look forward to their testimony and to learning how DOE will improve its own oversight of

UC or its successor.

Next we will hear from the DOE Inspector General, the Honorable Greg Friedman. Inspector General Friedman’s office has audited various aspects of Los Alamos management, ranging from nuclear safety to procurement problems. Recently, his office released

an audit questioning over $14 million in costs charged by the lab

to DOE and controls on classified and unclassified computers. I am

particularly interested in his views regarding what standards the

Department should set when competing this contract.

Finally, we are joined by a panel of senior officials from the University of California: current University President Dr. Richard Atkinson; Vice President for Financial Management Ms. Anne

Broome; University Auditor Mr. Patrick Reed; and, reappearing for

the third time before us in this investigation, Mr. Bruce Darling,

Interim Vice President for Laboratory Management.

The university faces some tough questions if it intends to put

itself in the competition for the LANO contract. What would UC do

3

to banish what appears to be a lax attitude within the current lab

culture? I trust our witnesses today will be able to shed some light

on these and similar areas of inquiry. Let me thank all of the witnesses for attending this very important hearing today.

I now recognize the ranking member, Mr. Deutsch, for his opening statement.

Mr. DEUTSCH. Thank you, Mr. Chairman.

This is a historic occasion, one that I know Mr. Dingell has

looked forward to for many years. He apologizes for not being here

but will submit a statement for the record.

For 60 years the Department of Energy’s contract to operate the

Los Alamos National Laboratory has been awarded to the University of California without any competition to see if another entity

could better run the lab. Despite numerous congressional and other

investigations over the years that have found serious security, safety environmental management problems at the laboratory, there

has not been a single attempt by the Federal Government to compete that contract until now. It is my hope that these hearings will

ultimately result in finding the best contract to carefully use the

taxpayer’s money and run a laboratory that produces excellent

science while being run like a business.

Like all institutions which are seldom challenged about how they

operate, the university and the laboratory’s management became

arrogant and defiant over the years. When problems were uncovered, they made promises to Congress and others about how they

were going to fix them, promises that the university took few steps

to fulfill, that the Department of Energy did not enforce.

Whistleblowers who tried to bring problems to management attention were punished and, even if they won decisions, finding retaliation, establishing remedies, were hounded by the university’s

full legal forces until many of them were ruined financially and

emotionally. Some had been employees for decades. One person

who contacted us recently managed to keep his job but had been

without a work assignment for 7 years.

What happened most recently to Glen Wobb and Steven Dorn,

two former police officers who were hired to professionalize criminal and security investigations and then fired when they actually

attempted to do so, is only the most recent example in a long chain

of unsuitable behavior by the university and the laboratory.

Three years ago, UC promised to fix their security management

weaknesses. One of those commitments was to implement best

business practices. Yet today the Inspector General of the Department of Energy will testify he does not believe that Los Alamos can

provide adequate assurances that classified, sensitive or proprietary information is appropriately protected because of poor controls over laptop computers containing classified information.

In the committee’s own investigation we have found missing hard

drives and other classified electronic media for which there are no

acceptable explanations. In addition, the entire business financial

system by which the laboratory is supposed to document and control how it spends Federal money is in shambles, as is its internal

auditing system.

These systems are so bad that the Inspector General concluded

in a recent report that DOE has less than adequate assurances

4

that costs claimed by the university for operation of the laboratory

are allowable under the contract. Mr. Chairman, what that means

is that DOE can’t have any confidence in the course claimed under

this entire billion dollar contract.

This is the third year in a row that the IG has come to this conclusion. That is how you get the thefts like we have heard about

at previous hearings and the careless use of taxpayer funds by

workers who think the Federal Government owes them top-of-theline shoes, coats, shirts and gloves. One employee bought 13 pairs

of allegedly work-related shoes in 18 months, 12 of which were running and sports shoes.

Joseph Salgado, the former deputy director of their laboratory,

testified that taxpayers’ money often was treated like monopoly

money.

And what has been the response to procurement problems, poor

property management and lack of effective business controls? There

have been many well-publicized investigations. But while these investigations were ongoing, the Department and the university were

quietly negotiating new fiscal year 2003 performance standards for

Los Alamos standards drafted by the university that put science

and technological goals at the forefront and pay little attention to

inadequate business systems and controls that have brought down

the top management at the laboratory.

There is one sentence, ‘‘Implement effective controls and business

systems by assisting existing controls were needed. Strengthen controls to insure effective stewardship of public assets.’’ DOE cannot

even tell us what percentage of the performance fee will be allocated to this objective, which was only one of 40.

Mr. Chairman, we must ask whether any of the problems that

we have been discussing for the last several months are going to

get fixed when it doesn’t appear that they would even seriously affect the performance fee. Despite anything said today, despite any

promises made today by either the Department of Energy and the

University of California, this is the only document that deserves

our attention because it is where the money is.

I look forward to the testimony.

Mr. GREENWOOD. The Chair thanks the gentleman and recognizes the chairman of the full committee, the gentleman from Louisiana, Mr. Tauzin.

Chairman TAUZIN. Thank you, Chairman Greenwood.

The hearing this morning marks a milestone of sorts because

this morning we will talk about the University of California management contract for Los Alamos not only in terms of what should

happen but in terms of now what will happen, putting the lab’s

management contract out for bid for the first time in its 60-year

history. The subcommittee’s exposure of the management problems

of Los Alamos is truly shaking things up, Mr. Chairman; and you

deserve extreme amounts of credit for doggedly pursuing this matter on behalf of the full committee and, by the way, the American

public which relies, as we do, on the sensitive work of the lab to

make our lives safer and more secure.

We should also recognize the decisive actions taken by Secretary

Abraham and his management team at DOE for confronting the

problems at the lab and doing something meaningful about them.

5

The Secretary’s announcement yesterday to compete the lab’s management contract is the equivalent of a political earthquake. It

shouldn’t be. Periodic competition should be normal. It should be

the necessary procedure for such an important contract. But it is

a big deal precisely because it has never been done before, ever;

and, as a result, the pressure of competitive bidding, one of the

most powerful cleansers of management problems, has never really

bore down on those responsible for the lab’s contract.

We should commend Secretary Abraham for his aggressive action

to fix Los Alamos, especially because the current 5-year contract

was literally dumped in his lap by the previous administration just

days before they left office. And they knew better. Remember, it

was the prior administration that talked tough after the last round

of lab scandals involving Los Alamos and the University of California.

Yet not only didn’t they follow through on the tough talk, Secretary Abraham’s predecessor took the remarkable step of ordering

this flawed contract be extended for a new 5-year term without

competition literally 2 days before President Bush and Secretary

Abraham took office; and he did so even though that prior contract

was not due to expire for nearly 2 years, when there was ample

time for the new administration and the Congress to review and

to conduct a thorough examination of any potential contract extensions.

It may be ironic, but one of the very first acts as chairman of the

Commerce Committee in January, 2002, that I conducted was to

call on DOE and request that any action on the current UC contract be delayed until the new administration committee had an

opportunity to review it. And that simple request was rejected. I

have with me the letter of January 22, 2001, to the Department

making that case. Our concerns, of course, sadly were borne out,

and it hasn’t been easy to deal with.

The Secretary has had additional challenges thrust upon him

when he was trying to sort them out. He had to deal with a new

entity, the National Nuclear Security Administration, also created

over this committee’s objections. NNSA produced a new layer of bureaucracy between the Secretary and the managers at the nuclear

weapons labs that was supposed to improve accountability and

oversight. And he had to deal with the long delay in the confirmation of Kyle McSlarrow, his Deputy Secretary, who would be his

right-hand man on these matters. Because of that delay, the crucial

position in the Department of the officer in charge of DOE operations was vacant during much of the lead-up time leading to the

recent controversy at Los Alamos.

Despite all this, the Secretary and his new Deputy Secretary

have stepped up to the plate to address the situation aggressively,

even before the latest announcement, by pressuring UC to make

sweeping changes in the lab’s management and UC’s oversight of

the lab.

An NNSA colleague, Ambassador Linton Brooks, also has provided able leadership in this crisis, which is an encouraging sign

that we’re finally on the right course. I want to agree with Ambassador Brooks’ own comments yesterday that NNSA and its oversight of the lab over the past several years has not been up to par,

6

not what Congress was promised when we took this gamble by further insulating the nuclear weapons lab from central DOE management.

I look forward to hearing from both of you on this morning.

Mr. Chairman, let me welcome the witnesses today, with three

excellent and knowledgeable panels, to discuss these important developments to provide some answers about the future of Los Alamos and of the University of California’s contract with it and to

provide, perhaps, some sense that when we’re finally closing a very

sad chapter in the history of the lab so that we finally open a new

one.

In a conversation I had with Senator Domenici yesterday I congratulated him on reaching the same conclusion that Secretary

Abraham had, that it’s time to bid this contract out, that it’s time

to give Los Alamos a credible platform upon which it can proceed,

instead of having this specter of poor management and the questions always being asked about what’s being done about it and

what’s being done to correct it constantly on the shoulders of the

managers of that most important lab for this Nation’s safety and

security.

Mr. Chairman, again, my very deep thanks on behalf of the full

committee for your subcommittee’s actions and doggedly pursuing

this matter and leading to this conclusion by the Department; and

hopefully this wrap up hearing where we can look forward now to

a new chapter, as I said, in the history of this extraordinarily important asset to America.

I yield back the balance of my time.

Mr. GREENWOOD. The Chair thanks the gentleman and recognizes for an opening statement the gentleman from Michigan, Mr.

Stupak.

Mr. STUPAK. I’ll waive my opening statement, Mr. Chairman.

Mr. GREENWOOD. The Chair recognizes the vice chairman of the

subcommittee, Mr. Walden of Oregon.

Mr. WALDEN. Thank you, Mr. Chairman. I, too, will waive my

opening statement so we can proceed with the hearing.

Mr. GREENWOOD. Very well. We appreciate that.

[Additional statement submitted for the record follows:]

PREPARED STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

Thank you, Mr. Chairman, for holding this hearing to discuss the very significant

decision by the Department of Energy (DOE) to competitively bid the contract to operate the Los Alamos National Laboratory. Although we do not have details about

how the competition is going to be run, I applaud Secretary Abraham for this decision. Prior Energy Secretaries tried, but failed, to force needed changes short of this

step. They did not realize that the University of California was too obstinate, arrogant, and entrenched to make needed changes.

The most recent failed DOE effort was Appendix O, which was added to the contract by the University after the Wen Ho Lee and the lost hard drive incidents, and

the cost overruns and schedule delays of the National Ignition Facility. These were

just the latest in two decades of ‘‘chronic security and other management-related

problems.’’ On October 26, 2000, then Committee Chairman Tom Bliley and I wrote

a letter to then-DOE Secretary Bill Richardson after he had decided to extend the

UC contract for another three years. We knew then that the promises made by the

University in Appendix O, which included a new vice president for laboratory management, would not work, and we asked the Secretary to compete or renegotiate the

contract. As we stated:

7

‘‘As the briefing the Members last week amply demonstrated, these five action

items [in Appendix O] fall far short of the fundamental restructuring necessary

to bring new management expertise and accountability into the operations of

these labs. Indeed, these actions are, for all practical purposes, either meaningless or already provided for in the current contract. When pressed about the details of these five actions, or how they would be implemented, neither DOE nor

UC was able to offer any substantive explanations—saying only that the specifics would be worked out during contract negotiations.’’

(October 26, 2000, letter from Reps. Tom Bliley and John Dingell to Secretary Bill

Richardson, p. 2. (emphasis added))

In July of 2000, Dr. John McTague, who became the University’s vice president

for laboratory management, had written to Secretary Richardson proposing this position for a person who would ‘‘assess and assure the performance of the laboratory

directors, as well as technical excellence of programs, major project management,

personnel systems, safety, security, and business practices.’’ Dr. McTague said the

UC oversight role of the laboratories was ‘‘poorly defined and inadequately manned.’’

(July 16, 2000, letter from Dr. John McTague to Secretary Bill Richardson, p. 2.)

Dr. McTague got that job, but promptly used it to negotiate FY 2003 performance

standards for the laboratory that elevated scientific tasks and denigrated even further the value placed on adequate security, safety, environment, financial controls,

and business practices. These standards were adopted lock, stock, and barrel by the

Department barely a month ago—after the procurement scandal had broken, after

the broken property management system was identified, after Messrs. Walp and

Doran were fired in just the latest maltreatment of whistleblowers and problemraisers, after the lab director and more than a dozen other people were removed

from their jobs, and after the audit function at Los Alamos was taken over by the

University’s auditor. Yesterday, Ambassador Brooks claimed that these standards

were negotiated before any of this happened—although the University did not sign

off on the implementation plan until April 13—and that perhaps they would have

to be renegotiated to reflect current events.

There is a great deal of blame to spread around, but most of it belongs on the

backs of the University of California, which never integrated the laboratories into

its financial and management control structures, and the Department of Energy,

which failed to hold the University accountable. Los Alamos must make real

change—a change in which employees who in good faith bring problems to management’s attention and openly discuss them without paying for it with their careers

and their financial and emotional well-being. Until this happens, there will not be

a free and open discussion of problem areas, nor will there be proper remedies. But

the University’s recent responses on questions Rep. Markey and others have raised

about specific whistleblower cases are not particularly encouraging. As this competition goes forward, the issue of openness and responsiveness should be a critical factor in assessing bids.

Mr. GREENWOOD. In that case, the Chair welcomes our guests.

Our first witnesses are the Honorable Kyle E. McSlarrow, Deputy

Secretary of Energy at the Department of Energy, and Ambassador

Linton F. Brooks, Under Secretary for Nuclear Security and Acting

Administrator for Nuclear Security at the National Nuclear Security Administration within the Department.

We welcome both of you gentlemen. Thank you for being here.

I think you’re aware that this is an investigative hearing, and it

is the practice of the subcommittee when holding investigative

hearings to take testimony under oath. Do either of you object to

giving your testimony under oath this morning?

Mr. MCSLARROW. No, Mr. Chairman.

Mr. BROOKS. No, sir.

Mr. GREENWOOD. Okay. Pursuant to the rules of the committee

and the House, you are entitled to be represented by counsel. Do

either of you wish to be represented by counsel this morning?

Mr. MCSLARROW. No.

Mr. BROOKS. No.

Mr. GREENWOOD. In that case, if you would stand and raise your

right hand, I’ll give you the oath.

8

[Witnesses sworn.]

Mr. GREENWOOD. You’re under oath.

We will start with you, Secretary McSlarrow. You’re recognized

for your opening statement.

TESTIMONY OF HON. KYLE E. MCSLARROW, DEPUTY SECRETARY OF ENERGY, U.S. DEPARTMENT OF ENERGY; AND

HON. LINTON F. BROOKS, UNDER SECRETARY FOR NUCLEAR

SECURITY AND ACTING ADMINISTRATOR FOR NUCLEAR SECURITY, NATIONAL NUCLEAR SECURITY ADMINISTRATION,

U.S. DEPARTMENT OF ENERGY

Mr. MCSLARROW. Mr. Chairman, distinguished members of the

committee, thank you for the opportunity to discuss with the committee our review of the University of California’s management of

Los Alamos National Laboratory, the recommendations we have

made to the Secretary and his decisions.

The starting place for our inquiry is our national security. Secretary Abraham has said repeatedly that he has no more important

responsibility than his obligation, together with the Secretary of

Defense, to certify to the President the safety and reliability of the

nuclear weapons stockpile. The basis for our security is in obvious

and important ways dependent on the credibility of our nuclear deterrent, and those laboratories and facilities and the people who

manage and work in them are rightly considered national treasures. Thus, when the problems of last fall surfaced, Secretary Abraham viewed the various investigations, whether ones directed by

the Inspector General or Congress, whether civil or criminal, as

necessary but additional to his responsibilities. He therefore directed us to conduct a review and make recommendations with the

goal of ensuring that the management of the lab was one in which

he, Congress and the public could have total confidence.

Ambassador Brooks will provide more detail on our report in a

moment, but let me highlight a few conclusions.

First, the problems identified, while unacceptable, are primarily

related to management of business systems. There is no indication

that the science performed by the lab and the university is anything other than world class.

Second, the University of California, under the personal direction

of its President, Dick Atkinson, has responded forcefully and effectively. This is in no small measure also due to the leadership of the

university Senior Vice President, Bruce Darling, and the lab’s Interim Director, Admiral Pete Nanos.

Third, both the fact that the university contributes enormous

value to the science that underpins the national security mission

of the lab and the great strides they have made over the last 5 or

6 months lead us to conclude that termination is not in the interest

of our country.

Fourth, though this is a much more complex issue than is

present in even very large government procurements normally, our

conclusion is that our administration’s presumption of competition

is not overcome in circumstances where business systems have fallen so short of an acceptable level; and we therefore recommended

and the Secretary approve a decision to announce yesterday our inVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
9

tent to compete the LANL contract which expires in September,

2005.

Finally, Mr. Chairman, we recognized that this issue is part of

a larger set of issues about competition of the so-called federally

funded research and development centers, our national laboratories. The Secretary recognized last year that there is some fundamental policy issues that need to be explored.

On the one hand for example, long-term, enduring relationships

are likely to be extremely valuable in accruing the intellectual capital in which this country has invested. On the other hand, lack of

competition can lead to complacency, as you mentioned.

Because these are issues that the Secretary needed to be confronted, he established a blue ribbon commission which is due to

report to him in the late summer on its recommendations on how

we should approach performance oversight and competition in the

context of bidding on national laboratories. Thus, how we compete

this contract with regard to Los Alamos will be informed by the results of that commission as well.

Mr. Chairman, I will conclude there and let Ambassador Brooks

provide you more detail on the decisions made by the Secretary.

Thank you.

Mr. GREENWOOD. Thank you, Mr. Secretary.

Mr. Brooks. Ambassador Brooks.

TESTIMONY OF HON. LINTON F. BROOKS

Mr. BROOKS. Mr. Chairman, members of the subcommittee,

thank you for the opportunity to appear on this important issue.

The Deputy Secretary has addressed the Department’s approach

to competition and the immense importance Secretary Abraham

and all of us place on maintaining the highest standards for our

nuclear facilities. I’d like to turn to the conclusions that we’ve

reached and the actions we are taking with respect to the future

relationship between the University of California and Los Alamos

National Laboratory.

These conclusions and recommendations are set forth in our joint

report to the Secretary of Energy which was released yesterday,

and with your permission I would like to formally submit that report and the Secretary’ response for the record.

I want to state also for the record that we have received superb

cooperation from both the University of California and the Los Alamos National Laboratory in conducting our review. Our report covers the details of the problems uncovered at Los Alamos and the

university’s response. The problems are well-known to this committee, and Dr. Darling has outlined the university action in great

detail in previous testimony, so I am not going to cover those here.

As the Secretary of Energy has made clear, the problems represent a systemic management failure. I would only note the conclusions of the report, that the university’s actions were broad,

forceful and effective and that, ‘‘It is difficult to see how any organization could have done more to deal with the problem than the

University of California has since December, 2002.’’

Our review suggests that there are multiple causes of the failure

of business systems at Los Alamos.

10

First, prior to November of last year, the university’s supervision

of Los Alamos was ineffective in the area of business process. The

university focus was almost entirely on other areas, including

science, security, environment and project management.

Second, the National Nuclear Security Administration’s direct

Federal oversight was narrowly focused on specific performance

measures called out in the contract, rather than on overall effectiveness and the interface between different areas; and I will say

more about this in a moment.

Third, in hindsight, warning signs appear to have been ignored.

Following the problems of several years ago involving Wen Ho Lee

and the hard drives, neither the university, the laboratory, the National Nuclear Security Administration, nor the Department examined in sufficient detail whether these were symptomatic of broader

management problems.

Finally, cultural problems beyond the control of the university or

the Department played an important role. The Los Alamos culture

exalted science and devalued business practices; and changing this

culture will be the most difficult long-term challenge facing the laboratory, no matter who runs it.

As Deputy Secretary McSlarrow indicated, our review also confirmed that the university brings substantial value to the mission

of Los Alamos. Los Alamos’ mission depends on attracting and retaining world-class scientific talent, and the academic prestige of

association with a world-class university is a clear benefit in both

recruiting and retention.

In addition, there are formal agreements for scientific cooperation with four of the component campuses of the university. These

areas of cooperative research directly advance the national security

mission of the laboratory.

And, finally, an important and often overlooked benefit of the

university is to foster a culture of scientific skepticism and peer review. That attitude within the laboratory and between Los Alamos

and Livermore National Laboratories is, in my view, absolutely

crucial to the success of the stockpile stewardship program and to

the ability to certify the safety and reliability of the nuclear weapons stockpile.

Our report recommends and the Secretary has approved a series

of actions.

The most important of these are, first, that the university continue to manage Los Alamos through the end of the current contract in September, 2005. The vigorous action the university is taking to correct the problems, the significant value the university

brings in the area of science and the disruption to the mission of

the laboratory and morale from early termination all make retaining the university through the end of the current contract the most

appropriate course. Termination of the contract would not improve

the management of Los Alamos in the near term, because the university is fully engaged in an effective and comprehensive program.

Second, we recommended and the Secretary approved that the

Department announce its intent to compete the Los Alamos contract when it expires in September, 2005. Given the Department

and the administration’s strong preference for competition and the

11

widespread nature of the problems uncovered, it’s difficult to argue

for any other course.

Third, however, we urged that the University of California compete for the contract in 2005 perhaps in association with another

entity with business and project management experience. The university has brought immense benefits to the laboratory and the

country over the past 60 years, and it is important to note that a

decision to compete is not a repudiation of the university but simply a recognition that its performance in the area of business management did not rise to the exceptionally high standards required

to overcome the presumption of competition in the Department’s

policy.

Next, we begin now to develop the appropriate criteria for evaluating the future competition. Normally, those criteria would not be

developed until next year, but the results of the competition are

going to have to preserve the many advantages offered by the current association with the university, while also ensuring continuation of the reforms now being initiated; and finding the proper criteria to achieve these results will be complicated and should begin

at once.

Further, we recommend that the Secretary reject in advance any

notion of split responsibility for the laboratory in which different

contractors perform the science and business operation functions.

Some have argued that having the science and business portions of

the laboratory managed by separate contractors would let us have

the best of both worlds. I do not believe that the laboratory director

should report to two entities. Indeed, a major part of the problem

at Los Alamos is fragmentation between the science and the business communities; and a dual reporting approach would make the

problem worse, not better.

We also recommend, finally, that if we devise a mechanism to insure that if the university does not continue to operate Los Alamos

following 2005 the pension benefits of current Los Alamos employees are fully protected. Failing to do this could lead to a significant

challenge to morale and potentially to a devastating exodus of the

most experienced employees. It is important to note that the vast

majority of Los Alamos employees have done nothing wrong and

are continuing to perform in an exceptional manner.

Let me turn now to the Federal role of discovering and correcting

problems of this type.

One element of the Federal responsibility, of course, is to insure

the university lives up to its own obligations. But, as the report

makes clear, the National Nuclear Security Administration shares

responsibility for allowing these problems to develop.

Prior to November of last year, the Federal oversight role was

limited to a stove-piped review of performance set forth in specific

elements of the contract, when in fact what was called for was a

broader, more cross-cutting and more aggressive role. Our reviews

focused on performance in individual areas, rather than in the

intersection and relationship among those areas. The report, recognizing this weakness, recommends that all current and future DOE

contracts be reviewed in order to insure that performance reviews

capture the cross-cutting information necessary to form a complete

picture of performance.

12

The National Nuclear Security Administration has begun this

process through our revised approach to evaluating Los Alamos

and Livermore National Laboratories. Under Appendix F of the

contract, we review broad cross-cutting areas and involve the laboratory directors, the senior leadership of the university and the

senior leadership of my organization, including myself personally,

in these reviews.

In your opening statement, Mr. Chairman, you noted that we

had not established a weights for the criteria within those reviews.

That’s by design. We believe that one should look at cross-cutting

areas in order to gauge overall performance and that we run the

risk of falling into the trap that got us here if we start looking mechanically at business services as some specific percentage, and so

we believe that this overall approach to review and most particularly the engagement of the senior leadership will let us focus on

the relationship of all the performance elements.

Federal oversight in the past was also hampered by fragmentation and lack of clarity in roles and responsibilities within the National Nuclear Security Administration. For example, before December of last year, the Albuquerque operations office assessed

business practices performance of Los Alamos, while the Los Alamos site office assessed other practices. This fragmentation has

long been recognized, including by Congress.

As a result and unrelated to the specific problems of Los Alamos,

in December of last year I implemented a major reorganization of

the National Nuclear Security Administration, abolishing a layer of

management and placing authority and responsibility for Federal

oversight in site office managers—in the case of Los Alamos, Ralph

Erickson, who has appeared before this committee, who will now

report directly, without any intervening layers of management, to

my Principal Deputy.

I expect that, in the aggregate, these changes will significantly

improve the quality of Federal oversight.

Mr. Chairman, let me conclude with two points.

First, it is important to recognize that the overwhelming majority

of Los Alamos employees in all areas, including business services,

are honest, dedicated, competent and hard-working. Ultimately, the

value of this laboratory does not lie in expensive technology, it lies

in people. And the failures of Los Alamos were real, but they are

the failures of a few, and as we move to correct these failures it

is important to keep that fact in mind.

Second, I want to reiterate Secretary McSlarrow’s emphasis on

the overriding importance of national security in all of the decisions we’ve made. In approving our report, Secretary Abraham

said, ‘‘The management of the nuclear weapons complex is my most

important responsibility as Secretary of Energy. Under the university’s stewardship, the science of Los Alamos has consistently been

of the highest caliber. But it is important that business services be

as good as the science. In approving your recommendations it is my

intention to make it clear that, in dealing with nuclear weapons,

only the highest standards of performance are acceptable.’’ All of us

in the Department remain committed to that goal.

Thank you for your attention, sir; and I look forward to your

questions.

13

[The prepared statement of Hon. Linton F. Brooks follows:]

PREPARED STATEMENT OF HON. LINTON F. BROOKS, ACTING UNDER SECRETARY OF

ENERGY FOR NUCLEAR SECURITY AND ACTING ADMINISTRATOR, NATIONAL NUCLEAR

SECURITY ADMINISTRATION

Mr. Chairman, members of the subcommittee. Thank you for the opportunity to

appear before you on this important issue. Deputy Secretary McSlarrow has addressed the Department’s approach to competition and the immense importance Secretary Abraham and all of us place on maintaining the highest standards at our nuclear facilities. I would like to turn to the conclusions we have reached and the actions we are taking with respect to the future relationship between the University

of California and Los Alamos. Theses conclusions and recommendations are set forth

in our joint report to the Secretary of Energy which was released yesterday. With

your permission, I would like to submit that report and the Secretary’s response for

the record. Before I do, I want to formally state for the record that we have had

superb cooperation from both the University of California and the Los Alamos National Laboratory in conducting our review.

Our report covers the details of the problems uncovered at Los Alamos and the

University’s response. The problems are well known to this Committee and Dr. Darling has outlined the University actions in great detail, so I will not cover them

here. As the Secretary of Energy has made clear, they represent a ‘‘systemic management failure.’’ I would only note the conclusion of the report that the University’s

actions were ‘‘actions were broad, forceful, and effective’’ and that ‘‘It is difficult to

see how any organization could have done more to deal with the problem than the

University of California has since December 2002.’’

Our review suggests that there are multiple causes of the failure of business systems at Los Alamos:

• Prior to November 2002, the University’s supervision of Los Alamos was ineffective in the area of business processes. University supervision was almost entirely focused on other areas including science, security, environment, and

project management.

• The Department of Energy and the NNSA’s direct Federal oversight was narrowly

focused on specific performance measures called out in the contract, rather than

on overall effectiveness. I will say more about this in a moment.

• In hindsight, warning signs may have been ignored. Following the Dr. Wen Ho

Lee and hard drive incidents, neither the Laboratory, the University, NNSA,

nor the Department examined whether broader problems existed at Los Alamos.

• Finally, cultural problems beyond the control of the University or the Department

played an important role. The Los Alamos culture exalted science and devalued

business practices. Changing this culture will be the most difficult long-term

challenge facing the Laboratory no matter who manages it.

As Deputy Secretary McSlarrow indicated, our review also confirmed that the

University brings substantial value to the mission of Los Alamos. Los Alamos missions depend on attracting and retaining world-class scientific talent. The academic

prestige of association with a world-class university is of clear benefit in both recruiting and retention. In addition, there are formal agreements for scientific cooperation with four of the component campuses of the University of California.

These areas of cooperative research directly advance the scientific mission of the

Laboratory. Finally, an important, little-noted benefit of the University is to foster

a culture of scientific skepticism and peer review. This attitude, both within the

Laboratory and between Los Alamos and Lawrence Livermore National Laboratories, is absolutely crucial to the success of the Stockpile Stewardship Program and

to the ability to certify the stockpile.

