Jan 31, 2012

By John Fleck

Albuquerque Journal Staff Writer

It seems to have been sometime during 2007 that the wheels started coming off of Los Alamos National Laboratory’s proposed new plutonium lab.

National Nuclear Security Administration officials were publicly telling congressional auditors they thought the Chemistry and Metallurgy Research Replacement project was under control. They said the $800 million price was based on “reliable cost estimates,” and the project was not in danger of heading down the agency’s well-worn path of cost overruns and schedule delays.

Internally, though, there were signs of trouble. The lab’s draft safety plan for the project was “substandard,” NNSA said. By February 2008, the cost estimate had more than doubled to $2 billion, and has continued to climb.

We know about the draft safety plan problems thanks to the NNSA’s annual lab “Performance Evaluation Report,” a vital tool for the lab and its managers, as well as for outsiders who want to scrutinize how tax dollars are being spent.

But after 2008, the trail goes cold, because of a new policy under which NNSA refuses to release contractor performance evaluations for a period of three years after completion.

It’s a policy hardly in keeping with the administration’s claims of transparency.

“A democracy requires accountability,” reads one of Barack Obama’s first executive orders in 2009, “and accountability requires transparency.”

In this case, the accountability issue reaches beyond cost overruns.

The Department of Energy and NNSA have long-standing management problems. They have been on the Government Accountability Office’s “high-risk” watch list since 1990.

Ninety percent of the DOE/NNSA budget is funneled to outside companies that do the work. Here in New Mexico, that means more than $4 billion a year to Lockheed Martin (to run Sandia National Laboratories) and a Bechtel-University of California team (to run Los Alamos).

Performance Evaluation Reports are the primary mechanism by which success or failure is measured.

The soaring rhetoric of the Obama executive order seems disappointingly quaint today when stacked up against NNSA’s stonewalling.

Here’s the Obama order: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

Here’s the NNSA policy that took effect after he took office: “NNSA has determined that it is inappropriate to release the Performance Evaluation Reports because the information could be used against the contractor in future procurements.”

Because it seems unlikely a glowing performance report could be used against a contractor, the agency seems to have decided that protecting the contractors from public evidence of poor performance is more important than the public’s right to know about that poor performance.

Even accepted at face value, the policy is incoherent. The Bechtel team’s current contract to manage Los Alamos doesn’t expire until 2017. By the time the competition to pick a replacement contractor gets under way, the three-year rule on the documents the agency is hiding today will have expired.

It hasn’t always been this way.

“When you’re spending the taxpayers’ money, you should be as transparent as possible,