Our report recommends, and the Secretary has approved, as series of actions. The

most important include:

• That the University of California continue to manage Los Alamos

through the end of the current contract in September 2005. The vigorous

action the University is taking to correct the problems uncovered at Los Alamos, the significant value the University brings in the area of science, and the

significant disruption to the mission of the Laboratory and the morale of the

employees from early termination all make retaining the University through the

end of the current contract the most appropriate course. Termination of the contract would not improve the management of Los Alamos in the near-term; the

University appears to be fully engaged in an effective and comprehensive program.

14

• That the Department announce its intent to compete the Los Alamos contract when it expires in September 2005. Given the Department’s and the

Administration’s strong preference for competition, and the widespread nature

of the problems uncovered at Los Alamos, it is difficult to argue for any other

course of action.

• That we urge the University of California to compete for the contract in

2005, perhaps in association with another entity with business and

project management experience. The University has brought immense benefits to the Laboratory and the country over the past 60 years. It is important

to note that a decision to compete is not a repudiation of the University, but

simply a recognition that the University’s performance in the area of business

management did not rise to the exceptionally high standards required to override the presumption of competition in Department orders.

• That we begin now to develop appropriate criteria for evaluating a future competition. The results of the competition in 2005 should preserve the

many advantages offered by the current association with the University while

also ensuring continuation of the reforms now being initiated and strengthening

business functions. Devising the proper criteria to achieve these results while

avoiding unforeseen consequences will be complicated and should begin at once.

• That we reject in advance any notion of split responsibility for Laboratory operations in which different contractors would perform the

science and business operations functions. Some have argued for having

the science and business portions of the Laboratory supervised by different contractors. The Laboratory Director should not report to two entities. A major part

of the problem at Los Alamos is fragmentation between the science and business communities within the Laboratory. A dual reporting approach would

make this problem worse, not better.

• That we devise a mechanism to ensure that, if the University does not

continue to operate Los Alamos following the 2005 competition, that the

pension benefits of current Los Alamos employees are fully protected.

Failing to do this could lead to a significant challenge to morale and, potentially, a devastating exodus of the most experienced employees. It is important

to note that the vast majority of Los Alamos employees have done nothing

wrong and continue to perform in an exceptional manner.

Let me turn briefly to the Federal role in discovering and correcting problems of

this type. One element of our Federal responsibility, or course, was to ensure that

the University lives up to its own obligations. But as the report makes clear, National Nuclear Security Administration shares responsibility for allowing these problems to develop. Prior to November 2002, the Federal oversight role was limited to

a mechanistic review of performance as set forth in the contract when in fact a

broader, more aggressive role was called for. Our reviews focused on performance

in individual areas rather than the intersection between those areas. The report,

recognizing this weakness, recommends that all current and future DOE contracts

be reviewed in order to ensure that performance reviews capture the crosscutting

information necessary to form a complete picture of performance. NNSA has begun

this process through our revised approach to evaluation of Los Alamos and Livermore National Laboratories under Appendix F of the contract. We review broad,

crosscutting areas and involve the Laboratory Directors, the senior leadership of the

University, and the senior leadership of NNSA, including myself, personally in these

reviews.

Federal oversight was also hampered by fragmentation and lack of clarity in roles

and responsibilities within the National Nuclear Security Administration. For example, before December of 2002, the Albuquerque Operations Office assessed business

practices at Los Alamos, while the Los Alamos Site Office assessed other performance areas. This fragmentation problem has long been recognized, including by the

Congress. As a result, on December 20, 2002 I implemented a major reorganization

within NNSA, abolishing a layer of management and placing authority and responsibility for Federal oversight in the site office managers, who will now report directly to my Principal Deputy. I expect that these changes will significantly improve

the quality of Federal oversight.

Mr. Chairman, let me conclude with two points. First, it is important to recognize

that the overwhelming majority of Los Alamos employees—in all areas, including

business services—are honest, dedicated, competent, and hard working. Ultimately,

the value of the Laboratory lies not in expensive technology, but in people. The failures at Los Alamos are real, but they are the failures of a few. As we move to correct these failures, it is important to keep this fact in mind.

15

Second, I want to reiterate Secretary McSlarrow’s emphasis on the overriding importance of national security in all of the decisions we have made. In approving our

report, Secretary Abraham said

The management of the nuclear weapons complex is my most important responsibility as Secretary of Energy. Under the University’s stewardship, the

science at Los Alamos has consistently been of the highest caliber. But it is important that business services be as good as the science. In approving your recommendations, it is my intention to make it clear that, in dealing with nuclear

weapons, only the highest standards of performance are acceptable.

All of us remain committed to that goal.

Thank you for your attention and I look forward to your questions.

DEPARTMENT OF ENERGY

WASHINGTON, DC 20585

April 26, 2003

MEMORANDUM FOR THE SECRETARY

FROM:

Kyle McSlarrow, Deputy Secretary

Linton F. Brooks, Acting Administrator,

National Nuclear Security Administration

SUBJECT: Los Alamos National Laboratory

On December 24, 2002, you concluded that events at Los Alamos National Laboratory reflected a ‘‘systemic management failure.’’ Although this conclusion was primarily aimed at the management at Los Alamos itself, you also directed us to conduct an examination of the relationship between the University of California, as the

responsible contractor, and the Los Alamos National Laboratory. We have also explored the relationship among the University of California, Los Alamos, and the National Nuclear Security Administration, Department of Energy.

The University and the National Nuclear Security Administration share responsibility for allowing these problems to develop. Prior to November 2002, the University’s supervision of Los Alamos was ineffective in the area of business processes.

The Federal oversight role was limited to a mechanistic review of performance as

set forth in the contract when, in fact, a broader, more aggressive role was called

for, particularly in light of the problems that developed at Los Alamos in the late

1990s.

Although the University was slow to take action to correct these failures, once it

became engaged its actions were broad, forceful, and effective. It is difficult to see

how any organization could have done more to deal with the problem than the University of California has since December 2002. Further, the University brings substantial value to the mission of Los Alamos, in science, recruiting, retention and fostering a culture of scientific skepticism and peer review. Therefore, given the extraordinary disruption that would flow from an immediate termination, we do not

believe contract termination is in the best interests of the national security missions

conducted at Los Alamos.

We recommend:

• That the University of California continue to manage Los Alamos through the end

of the current contract in September 2005.

• That you direct the NNSA Administrator to examine the utility of a contract

modification institutionalizing some of the reforms made by the University over

the last few months.

• That the Department announce its intent to compete the Los Alamos contract

when it expires in September 2005.

• That we urge the University of California to compete for the contract in 2005, perhaps in association with another entity with business and project management

experience.

• That you direct the NNSA Administrator to begin now to develop appropriate criteria for evaluating a future competition, taking into account the results of the

Blue Ribbon Panel when available.

• That you further direct the NNSA Administrator to ensure that any future competition includes provisions for retaining the current Los Alamos workforce following September 2005.

• That you reject in advance any notion of split responsibility for Laboratory operations in which different contractors would perform the science and business operations functions.

• That you direct the NNSA Administrator to devise a mechanism to ensure that,

if the University does not continue to operate Los Alamos following the 2005

16

competition, the pension benefits of all Los Alamos employees on the rolls as

of September 30, 2005, or previously retired, are fully protected.

• That in dealing with future competitions, the Department explore ways in which

to not only take into account truly outstanding performance but also to encourage contractors who might fall short during a contract term to strive to develop

plans to correct problems so that they may compete and succeed.

• That you direct that all current and future contracts be reviewed in order to ensure that performance reviews capture the crosscutting information necessary

to form a complete picture of performance.

• That you direct us to continue to monitor progress and subsequent information

from either internal or external reviews in order to provide additional recommendations as facts and circumstances develop that warrant additional action.

Attachment: Complete report

REPORT BY THE DEPUTY SECRETARY OF ENERGY AND THE ACTING ADMINISTRATOR OF

THE NATIONAL NUCLEAR SECURITY ADMINISTRATION ON THE FUTURE RELATIONSHIP

BETWEEN LOS ALAMOS NATIONAL LABORATORY AND THE UNIVERSITY OF CALIFORNIA

APRIL 26, 2003

Introduction. In accordance with your direction in your letter of December 24,

2002, we have conducted an examination of the relationship between the University

of California and the Los Alamos National Laboratory. Our examination included

the following:

• Review of briefings to the University Regents, internal University of California reports, and similar documents between 2001 and the time of the relief of the Los

Alamos National Laboratory Director in 2003.

• Review of all relevant Inspector General and Office of Independent Assessment

and Oversight reports covering Los Alamos. We paid particular attention to

those Inspector General reports covering the period since the problems at Los

Alamos surfaced; a list is attached.

• Review of the Appendix O process and material (Appendix O was put in place during contract renewal in 2001 to correct perceived security problems; it is further

discussed below).

• Review of testimony given by witnesses to the Subcommittee on Oversight and Investigations of the House Energy and Commerce Committee.

• Interviews with former Vice President for Laboratory Management, John

McTague, former National Nuclear Security Administration (NNSA) Administrator, General John A. Gordon, and the Los Alamos Site Manager, Ralph

Erickson.

• A daylong meeting with senior Los Alamos and University officials at Los Alamos,

including a separate meeting with Federal site office management officials who

have contract oversight responsibilities.

• A number of meetings with Senior Vice President for University Affairs Dr. Bruce

Darling, who also serves as Interim Vice President for Laboratory Management,

along with phone calls with Dr. Darling several times a week.

• A similar set of meetings and phone calls with Interim Laboratory Director, Dr.

George ‘‘Pete’’ Nanos, and his senior staff.

• Conversations with various Regents of the University of California to review our

conclusions.

This memorandum reports the results of our assessment and our recommendations for the future Los Alamos—University of California relationship.

Background. The University of California has operated the Los Alamos National

Laboratory since 1943 under contract with the Department of Energy and its predecessors. The contract has routinely been extended without competition, most recently in January 2001 just 2 days before the Bush Administration took office. The

University also operates Lawrence Livermore National Laboratory under an identical, but separate contract, as well as the Lawrence Berkeley National Laboratory.

The University has traditionally regarded its management of the laboratories as a

public service to the nation. As one indication of this, the University has taken the

position that its operation of the laboratories should be revenue neutral. That is,

the University retains no fee for operating the laboratories and seeks to use no University of California funding to do so. The fee paid by the Government is returned

to the laboratories for additional laboratory-directed research and development,

after deducting the costs of that portion of the University Office of the President

17

involved with overseeing the laboratories, paying expenses not otherwise reimbursable, and establishing a reserve to cover significant losses.

During the late 1990’s two major concerns arose with Los Alamos National Laboratory, both involving security. The first was the case of Dr. Wen Ho Lee, a Los

Alamos scientist who was ultimately convicted of mishandling classified material.

This case raised extensive questions about the adequacy of security at the Laboratory. These concerns were reinforced in May 2000 when two hard drives containing

Restricted Data could not be located for an extended period of time. The hard drives

were ultimately located in a secure area within Los Alamos, but the Laboratory’s

inability to locate them, coming on top of the concern raised by the Wen Ho Lee

case, further exacerbated security concerns.

Security concerns were among the reasons that Congress created the National

Nuclear Security Administration. Despite this, no senior Los Alamos manager was

terminated, reassigned, or demoted as a result of either of these incidents, although

some formal reprimands were issued and two lower-level employees were reassigned.

Notwithstanding these security concerns, the University’s contract to manage Los

Alamos was extended non-competitively in January 2001. The current contract expires on September 30, 2005. In extending the contract, the Department imposed

a number of requirements to correct the perceived problems with the management

of Los Alamos. The new requirements were codified in a separate appendix to the

Los Alamos contract called Appendix O. An identical appendix was included in the

contract for Lawrence Livermore National Laboratory.

Appendix O committed the University to establish a position of Vice President for

Laboratory Management and made the first incumbent of that position subject to

departmental approval. It also committed the University to take a series of discrete

steps to improve management. To enforce these commitments, Appendix O established a series of quarterly reviews between the Department, the University, Los

Alamos, and Livermore. By its own terms, Appendix O expired on September 30,

2002. At that time, the NNSA, on behalf of the Department, concluded that all the

requirements of the Appendix had been met. None of these requirements related to

business services.

The precipitating incidents. Beginning in the summer of 2002, a series of problems with business services at Los Alamos came to light. The problems themselves

originated several months earlier, but were not widely recognized outside the Laboratory until the summer of 2002. These problems included:

• Questions concerning the effectiveness of controls over Government purchase

cards (credit cards). Several laboratory employees (all now terminated except

one, where disciplinary action is pending) used a laboratory-issued purchase

card to make fraudulent purchases, including an attempt to purchase an automobile. Actual loss to the Government was only about $3000, but the massive

audit conducted by the University in response to the issue revealed an additional $195,246 worth of purchases where documentation was inadequate or

missing (some documentation was destroyed in the Cerro Grande fire) along

with $125,000 in employee recognition awards that exceed the approved DOE

threshold. Although no additional cases of fraud were uncovered, the University

chose to reimburse the Government the entire sum of both questionable items

for a total of about $320,000. • A scheme by two employees (both now terminated) apparently used doctored purchase orders to order material for their personal use. The incident is still under

investigation by the FBI. The amount of the apparent theft exceeded $300,000,

but all but about $50,000 has been recovered. The University has reimbursed

the Government for the loss. • Questions concerning the adequacy of property controls. Newspaper revelations

indicated that the laboratory was unable to account for $1.3 million worth of

controlled property, including such pilferable items as computers. Although the

most spectacular allegations (a missing fork lift, for example) were ultimately

resolved, substantial amounts of property remained un-located. • The Laboratory’s action in firing two investigators within a few days of those

same investigators raising concerns with the Inspector General. You, the University and the Inspector General have all stated that the Laboratory’s action

in firing the inspectors was ‘‘incomprehensible.’’ We share that assessment.

While the Inspector General’s investigation did not substantiate the allegation

that Laboratory management deliberately hid criminal activity, this incident (in

which the University played no role) demonstrated the degree to which the Laboratory’s management was out of touch and ineffective.

Taken individually, it is possible that none of these incidents would call into question the adequacy of Laboratory management. Taken in the aggregate, however,

18

1 Although the Laboratory has generally agreed with all the findings of outside audits, it disagrees with this specific audit, contending that virtually all the costs should be allowable. Final

determination of allowability will be made by the Contracting Officer in accordance with established DOE procedures.

they revealed systemic weaknesses in business practices at Los Alamos. These

weaknesses were further confirmed by additional Inspector General audits in unrelated areas, including:

• An audit of firearms control that revealed significant weaknesses in procedures

and accountability, although all firearms were ultimately located. • An interim audit that determined that control over laptop computers was inadequate. Computers were not properly controlled, not adequately safeguarded

against theft, and not always acquired in accordance with approved procedures.

Computers that could not be located were written off without a formal inquiry

and theft of laptop computers was not always reported to the appropriate office. • An audit of the allowability of incurred costs that assessed that just over $14 million (about 0.3 percent out of the total of $5.4 billion examined) was improperly

charged to the government under existing rules. The three areas of concern

were travel and conference costs not adequately documented, provision of business meals, and an audit function evaluated as inadequate.1

The fact that there was not greater fraud and theft at Los Alamos is a tribute

to the character of the vast majority of men and women working there, and not to

the efficacy of the management systems in place. The actual loss to the Government

could have been far greater and the business practices in place in 2002 would not

have been able to identify and therefore prevent such a loss.

There is no evidence that the lax approach to business processes and business

issues extended to science or security. The fear that such practices might spread,

however, was—justifiably—a primary motivation for insisting that the University of

California move promptly to correct the problems.

University of California response. The University was relatively slow to respond to the public allegations of business practices problems. University response

was initially limited to providing assistance as requested by the Laboratory Director

and did not include any action to ensure that the Laboratory Director was taking

sufficient steps to examine the problem. The University engagement began in earnest in mid-November following the commissioning of an Inspector General investigation (requested by the Laboratory) and a series of increasingly embarrassing

press accounts. University engagement increased still further following the intervention of the Secretary of Energy in November and December 2002.

Once the University became engaged its actions were broad, forceful, and effective. The University made significant personnel changes in Laboratory management,

including accepting the resignation of the Laboratory Director, terminating the Principal Deputy Director, and transferring, downgrading, or terminating 16 other officials including the Chief Financial Officer, Laboratory Auditor, Security Office Director, and the heads of the procurement and purchase card programs. Given the

size of the Los Alamos management team, these represent sweeping changes.

The University mobilized substantial auditing resources to examine issues in

depth. It used teams of extremely senior officials to investigate the issues. University senior officials (for example the University Auditor) essentially devoted full time

to Los Alamos issues. The University permanently subordinated the Laboratory

auditor to the University Auditor and temporarily subordinated all Laboratory business functions to the University Vice President for Financial Management. It directed a series of external reviews by Ernst and Young, PriceWaterhouseCoopers,

and a team headed by a former DOE Inspector General. These were major reviews;

the Ernst and Young review, for example, involved 20 people at the Laboratory. It

is difficult to see how any organization could have done more to deal with the problem than the University of California did after about mid-December 2002. In particular, we have been impressed with the performance to date of both the Interim

Vice President for Laboratory Management, Dr. Bruce Darling, and the Interim Los

Alamos Director, Dr. George ‘‘Pete’’ Nanos.

The University’s steps were not limited to Los Alamos. Although we did not investigate actions at other laboratories, the University appears to have been vigorous

in taking the lessons from Los Alamos and applying them to the Lawrence Livermore and Lawrence Berkeley National Laboratories. The University required these

Laboratories, as well as the University auditor, to examine their own internal procedures to ensure similar problems did not arise elsewhere. The University also used

senior officials at these Laboratories to assist at Los Alamos.

The University and the new Laboratory leadership are viewing the necessary improvements broadly, not narrowly. Although the specific issues that came to light

19

2The NNSA reorganization implemented in December 2002 is designed to centralize responsibility to the Site Manager and thus avoid this fragmentary oversight in the future. 3 At least some prospective employees at both Los Alamos and Livermore in recent months

have stated that they were uninterested in affiliating with a national laboratory that is not connected with the University. We lack data on how extensive this belief is.

in late 2002 dealt with business practices, the University and the Interim Laboratory Director are taking the opportunity to look at Laboratory practices in all areas,

including project, program, environmental, procurement, and nuclear facilities management. While the responsibility for implementing this broad approach belongs to

the Interim Director, the University selected that Director and has been strongly

supportive of examining all areas of Los Alamos management. This increases the

chance that the changes being made will endure.

Finally, the University is in the process of putting in place a new governance

model involving strengthened internal management and oversight and a strong external governing Board with members having strong backgrounds in industry, defense and science. The new Board will have some of the responsibilities of the Regents and will be able to hold both the University administration and Laboratory

Management accountable. We are not yet able to evaluate the efficacy of this new

governance model, but it is a clear indication that the University sees its task not

simply as implementation of a temporary ‘‘get well’’ program but as a transformation of its model of oversight.

The cause of the problems. Our review suggests that there are multiple causes

of the failure of business systems at Los Alamos:

• Prior to November 2002, the University’s supervision of Los Alamos was

ineffective in the area of business processes. University supervision was

almost entirely focused on other areas including science, security, environment,

and project management. Briefings to the Regents never discussed business

practices nor was the subject a focus of the former Vice President for Laboratory

Management. Internal documentation relating to University oversight in this

period is silent on business practices. • The Department of Energy and the NNSA’s direct Federal oversight was

narrowly focused on specific performance measures called out in the

contract, rather than on overall effectiveness. Appendix O was focused on

issues other than business services. Most discussions were in areas of safety or

of having Los Alamos and Livermore work together. NNSA’s own supervision

focused on areas such as safety and security, rather than business services and

tended to assess performance within ‘‘stovepipes,’’ while many of the actual

problems were failures of appropriate connections between stovepipes. A division of responsibility between the Los Alamos Site Office and the former Albuquerque Operations Office further weakened NNSA oversight, with oversight of

business practices coming almost exclusively from Albuquerque.2

• In hindsight, warning signs may have been ignored. Following the Dr. Wen

Ho Lee and hard drive incidents, neither the Laboratory, the University, NNSA,

nor the Department examined whether broader problems existed at Los Alamos.

For years, there has been general acknowledgement of a ‘‘Los Alamos way’’ that

was unique and that devalued business practices. Evaluations of Los Alamos in

recent years always showed it slightly inferior in overall performance to the

other two weapons laboratories, but never by enough to cause strong concern.

Because there was no precipitating event, no one at any level acted on these

indicators. • Cultural problems beyond the control of the University or the Department played an important role. The Los Alamos culture exalted science and

devalued business practices. Changing this culture will be the most difficult

long-term challenge facing the Laboratory no matter who manages it.

The value of the University. In evaluating our options, it is important to recognize that the University brings substantial value to the mission of Los Alamos, in

both obvious and less obvious ways. Stockpile Stewardship and other Los Alamos

missions depend on attracting and retaining world-class scientific talent. The academic prestige of association with a world-class university is of clear benefit in both

recruiting and retention.3 In addition, there are formal agreements for scientific cooperation with four of the component campuses of the University of California.

These areas of cooperative research directly advance the scientific mission of the

Laboratory.

Finally, an important, little-noted benefit of the University is to foster a culture

of scientific skepticism and peer review. This attitude, both within the Laboratory

and between Los Alamos and Lawrence Livermore National Laboratories, is absolutely crucial to the success of the Stockpile Stewardship Program and to the ability

20

4The prospect of termination may already have had an adverse effect. As of April 8, 266 Los

Alamos employees (68 with critical skills) have applied for retirement. In contrast, there were

only 177 retirements during all of 2002. Retirement requests at Livermore are currently running

at roughly twice the 2002 rate.

to certify the stockpile. A senior laboratory official at Los Alamos has told us, for

example, that the culture of peer review is the only thing that allowed the successful dual revalidation of the W76 warhead conducted a few years ago.

In addition to the actual value that the University brings, an important consideration is the widespread perception among Laboratory employees at both Los Alamos

and Lawrence Livermore National Laboratories that the University association is

critical to the mission of the Laboratory. Examples of this perception abound and

have been a constant theme of our discussions with laboratory employees. We received petitions from 2,500 Los Alamos employees and 3,000 Livermore employees

stressing the value of the University association. We received a similar, separate

communication from the Los Alamos Fellows, those senior scientists at Los Alamos

not part of management. We have reviewed public statements by distinguished figures such as Edward Teller, arguably the most famous living nuclear weapons designer. Even if we disagreed with these assertions of the University’s value (which

we do not), we need to take account of the widespread perception among the people

who actually carry out the important national security mission of the Laboratory

that the University association is critical to that mission.

At the same time, the national security missions carried out at Los Alamos require the total confidence of Congress and the public as well as of Los Alamos employees. An erosion of that public trust undermines not only the University but our

national security as well. Our recommendations are, therefore, premised on a view

that ensuring public confidence is merited is crucial for our country, the University

and Los Alamos.

Problems with immediate termination. We are aware of forceful calls that the

University contract with Los Alamos be terminated immediately. While the University can be faulted for having allowed the problems to develop, we believe that immediate termination would undermine the national security mission at the lab without measurably addressing the problems that Los Alamos faces today. Further, the

Department, and since its creation, the NNSA, share responsibility for lax oversight

of business practices. In our view, immediate termination is undesirable for several

reasons. Such a step would be highly disruptive to the things that are going well

at Los Alamos, especially science. It would also hamper the implementation of the

internal reforms the University has put in place. Immediate termination would lose

the very real benefits of the University association and, because of this, would be

devastating to morale.4 Finally, any decision for immediate termination would almost certainly have a counterproductive effect on other contractors facing similar

problems in the future. If this vigorous get well program put in place by the University leads only to termination, no future contractor will have any incentive to put

this much of an effort into remediation of major problems.

Recommendations. Based on the above, we recommend:

• That the University of California continue to manage Los Alamos

through the end of the current contract in September 2005. The vigorous

action the University is taking to correct the problems uncovered at Los Alamos, the significant value the University brings in the area of science, and the

significant disruption to the mission of the Laboratory and the morale of the

employees from early termination all make retaining the University through the

end of the current contract the most appropriate course. Termination of the contract would not improve the management of Los Alamos in the near-term; the

University appears to be fully engaged in an effective and comprehensive program. • That you direct the NNSA Administrator to examine the utility of a contract modification institutionalizing some of the reforms made by the

University. If the University continues to operate Los Alamos through 2005,

it will be important to ensure that the current momentum for improvement continues. Some institutionalization of the reforms may assist in this area. We believe that discussions between Los Alamos, the NNSA, Los Alamos Site Office,

and the University are necessary before determining exactly what changes require codification. • That the Department announce its intent to compete the Los Alamos contract when it expires in September 2005. Given the Department’s and the

Administration’s strong preference for competition, and the widespread nature

of the problems uncovered at Los Alamos, it is difficult to argue for any other

course of action. Because the question of competition for National Laboratories

21

5The Blue Ribbon Panel, formally the ‘‘Blue Ribbon Commission on Use of Competitive Procedures at the Department of Energy Laboratories,’’ was established on January 3, 2003 as a subsidiary body to the Secretary of Energy Advisory Board. It is tasked with examining the Department’s policy on competition for management of national laboratories and is expected to make

its report by July 2003.

is the subject of your recently chartered Blue Ribbon Panel, the mechanics of

implementing this decision should take into account the results of the Panel’s

report.5

• That we urge the University of California to compete for the contract in

2005, perhaps in association with another entity with business and

project management experience. The University has brought immense benefits to the Laboratory and the country over the past 60 years. It is important

to note that a decision to compete is not a repudiation of the University, but

simply a recognition that the University’s performance in the area of business

management did not rise to the exceptionally high standards required to override the presumption of competition in Department orders.

• That you direct the NNSA Administrator to begin now to develop appropriate criteria for evaluating a future competition, taking into account

the results of the Blue Ribbon Panel when available. The results of the

competition in 2005 should preserve the many advantages offered by a worldclass academic institution while also ensuring continuation of the reforms now

being initiated and strengthening business functions. Devising the proper criteria to achieve these results while avoiding unforeseen consequences will be

complicated and should begin at once.

• That you further direct the NNSA Administrator to ensure that any future competition includes provisions for retaining the current Los Alamos workforce following September 2005. The staff of Los Alamos is a national treasure that must be preserved. It is important to establish now that

a competition in 2005 will not result in a changed workforce. Otherwise we will

face both a serious morale problem and the prospects of a significant exodus of

staff in the mistaken belief that their jobs are at risk.

• That you reject in advance any notion of split responsibility for Laboratory operations in which different contractors would perform the

science and business operations functions. Some have argued for having

the science and business portions of the Laboratory supervised by different contractors. We urge you to reject this approach. While the University might well

benefit from a partnership with industry, the Laboratory Director should not report to two entities. Further, the Interim Laboratory Director believes that a

major part of the problem at Los Alamos is fragmentation between the science

and business communities within the Laboratory. A dual reporting approach

would make this problem worse, not better.

• That you direct the NNSA Administrator to devise a mechanism to ensure that,

if the University does not continue to operate Los Alamos following the 2005

competition, that the pension benefits of all Los Alamos employees on the rolls

as of September 30, 2005, or previously retired, are fully protected. While the

Los Alamos employees who have contacted us are generally concerned about the

impact on science and mission of losing the association with the University of

California, many are also concerned with their benefits under the University’s

pension system. It is important to reassure employees, that, regardless of the

outcome of the future competition, those benefits will be protected. Otherwise,

we could face a significant challenge to morale and, potentially, a devastating

exodus of the most experienced employees.

• That you direct us to continue to monitor progress and subsequent information from either internal or external reviews in order to provide additional recommendations as facts and circumstances develop that warrant additional action.

Lawrence Livermore National Laboratory. The University of California also

manages the Lawrence Livermore National Laboratory under a separate, but essentially identical, contract as the contract with Los Alamos. Our review did not explicitly cover Lawrence Livermore National Laboratory and we believe that there is no

need to make even a preliminary decision on whether to extend or compete the Lawrence Livermore contract when it expires in September 2005. Such a decision can

clearly be deferred and can await, among other things, the results of the recently

established Blue Ribbon Panel. There is no legal reason why the Department could

not choose to compete the Los Alamos contract and extend the Lawrence Livermore

contract, and the Secretary should continue to hold that option open.

22

6The wide spread perception that no incumbent DOE contractor has ever prevailed in a competition is one manifestation of this attitude. The perception is wrong. There are at least four

instances where incumbents have retained contracts following competition, including one Federally Funded Research and Development Center (National Renewable Energy Laboratory). Still,

the perception exists and needs to be dispelled. 7 Recent changes in NNSA evaluation procedures are designed to ensure a focus on broad

management issues. It is important that these changes be pursued vigorously.

Additional issues. An important aspect of the problems of Los Alamos has been

the potential loss of Congressional and public trust resulting from the revelations

of the serious management deficiencies at the Laboratory. This problem was exacerbated by two factors:

• The current Government rules on property accountability significantly overstate

the value of the unaccounted for property. Government rules require that property be carried at its original cost. Thus, for example, an obsolete computer that

would not fetch $50 at a yard sale is carried at its original purchase value of

several thousand dollars. A 35 year-old forklift, which any business would have

written off as an asset through depreciation years ago, is carried at its original

cost. As a result, the apparent dollar value of un-located property overstated the

actual magnitude of the problem and diverted the attention from the more systemic problems. The Secretary should direct that the Department seek authority to revise government property accounting rules to be more consistent with

those used in the private sector. • The grading system at Los Alamos, adapted from other Government systems, is

based on a scale of Outstanding, Excellent, Good, Satisfactory, and Unsatisfactory. This scale suffers from what might be called ‘‘rhetorical grade inflation.’’

Thus, a mark of ‘‘Excellent’’ conveys a sense of exceptional performance, when,

in fact, it is used for routine performance. The Secretary should direct that in

future contracts the NNSA Administrator use a descriptive system that will

more accurately reflect the intent of a particular grade.

The grading problem is simply one example of a broader set of concerns raised

over the issues relating to competition of Federally Funded Research and Development Centers such as Los Alamos. Although it was not specifically established with

any one facility in mind, the Blue Ribbon Panel discussed above was created in part

because it became clear that any decision to compete was increasingly perceived as

a repudiation of an incumbent contractor. This is a view that has undoubtedly

grown over many decades, but it has had unfortunate consequences. Incumbent contractors view their choices as being either a series of contract extensions, or loss of

the contract. As a result, incumbent contractors often assert that they will be unwilling to participate in a competition.6 We recommend that the Department explore

ways in which to not only take into account truly outstanding performance but also

to encourage contractors who might fall short during a contract term to strive to

develop plans to correct problems so that they may compete and succeed.

An equally important concern is the overall ‘‘stove piped’’ nature of the NNSA

evaluation system in place at Los Alamos (and elsewhere). The contract entered into

in January 2001 established a performance review process that considered individual areas in isolation. By failing to consider relationships between different processes, it failed to detect overall systemic problems and thus failed to capture the

type of management failures that we are addressing in this memorandum. As a result, the performance review process assigned an ‘‘Excellent’’ rating to the Laboratory management almost simultaneously with the Secretary of Energy stating publicly that there was a ‘‘systemic management failure.’’ We therefore recommend that

all current and future contracts be reviewed in order to ensure that performance

reviews capture the crosscutting information necessary to form a complete picture

of performance.7

Concluding observation. We believe it is important to recognize that the overwhelming majority of Los Alamos employees—in all areas, including business services—are honest, dedicated, competent, and hard working. Ultimately, the value of

the Laboratory lies not in expensive technology, but in people. The failures at Los

Alamos are real, but they are the failures of a few. As we implement changes, we

urge that all levels of the Department emphasize this fact at every opportunity.

Inspector General Reports consulted

Completed reports

Report Number Title Date Issued

L-03-06 ........ Recruitment and Retention at the Los Alamos and Lawrence Livermore National Laboratories 11/27/2002

23

8We have no reason to believe that any of the ongoing investigations and audits would change

the recommendations of this report.

Report Number Title Date Issued

S02IS013 ..... Inspection of 2001 Safeguards and Security Survey of Los Alamos National Laboratory .......... 01/12/2003

IG-0584 ........ Special Inquiry: Operations at Los Alamos National Laboratory .................................................. 01/28/2003

IG-0587 ........ Inspection of Firearms Internal Controls at Los Alamos National Laboratory ............................. 02/21/2003

IG-0591 ........ Allegations Concerning the Reporting of a Radiological Incident at LANL ................................. 03/20/2003

IG-0596 ........ University of California’s Costs Claimed And Related Internal Controls for Operation of Los

Alamos National Laboratory.

04/16/2003

IG-0597 ........ Inspection of Internal Controls Over Personal Computers at Los Alamos National Laboratory

(Interim Report).

04/24/2003

Reports not yet made public but where we have reviewed draft findings

The Dual Axis Radiographic Hydrodynamic Test Facility (Draft Report)

Ongoing reports to which we have not yet had access 8

LANL’s Nuclear Materials Stabilization Program

Various Law Enforcement Sensitive reports on criminal activity

Mr. GREENWOOD. Thank you, Ambassador.

The Chair recognizes himself for 10 minutes for the purpose of

inquiry.

From the Wen Ho Lee situation in 1999 to the missing hard

drive management failures at Los Alamos, consistent gender and

minority employment discrimination lawsuits, billion dollar cost

overruns and the most recent allegations of counterintelligence and

business operations problems, the University of California has

faced a variety of challenges in its management of its national laboratories over the past 5 years. A question for both of you gentlemen is what caused DOE and NNSA to finally decide to compete

the Los Alamos contract? What was the proverbial straw that

broke the camel’s back? What was the most important consideration in the decision to pursue competition?

Mr. MCSLARROW. There were a number of factors, but in terms

of isolating the central precipitating factor I would say it was a recognition that the management itself at Los Alamos was not on top

of the problems and a recognition that, if that were true, it required the university to step up to the plate and insure that it was

fixed; and we didn’t see that. That’s something that took place over

a period of meetings and discussions last fall.

This country made a decision fundamentally a long time ago that

this kind of big-time science and national security work is going to

be done with contractor-operated facilities, and that places an enormous burden on the actual management of any facility and the contractor who’s responsible for oversight. So it’s hard to isolate a particular incident, but I think that would be the central point.

Mr. BROOKS. I would add, Mr. Chairman, that in some ways the

focus on particular incidents is what got us into this problem, that

the incident standing alone can be looked at and there are reasons

for each of them. The problem has been that the aggregate revealed

a broad pattern of management problems, and I think that probably was the most important recognition and that’s what in my

statement I alluded to, trying to focus our future oversight more on

interrelations and broad issues rather than dealing on an incidentby-incident event. So I think it was the interrelationship of everything, rather than any specific incident that, at least in my mind,

led to this conclusion.

24

Mr. GREENWOOD. Mr. Ambassador, you, in your opening statement, referred to the culture at the lab and said that that is the

most difficult thing—the most difficult challenge is to change that

culture. A culture like that does not develop in a vacuum. It develops fundamentally, it seems to me—I think it’s human nature for

cultures to develop when there are no consequences either in sufficient oversight or no consequences to actions. We hold the management at the lab responsible for that. We hold the university responsible for that. We also have to hold the Department responsible for

that.

Now I know that the top management of the Department

changes with elections. But who were the folks who have been consistently at the Department whose job it was to provide this oversight? And what consequences do they face?

Mr. BROOKS. Mr. Chairman, I believe that the problem with the

Department oversight was not primarily failure of individuals but

failure of structure.

Mr. GREENWOOD. Well, somebody has a responsibility to create

that structure. An individual has the responsibility to create that

structure.

Mr. BROOKS. Yes, sir, I do; and that’s what I’m doing. And that’s

what my predecessor had determined to do. So we had a structure

in NNSA which Secretary Abraham and Deputy Secretary

McSlarrow inherited and my predecessor inherited when he started

to stand up NNSA in which there was confused roles and responsibilities between headquarters and the field and multiple layers of

organization within the field; and, therefore, it is not possible to

point with certainty to the single individual. We’re changing that.

We’re right now looking forward.

You point to two people. You can point to me, and I can point

to my site manager, and everybody else in my organization is supposed to support one or the other of us. So I have not attempted

to go back and identify specific individuals in the past, because I

think the problems in the past were organizational and structural

and that’s the reason we are in the process of implementing this

major reorganization that we announced in December.

Mr. GREENWOOD. I think you said that there was not a focus on

business management. Did you mean to say that the University of

California was not focusing on business management or the Department was not focusing on business management?

Mr. BROOKS. The university was not focused on business management. And, to be fair, in looking back at our interactions with

the university since this administration came in, I don’t think we

were encouraging them to focus on business management. We

were——

Mr. GREENWOOD. Well, in fact, they were rated on business management; and I think they were given an excellent rating.

Mr. BROOKS. They were.

Mr. GREENWOOD. So I guess what I’m trying to figure out, is it

that no one was focusing on it? Is it that a review that granted

them an excellent rating, was that—in retrospect, was that a cursory and superficial review? How can you rate—how can you rate—

decide to rate business management, rate it excellent and then our

25

committee staff over a short period of time takes a cursory look and

finds the kinds of things that we found.

Mr. BROOKS. Because we were using a mechanistic approach

which set up criteria; and if you met those criteria, didn’t look at

whether they tracked with other criteria and didn’t look back to

say are you doing a sensible result. So that our problem with the

former rating system was that it was narrow and stove-piped.

Mr. GREENWOOD. Let me ask you this question. How many labs

does the Department oversee?

Mr. BROOKS. The Department oversees 10; the National Nuclear

Security Administration oversees three of those.

Mr. GREENWOOD. Okay. Is what’s true—just in talking about the

way reviews are conducted, whether they’re mechanistic, whether

they can be described otherwise and whether they are adequate or

not, does that apply to the other labs for which the Department has

responsibility? Are their things done differently?

Mr. BROOKS. I can only speak for the two other labs which I have

responsibility for, and I’ll let the Deputy speak for the rest of the

Department.

The system at Livermore is essentially identical to Los Alamos

both in its past and in its future. The system at Sandia, because

that’s a separate contract, is comparable; and in all of those cases

we are moving to a broader new method of oversight.

Evaluation, in my opinion, always walks between two dangers.

One is, if you try to be very, very objective, quantifiable, X percent

of that, Y percent of this, you can lead to a result where you’re not

looking at the connections between areas. That’s the problem we’re

in now. The other thing is, if you use broad, subjective judgment,

you run the risk of that judgment being influenced by external factors. What we are trying to do now is apply broad subjective judgment but in areas where we can actually tell.

I believe that the system that we have put in place with Appendix F with the University of California, the new model of oversight

that we are putting in place with the Federal employees is going

to be substantially better. But we’ll know that better in a year.

We’ll know that really well in 2.

So I think we are moving in the right direction, but I don’t want

to assert that I can prove that all the problems are solved because

I can’t prove that yet.

Mr. GREENWOOD. Well, to make it very simple, we in the Congress are responsible to make sure, and particularly this committee, that taxpayers get the most bang for the buck.

Mr. BROOKS. Yes, sir.

Mr. GREENWOOD. I think what everybody said is the bang is pretty good. Okay. The science, the work that’s done there has been excellent. But its stewardship of the taxpayers’ dollar has not. And

I think what we’re looking for not only at Los Alamos about across

the board is that the Department of Energy has in place individuals who get up in the morning and think about whether or not

the taxpayers dollars are being well protected there and not used

like monopoly money but used like the hard-earned dollars that the

taxpayers provide to the project.

Mr. BROOKS. At the three labs that I supervise I’m confident I

have people like that because I picked them.

26

Mr. GREENWOOD. Okay. Let me just let the Deputy Secretary respond with regard to the supervision of the other labs.

Mr. MCSLARROW. Like the Ambassador, I’m confident that we

have the right people who get what you just said. The Secretary

has made very clear to me and I’ve made very clear to everybody

else one of the things that we were not happy with when we came

into office was a lack of line management control.

We’ve made a number of organizational changes. Obviously, the

most difficult was NNSA, standing up that organization, but we’ve

made great strides. But it’s been true on the other side of the Energy Department as well; and I know exactly who to go to and

who’s responsible for these kinds of decisions. The President,

through his management agenda and what we’ve done in terms of

contract management, have made a number of changes that lead

me to be very confident. That’s not to say we’re not going to have

any problems. But if you’re going to have problems, you’ve got to

identify them early, and you have to fix them. You’ve got to know

who’s responsible, and I think we’re well on our way to achieving

that.

Mr. GREENWOOD. The Chair recognizes the gentleman from Florida for 10 minutes.

Mr. DEUTSCH. Thank you, Mr. Chairman.

Thank you, Ambassador Brooks, and thank you for your personal

work and your staffs’ work on the enriched uranium issue. I appreciate your help.

Ambassador Brooks, it appears that you and Mr. McSlarrow

think that most of these problems were of relatively recent origin,

even though the DOE Inspector General has been bringing business control problems to DOE’s attention for years. For example,

the Inspector General said in 2000 and 2001 that it could not sign

off on the allowability of costs for Los Alamos. Where was DOE,

where was NNSA at that point in time?

Mr. BROOKS. I tried to say in my statement that, in hindsight,

there were a number of warning signs where the reaction was to

deal with the specific problem and not look to see if it was systemic. And the answer is that, in failing to look and see if we had

systemic problems, we were not where we should have been.

On the other hand, with the greatest respect, 2001 was a different leadership team, and so I wasn’t there, and I don’t want to

try and characterize why people made particular decisions that

they made.

We have been trying to look at this broadly. We have looked at

the past Inspector General reports, and that’s one of the things we

discovered, was this pattern.

Mr. DEUTSCH. Right. I guess the question, though, is that the

IG—this is not the first year that the IG has not signed off and,

you know, acknowledged these problems. And I guess the question

in 2000 and 2001 also is why should we believe that this year is

going to be any different than the prior 2 years?

Mr. BROOKS. I don’t think you should. I don’t think there is any

reason for you to. I think you should wait for a year and see because you’re going to be able to tell by then.

As I attempted to make clear in my opening statement and as

the university has made clear in its discussion, we are beginning

27

a process. None of the witnesses you hear today will suggest that

we have, ‘‘solved the problems at Los Alamos.’’ What we will suggest, I believe, is that we are on the right direction to solve them

with the right management attention and the right sense of urgency. But as both you and the chairman commented in your opening statement, it took us a long time to get here and I think it is

going to take us a while to get off. So I can’t speak for failures before I got here. All I can tell you is that Secretary Abraham has

made it very clear to me, Mr. McSlarrow has made it very clear

to me that he doesn’t expect us to fail this time. And I spent a long

time in the military. I understand direct orders very well.

Mr. DEUTSCH. Right. Appendix O agreed to in 2000 which was

supposed to fix all problems included a provision that the Vice

President of Management was supposed to implement best business practices in support of core mission requirements. We didn’t

find any evidence that Dr. McTague made any attempt to do this,

nor do we find any evidence that DOE followed up on this requirement. Can you explain the response—your response of allowing the

university’s activity or no follow-up on this issue?

Mr. BROOKS. I think you’ve just quoted my statement, sir. That’s

exactly the problem, that neither the university nor we followed up

on that part. And I can’t explain it. I mean, in hindsight, knowing

where we are now, we should have been more vigorous on that. We

were focused—in our minds, on the problems that led to Appendix

O were primarily in other areas, and that’s where we focused.

I think the lesson that you get out of this is that high-level attention tends to fix problems. We focused on problems of security, and

largely those problems have improved. We didn’t focus on business

services.

The idea of the new model of oversight is to make sure we focus

on everything. One of the things we have to do that we have not

yet done that is alluded to in our report is look to see whether we

need to change the contract, including Appendix F, to make sure

we don’t fall into that trap again.

Mr. DEUTSCH. Okay. I think this is a really different question,

and I’m just trying to get to the same failures that occurred. Can

you explain to us why DOE didn’t seem to care about the lack of

independence of the lab’s auditors and its failure to complete literally hundreds of audits on time?

Mr. BROOKS. No, I can’t explain that, sir. And let me tell you

what I can say. As you know, while it’s a matter of some dispute

in terms of cost allowability terms, the Inspector General has consistently found that the audit function at the lab was ineffective.

The university has found that. I cannot explain now, of my own

knowledge, why we didn’t stumble on that fact earlier. I mean, in

hindsight, it’s glaringly obvious; and I can’t explain why my oversight didn’t find that.

Mr. DEUTSCH. All right. Thank you.

Mr. GREENWOOD. The Chair recognizes the gentleman from Oregon for 10 minutes for questioning.

Mr. WALDEN. Thank you very much, Mr. Chairman.

Ambassador, you’ve recommended that Los Alamos contract not

shift between science and—not be split, I mean, between science

and management. My understanding is that there are other naVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
28

tional labs like Oak Ridge and even Hanford out in the Northwest,

for example, that have managed to sever significant portions of

their management responsibilities among different contractors.

Why is it that you’ve rejected that concept out of hand at the beginning? Or Mr. Secretary.

Mr. MCSLARROW. If I could just—because I’m much more familiar than the Ambassador with those other sites. I would say while

the site may actually have some different contractors, when you

look at a lab and the facility that’s doing the science there they do

have a contractor who has integrated business and science. So

what’s different about Los Alamos, for example, is it’s the same

contractor at the same site and all the missions are all there. As

you well know, at Hanford and sites like that, you’ve got a lot of

different things going on. At least for the Los Alamos lab it is integrated.

Mr. WALDEN. But you don’t think that could happen. You don’t

think it makes any sense to look at——

Mr. BROOKS. No, because the mission is so integrated at the lab,

I don’t. And I do believe, as I tried to say in my opening statement,

that if the problem is that science and business services are not

connected, you don’t solve that problem by having them report to

different people. You solve that problem by having the people they

report to value both of them as the interim laboratory director does

now and then by having the overall management be somebody who

has expertise in both of them.

Now our report, in urging the university to compete for the contract, acknowledges that it may want to bring in some kind of partner. But that’s a decision for the future. So I don’t mean to reject

drawing on outside expertise, but these are at the macro level single mission laboratories, and I think they need to be run by a single person.

Mr. WALDEN. All right. In your statement, apparently to committee staff, you said you were trying to work around the problems

related to the costs of bidding on a project the size of Los Alamos

and that you wanted all the entities who bid to be on a level playing field. I’ve heard estimates that it may cost as much as $25 million to simply bid on this contract. Is that an accurate number, a

ball park number and how would you work around that?

Mr. BROOKS. That is a higher figure but not dramatically higher

than estimates I have heard. I’ve heard numbers more like 10. But

large procurements are very expensive. We believe that it is possible to find the mechanism which would allow the university to

compete without—the university’s operation of the lab financially

has all been on a cost-neutral basis.

Mr. WALDEN. I understand.

Mr. BROOKS. The State doesn’t make any money off of it. The

State doesn’t spend any money. The current rules on what the university can use retained earnings for were drafted in an era when,

as several of your colleagues stated, there was a de facto assumption that this was going to go on noncompetitively forever.

We believe that it is quite possible to modify those rules, but

when you’re dealing with things that involve procurement regulations and law, I really am reluctant to get into any kind of detail

in an area in which I lack expertise.

29

One of the reasons I want to start now is to make sure that, on

the one hand, I’m positive I can do this. But I can do it in a way

that is both seen and actually is fair to both the incumbent contractor and somebody else who wants to do it. A level playing field

means just that to us.

Mr. WALDEN. I guess as I read some of the information here

today from—I think it was the Secretary, perhaps, and the

documentations or the memorandum from the Deputy that I just

wondered, if I’m a university taking a look at this or some other

group taking a look at this contract, do you think what’s written

here basically says that the University of California has done a

great job or a good job, has addressed the management problems—

I mean, I read that in here—and should be encouraged to reapply?

Would those be words of discouragement to anybody else taking a

look at it if, in fact, they have got to also roll the dice on maybe

$10 million or more? I mean, is it a——

Mr. BROOKS. Well, they’re not intended to be.

Mr. WALDEN. But if you were an outside person looking at this

and read that——

Mr. BROOKS. But it is true, sir, that while we need someone who

can run—as the Chairman said, and can make sure the taxpayers’

money is being spent efficiently, this is big science. This is enormously complex science. We are dealing with conditions in the nuclear world that don’t exist in nature except on the sun, and so you

need someone to understand how to run big science. That doesn’t

mean it has to be the University of California. It doesn’t even mean

it has to be a university. But it does mean that people who don’t

understand how to run big science are not likely to be appropriate

competitors.

We intended those words to make it clear that the deck is not

stacked in either direction. But we also intend them to say that

we’d like very much to have the university in the mix because, if

the university prevails, that’s good. If the university doesn’t prevail, it will be because somebody is even better at mixing, running

big science and running as a wise stewardship the taxpayers’

money; and then that’s good for the country, too.

Mr. WALDEN. Is it your view then that the university system has

done the job on the science side?

Mr. BROOKS. Yes, sir.

Mr. WALDEN. Has had some management issues that they need

to address and maybe have addressed now?

Mr. BROOKS. Well just as with me, the jury is still out on the permanence and efficacy of the reforms. I don’t think, and I’m pretty

sure that my university colleagues will say this, nobody should believe that when we walk out of this hearing today, the effort to put

Los Alamos back on the management footing it should be on is

over. We need to be vigilant. The university has given every indication that they intend to be vigilant. But I do believe—for the very

reason that we didn’t recommend termination, the university has

certainly shown that it has the capability and the assets and the

desire to deal with these problems, and I do not want to preemptively cut the Nation off from having that in the mix in 2005.

30

Mr. WALDEN. As you prepare the Los Alamos bid, how far down

the management structure at the lab do you expect potential bidders to go?

Mr. BROOKS. I don’t have the foggiest idea, and I don’t mean to

be flip about that. In the normal course, we would be having the

discussion of whether to compete next year, and then we would be

working on the details. And so what we have decided is to move

that decision forward by a full year, decide how we are going to

compete so that we have plenty of time to work out the details.

Mr. WALDEN. You have 30 months before the next contract expires. I am sure you don’t want a lapse in the science and activities

at the lab?

Mr. BROOKS. No, sir.

Mr. WALDEN. How far down do you go, and when do you contract

out?

Mr. BROOKS. We have only a single example, and if you look at

Sandia Laboratory, when the contractor there changed, there were

replacements sort of at the senior manager level, but at Sandia,

like at Los Alamos, like at Livermore, people rise up primarily in

the science, and for that matter in the business area, and so most

of the people were retained. It is a customary thing in large procurements in this Department and in others that the overwhelming

majority of the workforce would be retained, and particularly important in the nuclear weapons area because there aren’t any substitutes. But I can’t answer that, but if you look at 8,000 employees

at Los Alamos, the percentage is going to be—who I would expect

to change—regardless would be small.

Mr. WALDEN. When do you think the contract would be ready to

put out for bid?

Mr. BROOKS. Well, based on history, you would expect that late

in 2004 right near the end of the year, you would issue an RFP.

You would expect that you would receive bids in the spring of 2005.

You would expect that you would then, you know, make—the Secretary would make a decision so that you had time for an orderly

transition.

Mr. WALDEN. That gives you time for that orderly transition?

Mr. BROOKS. That is historical evidence. At the moment I have

no reason to assume that this will be anything other than on a

comparable schedule. But I don’t want to misstate the amount of

thought we have given to those details. We focused on the question

of whether, and we recognize we need to get started to get the criteria right. But in terms of the mechanical process in preparing an

RFP, that is a year from now at least.

Mr. WALDEN. I have overrun the clock. Thank you very much,

Mr. Chairman.

Mr. GREENWOOD. Chair thanks the gentleman, and the Chair

recognizes the gentleman from Michigan Mr. Stupak for 10 minutes.

Mr. STUPAK. Thank you, Mr. Chairman.

Mr. Brooks, you talked about the big science, and I agree they

do wonderful work down there and brilliant work, but what is it

in big science that prevents us from properly handling computers

with classified information on? Why would big science prevent us

from—just lose them, we can’t find them?

31

Mr. BROOKS. It wouldn’t, and it shouldn’t, but it has. It is not

that the science prevents it. It is a focus exclusively on science as

what is important.

Mr. STUPAK. Then why not split it? If we want to focus exclusively on science, why not have a contract for science, and why not

have a contract then for management so we don’t have these problems?

Mr. BROOKS. Because I believe that it is not practical to split it,

that at some level——

Mr. STUPAK. Then how do you get big science to understand that,

as it says in the OIG report, thefts of laptop computers have to be

reported. How do you get science to do it, then, if you’re not going

to break it up and bring in a different type of management style?

Mr. BROOKS. You get science to do that by making it clear that

there are consequences for failure. The university has done that at

the top, and the Director is trying to implement that culture.

Mr. STUPAK. What are the consequences? We have been doing

this since the late 1980’s when Mr. Dingell was chairman. We have

been on these labs to clean this up, and it is now about 14 years

later. What are the consequences of failure? What I heard so far

today is, I can’t talk about what happened in the past because we

have a new program coming. How many new programs do we start

and stop? It seems every hearing we have here, and I have been

on this committee now for 10 years, we have a new program that

is going to clean this up. That program fails, so when we get the

witnesses come back, we can’t talk about it, those are the past failures. Where is the responsibility here?

Mr. MCSLARROW. Can I respond? The responsibility resides with

the Secretary first and foremost, and with me as the chief operating officer. And what’s different, Congressman, is over the last

year as these problems surfaced, first we made clear to the university that people had to be held accountable. They agreed. They

made sweeping management changes at the laboratory, and now

we have announced this decision, two things that never happened

before. So it is now a new ballgame.

Mr. STUPAK. What sweeping changes in the laboratory management? You have a new Director.

Mr. MCSLARROW. New Director and new Principal Director, and

almost every top officer out there has been replaced.

Mr. STUPAK. And we were out there in January, myself, the

chairman, a bunch of us, and, you know, the top people say that,

but when you talk to the people who are doing the real work, it’s

just going to be more of the same. It is more like, we won’t let this

person or—I mean, when you have things like computers that are

stolen or missing, and it says right here that they’re required to do

it, it’s all in this OIG report, and no one does it, it tells me that

there is a culture there that has to be changed, and I don’t see it

changed.

Mr. MCSLARROW. I couldn’t agree more, and people have to be

held accountable.

Mr. STUPAK. Are you going to hold yourselves accountable?

Mr. MCSLARROW. Absolutely.

Mr. STUPAK. What are the consequences if it doesn’t work?

Mr. MCSLARROW. If we fail, we leave.

32

Mr. STUPAK. So my impressions from your answers to Mr. Walden and Mr. Brooks is U.C. is going to be allowed to compete on

this contract in 2005?

Mr. BROOKS. Yes.

Mr. STUPAK. And to use your words, they have many advantages

over other bidders. So they already have a leg up in the bidding

process.

Mr. BROOKS. I did not intend to say many advantages over other

bidders, because that’s a question for the competition.

Mr. STUPAK. You said they have many advantages.

Mr. BROOKS. That have brought value to this laboratory.

Mr. STUPAK. Will that value then be in bonus points or extra incentive to award the contract back to U.C.?

Mr. BROOKS. I don’t know that. The reason that the report the

Secretary has directed us to start is that—that is a complex question that I need to work on. The reason we’re going to start on the

criteria now a year before we would is to make sure that we do

things that are equitable and fair and——

Mr. STUPAK. I also thought you said—and again, you didn’t submit your testimony, so I am going from what I heard—you said

U.C. could not have done more to change things here.

Mr. BROOKS. That’s a quote out of our report, and I believe that

to be correct.

Mr. STUPAK. Well, it’s been about 14 years, and they haven’t

changed anything. Why is it suddenly now going to be just peachy?

Mr. BROOKS. I don’t know that it is. What the report says, and

what I was quoting in my testimony, in my oral statement, was

that since December it is difficult to see how anybody could have

done more or acted more vigorously than the university has.

Mr. STUPAK. Since December of——

Mr. BROOKS. 2002.

Mr. STUPAK. So for the last 4 months they have been doing pretty good.

Mr. BROOKS. And our assessment is that—the university is fully

capable of speaking for itself, but our assessment is that since

President Atkinson realized that the problems were severe, he has

been vigorous and has directed and thrown a lot of the university

resources in. And in fact, it is difficult to see what else anybody

could have done—that doesn’t alter the fact that we shouldn’t have

gotten into the problem. That doesn’t alter the fact that you make

about a long time. That’s one of the reasons the Secretary has

made a decision to compete.

Mr. STUPAK. We have thrown a lot of resources in the last 4

months, and things are looking pretty good. What are the vigorous

actions that U.C. has undertaken to make sure this stops and it

gets improved here on out? What are the vigorous actions?

Mr. BROOKS. I think that President Atkinson and Senior Vice

President Darling will provide you some details, but let me just

suggest some: The permanent subordination of the auditor to the

university and the repeal of an internal procedure sometimes called

the loyalty oath, which could have confused auditors in thinking

that they were supposed to worry about reputation rather than

fact; the near full-time presence of the university auditor despite

his other responsibilities in Los Alamos to supervise the reorgaVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
33

nization of the auditing function; the bringing in of Price

Waterhouse to do a massive audit; the bringing in of an outside

team headed by a former inspector general to do a massive audit

of purchase cards; the 20 full-time Ernst and Young employees that

have been brought in to conduct a detailed management review.

Mr. STUPAK. That’s all fine, but when we were here in January,

they gave us the same line when we asked the simple question,

well, can you tell us how many computers have been missing, and

they couldn’t. They couldn’t say, according to our records so many

computers were purchased in the last year, but where they are

now, we don’t really know. What good is an audit if you can’t verify

things that are supposed to be there?

Mr. BROOKS. I believe we have the first ever, certainly the first

in a very long time, complete physical inventory of every piece of

controlled equipment, a process which is now 90 percent complete

and has not been done, to the best of my knowledge, at any national lab to precisely get to the question of whether or not the

records match the reality.

Mr. STUPAK. Do you have a timetable as to when, in your mind,

this thing is supposed to be—we have got 4 good months in—is

there a timetable like by the end of the year where things have to

be improved or heads are going to roll?

Mr. BROOKS. The inspector general when he testified before this

committee said somewhere between 6 months and a year would be

the right time for this committee to look again and see whether we

have been able to sustain this. That’s a reasonable estimation.

Mr. STUPAK. If the chairman holds a committee hearing next

January, January 2004, and things aren’t going well, and we still

have missing computers, classified computers, it’s my understanding that you guys are going to resign?

Mr. BROOKS. Actually the way I read the Secretary’s letter, I may

not have to. The Secretary has directed me to keep him informed

in his tasking back to me, and I didn’t read that as bring him excuses. So I don’t know whether we are going to resign. It depends

how bad things are. But I know the Secretary does not take responsibilities lightly, and he has been pretty clear that he expects this

to get better.

Mr. STUPAK. Like I said, this has been going on since the late

1980’s. Are you talking about all these audits? We have had these

before. You talked about this loyalty oath and all that. That is all

fine and dandy, but I don’t see any of that changing the problems

at Los Alamos. I really don’t see it. I don’t see how it gets back

anything. You have reports in here where two computers used to

process classified information were missing for 11⁄2 years, and no

one even says anything about it.

Mr. BROOKS. In that particular report, we need to distinguish

problems here. One of the problems with Los Alamos is they have

multiple unconnected systems.

Mr. STUPAK. The distinguished problem to me is basically saying

this is the reason why it happens, and we give them an excuse, and

then we let them off the hook, and then we go on and we are back

again in another year going through the same old, same old, same

old since late 1980’s, and it’s got to stop or change until people are

held accountable.

34

Mr. BROOKS. I don’t disagree with that. What I was attempting

to point out was you have to make sure you understand what the

real problem is so you can fix that, otherwise we won’t know if we

have fixed the problem.

Mr. GREENWOOD. The time of the gentleman has expired.

The gentlelady from Chicago Ms. Schakowsky is recognized for

10 minutes.

Ms. SCHAKOWSKY. Thank you, Mr. Chairman.

For me it is deja vu all over again, as Yogi Berra said. I was the

ranking member on the Government Efficiency Subcommittee of

the Government Reform Committee, and Chairman Steve Horn and

I had a number of hearings. In this case we were looking into practices at the Department of Defense, and again, when the GAO or

the IG took a look, they found persistent problems wherever they

looked. And in fact, the inspector general of the Department of Defense said that the Department cannot accurately track—accurately track $1.2 trillion in transactions. That is not to say all of

it’s lost, we just don’t know, can’t match it up. And then we looked

at purchase cards in various departments and branches of the government, and we found the same thing.

And so when you say there’s just a few people because most people are honest, I would agree with you. But there’s just a few people here, a few people there, a few people there, and I would also

posit that everywhere there are those people, and if a culture isn’t

in place and systems aren’t in place, those few people are going to

continue to take advantage of a situation. So I would not be sanguine about the notion that we are just talking about a problem at

Los Alamos with a few people, and that we better take a look everywhere.

But let me get down to my specific questions about the situation

that we are facing here. My understanding is that there is a FY—

there are new—I am looking at an fiscal year 2003 performance

standards now and that they represent a completely different approach to performance standards; is that true?

Mr. BROOKS. Right.

Ms. SCHAKOWSKY. And that the University of California’s performance fee is based now on attaining these objectives; is that correct?

Mr. BROOKS. Correct.

Ms. SCHAKOWSKY. And that these objectives are very mission-oriented, and the mission is defined as providing good science and

technology; is that correct?

Mr. BROOKS. Correct.

Ms. SCHAKOWSKY. Well, I want to ask you today then, because

we are talking about performance standards for 2003, why only 1

of the 40 objectives addresses all of the procurement, auditing and

business control problems that we’re discussing today? I’m looking

at performance measure 8 under operations, and this is the only

one that directly addresses this problem, implement effective controls and business systems by assessing existing controls and,

where needed, strengthen controls to ensure effective stewardship

of public assets.

Mr. BROOKS. I think you raise a perfectly valid point. Let me put

it in context and tell you what I’m going to do. In the report that

35

we submitted to the Secretary, we alluded to the fact that we

might require some contractual changes now to make sure that

these reforms that have started continue. We didn’t specify what

the changes are because we need to discuss it with the site, with

the laboratory and with the university. One of those contractual

changes might well be to give greater visibility to this in the performance objectives. At the moment, for obvious reasons, business

services has very high visibility and great attention for the leadership of the laboratory, the university and the Department.

The point of the performance objectives change that you suggest

I should consider and that I had already concluded I needed to consider is to make sure that it doesn’t once again fall below our radar

scope. But I would not accept the view that the number of times

something is mentioned is a necessary measure of the importance

we place on it. One of the reasons we went to this system was to

try and focus on the overall mission. But——

Ms. SCHAKOWSKY. Let me ask you then, have you assigned a

value to each standard?

Mr. BROOKS. We have not. And the reason we have not is because we fear that we will fall back into the trap that led to the

results of an evaluation of excellent business systems virtually simultaneously with the Secretary’s, quote, systemic management

failure. And the trap was that we got stovepiped. And so what I

want to do is I want to be able to focus on everything.

There’s a level of performance—I mean, if you assign the value

to business systems, and you look at the old system, it’s about 15

percent. I don’t—since that’s the old system, let’s not get into a debate about whether that’s the right number, but the old system did

say that 50 percent of the score of the lab was based on its mission

accomplishment, and that’s stockpile, stewardship and science, and

any reasonable system is probably going to weight that very heavily. The problem with systems that go to specific weighting values

is they lead to the trap where something can be a completely unsatisfactory element, but it’s a small weight.

Ms. SCHAKOWSKY. Let me just say I get your point. But, Ambassador Brooks, I’ve been told that DOE can’t tell us how—I’ve been

told that we can’t know how DOE is going to evaluate these objectives. The university wrote the objectives. Are we going to let them

decide which ones are important and which ones aren’t?

Mr. BROOKS. No. We do this through a series of meetings between the university, the laboratory senior leadership, my own senior leadership, including myself, organized by the site office manager, who in the legal sense is the contracting officer. The formal

responsibility for evaluation falls on the site office manager, with

approval by me, and we’re not going to change that. We’re not arguing about who is responsible for the evaluation, we’re arguing

about how to go about evaluating this enormously complex enterprise.

Ms. SCHAKOWSKY. Let me get in my final question. The inspector

general just released a report that said that you can’t be sure that

you have control of your classified information because you don’t

have control of the classified laptop computers, and yet you state

that security has not been affected by these sloppy business pracVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
36

tices. How can you come to the conclusion of no problems in your

report?

Mr. BROOKS. The inspector general’s report looked at one particular system, which is a property accountability system. There’s

a separate disconnective system that’s part of the stovepiping problem I mentioned earlier that controls classified material, and that

has suggested to us that there is no compromised classified material.

I would be happy to submit a longer answer—this is a somewhat

complicated issue—for the record.

[The following was received for the record:]

The Department of Energy Inspector General (IG) report identified 5 laptop computers being used for classified processing that were not identified on the Los Alamos list of computers accredited for classified processing. Three of the identified

computers are supporting another DOE organization and managed in accordance

with the requirements of the work sponsor. One of the laptops was a substitute for

an older desktop system and the procedures for updating the security documentation and lists were not properly followed. This error was corrected during the IG

inspection at Los Alamos. The IG report did not identify the specific laptop computers and Los Alamos has been unable to identify any other laptop that might

have been referenced by the IG team. The IG report identified one laptop computer

listed as approved for classified processing but lacked a valid property number. This

laptop belongs to another government organization and would not have a Los Alamos property number. The IG report also identified several laptop computers that

were still identified as accredited for classified processing but were no longer in use.

These laptops were all in the process of sanitization in preparation for declaring

them as excess property. Removal of the laptops from the list of accredited systems

is the last step in the retirement of a laptop and is not performed until the unit

is removed from the security area and all information is sanitized from the system.

Mr. BROOKS. The conclusion in the report is also based on a series of inspections conducted both by the inspector general and the

Office of Independent Oversight late last year. So I don’t want to

say there’s never—I mean——

Ms. SCHAKOWSKY. That’s what I want you to say, that there’s

never a security problem, and that we know that there isn’t, and

because we can’t identify where all this equipment is, I think

Americans have a right to have a slightly queasy feeling about

that.

Mr. BROOKS. Yes, ma’am. But I believe in this particular case

there is not a problem.

Ms. SCHAKOWSKY. Let me ask this in my remaining time. It appears—and I’m looking at the—on page 2, precipitating incidents

that the problems were not widely recognized outside the laboratory until the summer of 2002. It seems that you think that they

were of recent origin even though the DOE inspector general has

been bringing business control problems to the DOE’s attention for

years. For example, the inspector general said in 2000 and 2001

that it could not sign off on the allowability of costs for Los Alamos.

So where were you?

Mr. MCSLARROW. As these IG reports came in we were implementing the recommendations of the IG, the purchase card in particular, at the Department. It was not an IG investigation at DOE,

it was one at DOD which our management team brought to the

Secretary’s attention, and he directed late in the spring of last year

the enormous purchase card investigation that was complexwide.

And then the whistle-blowers came out of that, and we went to the

FBI.

37

When we talk about the precipitating incidents, you are quite

right to suggest——

Ms. SCHAKOWSKY. The whistleblowers who were fired you’re

speaking of?

Mr. MCSLARROW. No. These are different people.

Mr. BROOKS. That’s part of our problem.

Mr. MCSLARROW. Part of the cultural change is that people believe they can’t go to management and tell the truth and be rewarded, and that’s one of the things we have to change from the

Fed side to the contractor side.

To go to your point about precipitating incidents, we are not suggesting that all of this stuff started with the discovery of the purchase card problem. What we’re saying is that precipitated the crisis that culminated in the firing of the two whistleblowers you were

just referencing. This is what we have to change. And I believe

with the university’s action in terms of the sweeping management

changes, I don’t think there is anybody left at Los Alamos that

doesn’t get that people are going to be held accountable today.

That’s different.

Mr. GREENWOOD. The time of the lady has expired.

The Chair recognizes the presence of the gentleman from New

Mexico Mr. Udall, and although not a member of the committee,

is not permitted to ask questions, but we appreciate his interest on

behalf of his constituents.

The Chair recognizes the gentlelady from California, Ms. Eshoo

for 10 minutes.

Ms. ESHOO. Good morning, Mr. Chairman, and my thanks to you

again for the legislative courtesies that you have extended to me

as a member of the full committee, but not a member of this subcommittee, to participate.

Good morning, both of you, and welcome to the committee. Let

me just get right to the questions. I appreciate what you have said

so far, and I have listened carefully to the questions of my colleagues on the committee, which are excellent ones.

The purpose, of course, today of this hearing is to discuss the decision of the Department that has been made about recompeting

the management and the operation of the lab, and focusing in on

the reasons for the decision, and what exactly the Department is

looking for in seeking a new Administrator of Los Alamos. So I’m

going to stick—I’m going to focus right in on that.

When you spoke of big science, who is out there that is in the

world of big science that would—in the Department’s view would

be in contention for this? Do we have many players in the country

relative to this?

I also want to note, it was a curiosity—excuse me for interrupting—that the contract with the University of California was

signed April 14, 1943. I was 4 months old—4 months and a day.

So there’s a long history here.

At any rate, can you address that? And I know—I have a series

of questions. I know I have 10 minutes, which is generous, and I

want to make use of that time.

Mr. MCSLARROW. First I don’t think we should be in a position

of naming anybody in particular.

Ms. ESHOO. Are there many contenders? Are there 5 or 10?

38

Mr. MCSLARROW. Every university who does big science is potentially somebody who could bid on this. And I would note at Oak

Ridge National Laboratories and Brookhaven National Lab, we actually have a combination of a university—in Oak Ridge’s case.

Ms. ESHOO. So there are many?

Mr. MCSLARROW. So I think——

Ms. ESHOO. So the Federal Government has many options.

Mr. MCSLARROW. Yes, ma’am.

Ms. ESHOO. In setting up for competition, what are the rules of

the road that the Department—having experienced this chapter

with the University of California, what are the new things that you

are looking for, that you will establish? What is the criteria that

will change?

Mr. BROOKS. Ma’am, that’s too important to shoot from the hip

on, and that’s why the Secretary directed that I start now a year

ahead of when you would normally start to work on the criteria to

make sure that they will lead to the result we want, which is the

same good science that we have had, but with an improvement in

the stewardship.

Ms. ESHOO. Would you say that the science—the big science has

been superb, good, mediocre, and that it is the management, the

oversight, the business part of keeping the books and the management of the personnel and all that goes with that—which is serious, and I am not diminishing that. We wouldn’t be here today

were it not for the things that have happened that certainly are not

defensible, and I would not seek to defend something that isn’t defensible. But is there a bright line between the two?

Mr. BROOKS. Certainly I would say the science at Los Alamos has

been world class, and there are few competitors, and most of the

competitors are other DOE-managed national labs. And as the Secretary said in his tasking, what we seek is business that’s as good

as the science.

Ms. ESHOO. So it’s the business management that the Department is going to focus on?

Mr. BROOKS. While preserving the science.

Ms. ESHOO. Most certainly. I assume that for the good of our

country.

I want to move to the two other contracts that the university

has, Lawrence Livermore and Berkeley Labs. Are they part of this?

Do those contracts expire in 2005? Are they negotiated at the same

time? How are those handled?

Mr. BROOKS. The Lawrence Livermore contract expires at the

same time, and although it’s a separate contract—two contracts are

essentially identical.

Ms. ESHOO. Are those going to be recompeted?

Mr. BROOKS. Our report says that there’s no need to make that

decision now because we’re making a decision to compete a year

ahead of when we would normally make it because of problems we

believe to be unique to Los Alamos. Because those problems do not

now exist at Livermore, our report says, and the Secretary has

agreed, that there’s no need to make the decision with regard to

Livermore at this time. And that decision——

Ms. ESHOO. Let me understand this. The Secretary is implying

or has stated that those will not be recompeted?

39

Mr. BROOKS. He’s stating he doesn’t have to make a decision on

that today. And what our report said was there’s no legal reason

why you couldn’t extend Livermore and compete Los Alamos.

That’s not saying that is a decision. They’re saying there’s no legal

reason why we couldn’t do that, and there’s no policy reason why

we have to make the decision now.

Ms. ESHOO. If you’re going to open something up for recompetition, you have to prepare for that.

Mr. BROOKS. Yes, ma’am. But normally that would all start next

year. Remember, we’re a year ahead of schedule. So that’s a decision we haven’t made because there’s not a need to make it.

With regard to Berkeley that’s not a lab under my responsibility.

Mr. MCSLARROW. We’re in the process of extending that contract

right now. So it’s a matter of contract negotiation, but that decision

has already been made.

Ms. ESHOO. What role will the Department play in the timeframe

leading up to recompetition to make sure that the reforms that you

have already described—and I don’t need to reiterate that because

that’s already part of the record—what role will the Department

play to make sure that these reforms are sustained? What are you

doing?

Mr. BROOKS. Two things. First, in terms of the competition itself,

that’s the reason why I need to start on these criteria right now,

to figure out how to get the criteria to maximize the chance of getting them right.

Second, as I described earlier, we have altered the oversight approach used by the National Nuclear Security Administration, and

we intend to push very vigorously to make sure that that approach

achieves what it is expected to achieve, which is more effective

oversight that looks at the entire lab.

Ms. ESHOO. I’m not so sure I know what that description means

in terms of having legs on it, but I accept what you’re saying.

Has the Department itself taken a good hard look at itself to see

where it may have failed in its oversight?

Mr. BROOKS. Yes, we have, although not as a direct result of Los

Alamos. As a result——

Ms. ESHOO. I would like to suggest that that be the case. And

I say that because this a marriage.

Mr. BROOKS. Yes, ma’am.

Ms. ESHOO. It’s a marriage. And in marriages, as we know, it’s

not just up to one person. Certainly the University of California

bears responsibility in this, and the Congress has a responsibility

in terms of its oversight, taxpayer money. I don’t have to go into

all of that. We have had many hearings on that. But I also think

in the executive branch that the Department of Energy and those

that are—if you’re responsible for setting up the criteria and letting

a contract, that you, too, have a responsibility in this marriage. So

I think that we need to bring balance to this. And I think it’s very

important for the Department to weed through what it does, how

well it does it, what the steps are that you take, and that you report back to the Congress in this. It’s a real opportunity, I think,

for the Department as well.

40

Mr. BROOKS. Yes, ma’am. I agree with that completely. What I

meant to say was that we already knew we had that problem, and

we were starting to try and fix it before these incidents surfaced.

Ms. ESHOO. What did you identify was the problem?

Mr. BROOKS. The problem within the National Nuclear Security

Administration was the lack of clarity on roles and responsibilities,

duplication and too many layers of management. As a result, in December we eliminated a layer of management and centralized responsibility for oversight in site office managers.

Ms. ESHOO. There’s something from the inside of the Department

just as there has been—as we have examined the culture that

we’ve called it at Los Alamos, this has spanned a long period of

time. This is not Democrats. It’s not Republicans. This is something

that has been more than an irritant inside of DOE and those that

are responsible, and that’s why I raise it.

I see that the clock is ticking away, and I thank you both for

your testimony today.

And again, Mr. Chairman, I thank you for the courtesies that

you have extended to me.

Mr. GREENWOOD. The Chair thanks the gentlelady and recognizes the gentleman from Massachusetts Mr. Markey for 10 minutes.

Mr. MARKEY. Who in the DOE was responsible specifically for

the oversight of Los Alamos?

Mr. BROOKS. When you say was——

Mr. MARKEY. Or is.

Mr. BROOKS. Me.

Mr. MARKEY. You are?

Mr. BROOKS. Yes, sir.

Mr. MARKEY. How long have you had that job?

Mr. BROOKS. Since last summer, sir.

Mr. MARKEY. Who had the job before you?

Mr. BROOKS. General John Gordon.

Mr. MARKEY. Was there anyone under him who had the specific

responsibility?

Mr. BROOKS. Specific responsibility I want to distinguish between

now and then. Now, under my supervision, the immediate responsibility is Mr. Ralph Erickson, who has appeared before this committee, he is the site manager of the Los Alamos site. Before December of last year, responsibility was fragmented between Mr.

Erickson and the manager of what was then called the Albuquerque Operations Office, and there was some ambiguity about

who was responsible in headquarters.

What we did in December was to clarify responsibilities by putting the authority and responsibility in the hands of the site manager, having him report directly without any intervening layers. So

that’s why I stress ‘‘was,’’ because the answer is different today

than it was during the period when these problems were developing.

Mr. MARKEY. Is anyone who was responsible before you took over

still on the job?

Mr. BROOKS. Well, I mean—site officers.

41

Mr. MARKEY. Who is in a position to have known what the problems were, did not correct them, and, subsequent to your taking

charge, remained in place?

Mr. BROOKS. I think the answer to that is no, but I don’t want

to suggest it’s because we did some kind of house cleaning. I mean,

we abolished a layer of management, and those people have gone

to do other things. Mr. Erickson himself was only assigned to the

Los Alamos site last summer.

Mr. MARKEY. Let me move to the case of Dee Cotler, who worked

for Livermore until 1997 when she was fired after she testified that

she had witnessed sexual harassment at the lab. The lab said she

hadn’t been retaliated against, but rather was fired for improperly

using her telephone and her computer. It turned out that she made

a whopping $4.30 worth of personal calls. That’s what she’s being

persecuted for. She sued, and she won a million dollars. The university appealed. She then asked for her legal fees, about $700,000,

to be paid by U.C., and she won that as well.

The University of California continues to appeal. The university has run up at least $800,000 in legal fees fighting this case for 6

years, bringing the grand total to $2.5 million all supposedly because of a $4.30 telephone call, and so far that’s the only charge

against her. And she has to live every day of her life trying to explain why she was fired, and that makes it tough in terms of her

prospective employees.

DOE actually reimburses more than 95 percent of all legal fees

incurred by its contractors, including those incurred in the case of

Dee Cotler. Would you agree taking a hard look at procedures and

standards that DOE uses to determine whether contractor legal

fees should be reimbursed would be a good idea?

Mr. BROOKS. Certainly. I would be happy to take a look at it. I

am not sufficiently familiar with the specific case, however, to comment on that case now. But the basic principle of looking at what

legal fees are reimbursable, I would be happy to look at that.

Mr. MARKEY. You have never heard of the case?

Mr. BROOKS. I have heard of the case.

Mr. MARKEY. You have never reviewed this case?

Mr. BROOKS. I have not reviewed this case because I regard it

as an issue between the university and a former university employee, so I have not personally reviewed the case.

Mr. MARKEY. You’re saying that as the person in charge, knowing that $2.5 million has already been expended by the university

on a $4.30 phone call, that you haven’t looked at that yet?

Mr. BROOKS. Yes, sir. That’s what I said.

Mr. MARKEY. Well, I don’t think that’s good. This seems like a

pretty big expenditure, and especially if it sets precedent or it’s just

a continuation of precedent in terms of a disproportionate response

to something which seems to me to be very suspicious, you know,

to punish a whistle-blower.

Mr. BROOKS. Your point is well taken, and certainly the point

about not punishing whistle-blowers, I think there’s no question

about the Secretary’s or the Deputy’s or my view that that is unacceptable. I need to look into this case.

Mr. MARKEY. It is very troubling to me, to be honest with you,

sir, that someone who basically came forward on a sexual harassVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
42

ment case is in turn, you know, punished for a $4.30 phone call,

and the bill has run up to $2.5 million, and you haven’t looked at

the case yet after a year on the job. From my perspective, it just

seems to me that this would jump out as one of the 5 or 10 things

you would have to look at, you know, to make a determination as

to whether or not there is a systematic attempt here to squelch

whistle-blowers from identifying problems in the management of

the facility. So why wouldn’t you have—since you say you are familiar with the case, why wouldn’t you have spent a little more

time on it trying to find out whether or not $2.5 million——

Mr. BROOKS. I obviously don’t have as good an answer as I would

like. I thought of it as an old case being handled in the legal system, and I had no evidence that it was part of a systemic problem

at the laboratory, but you make a good point, and I will look at it,

sir.

Mr. MARKEY. You don’t think it is sufficient evidence in and of

itself that someone who makes a charge of sexual harassment, is

basically upheld, you know, by the facts in the case, and then subsequently is brought under a 6-year withering assault that ultimately costs $2.5 million over a $4.30 personal phone call is a big

indication of mismanagement or cover-up at the labs?

Mr. BROOKS. Once again, you correctly point out that I should

have looked at it, and I will, but since I haven’t, I am not in a position to comment.

Mr. MARKEY. During the Energy and Commerce markup, Chairman Tauzin and Chairman Greenwood and Mr. Barton and I

worked out some language that would limit the reimbursement of

legal fees to its contractors in cases where the contractors lose a

whistle-blower case. The contractor would have to pick up the tab

for future appeals unless the adverse ruling is overturned in the

end. The point was twofold. First, it creates a financial incentive

for contractors to settle the case. And second, it potentially saves

the taxpayers a lot of money.

Do you agree with those provisions as described and as they’re

now included in the energy bill that’s left the House of Representatives?

Mr. MCSLARROW. We’d have to give you an exact answer on the

wording, but in the spirit of what you have just described, I don’t

think we would have a problem with it at all. And we have made

it clear to other contractors when they’ve done things wrong and

they had to pay for it, we’re not going to reimburse them for that.

I don’t think that’s any different than what you described.

Mr. BROOKS. And I would point out that the university has preemptively—as I said, I am not familiar enough to comment on the

case, but in the Los Alamos incidents, the university has said it

will not seek reimbursement in several cases where there’s no particular evidence that there’s been wrong, but the records are sufficiently sloppy that you can’t tell. But the principle that you established is a perfectly sound one.

Mr. MARKEY. Is it your belief, Ambassador Brooks, that the

science being done at other DOE labs such as Sandia and Oak

Ridge is inferior to that at Los Alamos and Livermore?

Mr. BROOKS. No. I think the science at all the national labs is

a national treasure. I am most familiar with the work being done

43

at the three weapons labs, and I have steadfastly resisted any attempt to rank the quality of the science because it’s all very, very

good, and it’s all somewhat different.

So, no, I don’t contend that only Los Alamos and Livermore do

good science. I contend they are among the people who do the best.

Mr. MARKEY. Do you think that scientists will leave Los Alamos

if the contractor is changed?

Mr. BROOKS. I hope not. I am concerned with the possibility of

large-scale retirements, but I believe that with this much time, we

can make sure that the competition is such that individuals don’t

feel that they have to leave. If the new contractor or the renewed

contractor both preserves the spirit of scientific inquiry, which is

an important part of what the university has brought, and if, as

is customary in these contracts, we require that the workforce—

since there really isn’t an alternative to this workforce in many

areas—is retained, I don’t think it is certain that people will leave.

I think it is a danger, and we are working hard to make sure that

people understand that the competition is about making Los Alamos better, not about changing its scientific character.

Mr. GREENWOOD. The time of the gentleman has expired.

The Chair thanks the witnesses for your testimony and your cooperation. We look forward to seeing you in 6 months to a year

from now. You are excused.

The Chair calls forward our next witness, the Honorable Gregory

H. Friedman, inspector general at the U.S. Department of Energy.

Welcome, Mr. Friedman, and thank you for being with us. You’re

aware this is an investigative hearing, and it is the practice of this

subcommittee to take testimony under oath in these circumstances.

Do you have any objection to testifying under oath?

Pursuant to the rules of the subcommittee and the House you are

entitled to be represented by counsel. Do you choose to be represented by counsel?

Mr. FRIEDMAN. No.

Mr. GREENWOOD. Raise your right hand.

[Witness sworn.]

Mr. GREENWOOD. You are under oath, and are recognized for 5

minutes for your opening statement, sir.

TESTIMONY OF GREGORY H. FRIEDMAN, INSPECTOR

GENERAL, U.S. DEPARTMENT OF ENERGY

Mr. FRIEDMAN. I am pleased to be here at your request to testify

on the Office of Inspector General’s reviews of management practices at the Los Alamos National Laboratory.

As you are aware, yesterday the Secretary announced his decision to retain the University of California as the operator of the

laboratory through the end of the current contract in September

2005 and to open management of Los Alamos to full competition

when the contract expires. In reaching this decision, the Secretary

adopted a series of recommendations made by the Deputy Secretary and the Acting Administrator for the National Nuclear Security Administration. As was noted in yesterday’s announcement, recent reviews completed by the Office of Inspector General were considered as part of the decision process. I would like to briefly discuss two of these reviews this morning.

44

At the request of the National Nuclear Security Administration,

the Office of Inspector General reviewed the allowability of the $5.2

billion charged to the contract for the last 3 fiscal years, and we

evaluated related internal controls. Based on the audit, we questioned $14.6 million in potential unallowable costs, including the

following: $3.7 million for working meals that were inconsistent, in

our judgment, with acquisition regulations; $7.4 million for travel

in excess of contract limits; and $3.5 million for an internal audit

function that did not, in our professional judgment, meet Department requirements.

Additionally, the Office of Inspector General conducted reviews

focused on accountability of laptop computers at the laboratory and

found inadequate internal controls over classified and unclassified

laptops. For example, laptops reported as unlocated were written

off the laboratory property inventory without a formal inquiry.

Thefts of computers were not always reported to the appropriate

laboratory security office. In at least two cases, laptops were being

used to process classified information even though they were not

accredited to do so. And some computers were accredited for classified processing, but were not on the laboratory master property inventory list.

These Office of Inspector General reviews, as well as several others noted by the Deputy Secretary and the Acting Administrator in

their report to the Secretary, disclosed significant internal control

weaknesses in the laboratory’s management systems. Our recent

work at Los Alamos and other Department locations has led us to

develop a list of lessons learned that we believe can serve as a path

forward as the Department works to strengthen its management

practices in the administration of its major contracts.

Specifically, in our view, the Department needs to ensure that its

contractors establish robust, effective and reliable business systems; promote contractor governance models that adequately protect the Department’s interests; foster a culture where contractors

fully understand and honor the special responsibility associated

with managing taxpayer funds at Federal facilities; promote an environment where both Federal and contractor employee concerns

can be raised and addressed without fear of retaliation; develop

quantifiable, outcome-oriented metrics and maintain a system to

track critical aspects of contractor performance; and finally, to rate

and reward contractors commensurate with their accomplishments.

Given that contract administration has been a significant longstanding challenge to the Department of Energy, the Office of Inspector General will continue to evaluate the Department’s

progress as it works to address this issue.

Mr. Chairman and members of the subcommittee, this concludes

my statement. I will be pleased to answer any questions that you

might have.

[The prepared statement of Gregory H. Friedman follows:]

PREPARED STATEMENT OF GREGORY H. FRIEDMAN, INSPECTOR GENERAL, U.S.

DEPARTMENT OF ENERGY

Mr. Chairman and Members of the Subcommittee, I am pleased to be here at your

request to testify on the Office of Inspector General’s (OIG) reviews of management

practices at the Los Alamos National Laboratory (Laboratory).

45

In February of this year, I testified before this Subcommittee regarding our Special Inquiry report on Operations at Los Alamos National Laboratory (DOE/IG-0584,

January 2003). That report noted a series of actions taken by Laboratory officials,

which obscured serious property and procurement management problems and weakened relevant internal controls. In March, I testified before the House Committee

on Government Reform on the Department of Energy’s (Department) contract administration activities, including the need for the Department to more effectively

manage certain aspects of contract operations at Los Alamos.

In light of criticism regarding internal control weaknesses at the Laboratory, the

National Nuclear Security Administration (NNSA) requested that the OIG perform

an audit of the costs incurred by the Laboratory for Fiscal Years 2000 through 2002.

Today, I will discuss the results of this review, as well as our recent report on computer controls at the Laboratory. Based on the record developed from these and previous reviews, we concluded that the business operations at the Laboratory have not

been given adequate attention. This conclusion is consistent with the findings of a

series of reviews commissioned by the University of California (University), the Laboratory’s operating contractor.

COSTS CLAIMED AND RELATED INTERNAL CONTROLS

Consistent with NNSA’s request, my office sought to determine the allowability

of the $5.2—billion charged to the contract for the last three fiscal years and to

evaluate relevant controls. Our report, University of California’s Costs Claimed and

Related Internal Controls for Operation of Los Alamos National Laboratory (DOE/

IG-0596, April 2003), questioned the allowability of $14.6 million in costs claimed

and identified a number of internal control weaknesses.

Questioned Costs

We identified potentially unallowable costs incurred by the Laboratory between

Fiscal Years 2000 and 2002. This included about $3.7 million for working meals that

were inconsistent with acquisition regulations, $7.4 million for travel in excess of

contract limits, and $3.5 million for an internal audit function that did not meet Department requirements.

The majority of the $3.7 million in questioned meals was provided by the same

contractor that provides services to the Laboratory’s cafeteria. The remainder was

for meals at restaurants in Los Alamos, Santa Fe, and Albuquerque, New Mexico.

In our judgment, the number, frequency, and apparent routine nature of most meals

provided indicated that the Laboratory was not exercising care to distinguish situations when working meals truly were in the Government’s best interest. In addition,

the Laboratory had a more restrictive policy for using University funds, than for

using Government funds, on meal expenses. When University funds were being

used, the approval of the Director’s office was required, but when Government funds

were being used for meals at the Laboratory, Group Leader approval was sufficient.

The University also charged $7.4 million to the contract for travel costs that were

not in compliance with Federal Travel Regulations. Travelers were reimbursed for

lodging that exceeded established General Services Administration rates, conference

fees that had no accompanying receipts, and various other costs that were not in

accordance with the Federal Travel Regulations. After the completion of our review,

we were informed that the Laboratory was able to locate additional supporting documentation that was not available during our audit. NNSA may be able to use this

documentation to assist in making final allowability determinations. However, the

absence of documentation at the time of our review calls into question the travel

claim review process used by the Laboratory.

Finally, we questioned as unreasonable about $3.5 million charged to the contract

by the University for the cost to operate a Laboratory audit function that did not

meet the requirements of the contract. Specifically, the function was not organizationally independent, did not adequately plan and execute its internal audit work,

and did not conduct timely follow-up reviews.

Control Weaknesses

During our review, we noted a series of internal control weaknesses that contributed to an environment where questionable costs could be incurred and claimed.

These weaknesses related to:

• The Laboratory audit function;

• Financial system reconciliations;

• Payroll and travel approval processes;

• Financial management personnel turnover; and,

• Financial system review and approval.

46

Laboratory Audit Function—A quality internal audit function is crucial to effective program management. The University contract required the Laboratory to establish an audit function that was acceptable to the Department. We concluded that,

for the period Fiscal Year 2000 through Fiscal Year 2002, the Los Alamos National

Laboratory’s internal audit function did not meet Department requirements.

For example, the audit function did not prepare a plan to audit subcontracts for

the three years reviewed, although subcontracting represented about one-half of the

expenses of the Laboratory. Of particular concern to us was the fact that the Laboratory provided documentation indicating unaudited subcontract costs of over $1

billion at the time of our review. Further, for one of the subcontracts that had been

audited, the results of the examination (including $12.8 million in questioned costs)

had not been reported to the Department’s contracting officer. Given the dollar

value of the subcontracts to be examined and weaknesses in reporting, we concluded

that the subcontract audit function at the Laboratory needed substantial strengthening.

Financial System Reconciliations—The review also identified weaknesses in reconciling cost data from the Laboratory’s financial systems. The Laboratory has over

60 feeder systems that provide cost information to its Financial Management Information System (FMIS). The University had not established a process to periodically

reconcile costs generated by these systems. University officials told us that reconciliations could be completed, but only with great difficulty. We were able to reconcile

the payroll system to within $1.4 million of payroll costs in FMIS and the travel

disbursements system to within $2.3 million of costs in FMIS. However, the absence

of a process to periodically reconcile costs, and our inability to completely reconcile

payroll and travel data, led us to conclude that the costs claimed by the University

could be misstated and the universe of costs subjected to audit could be incomplete.

Payroll and Travel Approval Processes—The Laboratory also permitted payments

to be made based on electronic signatures of administrative personnel or, in some

cases, subcontractor support staff. Supervisors made only 15 of the 120 electronic

approvals checked in our sample. The written policy for approvals stated that travel

claims and payroll time sheets required supervisory approval—Deputy Group Leader and above—using either online electronic signature or hardcopy signature prior

to paying travels claims and salaries. Although we were able to verify in some instances that hardcopy signatures did exist, our primary concern was that the Laboratory’s Business Operations Division made payments based exclusively on the

electronic signatures without any process, test-basis or otherwise, to verify supervisory approval of transactions.

Financial Management Personnel Turnover—During our review we also noted that

there had been substantial turnover in Laboratory personnel responsible for financial management activities. While we recognized the challenge of retaining qualified

personnel, the fact remained that excessive turnover left a void in the Accounting

Department’s ability to fully understand and execute the interfaces and capabilities

of the Laboratory’s financial management systems. In particular, Accounting had

been severely affected, with five of seven managers (71 percent) having less than

one year of experience in their current positions.

Financial System Review and Approval—Finally, the University had not obtained

Department approval for its financial systems. Although the University’s contract

required such approval, we found no evidence that the Department approved the

Laboratory’s existing financial systems. Further, the University had initiated a

5year, $70 million overhaul of its existing system without required Department approval.

Management Response and Corrective Actions

In response to this report, NNSA indicated that corrective actions had been taken

or were planned. Planned actions included improving controls and conducting a review of the allowability of the $14.6—million in questioned costs. Although the University took strong exception to our characterization of questioned costs and internal

control weaknesses, University officials informed us of several recent changes intended to address weaknesses in the audit function at the Laboratory. For example,

the University reported that it had established an independent reporting structure

for the audit function. If successfully implemented, the NNSA and Laboratory initiatives should address the identified internal control concerns.

CONTROLS OVER LAPTOP COMPUTERS

The Office of Inspector General also recently issued an interim report focusing on

accountability of laptop computers at the Laboratory, Inspection of Internal Controls

Over Personal Computers at Los Alamos National Laboratory (DOE/IG-0597, April

2003). The Laboratory maintains approximately 30,000 desktop and 5,000 laptop

47

computers for processing a broad range of classified and unclassified information.

We determined that internal controls over classified and unclassified laptop computers at the Laboratory were inadequate. Laptop computers were not appropriately

controlled or adequately safeguarded from loss, nor were they managed in accordance with security requirements.

The Laboratory’s process did not assure that required inventory controls were followed when new computers were acquired using purchase cards. During Fiscal

Years 2001 and 2002, the Laboratory used purchase cards to acquire over 1,000 new

personal computers. Laboratory policy identifies computers as ‘‘sensitive items’’ due

in part to their susceptibility to theft. Sensitive items should have property numbers

assigned to them when they are acquired, and if the item was acquired using a purchase card, this number should be entered into the purchase card database. We

found that the purchase card database was incomplete, in this regard, for 70 percent

of the computers acquired during this period. In addition, laptop and desktop computers were acquired using purchase cards even after the Laboratory limited such

purchases. A number of other control weaknesses were identified. For example:

• Laptop computers reported as ‘‘unlocated’’ were written-off of the Laboratory property inventory without a formal inquiry;

• Thefts of laptops were not always reported to the appropriate Laboratory security

office; and,

• Laboratory employees were not held accountable in accordance with Laboratory

requirements for the loss of their assigned Government computers.

The review also disclosed weaknesses in controls over classified computers. For

example, during our review, the Laboratory provided us a listing of laptop computers that had been ‘‘accredited’’ for use in processing classified information; however, several discrepancies were found. Specifically, we identified instances where

laptops used for classified processing were not on the list. In two of these cases, the

computers were being used to process classified information even though they were

not accredited to do so.

Based on these and other discrepancies, we concluded that the Laboratory could

not provide adequate assurance that classified, sensitive, or proprietary information

was appropriately protected. We referred these findings to the Department’s Offices

of Counterintelligence and Independent Oversight and Performance Assurance and

the NNSA’s Office of Defense Nuclear Counterintelligence for further review and appropriate action.In summary, our reviews have disclosed significant internal control

weaknesses in the Laboratory’s management systems. In response to our recent reports and those of other external reviewers, the University has indicated that it has

implemented a number of reforms.

CONCLUSION

The environment described in my testimony today can—as was the case with

many issues raised in previous reviews—be attributed in large measure to management decisions and policies that did not assure the interests of the Federal taxpayers were adequately protected. In this context, our recent work at Los Alamos

and at other Department locations has led us to develop a list of lessons learned

that can be used by the Department to strengthen its management practices. Specifically, the Department needs to:

• Ensure that its contractors establish robust, effective, and reliable business systems;

• Promote contractor governance models that adequately protect the Department’s

interests;

• Foster a culture where contractors fully understand and honor the special responsibility associated with managing taxpayer-funded Federal facilities;

• Promote an environment where both Federal and contractor employee concerns

can be raised and addressed without fear of retaliation;

• Develop quantifiable, outcome-oriented metrics and maintain a system to track

critical aspects of contractor performance; and,

• Rate and reward contractors commensurate with their accomplishments.

To assist the Department in addressing the weaknesses discussed today and

measure progress against these lessons learned, my office will continue to review

the situation at Los Alamos National Laboratory and other contractor-operated facilities.

Mr. Chairman and Members of the Subcommittee, this concludes my statement.

I will be pleased to answer any questions.

Mr. GREENWOOD. Thank you, Mr. Friedman.

48

As you pointed out in your opening statement, the IG has done

considerable audit work at Los Alamos from firearms control, to

general operations, to costs claimed. This committee has uncovered

what we think are some questionable procurement practices at the

lab with local vendor agreements. Our investigators have uncovered hundreds of thousands of dollars in purchases using the local

vendor agreements that do not seem to have legitimate business

purposes, in my eyes.

For example, we identified purchases of shoes for fiscal year 2001 and 2002 totaling $881,488.97. Now I understand that there are

business needs arguably for some lab employees to be provided

with safety shoes, but this other amount seems excessive to me. I

find this particularly irksome since on my way to Washington this

week, I bought myself a new pair of shoes, and they cost me $139.

I did not use my Federal credit card for those shoes. I used my personal credit card for those shoes.

And looking at an item that our staff just pulled off of the data

that we collected, we don’t just see work boots here. We see a total

of 7,476 pairs of shoes purchased in this 2-year period, including

615 pairs of New Balance sneakers, athletic shoes; 566 pair of Nike

shoes; Rockport shoes. We even have nine pairs of Tevas, which are

sandals. I’m not sure that anybody at Los Alamos is required as

a part of their work to wear sandals to work. But the list goes on.

Adidas, Asics, Bates, Carolina, Dexter, HH, Doc Martens, Durangos, Golden Retrievers, et cetera. These are all brands of shoes we

identified, as well as in that 2-year period 517 coffeemakers. Now,

I understand that offices have coffeemakers, but it’s hard to imagine that you need to replace 517 of them at one facility. Four hundred ninety-one pair of gloves, et cetera.

Does the—does your—have you done any work in this area?

Have you looked at these kinds of procurements?

Mr. FRIEDMAN. Mr. Chairman, I believe the number now is 18

civil and criminal investigations ongoing at Los Alamos. And it’s

entirely possible, but I can’t attest to that as I sit here this morning, but those issues are under investigation as we speak. But I

certainly would be interested in the information, and if they’re not

under review, we will certainly consider that.

Mr. GREENWOOD. It looked like to me both in the case of the footwear and the gloves is that somewhere someone in the laboratory

decided that somebody needed to have safety boots. So there was

some decision made that certain footwear could be reimbursed, and

that people just went nuts, and people passed catalogs, I assume,

and purchased shoes from these vendors, and nobody ever bothered

to look. And that’s a tiny little microscopic analysis that we made

of the procurement at the lab, and we came up with these results,

and it’s pretty discouraging, as it should be.

Given your extensive background in working with DOE facilities,

do you think that the University of California can pull itself up by

its business operation bootstraps and start running those portions

of the lab effectively and efficiently?

Mr. FRIEDMAN. Well, I think in all fairness as we tried to analyze

the situation, Mr. Chairman, the university has taken fairly dramatic action, and that’s certainly been bolstered by the actions of

Secretary Abraham and the Deputy Secretary as announced today.

49

I think the jury is out, as was said earlier, and remains to be

seen, and we will have to look at it in the months ahead to see

what the status of their business systems is after they have implemented and executed the fixes that they have announced.

Mr. GREENWOOD. Is it customary for DOE officials to consult

with you and your employees when they are, for instance, designing a system to attract new bids? Are they likely to come to you

and say it’s your role to look for, among other things, misspent

Federal dollars, weaknesses in the system, failures to maintain integrity? What is your advice as to how we should design a contract

so that we can minimize the likelihood that this will happen in the

future? Is that likely to happen?

Mr. FRIEDMAN. It’s likely to happen, and it has happened in the

past.

Mr. GREENWOOD. I would certainly hope that if it doesn’t happen,

that you will take the initiative to remind those others in the Department that you have some helpful advice as they design this.

The Chair relinquishes the balance of his time and recognizes

the gentleman from Florida.

Mr. DEUTSCH. Thank you, Mr. Friedman. It’s good seeing you

again.

Mr. GREENWOOD. Before I do, the Chair would like to recognize

some visitors that we have in the audience. We have four visitors

from Kenya who are with us today, and if they would stand for a

moment and say hello.

Gentleman is recognized.

Mr. DEUTSCH. You have been investigating and reporting on

problems at Los Alamos for many, many years. The inspector general has appeared at many, many hearings held by this committee

to report on his office works. Do you agree with Ambassador

Brooks that the culture at Los Alamos—that business practices is

beyond the control of DOE or the university?

Mr. FRIEDMAN. I don’t want to characterize what Ambassador

Brooks said. I don’t know precisely—I didn’t catch that phrase precisely. What I would say is you cannot have a well-managed laboratory and cannot have good science unless as a corollary you have

good business practices. So to the extent that they have fallen

down in the area of business practice, I think it reflects on the entire operation at the laboratory.

Mr. DEUTSCH. I think the question really is—and, again, for the

extensive hearings that we have had and the investigation, I mean,

I think what we have talked about is systemic problems, literally

a culture, as I think the chairman alluded to as well. The phrase

‘‘Monopoly money’’—or in terms of—or you don’t get the number of

instances, 18 investigations. It’s not one bad apple. It’s not one person who has a criminal intent. I mean, I just don’t see that from

18 examples that we’re aware of in a short investigation. I think

really the question is—is that—just the culture of the institution

and is that part of the thing that needs to change. And it also reflects on the university as well in terms of its position, in terms of

the new proposal, in terms of the bid process that exists.

Mr. FRIEDMAN. Well, I think the answer to your question is that

they are cultural issues and environmental issues at the laboratory. Since 19—since fiscal year audits inspections at Los Alamos—

50

and 33 of those dealt with financial systems, business management

systems, procurement and the like, as I indicated earlier, in the 6

or 7 points where contractors fully understand and honor the special responsibilities associated with managing taxpayer-funded

Federal facilities, so it seems to me there is a higher standard that

exists.

Mr. DEUTSCH. To deal with the sort of cultural or systemic problems that we see or that we—I say if we all, in a sense, acknowledge exists at the lab.

Mr. FRIEDMAN. Well, my responsibility, as I understand it, is to

make sure the taxpayers have a seat at the table when the business decisions or the science decisions are made at the laboratory,

No. 1; and, number 2, to raise problems as we come across them.

We’ve done that aggressively, I think, over time; and I think it’s

for others, actually, to implement the recommendations once we’ve

made them.

Mr. DEUTSCH. You have made some fairly devastating conclusions about the financial controls, business systems, property management and the internal audit operations at Los Alamos. In fact,

in your cost reports you have drawn the following conclusion, and

I’m quoting: The Department, in our judgment, has less than adequate assurance that the costs claimed in the operation of the laboratory are allowable under the contract.

This is from page 11 of your report. Are you saying that DOE

cannot be assured that any of the over $1 billion spent at the laboratory is allowable because there is no acceptable method to check

it?

Mr. FRIEDMAN. What I’m saying is that there were enough issues

that were raised in terms of the three main components of the

costs that we have questioned as well as the fact that there is a

substantial backlog of subcontract costs which have never been audited that raise enough questions that reduce our assurance, our

level of confidence that all of the costs claimed were allowable.

Mr. DEUTSCH. I mean, the statement that I quoted from is an extraordinarily broad statement. It’s really the equivalent of a company’s auditor refusing to sign off on their financials because they

can’t verify that. Is that effectively what you’re saying is the situation at Los Alamos?

Mr. FRIEDMAN. That’s what we are saying; and, as was pointed

out earlier in the hearing, we disclaimed an opinion on the 2000

and 2001 statements of cost claims submitted by the contractor as

well.

Mr. DEUTSCH. All right. So, again, you issued similar disclaimers

on your cost audits for 2000, 2001, correct?

Mr. FRIEDMAN. Correct.

Mr. DEUTSCH. All right. Were the University of California and

DOE aware of this?

Mr. FRIEDMAN. Absolutely.

Mr. DEUTSCH. And what was their response to these reports?

Mr. FRIEDMAN. Lethargic is the only way I can describe it. I

think the intensive management oversight really took place within

the last 6 to 9 months. There has been energy expended by Secretary Abraham and Kyle McSlarrow and Ambassador Brooks and

51

by the university as well. They’ve taken a real interest in what’s

gone on, it seems to me, at Los Alamos.

Mr. DEUTSCH. We have been told that the financial controls and

audit functions at Lawrence Livermore National Lab, which is also

run by University of California, are better. Is that correct? And, if

so, why is that?

Mr. FRIEDMAN. That’s our view, that it’s run on a more professional basis; that they report more fully and completely; and it’s a

better quality team.

Mr. DEUTSCH. I mean, could you elaborate why or speculate why?

Mr. FRIEDMAN. I can’t look in the, you know, frankly, in the

minds of the people who are doing it. All I can tell you it is a more

professional operation that is more responsive. It is an operation

which does a more comprehensive review of costs that are incurred

at Livermore. At least, that’s been our finding to date.

Mr. DEUTSCH. How does Los Alamos compare financial controls

in place by other contractors? Is it the worst you’ve ever seen?

Mr. FRIEDMAN. As far as we’re concerned, it’s the worst that

we’ve come across in the Department of Energy complex.

Mr. DEUTSCH. You’ve also questioned the cost of the entire internal audit operation because it was not independent as the contract

required. An independent auditor doesn’t report to the people he’s

auditing, is that correct?

Mr. FRIEDMAN. That’s correct.

Mr. DEUTSCH. Has the audit function ever been independent?

Mr. FRIEDMAN. There was a period of time, if I recall the history,

in which it may have been independent, but that was probably 6

or 7 years ago at the earliest; and I can’t really attest to that as

I sit here today.

Mr. DEUTSCH. Did the DOE staff responsible for Los Alamos

know that many planned audits weren’t being done and that the

allowable cost audit relied on judgmental sampling techniques from

which results could not be projected?

Mr. FRIEDMAN. My understanding is that they were not fully conversant with the work that was done by the internal audit group.

Mr. DEUTSCH. And you mentioned, you know, the issues with the

subcontractor audits. How did the lab get so far behind in its audits of subcontractors?

Mr. FRIEDMAN. Well, there has been some change in the way

that Los Alamos has operated over time in that at this point in

time a huge portion of the money that the Department of Energy

spends through Los Alamos is spent through subcontractors. So the

demand for a subcontract audit certainly has increased, or at least

so it seems to us. There may be staffing problems, a lack of adequate staffing. There may be a lack of interest in contract audit

function. But, in any case, the backlog was significant.

Mr. DEUTSCH. What are you going to do about that, the subcontracting auditing problems?

Mr. FRIEDMAN. What am I going to do about it?

Mr. DEUTSCH. I mean, what are they going to do about it? I

mean, what’s your recommendation in terms of——

Mr. FRIEDMAN. My recommendation is that, considering the fact

that there’s at least a billion dollars in unaudited funds—at least

there was at the time of our review—that the university better be

52

very, very aggressive in going after that money to make sure that

those costs are allowable under the terms of the subcontracts and

that the taxpayers’ interests are properly represented.

Mr. DEUTSCH. I mean, does the lab presently have the staff to

make all of those audits?

Mr. FRIEDMAN. I’m sorry.

Mr. DEUTSCH. Does staff exist to actually do that?

Mr. FRIEDMAN. Well, they do have staff there. I don’t know

whether it’s sufficient in terms of numbers or expertise to do all of

the work.

Mr. DEUTSCH. The university told our staff recently that it intended to do a full overhaul of the financial systems. You found

that this initiative was not approved by the DOE as required by

the contract. Has DOE taken any steps to approve or disapprove

this change in the financial system?

Mr. FRIEDMAN. I’m not aware of any one way or the other, Mr.

Deutsch.

Mr. DEUTSCH. Would your impression be the same as ours that

that, in fact, is required under the contract?

Mr. FRIEDMAN. That’s what we state in our report, and we believe that to be the case.

Mr. DEUTSCH. I mean, it just seems that they’re doing a major

overhaul, I mean based on these problems; and they’re not even

interacting with you at this point about that overhaul.

Mr. FRIEDMAN. Well, in fairness, in response to our report I

think the university indicated there was more interaction than

would be suggested. But the fact of the matter is that we believe

the requirements of the contract suggest that approval of the Department of Energy is required, and that approval certainly was

not obtained.

Mr. DEUTSCH. Let me just ask one final question. DOE has given

Los Alamos high marks for its protection of classified material. But

you state that you found such weaknesses in the lab’s control of

computers used for processing classified data that you, I’m quoting,

do not believe that Los Alamos can provide adequate assurance

that classified, sensitive and proprietary information is appropriately protected. How do you reconcile these high marks with

your failing grade?

Mr. FRIEDMAN. Well, I can’t reconcile the position that anybody

else has taken. What I—I think the most—one of the most important points is that, of the laptop computers that were used for classified work, two of the computers were not accredited. And I could

go through the definition, but accreditation seems to us to be extremely important and calls into question whether the environment, the approved use, the location was appropriate.

Mr. DEUTSCH. Thank you.

Mr. GREENWOOD. The gentleman from Michigan, Mr. Stupak, is

recognized for 10 minutes.

Mr. STUPAK. Mr. Chairman, I wonder if I could just pass for a

minute. I just got back. I just want to review a couple of things,

and I’ll come right back. Can I pass for now?

Mr. GREENWOOD. Yes. The Chair failed to recognize the presence

of the gentleman from Oregon. Mr. Walden is recognized for 10

minutes.

53

Mr. WALDEN. All right. Thank you, Mr. Chairman.

Sir, part of the impetus of this committee’s work with regard to

Los Alamos was the improper treatment of two whistleblowers who

were terminated from their positions at the lab, as you know. Your

office issued a report on that action in January of 2003, I believe,

where you found the terminations to be unsubstantiated. Has your

office looked at any other recent whistleblower concerns at Los Alamos? And, if so, what action are you recommending or taking? And

do you have an opinion on whether or not the whistleblower protection policy of Los Alamos is sufficient?

Mr. FRIEDMAN. Well, I am not aware of any other whistleblower

reviews that we’re doing at present. There may be one or two that

I’m not aware of. But I certainly think that the climate at Los Alamos was unacceptable in terms of treatment of whistleblowers and

the concerns about retaliation.

There have been surveys done of employees there—not recently,

but within the last year or 2—in which a preponderance of employees have indicated they were concerned about raising serious issues

to management for fear of retaliation. So I think it’s extremely important that the environment and the climate be one which people

feel free to raise concerns, that concerns are addressed and that

there is no retaliation.

Mr. WALDEN. Do you think it would be prudent to do a new survey—given that we’re being told that people have been fired, management is changing, the university has responded aggressively,

would it be prudent now to do another internal survey, a confidential survey of employees to see if they feel like the climate’s

changed?

Mr. FRIEDMAN. I—the survey that I referred to was not one that

my office did. It was—someone else had done that. But I think it

is a very interesting idea, and let me think about that and consider

it.

Mr. WALDEN. Okay. Because it just seems to me—I mean, we are

being told things have changed. It appears they have. I wonder if

internally the culture believes that it’s changed or not, and so I

think this would be interesting.

I had a couple of questions, too, off of the Deputy Secretary’s

memorandum for the Secretary where they detail out some of these

issues about equipment and purchases and attempted to make

charges and all, some of which has been refunded without question.

I guess one of them that drew my attention—this article, it says,

questions concerning the adequacy of property controls. Newspaper

revelations indicated the lab was unable to account for $1.3 million

worth of controlled property, including such pilferable items as

computers. Although the most spectacular allegations—a missing

forklift, for example—were ultimately resolved, substantial

amounts of property remain unlocated.

Can you enlighten me as to what they’re referring to and the size

of—what the term ‘‘substantial amounts’’ may mean?

Mr. FRIEDMAN. Well, I don’t know what document you’re referring to or what news article you’re referring to. I don’t think I

could put bounds on that. I don’t know for sure.

Mr. WALDEN. Just for the record, it is Deputy Secretary Kyle

McSlarrow’s memorandum to the Secretary dated April 26.

54

Mr. FRIEDMAN. Okay. I’ve seen the memo. I have not studied the

memo, so I’m not precisely sure what he’s referring to.

But let me give you a sort of a real-time example as we just completed a review of laptop computers and we found that a number

of unlocated laptop computers were simply written off the inventory records at the end of the year, and that seems to be a not uncommon methodology for handling unlocated sensitive property and

nonsensitive property.

Mr. WALDEN. And how recent is that review?

Mr. FRIEDMAN. That review was issued last week.

Mr. WALDEN. Last week?

Mr. FRIEDMAN. Yes.

Mr. WALDEN. How recent were those computers written off?

Mr. FRIEDMAN. That was at the end of the fiscal year, so within

the last 6 months.

Mr. WALDEN. And how many were written off, do you recall?

Mr. FRIEDMAN. I think the number was 20, if I recall correctly.

But I’m not positive. I’d like to provide that for the record if I

could.

Mr. WALDEN. Certainly. I’d appreciate that.

Mr. FRIEDMAN. I want to be precise with you.

Mr. WALDEN. Of course. And I respect that. You can’t be the repository of every single detail on every issue we raise, I recognize.

[The following was received for the record:]

The number of computers written off during fiscal years 2001 and 2002 is 22.

Mr. WALDEN. There’s also a reference in this that says, an audit

of firearms control that revealed significant weaknesses in procedures and accountability, although all firearms were ultimately located. Have you looked into that issue?

Mr. FRIEDMAN. Yeah, that was a report that we issued about 11⁄2,

2 months ago in which we were ultimately able to identify all the

firearms. The problem was that the master inventory list that Los

Alamos keeps was inconsistent with the list that the subcontractor

maintains, and the subcontractor is responsible for police functions

at the laboratory.

Mr. WALDEN. And how far apart were those lists? Were they significant?

Mr. FRIEDMAN. Well, 200 out of 1,400 or something like that. It

was a significant number, yes.

Mr. WALDEN. Of various weapons.

Mr. FRIEDMAN. Primarily side arms, protective force weapons.

Mr. WALDEN. And can you give me some idea about—were they

just simply in a different place than where one person thought they

were, or had they wandered away and came back?

Mr. FRIEDMAN. No. Simply stated, they were—it’s a little more

complex, so bear with me for a second. In general, the system at

Los Alamos was such that the arms that were received from the

Department of Energy or through other sources went directly in

some cases to the subcontractor, not through Los Alamos itself. As

a consequence, they were either delayed or never made it to the

master inventory list; and we were concerned that the university

and the laboratory itself ought to have the comprehensive, complete list of firearms that are available at the site.

55

Mr. WALDEN. So am I correct then in understanding it wasn’t

that the weapons disappeared. It’s just they weren’t on the inventory list that you thought they should be on.

Mr. FRIEDMAN. That is correct. And nobody had taken the time

to reconcile the lists, in which case they would have identified the

problem. It took us to come in and do it.

Mr. WALDEN. According to a February 5, 2003, memo from you

to Acting Administrator Linton Brooks of the NNSA, your office encountered, quote, unquote, significant dysfunction at Los Alamos

during your review. Specifically, you note the lab management

failed to comply with your request for information regarding an

April 10, 2002, internal lab memo. In your recent report on costs

claimed, there’s more than one occasion stated where you felt that

the lab was not as forthcoming in producing information and documents to your office as would be expected. Have you addressed this

issue specifically, with NNSA or DOE? And, if so, what have they

pledged to do to alleviate this problem in the future? Are you getting the cooperation that you expect and deserve?

Mr. FRIEDMAN. Interestingly enough, we have discussed it with

the Department of Energy at both levels. But we discussed it primarily with the chief auditor of the University of California, and

within hours we received the information that we had requested.

So the University of California stepped in and immediately

overrode the reluctance on the part of the working-level people at

Los Alamos to provide the information that we needed.

Mr. WALDEN. When your auditors go in and ask these questions

of the working level at the lab, what are you told? Why are you

told they won’t give you the information? Or do they just—give me

the insight there. What do you run into?

Mr. FRIEDMAN. I can’t really characterize it. It probably—there’s

a recognition it may be embarrassing, that it may reflect negatively

upon the lab. I’d be speculating and I hate to do that because I

don’t know really what was going on in these people’s minds. What

I do think is important, though, was that we have faced this time

and time again, and clearly,——

Mr. WALDEN. Is it changing though?

Mr. FRIEDMAN. Well, as I say, Patrick Reed, the auditor for the

university, stepped in and immediately provided the information

that we were looking for.

Mr. WALDEN. But do you feel like you’re going to have to go back

to the university auditor on a regular basis? Do you feel like—I

guess I’m trying to get at, is the culture really going to change at

the hands-on level in the lab, or do you have to keep going up to

some auditor somewhere above them to get the culture to change?

Because I think that all interacts with who’s controlling the lab

and do we have problems still there? Do we have files disappearing? Do we have lack of cooperation?

Because I’ve got to tell whoever’s out there that is not cooperating, if they think they’re embarrassed because of revealing information, not revealing, hiding and deceiving or trying to ignore your

investigation is going to cause them a whole bunch more problems

than cooperating. We know there’s a problem. We’re trying to get

at it and solve it.

56

Mr. FRIEDMAN. Well, I agree with your observation; and if the experience we’ve had with Mr. Reed, Vice President Darling and others is reflective of what’s going to happen in the future, we have

solved the problem. But if that’s not the case, they’ll be hearing

from me, as will the Secretary.

Mr. WALDEN. All right. Thank you Mr. Chairman.

Thank you, sir. Appreciate your work.

And I return the balance of my time.

Mr. GREENWOOD. The Chair thanks the gentleman.

The gentleman from Michigan—no, the—yes, the gentleman from

Michigan, Mr. Stupak, is recognized for 5 minutes.

Mr. STUPAK. Thanks, Mr. Chairman.

Mr. Friedman, are you familiar with the performance standards

set for Los Alamos for fiscal year 2003?

Mr. FRIEDMAN. I have seen them. I have not studied them. We

are in the process of looking at them very carefully right now.

Mr. STUPAK. Well, let me ask you this, if I may. According to the

document, there is an attachment, Appendix F. In it’s an implementation plan carrying out the scientific mission as the most important objective of the laboratory; and they go on to say, procurement and property management, business controls, financial management, environmental clean-up and control, security and health

and safety are all lumped together in objective No. 7 of the nine

objectives. The implementation plan was signed by the university

on April 13. Does this indicate to you that the university or DOE

are going to give any real emphasis to fixing the problems that

we’re discussing here today?

Mr. FRIEDMAN. Well, I’m concerned by the—what appears to be

a relative imbalance in terms of the criteria that have been established, and I agree with your observation. I—at this point, though,

we’re studying the issue. We have not reached any final conclusion,

so I can’t give you a definitive answer.

Mr. STUPAK. Well, the—and Mr. Walden has mentioned a little

bit about it, the culture that’s there. I mean, besides putting out

these mission statements, how do you really change a culture when

you have classified computers missing or a person can order a Mustang using the credit card—Los Alamos credit card? How do you

change that?

Mr. FRIEDMAN. Well, I think it’s a complex—it’s a simple question, Mr. Stupak, but it requires a complex answer. But to put it

in a word is ‘‘accountable.’’ You have to hold individuals accountable, and you have to hold contractors accountable, and you have

to be prepared to take severe and drastic action, both in the case

of individuals and in the case of contractors if their performance

does not meet government standards and they do not understand

that they’re working for the taxpayers.

Mr. STUPAK. And in your reports, have you seen any accountability? For instance, the person who ordered the Mustang—we

were out there in January, and that occurred in September. So it’s

4 or 5 months later. They’re still there. I mean, what kind of a

message does that send to the rest of the employees about do whatever you want to do and you’re not going to be held responsible?

Mr. FRIEDMAN. That matter is the subject of a current investigation. I couldn’t comment on it in public.

57

Mr. STUPAK. Well, I’m just more asking for a signal. But——

Mr. FRIEDMAN. Well, if the environment is what you’re referring

to, there have been very significant personnel changes at Los Alamos. They’ve been described earlier today. Perhaps more are needed. I don’t know. The director has said he’s going to look at those

issues as they come about.

Mr. STUPAK. But yet you were concerned about the whistleblowing going on there, that people who wanted to come forth with

serious concerns about what’s going on at Los Alamos, they’re

afraid to because they didn’t feel they’d be backed up by whether

it’s the whistleblower protection plan or by the superiors who are

in charge. Isn’t that true?

Mr. FRIEDMAN. That’s correct.

Mr. STUPAK. So that—if they’re concerned about not being

backed up, whether it is a whistleblower or other serious concerns

that they may bring forward, whose responsibility is that? Is that

the Department’s or is that the University of California who has

the contract to manage it?

Mr. FRIEDMAN. Well, I think it’s a shared responsibility. I think

the University of California has to make a commitment, which I

think they have certainly verbalized over the last several months,

that whistleblowers are—they’re going to be treated with respect,

that their concerns are going to be addressed. I think the Department and the Department handlers are responsible for ensuring

that the university meets that commitment.

Mr. STUPAK. I’m sorry I missed the first part of your hearing. I

had to go up to—I mean, your testimony. I had to go up for some

meetings. But how long have you been doing audits at Los Alamos?

Mr. FRIEDMAN. As an office, the Office of Inspector General for

the last 25 years.

Mr. STUPAK. Okay. You personally.

Mr. FRIEDMAN. Personally, for the last 20 years.

Mr. STUPAK. Have you seen any accountability of people there?

You know, it seems like we had a problem, and no one’s willing to

accept responsibility. We’ve just passed it off. We come up with a

new program every year to change the problems, and nothing ever

gets changed.

Mr. FRIEDMAN. Frankly, I have seen no change save what has

transpired in the last 6 to 9 months.

Mr. STUPAK. Thank you. I’ll yield back. But I can probably sneak

another one in here, too.

Mr. GREENWOOD. The time of the gentleman has expired.

Mr. STUPAK. All right.

Mr. GREENWOOD. The Chair recognizes the gentlelady from California for 5 minutes.

Ms. ESHOO. Thank you, Mr. Chairman.

Welcome back, General Friedman. It’s good to see you, and thank

you for your public service.

I have three questions. In the 20 years that you have been doing

the work that you’ve done as you just stated, have you inspected

the Department relative to the contract?

Mr. FRIEDMAN. Yes. And——

Ms. ESHOO. And how recently?

Mr. FRIEDMAN. We do that regularly.

58

Ms. ESHOO. And what have you discovered or recommended?

Mr. FRIEDMAN. Every year for the past 4 or 5 years we have

identified contract administration, which is the way we characterize it, contract management. As a management——

Ms. ESHOO. And if you were to issue a report card, is it a passing

grade? Is it a high grade? Is it a low grade?

Mr. FRIEDMAN. No. We have treated it as one of the top 10 management challenges facing the Department in which they have not

done an adequate job.

Ms. ESHOO. That they have not done an adequate job.

Mr. FRIEDMAN. That’s correct.

Ms. ESHOO. And in what area specifically?

Mr. FRIEDMAN. Well, every facet of contract administration, ensuring that you have a governance program in effect in which Federal managers who are ultimately responsible for the expenditures

of funds know what’s going on at the various contractors and are

held accountable for their aspect of contractor operations.

Ms. ESHOO. So there is a—there are shortcomings inside of the

Department in the responsibility—in the role that they play relative to the contract.

Mr. FRIEDMAN. In my view, yes.

Ms. ESHOO. Thank you. Were you asked by Deputy Secretary

McSlarrow or Ambassador Brooks to evaluate UC’s reform measures at Los Alamos? And, if so, was your assessment reflected in

their report to Secretary Abraham?

Mr. FRIEDMAN. Let me be clear answering your question. There

were aspects of the work that we’ve done over the past 6 or 7

months at Los Alamos that were specifically requested by the Department. However, I, to the best—if I understand your question,

we have not been asked to evaluate the specific components of the

corrective action plan that have been proposed.

Ms. ESHOO. So, am I understanding this correctly, the assessment that you did was not reflected in the report to Secretary

Abraham in the report, your analysis?

Mr. FRIEDMAN. I’m sorry.

Ms. ESHOO. The IG’s analysis.

Mr. FRIEDMAN. We may be confusing your question. We have

analyzed 6 or 7 different programmatic areas in the past several

of months, several of which were specifically requested by the

NNSA.

Ms. ESHOO. I understand the request. But following it down the

road——

Mr. FRIEDMAN. I have not, on a stand-alone basis, evaluated the

corrective action plan that the University of California has proposed and that the Department of Energy has discussed today.

Ms. ESHOO. So it’s not part of Secretary Abraham’s assessment

then. Either through your review or anyone else’s.

Mr. FRIEDMAN. Again, I want to make sure I don’t give you any

bad information here. Secretary Abraham, as his announcement

identifies, has used the work that we’ve done in part in reaching

the decision that he has reached.

Ms. ESHOO. I think the operative phrase here is ‘‘in part,’’ and

I just want to move on. Do you think that there’s been adequate

time for the reforms to take root at Los Alamos, and do you—would

59

you suggest that they be examined again in the next handful of

months?

Mr. FRIEDMAN. There has not been enough time for them to take

root, and there has not been appropriate time for us to do an evaluation. And I do think they ought to be—they need to be reviewed

both by the Department and probably by the university itself over

the next period of time.

Ms. ESHOO. Well, I think that’s very important. Because if, in

fact, and it’s legitimate, that this committee of investigation and

oversight has been highly critical as the abuses and the mismanagement have been reviewed and hammered, if, in fact, and we

know that they have been put into place, those reforms really need

to be reviewed, both for the good of the contractor if there is to be—

whomever the future contractor is, as well as the performance of

the Department itself.

When you testified before the committee in February, you said it

was appropriate to evaluate the reforms that UC is making at Los

Alamos. And it hasn’t been 6 months yet, and I just want to set

that down for the record. But since you spent time reviewing the

operations at Los Alamos, can you give the subcommittee your impression so far today that you’ve made and, in your determination,

are they successful? I know that you said earlier that they, you

know, everything—it’s in progress. But can you give us an interim

report, so to speak?

And I have to stop now. But I think that you can answer.

Mr. FRIEDMAN. I’m reluctant to do that because we have not done

a comprehensive review.

I will tell you this. It’s clear that the university has taken dramatic sweeping action to change individuals, to change policies, to

change procedures; and we will have to see how effective that is.

Time will tell.

Ms. ESHOO. Thank you, Chairman Greenwood.

Mr. GREENWOOD. The Chair thanks the gentlelady; and, General

Friedman, we thank you for being with us again.

Before I let you go, you mentioned I think 18 open investigations.

Would you supply the subcommittee with the details of those investigations, please, in writing subsequent to today?

Mr. FRIEDMAN. Subject to information that may be criminal activity sensitive, I will do so in writing. Otherwise, I’d rather do it

in a verbal setting. But I will certainly do that with the assistance

of staff.

Mr. GREENWOOD. Work that out with our staff.

Mr. FRIEDMAN. Certainly.

[The following was received for the record:]

At a briefing held for subcommittee staff on May 13, 2003, those details were provided by John Hartman, Assistant Inspector General for Investigations.

Mr. GREENWOOD. We thank you very much for being with us,

and you are excused.

We call forward our third panel consisting of Dr. Richard C. Atkinson, President, University of California; Mr. Bruce Darling, Senior Vice President, University Affairs, Interim Vice President for

Laboratory Management at the University of California; Ms. Anne

Broome, Vice President for Financial Management at the UniverVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
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sity of California; and Mr. Patrick Reed, University Auditor at the

University of California.

We welcome all of you. Thank you for your patience.

Mr. ATKINSON. Mr. Chairman, members of the committee——

Mr. GREENWOOD. If I can ask you to hold for a second, are we

waiting for Mr. Darling? Okay. I need to put you all under oath,

and so we’ll do that all at one time.

Mr. Darling’s thinking, I sat here for 21⁄2 hours. He chooses the

1 minute that I leave the room.

Mr. DARLING. That seems to be my pattern, Mr. Chairman.

Mr. GREENWOOD. Thank you, sir. I think all of you have heard

me to say to the other witnesses that this is an investigative hearing and that it’s our practice to take testimony under oath. So I

would ask if any of you have any objections to giving your testimony under oath. Okay.

I should also inform you that, pursuant to the rules of this committee and the House, you are entitled to be represented by counsel. Do any of you wish to be represented by counsel? Okay.

In that case, if you would stand and raise your right hands

please.

[Witnesses sworn.]

Mr. GREENWOOD. You are under oath.

Dr. Atkinson, you are recognized for your opening statement.

TESTIMONY OF RICHARD C. ATKINSON, PRESIDENT, UNIVERSITY OF CALIFORNIA; BRUCE B. DARLING, SENIOR VICE

PRESIDENT, UNIVERSITY AFFAIRS, INTERIM VICE PRESIDENT FOR LABORATORY MANAGEMENT, UNIVERSITY OF

CALIFORNIA; ACCOMPANIED BY ANNE BROOME, VICE

PRESIDENT FOR FINANCIAL MANAGEMENT, UNIVERSITY OF

CALIFORNIA; AND PATRICK REED, UNIVERSITY AUDITOR,

UNIVERSITY OF CALIFORNIA

Mr. ATKINSON. Mr. Chairman and members of the committee, I

have a formal statement which I’d like to submit for the record, but

I think I’d rather simply summarize that statement in brief form,

and then I will turn to Senior Vice President Darling to bring the

committee up to date on some of the issues that have been raised

in earlier hearings, and then we’ll be open for questions and comments.

Mr. GREENWOOD. Very well. We appreciate that, Mr. Atkinson.

Mr. ATKINSON. Let me begin by taking note that I’ve read carefully the report prepared by Deputy Secretary McSlarrow, and Ambassador Brooks. I am fully in accord with their analysis of the situation and understand very well the reasons that led them to the

decision that has come from the Department of Energy, and I accept that decision. In my formal statement I indicate that I recognize that the university has full responsibility for the business and

management issues at Los Alamos, and we are committed to dealing with those problems and restoring the American public’s confidence in our management of the laboratories.

I do want to indicate that I am very proud of the record of the

University of California, the 60-year record of the university in

managing these laboratories. I won’t review that record, but just

since 9/11, if one follows those events carefully, you will see that

61

the work that has flowed from Livermore and Los Alamos has been

absolutely critical to our response to this Nation’s response to those

initiatives.

Clearly, along with those accomplishments, we have serious

problems at Los Alamos. I will not review those problems, but in

my testimony I am concerned with why there are such problems at

Los Alamos. In the process of the testimony, I indicate some of the

factors that I believe are responsible for that.

I do want to indicate that between the Vice President, Mr. Darling, Vice President Broome and the auditor, Mr. Reed, and particularly—and also the Interim Director, Pete Nanos, that we are

responding and I think responding aggressively to the issues. I

won’t go into the details of why I think we have problems or why

those problems arose at Los Alamos. You can question me on that

later if you’re so interested in pursuing that in more detail. Let me

just simply say that we are focused on the issues.

At the end of my testimony I review the issue of whether the university will choose to compete for the contract when the end of the

contract period occurs. I outline some of the issues that the university will have to grapple with in making that decision; and then finally, in my closing remarks, I indicate that the university—no

matter what the decision is on the part of the university to compete

or not compete, I assure the Congress that for the next 21⁄2 years

the university will be focused on the issues before us and will do

our very best to resolve the issues.

With that, I turn to the Vice President.

[The prepared statement of Richard C. Atkinson follows:]

PREPARED STATEMENT OF RICHARD C. ATKINSON, PRESIDENT, UNIVERSITY OF

CALIFORNIA

Good morning, Mr. Chairman, Mr. Deutsch, and members of the Committee: This

is my first opportunity to participate in this Committee’s proceedings on the business and management practices at Los Alamos National Laboratory.

Let me reiterate Senior Vice President Darling’s previous testimony that the University of California takes full responsibility for these business and management

problems at Los Alamos. As president of the University, I want to assure you that

we remain committed to strengthening financial controls and to restoring the American public’s confidence in Los Alamos and the University’s management of it. This

has been the charge to my senior management team, as well as to the new leadership at Los Alamos, and it will remain the charge for as long as the University is

entrusted with this responsibility.

The Committee has heard testimony from the University about the problems at

Los Alamos and the range of corrective actions that have been taken. Rather than

retrace those steps, I would like to provide you with a slightly different perspective

that goes to the most critical question of all, which is how did this happen?

I have been president of the University of California for eight years. During that

time, I have been enormously proud of the University’s continuing contributions to

our nation’s security through its management of the national labs. Building on the

legacies of Ernest Lawrence and Robert Oppenheimer, Los Alamos and Livermore

have moved front-and-center in the effort to bolster homeland security, especially

in the areas of counter-terrorism, non-proliferation, and prevention and preparedness for nuclear, biological, and chemical attacks. These labs continue as the nation’s leader in findings ways to use the most advanced scientific and computational

assets to simulate nuclear testing and to ensure the continued viability of our nuclear weapons stockpile. We must never lose sight of those critical contributions to

the nation’s security.

Along with its accomplishments, Los Alamos has had problems. It has been a time

of considerable pain to me personally and to the University as an institution. It has

forced us to ask hard questions about our management and to take strong action.

The record will show that the University has responded quickly and that it has reVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 87736.TXT HCOM1 PsN: HCOM1
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sponded well. New performance provisions have been written into our contracts, and

in every instance we have met or exceeded the new requirements.

Still, the question remains: Why these continuing problems at Los Alamos? As

context, let me remind you that the University is a $15 billion enterprise, larger

than many Fortune 500 companies. We employ 160,000 faculty and staff at our ten

campuses, five medical centers, numerous community-based health facilities, an extensive network of agriculture extension centers and three national laboratories.

And we remain, undisputedly, the world’s premier research institution.

By necessity, for a University system so large and geographically dispersed, our

management structure is decentralized. Considerable authority is delegated to our

campus chancellors and laboratory directors. For the most part, this arrangement

has worked well. There is clear accountability and sound management of our education, scientific, research and business and finance systems.

So the question again—why the problems at Los Alamos?

The last six months has been dedicated to probing that question at the very highest levels of the University. I appointed Senior Vice President Darling as interim

vice president for laboratory management and enlisted the expertise of UC vice

president for financial management Anne Broome and University Auditor Patrick

Reed, as well as numerous other top University officials. They have worked sevenday weeks since last December, focusing almost solely on laboratory management

issues while still performing their other University responsibilities. I wish to publicly thank them today for their invaluable service, not just to the University but

also to the nation.

Through their efforts, as well as those of Interim Director Pete Nanos and his new

management team at Los Alamos, we have made considerable progress in implementing the changes necessary at the Laboratory. We are also beginning to understand why there was such a fundamental management breakdown at the Laboratory.

I believe it comes down to two things: First, former Laboratory senior management did not address the problems in a timely or appropriate manner. And second,

neither the University nor the NNSA provided adequate oversight to detect problems that should have been more readily apparent.

Let me focus first on Los Alamos leadership. As President, I appoint the ten campus chancellors and three laboratory directors. All are accomplished scholars (among

them is a Nobel Prize winner), but they also must be able managers who can run

complex organizations that require a careful balance between science and research

and sound business management. I rely on the chancellors and laboratory directors

to alert me early to potential problems and to obtain assistance of my top leadership

team in whatever area necessary.

That did not occur at Los Alamos. The former managers of Los Alamos were slow

to inform me about the procurement problems. When I became aware, I acted quickly, including replacing the top two managers.

But I don’t entirely fault Los Alamos management. As part of the last contract

negotiation, we created a new Vice President for Laboratory Management position

to provide better day-to-day management of the national laboratories. The first vice

president was John McTague, whose leadership and private sector experience led to

strong improvements in management and oversight in a number of key areas, including security, safety and business efficiency. Under Dr. McTague’s leadership, for

example, UC engaged industrial firms to obtain important expertise in security and

project management to reassess and strengthen the labs’ internal systems in these

areas.

However, an unintended consequence of the new management structure was to

isolate laboratory management from other Office of the President functions. Laboratory management did not seek the necessary expertise of our auditors and financial

management team, as it should have when problems arose at Los Alamos.

For this reason, we are devising a new governance structure that much more fully

integrates the Office of the President into laboratory management, much as it already is—with great effectiveness—at our campuses.

There should have been other early warning systems. Among them are the Department of Energy and the National Nuclear Security Administration, which have

more than 190 employees at Los Alamos and Livermore issuing numerous audits,

reports, and assessments. The NNSA’s steady stream of ‘‘excellent’’ ratings suggested to me that laboratory operations were fundamentally sound. I heartily agree

with the recommendation by Deputy Secretary McSlarrow and Ambassador Brooks

that this rating system be revised, but would add my own recommendation that it’s

time to reevaluate the broader DOE and NNSA management structures. I hope this

will be a subject for further discussion.

63

More change is needed, both at the University and at Los Alamos, and I pledge

these changes will be made. These include implementing the recommendations from

the independent reviews conducted by PricewaterhouseCoopers and Ernst & Young,

acting on the various Inspector General findings, and enforcing the strong whistleblower policies already in place.

But perhaps our greatest challenge is to ensure that our reforms are sustained

over time. That said, we are gratified that the Secretary of Energy has recognized

the extent of our efforts and has decided against termination of the Los Alamos contract.

With the Secretary’s announcement yesterday, we are now about to enter into a

new chapter in our 60-year history of managing the national laboratories as a service to the nation for which the University receives no financial gain. I am concerned,

as we move forward, that we not lose sight of the broader national security objectives now at stake at a particularly critical time in our nation’s history.

Those objectives are what drive my answer to the obvious question before me

today—will the University now compete for the contract to manage Los Alamos National Laboratory? My first instinct is to respond: ‘‘Yes.’’ We want to compete—and

we want to compete hard—in order to continue the tradition of excellence in science

and innovation that has characterized our 60 years of managing the national laboratories. We want to compete in order to maintain the world’s premier nuclear design

workforce. And we want to compete because we believe, with every fiber of our institutional being, that continued UC management is in the absolute best interests of

the nation’s security.

But there is another question at stake here, and that is whether the University

of California should compete. The answer to that is less clear, and it goes to the

fundamental nature of these particular government laboratories and the historical

reasons why the University was first asked to manage them.

Let me hasten to add that I am in the last five months of my presidency. The

decision whether to compete will have to be made by my successor and by the Board

of Regents. In making their decision, they will have to grapple with a number of

critical issues. Among them:

• First, what will be the conditions of the competition, including issues of criteria,

statement of work, partnership and organizational structure, and how will these

be impacted by the recommendations to the Secretary by the Blue Ribbon Commission?

• Second, is it even appropriate for the University to pursue a federal business contract? It is one thing to manage the national weapons laboratories at the request of the federal government because of the unique scientific capabilities of

the University, and quite another to actively pursue what could now be interpreted as a business venture. I am not sure our faculty or the people of California would support such action by the Board of Regents.

• Third, what will be the relationship between the Department of Energy, the National Nuclear Security Administration, the Federal Bureau of Investigation

and the contractor? The current relationship is clearly not working as effectively

as it should.

• And finally, our principal contribution over the last 60 years has been to ensure

the science and technological excellence of Los Alamos. That factor should be

a primary consideration in the future contract, otherwise the University should

not compete.

Our hope is that these questions can be answered in the months ahead so that

the University can make an appropriate decision about whether or not to compete.

We believe we would be a strong competitor and an even stronger long-term manager of Los Alamos. As the world’s premier research university, the University of

California is uniquely positioned to provide this service to the nation.

In closing, I want to emphasize that the University, for the remaining term of the

contract, will continue to perform our obligations to the nation even as we continue

to resolve the business and administrative deficiencies at Los Alamos. Our goal remains to raise the Laboratory business practices to the same level of quality as the

science and weapons programs. We owe this to the American people whose security

is dependent on the Lab.

Thank you for this opportunity to address the Committee. I would be pleased to

answer your general questions, and my colleagues are available to respond to specifics. Senior Vice President Darling, who you all know, is overseeing day-to-day

management issues at the Laboratories. With your permission, I would like him to

briefly summarize actions the University has taken since the last hearing.

Mr. GREENWOOD. Mr. Darling you’re recognized.

64

TESTIMONY OF BRUCE B. DARLING

Mr. DARLING. Good afternoon Mr. Chairman, Mr. Deutsch.

Mr. GREENWOOD. You need to push the button on your microphone.

Mr. DARLING. Thank you.

Good afternoon Mr. Chairman, Mr. Deutsch and members of the

committee. I appreciate the opportunity to appear before you for

the third time, and I would like to inform you about actions taken

by the University of California since your last hearing on March

12. These are part of our continued efforts to improve the business

and management problems at Los Alamos National Laboratory.

We have made progress on a number of fronts at Los Alamos,

from nearing completion of the comprehensive property inventory

to addressing the backlog of property identified as missing, lost or

stolen. Let me focus on some of the items that have been of particular interest to this committee.

In recent weeks, we released the findings from two independent

reviews. After 2 months of work by 20 consultants from Ernst &

Young, we’ve released 70 reports—excuse me, seven reports containing 90 recommendations that cover the full range of Los Alamos business practices, including property management. The laboratory is already implementing these recommendations.

Procurement practices were the subject of a separate review conducted by the external review team chaired by former DOE Inspector General John Layton and assisted by forensic accountants from

PricewaterhouseCoopers. The external review teams report identified internal control weaknesses in laboratory procurement and

recommended a number of corrective actions which are being implemented. In addition, I should say these are in addition to corrective actions that were already under way at the lab in advance of

receiving this report. The external review team identified $14,530

in potentially inappropriate transactions out of a total of $2.3 billion in procurement. This information has been brought to the attention of the DOE Inspector General.

Los Alamos management is also investigating five lists of transactions that required additional documentation and review. In the

last week we’ve responded to two Inspector General reports on the

allowable costs audit. We believe that the majority of the costs

claimed for business meals and travel reimbursement are allowable

under the contract and Federal guidelines. However, even so, we

will review our guidelines with the National Nuclear Security Administration and make appropriate policy revisions after that consultation.

The Inspector General also criticized the performance of the Los

Alamos Audits and Assessments Office. As you’ve heard in previous

testimony, the internal audit function is one that we have pursued

very aggressively. As a result, the recommendations contained in

the report are already being implemented.

The Inspector General’s most recent interim report was on internal controls over personal computers. We agree that the administrative processes that account for classified computers are flawed

in ways that make verification difficult. The laboratory is correcting those problems. But I do wish to emphasize one important

point. Los Alamos has verified that every single classified computer

65

has been properly secured and that at no time was classified information compromised or at risk as a result of these records deficiencies.

At the last hearing, I was questioned about specific whistleblower cases at Los Alamos and Livermore National Laboratories.

In response, I sent a letter to Chairman Greenwood addressing the

university’s whistleblower policies which we also reviewed in prior

hearings as well as the cases in question. My letter also addresses

a practice related to reimbursement for legal costs, and the reports

that I’ve seen show no evidence to support the assertion of a culture of retaliation against whistleblowers. On the contrary, the university has redoubled its efforts to insure that employees know

about our comprehensive whistleblower policies; and they are encouraged to express concerns without fear of retaliation.

In addition, I’ve personally met with attorneys for a number of

the whistleblowers whose cases were brought to my attention; and

I’ve arranged for those attorneys to meet with the university’s general counsel to discuss possible ways to settle the cases through alternative dispute resolution.

We’re also working to resolve a number of outstanding personnel

matters. You will recall that on the date of the last hearing the

university attorneys were meeting with the U.S. Attorneys Office

in Albuquerque to obtain crucial information on the so-called Mustang case. We also hoped the meeting might provide other valuable

information. However, the U.S. Attorneys Office did not wish to engage in substantive discussions at that time. The university will,

however, continue to pursue this as soon as the U.S. Attorneys Office is willing to do so.

Similarly, in regard to the Mustang case, the U.S. Attorney is

not pursuing prosecution of the matter; and the FBI has closed its

investigative file on the matter. Yesterday, the FBI denied our

Freedom of Information Act request for the FBI investigative file

so that we could further pursue the matter. Our attorneys are now

reviewing the basis for that denial to determine what steps we

should take next to bring the matter to a satisfactory conclusion.

Finally, I do wish to mention that at its next meeting the university board of regents will approve additional audit procedures for

the national laboratories. The purpose is to expand the scope of the

external auditors review of the three UC-managed national laboratories to include a more in-depth review of the labs’ financial controls. We want to be sure that the financial controls are functioning

effectively going forward.

Unrelated to Los Alamos but of critical concern to the university

and already mentioned this morning are the recent indictments in

an FBI case that revealed the association of a Lawrence Livermore

National Laboratory employee with one of the individuals indicted.

In response, the lab and the university moved quickly to deny the

employee access to his offices, to place him on investigative leave,

to relieve him of his laboratory badge, to deny him physical and

computer access to the laboratory, to change the locks on his office,

and seal those offices so that the offices, the files and the computers were immediately secured. In addition, we requested the

suspension of the individual’s clearance, which DOE acted on immediately.

66

We’ve also initiated a classified administrative inquiry which is

now under the direction of the National Nuclear Security Administration. The lab and university are providing full support and cooperation to that review; and, as you know, the employee has since

resigned.

Mr. Chairman, that concludes my remarks. Vice President

Broome, University Auditor Reed and I will be happy to address

these issues in greater detail or answer any other questions you

may have.

[The prepared statement of Bruce B. Darling follows:]

PREPARED STATEMENT OF BRUCE B. DARLING, SENIOR VICE PRESIDENT, UNIVERSITY

OF CALIFORNIA

Good morning, Mr. Chairman, Mr. Deutsch, and members of the Committee: I appreciate the opportunity to once again report to you on actions the University of

California has taken since the last hearing to address the business and management

problems at Los Alamos National Laboratory.

In recent weeks we have released the findings from two independent reviews.

They include seven reports on core business practices and internal controls at Los

Alamos by Ernst & Young. Twenty consultants spent two months examining the organization, business systems and practices, and the required skills of the Laboratory’s Business Division. Ernst & Young provided us approximately 90 recommendations that cover the full range of LANL business practices, including property management. The Laboratory is in the process of implementing these recommendations.

Laboratory procurement practices were the subject of a separate extensive review

conducted by the External Review Team chaired by former DOE Inspector General

John Layton and assisted by forensic accountants from PricewaterhouseCoopers. In

their report, the team identified various internal control weaknesses and deficiencies that increased the Lab’s vulnerability to fraud, waste and abuse.

The External Review Team recommended a number of corrective actions, including an evaluation of staffing needs across all procurement functions; new controls

in the Just-in-Time program; and safeguards to limit purchases under Local Vendor

Agreements. These recommendations are in the process of being implemented in addition to a number of corrective actions that already were underway at the Lab.

These include reducing both the number of individuals allowed to make Local Vendor Agreement purchases and the number of property distribution sites, known as

‘‘drop points.’’ All drop points are now secured except for 45 that will be secured

or eliminated in the near future.

In addition, the External Review Team identified $14,530 in potentially inappropriate transactions out of a total of $2.3 billion in procurement transactions during

a two-year period. This information has been brought to the attention of the Inspector General. In addition, five lists of transactions were submitted to Los Alamos

management for additional documentation and review. We are in the process of investigating these transactions and thus far we have not uncovered any fraudulent

activity, although some may be determined to be unallowable due to the lack of a

clear policy governing the purchase of required clothing items.

In the last week we have also responded to two Inspector General reports. On the

allowable costs audit, we believe that the majority of costs claimed for business meal

reimbursement are allowable under the contract. Even so, we will review our guidelines with NNSA and make appropriate policy revisions. We also believe the majority of travel claims questioned by the Inspector General are consistent with the applicable Federal Travel Regulation guidelines and are allowable costs. Los Alamos

has researched and resolved 100 percent of the sample items on which the Inspector

General based its ‘‘projected questioned costs.’’

The Inspector General also criticized the performance of the Los Alamos Audits

and Assessments organization. As you have heard in previous testimony, the Internal Audit function has been one of the areas UC has pursued very aggressively. As

a result, the IG report recommendations have already been implemented and are

the subject of ongoing corrective efforts.

In regard to the Inspector General’s most recent interim report on internal controls over personal computers, we agree that the administrative processes associated

with the accounting of classified computers are flawed in ways that made

verification of accountability difficult. The Laboratory is correcting these procedures.

But let me stress one very important point: Los Alamos has verified that all classiVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 87736.TXT HCOM1 PsN: HCOM1
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fied computers have been properly secured and at no time was classified information

compromised or at risk as a result of these problems.

At the last hearing, I was questioned about specific whistleblower cases at the Los

Alamos and Livermore national laboratories. In response, I sent a letter to Chairman Greenwood addressing the University’s whistleblower policies and the cases

about which I was asked. My letter also addresses our practice related to reimbursement for legal costs and it reiterates my testimony at the last hearing that I have

seen no evidence to support the assertion of a culture of retaliation against whistleblowers. On the contrary, the University has redoubled its efforts to ensure that employees know that comprehensive whistleblower policies are in place and that they

are encouraged to step forward with concerns without fear of retaliation.

I have met with representatives for a number of the whistleblower cases at the

two Labs to hear their perspectives on those cases and the underlying causes. In

addition, I have arranged for meetings with the University’s General Counsel to discuss possible ways to settle the cases rather than through ongoing litigation, such

as through our alternative dispute resolution efforts.

We are also working to resolve a number of outstanding personnel matters. You

will recall that on the date of the last hearing, the University’s Deputy General

Counsel and the former U.S. Attorney in San Diego were meeting with representatives of the U.S. Attorney’s Office in Albuquerque. The purpose of the meeting was

to obtain crucial information about the ‘‘Mustang case’’ from the U.S. Attorney’s

meeting with the Los Alamos Lab’s Principal Deputy Director and Laboratory Counsel, as well as to better understand the past working relationship—and to improve

the future working relationship—of the Laboratory and the U.S. Attorney’s Office.

We also hoped that the meeting might provide valuable information about a pending

personnel action. At the meeting, however, the U.S. Attorney’s Office deferred a substantive discussion of these issues.

Similarly, in regard to the ‘‘Mustang case,’’ we have sent on two separate occasions a team of University investigators to visit the owner of AllMustang.com in

Phoenix to obtain additional documents that could enable us to establish who made

the attempted purchase of the Ford Mustang. It is our understanding that the U.S.

Attorney is not pursuing prosecution of this matter and the FBI investigation has

been closed. We have served a Freedom of Information Act request of the FBI investigative file, but we were denied a copy of the file by the FBI yesterday. Our attorneys are reviewing the basis for the denial in order to determine the next course

of action. We are, however, still pursuing the matter vigorously and we hope to

bring the matter to conclusion soon.

On the TA-33 matter, the FBI case is continuing. The lab has inventoried all of

the equipment and supplies improperly acquired, and has recovered all but approximately $50,000 of more than $300,000. The merchandise has been put into use by

the Lab’s major service subcontractor. PricewaterhouseCoopers has been engaged to

assist in reviewing records of purchasing from the vendor from whom the TA-33

purchases were made. The Lab intends to pursue recovery from the vendor for any

residual amounts not otherwise recovered.

Additionally, the Laboratory continues to work on the backlog of property identified as missing, lost or stolen. All open cases have been investigated with no findings of significant cases of theft. Those regarded as suspicious have been referred

to the Inspector General.

As you know, the Laboratory initiated a comprehensive property inventory, known

as a ‘‘wall-to-wall’’ inventory. I am pleased to report that the Lab continues to be

well ahead of schedule and to date has accounted for 97 percent of the total inventory value.

Finally, I want to make you aware that at the next meeting of our Board of Regents on May 14 and 15, the Board will take action to approve additional audit procedures for the national laboratories. The purpose will be to expand the scope of the

external auditors’ review of the three UC-managed national laboratories to include

a more in-depth review of the labs’ financial controls to assure the leadership of the

University that the financial controls are functioning effectively.

Unrelated to Los Alamos, but of critical concern to the University is the recent

indictment in an FBI case which revealed the association of a Lawrence Livermore

National Laboratory employee, who was formerly a senior FBI agent, with one of

the individuals indicted. In response, the Lab and the University moved quickly to

deny the individual access to his offices; to place him on investigative leave; to relieve him of his Laboratory badge; to deny him physical and computer access to the

Lab; to change the locks on his offices and seal them so that his offices, files and

computers were immediately secured; and to request the suspension of his clearance, which DOE acted on immediately. The University also initiated a detailed

classified ‘‘administrative inquiry,’’ which is now under he direction of the National

68

Nuclear Security Administration with the Lab and the University providing full

support and cooperation. The employee resigned prior to completion of this inquiry.

That completes my introductory remarks. Vice President Broome, University

Auditor Reed and I will be happy to speak to each of these issues in greater detail

as well as to answer your questions.

Mr. GREENWOOD. Thank you, Mr. Darling. You’ve been very helpful at all of our hearings, and I appreciate it.

Let me address a question to you, Dr. Atkinson. You indicated

that the university has not made a decision as to whether to compete for this contract or not. What, in your mind, will be the criteria that the university uses to make that decision?

Mr. ATKINSON. Well, Mr. Chairman, the Secretary has a blue ribbon panel examining the issue of what competition should look

like, the criteria that should be included. Senator Domenici will be

holding a series of hearings on this issue over the course of the

summer. I will want to see just what their conclusions are and how

those conclusions are represented in the document.

Second, there is the issue that the university has never competed

for this contract. We’ve always viewed it as a national service. We

were asked by the Federal Government to do this. I would say that

for the first 50 or 45 years of the 60 years we had a marvelous relationship between the university and the Federal Government. Incredibly productive. And I think the results speak for themselves.

The last 10 years have been complicated years. And I must say

that when I look to the future, I would want to be—I would like

to see a different kind of relationship established between the university and the Department of Energy.

When I last signed the contract, I spoke to a group of about 30

senior members in the Department of Energy; and I said that if the

relationships between the Department and the university continued as they had in the recent past—and this is now several years

ago—that I would not be signing the contract.

Mr. GREENWOOD. What was it that you didn’t like about that relationship?

Mr. ATKINSON. Mr. Greenwood, that question was asked at the

time. I don’t think I want to go through all the details. I think one

has to have a—this is a very special laboratory. It’s a science laboratory. It’s a one-of-a-kind laboratory. The recruitment of—you

really want me to get into all the details?

Mr. GREENWOOD. Well, I don’t want you to take 7 hours to do

it. But I just would like to know in general, what—I mean, we have

to decide. The Federal Government has to decide, the Congress has

to oversee the operation of this laboratory for the foreseeable future, and we want to contemplate who’s likely to compete for this

and what would motivate them to compete or not to compete. And

since the University of California has had the contract for all of

these years, it would be helpful for us to know how satisfactory it

has been or it has not been for the contractor here to have this contract. So if you could shed some light on what caused you at the

last signing of the contract to be less than thrilled with the relationship that you had with the Federal Government, I think it

would be very helpful to us.

Mr. ATKINSON. And the university, when it entered into this arrangement entered into it with a view that it would be a cooperative relationship, there’d be an effort on the part of the Federal

69

Government to work closely with the university to identify and resolve problems, and that was the relationship that evolved and I

think was a very successful relationship. In the last decade, I think

that relationship has changed. It’s changed in many different ways.

Mr. GREENWOOD. And let me understand what that means. Do

you mean that the Department has been hands off? In other words,

you said that it was—you wanted a cooperative, close working relationship and that has changed. Has that changed in that the Department has not been aggressively involved in identifying issues

of concern and helping to resolve them? Have they been hands off?

Have they been meddling too much? Have they been quarrelsome?

Mr. ATKINSON. Mr. Chairman, it’s a range of issues. I’m not

going to—I can’t—again, I don’t think I want to identify specific individuals.

Mr. GREENWOOD. I’m not asking you to.

Mr. ATKINSON. What I’m saying is that we have not had a cooperative relationship and in many different areas, and I think

there’s been—although I have said that I thought the report that

was delivered to the Secretary was an excellent report and a very

fair report, I agree with that remark. On the other hand, there are

a number of events that do disturb me.

When I became president there were a number of issues—this is

8 years ago—that I focused on with regard to the laboratories. I

must say that the business area was not one of them because I had

thought at the time that was in good shape.

I certainly observed with interest year by year the various reports from the Department of Energy that we were in—being

ranked very highly. So I would like a view to be established that

there is a joint responsibility for some of the problems. But that

may be asking too much. But I think I was trying to respond to

your question as to whether or not we would bid for the contract.

I think I pointed out that we’ve done this as a national service.

Mr. GREENWOOD. Well let me ask you about that, because I’ve—

you said that a moment ago, and Mr. Darling has said that. When

you say that, do you mean that you felt that it’s your view that

having this relationship, having this contract has not been a benefit to the university?

Mr. ATKINSON. Mr. Chairman, you can get any answer to that

question from anyone one you would like.

Mr. GREENWOOD. I’d just like your answer.

Mr. ATKINSON. I do not, in total, believe—first of all, I believe the

university has lost considerable money running this laboratory;

and I can give you specifics of that. I think that there’s certainly

been benefit for our scientists to interact with the scientists at Los

Alamos, and I think that’s been wonderful for the country and for

the scientists at Los Alamos. But I think they would have had that

access if someone else were running the laboratory. So I think

we’ve carried a heavy burden in running these laboratories. We’ve

done it as a matter of national service.

Mr. GREENWOOD. Well, what do you think would—it would seem

to me that if you’re sitting here today saying we lose money, a lot

of money, we have an uncooperative relationship with the Department of Energy, and our scientists could probably have this experiVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
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ence regardless of who managed it, I can’t see any reason for you

to want to bid on this.

Mr. ATKINSON. Well, I think that’s an interesting conclusion you

have come to.

Mr. GREENWOOD. Well, is it a conclusion to which you have

come?

Mr. ATKINSON. No, it’s not. I haven’t come to that conclusion yet.

I mean, this is very important. It’s important for the country. The

future of this country is going to be very much dependent on what

happens at those laboratories, and we’re conscious of our responsibility. We’re conscious of our historical commitment. And we’re

going to maintain a great concern about the future. And, you know,

I’m willing to tolerate a great deal of problems running those laboratories if I think it’s productive for the country; and that is the

overriding factor. If you——

Mr. GREENWOOD. It seems to me that what we should have here

is a situation in which, whoever manages the contract, whether it’s

your university, another university or private company, doesn’t lose

money, has a cooperative relationship with the Department that is

productive for both, on both parts and that the contractor feels that

the contractor gets some benefit, that it’s a good thing to have this

contract.

Mr. ATKINSON. I agree with you totally.

Mr. GREENWOOD. And so—because no one’s going to compete for

a contract—and I wouldn’t compete for a contract in which it

looked like it was all an unpleasant burden that I just do out of

a need for service, and then I become embarrassed when things go

wrong, because that’s always your reputation at the university.

Mr. ATKINSON. Mr. Chairman, we agree totally with you.

Mr. GREENWOOD. Okay, so it seems to me what we ought to be

about and what we would certainly need your help with and hopefully between now and when the contract is bid that you would

help the Department think through how it would design a process

by which whoever bids would feel entirely differently about this,

would not lose money, would feel happy with the relationship and

would feel that they’re getting some benefit out of the relationship.

Mr. ATKINSON. Mr. Chairman, in my testimony, I pledge that for

the next 21⁄2 years that we will do all that we possibly can to insure the future success of those laboratories.

Mr. DARLING. And, Mr. Greenwood, I would just add to Mr.—to

the President’s remarks that I have had those discussions with the

Department of Energy and with the National Nuclear Security

Agency and I have begun a process of doing exactly that for the

very reason that you outlined in your earlier comments.

Mr. GREENWOOD. Okay. I’m interested in your comment about

losing money. Generally, how does it happen that the university

loses money here? Because it’s been my understanding that essentially that the operation was one in which all costs were recovered.

Mr. ATKINSON. Well, I’ll just give you one example. In the long

history of this relationship, we have a policy whereby the sons and

daughters of scientists or staff at the laboratory can attend the

University of California as in-State residents, paying in-State residents fees and receiving financial aid which, for the University of

California, is quite significant. We do work very hard at financial

71

aid. We’ve never been reimbursed for that. We’ve never sought the

reimbursement for that. Over the years, that’s been a huge amount

of money.

Mr. GREENWOOD. Well, that sounds like it’s probably not a good

idea for the next contract then.

Mr. ATKINSON. Well, that’s not the way I view it. I mean, those

are the sorts of things that I don’t want to have in the contract.

Another example——

Mr. GREENWOOD. But, I mean, the employees—it’s not been my

experience, looking at the numbers, that the employees of the laboratory are particularly underpaid. They’re paid quite well. So to

provide to them a benefit of free college education for their sons

and daughters is an expensive proposition and in that a new contractor may not want to take that on.

Mr. ATKINSON. Well, that may well be. But part of the relationship here is the relationship of the university with the scientists

of the laboratory, trying to maintain a very close relationship. Once

someone goes to the laboratory and focuses their long-term career

in the laboratory, they’re in a certain sense isolated from the larger

scientific community. Their association with the University of California is extremely important to them. And part of this is to really

assure them that we want their children at the university, that

they are indeed full members of the university. And if you look

across the laboratory particularly of the senior scientists you’ll see

that their children often have 2 or 3 degrees from the University

of California.

I think it is a very important thing that we do. I am very proud

of what we do.

The outreach efforts in northern New Mexico. We’ve put a great

deal of effort into outreach efforts in the K through 12 schools and

the like in this area. We don’t—we have some mild reimbursement

for that. But we don’t have the full range of the reimbursement

that’s associated with all the efforts of the University of California

to develop K through 12 preschool programs.

So I’m not complaining. I’m not saying that we’ve—that I’m complaining about the loss of money. I’m proud of the fact that we’ve

done these things. But I think they’re extremely important. I’m

proud of them. And I just want to point out that we’ve not—I

mean, a number of people think we’ve gained from this financially.

We surely do not gain. No one would argue that.

Mr. GREENWOOD. I don’t think any of the members of this committee have ever made such a statement.

Mr. ATKINSON. Well, I’m not saying you did but certainly a number of people think that’s the case.

Mr. GREENWOOD. Okay. My time has expired, and I would notify

the witnesses that I have to leave for another commitment, and

Mr. Radanovich will be chairing the balance of the hearing. Thank

you for your cooperation this morning.

The Chair recognizes the ranking member, Mr. Deutsch.

Mr. DEUTSCH. Thank you, Mr. Chairman.

I’m going to ask unanimous consent that a letter from attorneys

representing, I guess, whistleblowers that was referred to in your

testimony be submitted for the record and—just so we have it

available.

72

Ms. Broome, in an interview with committee staff, you indicated

that the current Los Alamos business operation staff was inadequate for that task and that new people have been—or new people

would be hired. Can you tell us why new people with new ideas

and better skills should come to Los Alamos after what happened

to individuals including Mr. Wobb, Mr. Dorn with their new ideas

and better skills?

Ms. BROOME. Well, that’s not a simple question. I would hope

that the opportunities at Los Alamos would be sufficient to attract

new staff. As we’ve indicated, it’s probably the most exciting area

in terms of science, we feel; and I feel very confident that we are

going to be able to improve. We have already improved a number

of the business practices at Los Alamos.

This would be a very challenging position, for instance, to senior

financial officers to come in and to be able to make the improvements. So I am confident that we will be able to attract people.

We’ve done a number of things in that connection already. For

instance, one important thing that we have started is a program

of internships for MBAs and for business students within the New

Mexico area. We think it’s important to grow our own people so

that we don’t have to bring people in on a massive scale. But we’ll

be able to bring people along.

Mr. DARLING. And, Mr. Deutsch, if I just might add, I think your

question was, given the past, why should they come for the future.

And I think if you look at the changes we’ve made in personnel,

in systems, in policies and procedures, the commitment that we

have made to the laboratory from a new director through the entire

organization, I think that people should see that there’s a new tone

being set and I hope we can recruit them to be part of accomplishing what we should be accomplishing for the United States.

Mr. DEUTSCH. You know, one of the—I guess a follow-up question

to that is, really, how long are you going to be there? I mean, how

long do you expect the management or the new systems to be in

place, the new people to be in place to insure that there is, in fact,

a new day where the main goal is not seeing how quickly cosmetic

changes are there, can be made, so that, you know, that DOE auditor doesn’t see anything wrong at the next point in time?

Mr. DARLING. Mr. Deutsch, I would urge you to remain skeptical.

I would urge you to remain skeptical until you see the kind of actions that cause you to be otherwise.

And I would just say that we have—as I have said before, we’ve

changed 18 senior management at the laboratory, beginning with

the director and others. We have committed over $5 million of the

university’s money for which we will not seek reimbursement for

the government to carry out the kind of reforms and changes that

admittedly should have been made earlier, were not but are being

made now. And so I would say that there is a real tone change not

in just individuals but in practices and policies, in systems.

Mr. DEUTSCH. One of the questions that I raised earlier and I

think a number of other members raised as well is, I guess having

sat through several of these hearings we are in this culture at Los

Alamos which says don’t make waves. What’s going to happen if

these new employees make waves?

73

Mr. DARLING. That is a troubling issue for us. And as I testified

at the earlier hearings, this is something we are focusing on to

change dramatically. Since interim Director Nanos has arrived,

since Vice President Broome took over the business operations,

since Auditor Reed took over the audit operations, we have received a flood of complaints, concerns, and other issues that reflect

that there was indeed a pent-up desire to speak out but a fear of

doing so. I think with that flood of comments, e-mails, letters, personal remarks, we are beginning to see in the employees of the laboratory a sincere belief that the new management is open to those

concerns and now it’s our responsibility not to let them down and

to uphold those changes.

Ms. BROOME. Can I add to that? In connection with the business

process improvement work that we have done that hopefully I will

have an opportunity to tell you about, we made the employees a

very significant part of the improvement. In fact, in addition to all

the external reviews, we had the internal financial management

conduct self-assessments so that we could get their views and make

them part of the solution to correct these problems. They are very

much a part of this solution. We have a very open policy in dealing

with people. I listen to numerous people with regard to what they

think is the problem and how we might fix it. I’m a big believer

that the people who do the work know a great deal more about the

problems than somebody sitting at a higher position.

Mr. DARLING. I would also like to ask the auditor to talk about

the new whistle-blower policies and the changes that are being

made in that regard as well.

Mr. REED. Thank you for the opportunity to comment. The first

step I think in changing the culture is giving the people the confidence to come forward. Then it is up to us how we treat them and

how we treat their issues going forward.

As you’re aware, I believe in late January or early February, we

instituted a Pinkerton hotline service to create a new avenue for

employees to come forward with increased confidence of confidential treatment. We received 13 phone calls so far on the Pinkerton

hotline, almost all of them in the first few weeks of that service,

with the last call being March 17. We have received a flood of letters, e-mails, phone calls, that Vice President Darling alluded to.

I have been approached in the parking lot. I have advertised my

e-mails and telephone number. The volume of whistle-blower complaints in our fraud, waste, and abuse inventory that we’re investigating in my internal audit unit has grown by sixfold since the

first of December. I think it’s a positive thing, I think it signals employees willing to come forward and talk to us and I think the fact

that we have seen a continued influx of calls but less use of the

Pinkerton hotline signals to me that people are willing to come forward to us. As I said, that’s a start, getting them to feel confident

to come forward.

Now, how we treat them and how we treat their issues is critical.

We are implementing the university’s new whistle-blower policies

which create a process for managers to recognize when a whistleblower complaint is being made, how to funnel those into a central

process where they are worked and handed off to the right investigators, communications back to the whistle-blowers so they get a

74

closed loop, and, at the same time, the whistle-blower retaliation

policy which protects people from retaliation is being implemented.

I think that there is a change being made, although I understand

fully that it would take a long time before the workforce is confident that there is a change and that they can come forward without fear of retaliation.

Mr. DEUTSCH. There’s no question that the lab has done great

things. No one has ever questioned that. And I would agree, Dr.

Atkinson, a very unique role in American history in the world of

science. And clearly that didn’t occur without a culture of discussion and critique and—you know, in terms of science. And one of

the things we talked about is clearly the lab at the same time, you

know, there’s an expectation that it’s run within a business practice model and I guess, you know, can—in terms of—I don’t want

you to spend as much time running the lab as a business, as a

science. That’s clearly the higher goal.

I think what we have talked about it becomes problematic at so

many levels. And I guess is there anything we can do on the business model side to encourage some of this robust discussion that

exists, just to get some of that from management, from employees

to really have that? Is there anything that you can focus in to do

that? I assume in other branches of the university, you are much

more successful at it than you are at this location.

Mr. ATKINSON. Mr. Deutsch, in a certain sense you have already

done it. The committee’s investigation here has really focused our

attention. Clearly we were not focused carefully enough. We should

have identified these problems. There’s reasons for our failure to

identify them, but those are not satisfactory reasons. And there’s

no question we will be fully focused on them in the remaining 21⁄2

years as we serve as the contractor.

Mr. DARLING. As we commented in prior hearings, you’re right. We have 10 campuses. The university is a $15-billion-a-year enterprise, larger than all but 125 companies on the Fortune 500 list.

We have not experienced these problems at our 10 campuses or at

the other two labs. We clearly had serious problems at this lab and

I hope we have shown you some sense of our desire to get on top

of these issues and improve them in the last few months.

Mr. DEUTSCH. Thank you.

Mr. RADANOVICH [presiding]. Thank you, Mr. Deutsch. Regarding

your request to submit for the record, I ask unanimous consent for

without any objection that might be to include this in the record.

There being no objection, so ordered.

Thank you and welcome to the panel. It’s good to see you again.

Let me start off by asking a couple of questions. Dr. Atkinson,

regarding I guess a more recent situation several weeks ago, apparently it was disclosed by auditors at Los Alamos that employees

were selling proprietary computer programs and using the proceeds

from the sale to purchase computers and equipment outside of the

Los Alamos procurement system. And apparently there was either

a division of—a division supervisor who knew and allowed these

sales to continue for several years. Can you tell me the current status of this investigation and whether you can state with any confidence that these foreign sales did not contain classified information and how the University of California intends to address this

75

situation? Apparently there was some thought that there was even

foreign sales going on.

Mr. DARLING. I would like to make a few brief comments. This

is a case in which a scientist at the laboratory became frustrated

with the technology transfer mechanism in the laboratory which allows an individual to take an invention or discovery, license it to

an outside company, and then use the proceeds to benefit the laboratory and the science and thereby also benefit the American

economy by creating jobs and new companies. This individual, upon

becoming frustrated, decided to take this matter into his own

hands and basically entered into a licensing agreement with companies without the laboratory or the university’s knowledge. And

indeed we have heard there were licenses made to companies in

foreign countries.

I would just reiterate that it is unclassified. We are investigating

this matter seriously. The individual is fully cooperating. And I

would like my colleagues to give you more information about it.

Mr. REED. The issue arose in mid-February and we immediately

engaged PricewaterhouseCoopers to assist us in the investigation.

As Senior Vice President Darling has said, the software involved is

unclassified software and the individuals are cooperating. We have

disclosed the matter to the Inspector General’s office since day one.

We have communicated daily with them on this matter, and yesterday delivered a draft report to both Ralph Erickson at the contract

office and the Inspector General’s office. That draft report concludes that there was diversion of revenue, that there was avoidance of university and lab policies, that there were export control

violations. But as was stated, the software is unclassified. In 1996,

Commerce Department approval to license the software was granted. Some of the sales occurred before that date. None of the sales

occurred to prohibited countries, but there are still very much policy issues and issues of export control that officers at the laboratory

are looking at.

Mr. RADANOVICH. Mr. Reed, can you tell me the status of the employees that were guilty of this? Are they still employed?

Mr. REED. The employees, because of their cooperation, have

been left in the employ of the lab and are not on administrative

leave, but we will be issuing a final report in the next several days,

and lab management and the Department of Energy Inspector General will proceed with their own courses of action.

Mr. RADANOVICH. Apparently in the draft report—and I don’t

know if you could illuminate what the policy is between acting during the time that the draft report is out to the time that the final

report is out—but apparently the division manager knew about

this and was already included in the draft report.

Mr. REED. There were a number of people at the laboratory who

knew of this over the years. The beginning of the sale of the licensing occurred in the mid-1990’s, so this has been an ongoing event

for a number of years. People who knew and either had the same

belief that the engineer—software engineer who developed the code

knew that the technology transfer program did not serve them

well, and this was justified in some fashion because they were trying to bring the money back into the labs. I think there was some

justification. And there are others who knew who may not have

76

had the specific knowledge of the mechanisms by which funds were

flowing. It is problematic that a division director knew, and that’s

got to be dealt with as a separate personnel matter.

Mr. RADANOVICH. You’ll act on that once the final report is in?

Mr. REED. We’ll refer our findings to management for their action.

Mr. RADANOVICH. There’s an issue regarding the pension fund

that I want to ask and I’ll leave it up to you, Doctor, or anybody

else who wants to address it. There is a very generous pension plan

for Los Alamos employees, apparently not as good at other national

laboratories. And there’s an issue as to what happens to that pension plan once—if this goes up to bid and somebody else is the bid

winner. Can you—is it in your opinion—let me read this question:

Other national laboratories across the Nation don’t have pension

plans nearly as generous as that as the University of California.

Do you believe it is essential to effectively manage Los Alamos,

that future contractors offer an equivalent pension plan for future

Los Alamos employees?

Mr. ATKINSON. Let me just say that the laboratory’s pension plan

is the University of California’s pension plan. I don’t consider it

particularly generous. It is the case that the regents have been remarkably effective in the investment of the pension plan, and as

a result we have not been having to ask employees to pay into the

pension plan for some period of time.

In terms of the termination of the contract, there would be no

problem of separating out the funds that are identified for laboratory employees and the rest of the university. So I see that as no

obstacle to dealing with a termination of the university. The issue

of what another contractor should do in terms of benefits, I don’t

have anything hard on that.

Mr. DARLING. Mr. Radanovich, I might just add, because no employee of the university nor the university, or, in this case the Federal Government, has had to make a payment to that pension plan

for the last 10 years, the University of California saved nearly $1

billion in pension payments over this period of time. That is a large

amount of money due to the outstanding investment of those funds

by the university. And I don’t know if you can say that about any

another DOE contractor.

Mr. RADANOVICH. Thank you. In the event of a change in contract, how does the university intend to treat the surplus in the

pension fund for Los Alamos employees?

Mr. ATKINSON. There’s absolutely no problem there. The legal

grounds for separation are very clear. Whatever the proportion of

the funds are that relate to the employees of Los Alamos, those will

go to the employees. It’s not an issue. As I understand the way the

contract is written, if there’s a deficit in the pension plan, the Department of Energy is obliged to make up that deficit at the time

of segregation of the lab employees from the university. If there is

a surplus, that surplus would travel with the laboratory employees

to the new contractor.

As you heard this morning, Ambassador Brooks made the statement that one of the conditions for the new contract competition

will be that any new contractor would be obliged to provide the

pension plan to new—to the employees of that new contractor.

77

Mr. RADANOVICH. Can you answer—and let us move on. I am

very concerned if a contract left U.C. And went to someone else

that—the potential loss of talent that might be accompanied with

that. So—and again, I’ll leave it to you, Doctor, and anybody else

who wants to respond to this, but other national labs, for example,

Sandia or Brookhaven, have changed their management contractors and not suffered a loss of scientific talent.

Can you explain why this is not the case with Los Alamos? I

need to get that into the record clearly.

Mr. ATKINSON. It’s a judgment as to whether they’ve lost any in

their scientific work. Different people have differing opinions about

that. And I think you would find a number of people who feel that

the work of a number of the laboratories has gone down in recent

years. Now, what was the question?

Mr. RADANOVICH. Why is U.C. At Los Alamos different than

other research laboratories in that if the contract were to change,

my fear is that we are going to lose a lot of talent.

Mr. ATKINSON. I’m not sure how to answer that. Are you of the

view you will lose talent?

Mr. RADANOVICH. It’s suspected if the contract were to leave U.C.

And go to somebody else, there would be a brain drain of the talent

in U.C., that some might retire early. Perhaps Mr. Darling.

Mr. DARLING. It’s intriguing, while the hearings have been going

on over the past few months, the Department of Defense has been

facing a very serious problem. The Department of Defense manages

a number of Department of Defense laboratories to serve the military needs of the Nation. Those laboratories are, in the judgment

of the Defense Science Board, the highest policy adviser to the Secretary of Defense not achieving their mission for the United States

defense. One of the reasons is that, because they are Federal employees, they have adopted a civil service employment system

which is not able to recognize scientific talent, not able to recruit

scientific talent or reward it. So if you read the Defense Science

Board report which goes back over a 10-year period, the Defense

Science Board is actually recommending that the Department of

Defense no longer manage those laboratories but, rather, have private sector contractors or preferably universities take over those so

that the missions can be better met. So that is setting the context

about this.

I should comment, at Los Alamos and at Livermore, the number

of retirements in the first 4 months of this year is double the period in prior years and we have seen a huge spike upwards in the

month of April as this—as the decision by the Secretary was looming. I cannot tell you, since the decision was made yesterday,

whether that will continue or whether it will settle down. I hope

indeed that it will settle down, and so we’ll have to wait and see

over the next few weeks and months.

Mr. RADANOVICH. Can you tell me, too, Mr. Darling, most of the

people that would qualify for what is considered an awfully good

pension, can you tell me the difference between those who might

want to retire, say, people that are in their fifties and what might

be the difference between employees there in their fifties and, say,

in their twenties.

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Mr. DARLING. One of the big concerns we have, the Nation has

a very limited number of individuals—I’ll be very direct—11 at Los

Alamos, 16 at Livermore—that comprise the only individuals who

have ever designed a nuclear weapon for this country—excuse me,

headed a team that designed a nuclear weapon and then had an

opportunity to test that weapon to make sure that it will do what

is required of it should the President be required to use nuclear

weapons. With that in mind, the median age of those individuals

is 57 years old. Many of them have been at the laboratory for their

entire careers. And under the university’s pension system they

could retire today with their retirement very close to their current

salaries. They have indicated—many of them have said they are

not prepared to go through a change in contractor. I hope, and

deeply and personally hope that that is not the case, and we will

do everything we can to assure them so that that does not take

place, but that is a very serious risk to this country.

Mr. RADANOVICH. Thanks, Mr. Darling. My time is up. I would

like to ask a couple more questions, though. I would like to recognize Mr. Stupak.

Mr. STUPAK. Thank you. Dr. Atkinson, in your statement here,

I am looking at the first page, paragraph number 5.

Mr. ATKINSON. I will need to get a copy of the statement.

Mr. STUPAK. You say: Ask hard questions about our management

and take strong action. Record will show that the university has

responded quickly and has responded well. New performance provisions have been written into our contracts, and in every instance

we have met or exceeded the new requirements.

How do you know you have met or exceeded the new requirements?

Mr. DARLING. President Atkinson also makes the point a little

later on in his opening remarks that the Department of Energy has

the responsibility to evaluate that. And one of the troublesome aspects of this whole episode, Mr. Stupak is that the laboratory was

receiving excellent ratings in all of these areas. We did not—let me

back up and say—first of all, we are not making any excuses.

Mr. STUPAK. I just want to know, have you done something, evaluations or audits or something to back up these words? Everyone

is saying all these things are going great. I haven’t heard anyone

say we had this audit and we passed this and did that. That’s what

I am trying to ask.

Ms. BROOME. Would you like me to address the audits?

Mr. STUPAK. I just want someone to answer my question. We

have had earlier testimony that the last 4 to 6 months, things have

been better there. How do you know it? How do you know it’s better?

Ms. BROOME. I think by the controls we’re putting in and the

testing of these controls. As an example, the largest problems we

had were in the area of procurement, and we developed a whole

procurement quality assurance function and we instituted audit

procedures to be—to ensure that procurement procedures are being

followed. The initial results of those audit procedures show that the

appropriate procurement techniques are being followed.

Mr. STUPAK. Who did that review to make sure things were

being followed?

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Ms. BROOME. That is being done by the staff at Los Alamos,

under my direction.

Mr. STUPAK. Let me ask then, and go Mr. Darling, to the computers. You were talking about the computers and I believe you

said computer problems have been corrected and they’re all secured. Is that basically what you said?

Mr. DARLING. If I may, there are 164 classified laptop computers

at Los Alamos National Laboratory. The DOE Inspector General’s

interim report raised question about four of those classified computers. We have located all of them.

Mr. STUPAK. You located those four?

Mr. DARLING. We have those four. They have been secured and

in a proper place at all times. This is a further reflection of the improper administrative procedures at the laboratory that did not

have a complete inventory of those, and I would be happy to walk

through each and every one of those four.

Mr. STUPAK. I don’t want to take all my time on these computers.

He says there are 22 unlocated laptop computers and this report

is April 24, so it’s about 8 days old. So in the last 8 days, the four

classified ones you said have been found?

Mr. DARLING. Four classified ones were never lost. They were

simply not on the inventory that the DOE Inspector General consulted in order to track them. We’ve had a procurement property

management in a number of areas, some very serious problems in

not having items appropriately at the lab show up on the data

bases for recordkeeping. That is what we had here. The Inspector

General just consulted the property management report. Did not

look at the list of classified computers where those computers show

up.

Mr. STUPAK. They show up, but they have been physically found?

Mr. DARLING. They do exist and they are in a secured area.

Mr. STUPAK. What about the 10 that he claims that are stolen?

Mr. DARLING. One of the problems that we do have, sir, and we

have acknowledged this in prior hearings in which you were not in

attendance, is that there has been a lax set of procedures for handling missing, lost, or stolen property. Individuals have not been

held responsible and the lab has not pursued those so-called

unlocated computers or other property to see what they are. We are

now putting in place procedures to do that. We are embarrassed by

it and we intend to make sure that this does not happen again.

Mr. REED. If I might add.

Mr. STUPAK. Of these 18 or these 22, 4 have been found. Let’s

say there’s 18 out there. In your testimony, the computers that

have been secured——

Mr. DARLING. I was referring to the classified computers.

Mr. STUPAK. From this day forward, you’re saying they’re secured.

Mr. DARLING. I’m saying they were secured and they’re presently

secured.

Mr. STUPAK. How about the hard drive that was missing when

I was out there in January? Has that been found?

Mr. DARLING. There was a hard drive carrier that was properly

located in a secured area. There was not a hard drive in it. There

is no——

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Mr. STUPAK. But your inventory report shows a hard drive with

a hard drive in it.

Mr. DARLING. That’s correct—well, I can’t recall that. Your memory is better than mine. We have no evidence to believe that there

was a hard drive. We don’t know whether there is. That remains

unresolved.

Mr. STUPAK. And everyone’s clear now at Los Alamos that if a

computer is missing you have to report it to somebody, right?

Mr. DARLING. Before you do, Pat, I just want to refer to other socalled classified removable electronic media, which is what the

hard drive is. We are trying to move away from having hard drives

used for classified information because of the concerns you raised.

So the laboratory has begun to move—at the Nicholas Metropolis

Center where Mr. Greenwood, and I believe you may have visited

as well, in January—toured a new environment where you don’t

have a removable media used for classified material. We have instituted procedures whereby there will be at the exit of a classified

building—I guess the best analogy would be like when you leave

a library or store, there is a device that lets you know when you

are exiting the building. We have instituted a number of highly increased rate of randomized checks to make sure that individuals’

briefcase and other materials are looked at on a regular basis. So

we are trying to, in every way we possibly can, make sure that

classified material is accounted for, as you would expect us to.

Mr. STUPAK. Mr. Reed, you mentioned about the Pinkerton, your

confidential line there. You have had 13 calls, right?

Mr. REED. Yes, sir.

Mr. STUPAK. Have you verified those complaints in those 13

calls?

Mr. REED. Well, those 13 calls represent one intake source.

Mr. STUPAK. Just answer my question. Thirteen calls, what did

you do with the information?

Mr. REED. All the complaints that come in to us, I can’t tell you

precisely on those 13 which are closed or open. But we have not

found any significant theft of property from those complaints or

the—or other significant investigation.

Mr. STUPAK. Of these 13 calls, were they about thefts of property

and things like that?

Mr. REED. They range from thefts of property to——

Mr. STUPAK. Let’s say theft of property. Did you check, and was

in fact property stolen based on that call?

Mr. REED. We have had 104 intakes.

Mr. STUPAK. I am just talking about the 13 now.

Mr. REED. Those come into the process and all complaints come

into the process. We have worked all the missing property cases;

35 are closed, 69 are still open.

Mr. STUPAK. How about just these 13? I am only dealing with

stolen property.

Mr. REED. I would have to get you the information.

Mr. STUPAK. See, the point I am trying to make: You put up this

confidential line, change the tone and tenor of this place, and you

have this confidential line and people call in; they trust it for a

minute here, and if you’re not getting back to them and if you’re

81

not verifying what’s going on, they just think oh, hell, it’s the same

thing that went on before.

Mr. REED. I’m sorry to have confused you. We are working on

each one of these cases. I am having difficulty as we sit here pulling the Pinkerton cases out from those who reported these matters

to a different channel.

Mr. DARLING. And Mr. Stupak, if I may add, one of the features

of the anonymous whistle-blower hotline is that an individual can

call anonymously, can report an event, they are then given a case

number. We are then obliged, or obliging ourselves to then call

back the outside hotline to inform what the progress is so the individual can still anonymously call in and check up on the progress

of that case by case number without revealing their——

Mr. STUPAK. I understand all that and I am trying to figure out

if you’re doing it, because you are never going to restore the confidence unless they know what’s going to happen.

Mr. DARLING. I completely agree with you.

Mr. STUPAK. This division manager that the Chairman asked

about, on this software that had been going outside the system that

has been going on for a long time, you indicated in the preliminary

report no disciplinary action has been taken. Maybe OIG might do

something. But my impression is the university is not going to do

anything.

Mr. REED. Not to confuse you again, the report has just been provided to management in draft form as of the day before yesterday.

The decision not to put the—I will call it the perpetrator of the licensing scheme—was made back in February because of their cooperation. The report disclosed 2 days ago was the first disclosure

of who had an awareness of what was going on. Mr. DARLING. We

have terminated 18 individuals. Every individual that has been

brought to our attention involved in theft where the investigation

has been concluded—the auditor, the deputy director, the director,

the head of security, the deputy head of security, the chief financial

officer, the head of the procurement program, the head of the purchase card program—all of those individuals have either been terminated or removed from the laboratory or reassigned for the very

reasons you mentioned. Persons must be held personally accountable for their actions and we intend to do so.

Mr. RADANOVICH. Your time is up.

Mr. STUPAK. I just wanted to ask him about the Mustang case.

No decision on that one yet?

Mr. DARLING. The Mustang case is one of the ones that we had

hoped to obtain additional information from the U.S. Attorney in

Albuquerque. Because we did not do so because the FBI refused

our Freedom of Information Act request to obtain information, we

have sent two individuals out to the vendor in Phoenix to obtain

additional documentation that might tie that purchase to a specific

individual. Mr. Reed can comment further, but we are not where

we would like to be in that investigation.

Mr. STUPAK. You don’t have to wait for law enforcement to take

any internal action.

Mr. DARLING. Yes. In accordance with our contract when there

is a theft, we are first obliged to notify the Department of Energy

Inspector General or Federal law enforcement officials. They then

82

take possession of the case. We put the individual on investigative

leave. We were not allowed to take any actions whatsoever in the

case until they had handled it. It was only at the last hearing

where they relinquished the authority and where we could for the

very first time begin to pursue our own investigation.

We have pursued personnel action and that action is pending. So

we have not—we have been pursuing it aggressively since we were

given the authority to do so.

Mr. RADANOVICH. I’m afraid the time is up. We will be going up

for another round of questions. So if anybody has any further questions they want to ask, there will be the opportunity, but I would

like to recognize Ms. Eshoo.

Ms. ESHOO. President Atkinson, Vice President Darling, Mr.

Reed and Ms. Broome, welcome. It’s good to see you. When Chairman Greenwood was asking—and I would like to set this down for

the record—about the dollars that the university has expended over

the years and in terms of a benefit for in-state tuition for employees, I would like to just highlight and underscore what that means.

If any of us had as a benefit that our children would have a deeply

discounted reduced tuition to Harvard or to Yale, we wouldn’t

spend a nanosecond to struggle to come to the conclusion that that

is a great, great benefit. And so I think that needs to be appreciated here. That isn’t anything that is insignificant.

And if I might say, the University of California has in its combined 10 campuses, has duly earned the reputation of being the

greatest public university in the world. It is not without her problems and certainly some of them is what has brought us here

today. But I would think if anyplace is going to recognize what a

great university’s role is in terms of our Nation and the betterment

of our Nation, certainly the Congress should recognize that as we

review both the contract, the problems that have occurred, and the

longtime stewardship of the university.

On page 7 of the recommendations to Secretary Abraham, there

is a footnote. And what I would like to do is just to highlight that

again, Mr. Chairman, as you pursue the questions relative to pensions, and I do have some questions on that. But that footnote

talks about the prospect of termination already having an adverse

effect.

Now, we are talking about a benefit that accrues to our country

relative to the role of the contract and what happens with the

science. As of April 8, 266 Los Alamos employees, 68 with critical

skills—and maybe someone from the panel would like to identify

what a critical skill is—have applied for retirement. In contrast

there were only 177 retirements during all of 2002. Retirement requests at Livermore are currently running at roughly twice the

2002 rate. So I think that good, bad, or whatever is in between,

that this is all having an effect.

My question to you is, No. 1—and I know that it’s difficult to

look down the road, but, President Atkinson, as you described the

relationship over the years—as I said earlier, I was 4 months and

1 day old when the first contract was entered into and I am not

suggesting that you were around then doing this—do you believe,

and the problems that you have I think pretty frankly alluded to—

83

do you believe that U.C. Will recompete for this contract as it becomes available in 2005?

Mr. ATKINSON. It is just too early for us to make a statement on

that. There are a lot of factors that have to be taken into account

and I think it will take about 6 months. As I said, we’ll have to

see the report from the blue ribbon committee. I hope there are

people on that committee who thoroughly understand the issues of

nuclear weapons and research related to nuclear weapons, and

we’ll have to wait and see the outcome of Senator Domenici’s hearings. And I think it will be very interesting to see what the judgment is of people on just how this should be competed. I have no

problem with the issue of competition if that’s the direction in

which the country wishes to go. There has been some worry that

it will be very costly for the university to compete.

Ms. ESHOO. The $25 million figure I have seen, is there any credence to that?

Mr. ATKINSON. Of course there is. You heard the Ambassador

speak about that. It might be high, it might be low, but it’s going

to be a very significant amount. But of course those moneys are returned to the contractor as part of the overhead whether they win

or lose over the course of a series of contracts. For the University

of California, though, I don’t worry about that. The fact is we’re not

going to compete in that mode. We’re not going to go out and hire

special writers or special film crews. We can put a proposal together in 2 or 3 weeks with 10 or 12 people, and that will be the

investment that we make in the proposal.

We will stand by our record. Clearly our record in the area of

business practices at Los Alamos in the last period of time—and

that may go back 7 or 8 years—has been abysmal and it has to be

corrected. I hope by the time the 21⁄2 years is up, we will have corrected it. And I hope that the record will clearly indicate where the

university stands as a competitor in the process. But I do not like

the idea of the word ‘‘competition.’’ The university has never sought

this contract. We were asked to do this and we did it as a national

service. We’re very proud of our national service. And if the country

has come to the view that it should be done in some other way, we

will happily bow out.

Ms. ESHOO. Explain, if you would, the scenario of change. Big

science has been referred to more than once during this hearing

today. Big science calls for big minds. Certainly there are not big

salaries that go with this. But we need to retain this intellectual

property, as it were, for our Nation’s security. What happens?

What exactly happens with a change of contract? Is it simply that

the big minds that relate to the big science become employees of

someone else? Is that overstated? Is that understated?

Mr. DARLING. Straightforward answer is we have no experience

with this because of the nature of the university’s relationship with

DOE. I am sure there are defense contractors or other laboratories

that can give you answers to those. Those are some of the issues

we have to look into. The figure of $25 million came from Admiral

Nanos, who is the current interim Director of Los Alamos. He was

before in charge of the Navy’s Sea Systems Command, and before

that the entire U.S. And U.K. Nuclear weapons program. He said,

in his experience letting large contracts with U.S. Defense contracVerDate 11-MAY-2000 08:33 Jul 25, 2003 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6602 87736.TXT HCOM1 PsN: HCOM1
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tors, that is what they would typically spend to put in a proposal

for a contract the size of Los Alamos National Laboratory.

Ms. ESHOO. Well, Mr. Chairman, I don’t have that much time

left. I don’t know when the next hearing is, if there are going to

be future hearings. I think in fairness to investigation and oversight, the issues that have not only been uncovered but reviewed

by the INO subcommittee or the full committee, that in my view

we should come back and revisit the progress that the university

is making and have the committee make a further determination

if in fact there is progress. I believe that it is early on, but there

have been important steps taken.

To the University of California, as a Californian, as an American,

I think the university is a great university. This has been a very,

very difficult, embarrassing chapter in the life of the university.

I would say to the committee and to my colleagues in the Congress that with the toughness of the questions and the review and

the oversight, that we continue to keep in mind that through this

oversight that we have pressed for and are making progress relative to the business management of Los Alamos. I have not heard

once where our national security has been impaired as a result of

the university’s work on this project. So I hope that we will come

back and revisit it and review the progress of what the university

has put into place, the sustaining of the reforms. And I hope that

at the end of this process, whatever the determination of the university is, to continue on with the contract or to bring to a close

its service to the Nation, that we will end on a note of great dignity.

So I thank you, Mr. Chairman, for again extending this legislative courtesy to me. And I thank the university’s representatives,

the president, the vice president and those that have accompanied

them here today in the Congress.

Mr. RADANOVICH. Thank you. I concur with your remarks. I want

to start off by saying that I have confidence in the high quality and

scientific and technical work at Los Alamos that has been performed by the University of California.

Let me ask this question. I think that—and recognizing the long

service that U.C. Provided to the national security interests of the

United States over many, many years—if the issue does come up,

and since the Secretary of Energy said that this will come up to

competitive bid—and this doesn’t make money, why would the University of California—assuming that the University of California

were to bid, which you know is an assumption, why would the university, assuming that, want to keep the contract?

Mr. ATKINSON. Well, I think I said before that we view this as

a service to the Nation and we had a unique contribution to make

here and I am very proud of that contribution. And you know, if

we continue in the future, it will be—I won’t view it as a competition, let me simply put it that way. I will view it as the university’s

record is there. We are happy to write a proposal. It will not be,

as I said, a $25 million proposal. And the Department of Energy

can make its decision. I just hope that knowledgeable people are

involved in making that decision.

Mr. RADANOVICH. Again, continuing to have confidence in the

high quality of work the University of California has given at Los

85

Alamos, I also believe that the lab recognizes that the business administrative practices of the lab need to be revamped so they will

rise to the level of quality—similar to the quality of the science of

the lab.

In that regard, what corrective actions, Mr. Darling, does the

U.C. Plan to take in the future to strengthen financial controls and

restore the American public’s confidence in Los Alamos and the

university’s management of it?

We have a vote. We will wind this thing up in about 10 minutes.

Mr. DARLING. Mr. Radanovich, I think what we’re going to do is

build on the changes that we have begun to make, but not stop

there. We will continue in a relentless way to understand the problems, the issues, and the opportunities at the laboratory. We will

implement all the recommendations that have come from our own

reviews as well as from the reviews of the outside groups we have

brought in, such as PricewaterhouseCoopers and Ernst and Young,

and then we will assess our performance over time. We will invite

the Department of Energy to do so and involve outside reviewers

in doing so, and I would invite you to do the same.

Mr. RADANOVICH. Ms. Broome, I do have a question for you regarding business operations. What plans does U.C. Have to review

the business operations at its other DOE facilities, which are of

course Lawrence Livermore and Lawrence labs at Berkeley?

Ms. BROOME. Currently we have a review going on at the Lawrence Livermore laboratory by Ernst and Young, the same firm

which reviewed all the business processes at Los Alamos. We will

be receiving a report from them probably by next week, initial report. We invited them obviously in to get—also an independent

view of our business practices, though while as was testified earlier, we believe that those business practices don’t have the issues

that we have at Los Alamos, but we wanted an independent.

Mr. RADANOVICH. To make sure.

Mr. DARLING. I would just add to that, the moment we returned

from Los Alamos on November 25, where a group of us went out

to look at the business problems, we made available our report, its

nine recommendations, to the two other laboratory directors. Mr.

Reed engaged the auditors of those two laboratories in reviewing

the very issues, and we continued in that pattern up to this very

day. Every issue that comes up, we informed other laboratories to

assess whether there are similar problems. We have not seen the

extent of those problems at the other two laboratories.

Mr. RADANOVICH. Mr. Darling, while we are engaged here, can

you give me an idea of what’s termed as wall-to-wall inventory and

the progress of that initiative?

Mr. DARLING. This was addressed briefly by Ambassador Brooks.

The so-called wall-to-wall inventory is a comprehensive inventory

of every piece of property at the laboratory that is known as control. That means it has a value in excess of $5,000 or is otherwise

a sensitive item of property that could disappear easily, such as a

computer, cell phone, or other such items. The last one that was

done was 1998. This is the first time it is done. It is about 97 percent complete at this point in time. And I know Vice President

Broome could provide more details about it.

86

Mr. RADANOVICH. If you could briefly, too. I want to accommodate Mr. Stupak.

Ms. BROOME. I would like to assure you that the lab is 10 weeks

ahead of schedule. We brought in Pricewaterhouse to do a complete

review of all the procedures and controls surrounding the taking of

this physical inventory, and they will actually be doing test checks

as well to verify the results of this inventory.

Mr. RADANOVICH. In closing, my last remarks may not require an

answer but I do want to put on the record my concern for the fact

that this was put up to bid in the first place, because there are

many other national laboratories in the United States that are not

for various reasons. And my big concern is the loss of talent that’s

there that’s able to apply for pensions and leave some expertise

that may not be found anywhere else in the United States.

Thank you. Mr. Stupak.

Mr. STUPAK. Just a couple of questions still bugging me on the

audits.

Mr. Reed, would you agree that the Inspector General’s evaluation of the audit function at Los Alamos—would you agree that the

evaluation was a rather negative evaluation?

Mr. REED. I agree there are problems and I agree that there

were problems with independents, with performance.

Mr. STUPAK. You’re the university’s auditor.

Mr. REED. That’s correct.

Mr. STUPAK. Why didn’t you know the condition of the Los Alamos function before these events occurred then?

Mr. REED. If I could address those individual components. The

independent issue, I think, is one of professional and individual objectivity. It’s not structure. We have changed the structure. But the

structure that was in place in that laboratory was the same as

Livermore up until we decided to conform it.

Mr. STUPAK. Wouldn’t you get the audit reports that were done

internally?

Mr. DARLING. Mr. Stupak, I testified about this at earlier hearings. I want to say as directly as I said then, the auditor of Los

Alamos National Laboratory did not fully provide the information

to the university and indeed rebuffed the university when the university made attempts to find it out.

Mr. STUPAK. Didn’t the university ask?

Mr. REED. Let me also say that—because I thought about that

question a lot. If there is one concept that I personally feel like I

bought in too much is that they had so much DOE oversight that

the university was redundant. I am not blaming the DOE, but I

think it was the lab keeping us at bay to some extent.

Mr. STUPAK. What’s the plan to get credible audits done on time?

Because they say internally they’re understaffed.

Mr. REED. Well, we have a lot of resources to help us. As of yesterday, we had completed the backlog of all that follow-up work. All

280 follow-up items have been completed. We have hired additional

staff on a temporary basis to help us put together a plan to have

the subcontractor audits caught up to date by September 30. We

have submitted—myself as university auditor—a plan for next fiscal year’s audit program that will be submitted to the regents in

2 weeks for approval that meets my full expectation.

87

Mr. STUPAK. Is it really a good business practice to have auditors

reporting to the people they audit?

Mr. REED. No.

Mr. STUPAK. Why did it happen at Los Alamos then?

Mr. REED. The way that we mitigated that was to have a dualreporting structure in place so the auditor there also reported to

me. But again I think in this case that was not an effective reporting channel.

Mr. STUPAK. Your new structure, is that going to be temporary

or permanent?

Mr. REED. Permanent.

Mr. RADANOVICH. I want to thank the panel for being here. Forgive me for closing this so shortly, but we have to get out to vote.

Appreciate your testimony and also the performance of University

of California over the last 50 years. Thank you very much.

[Whereupon, at 1:30 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

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Æ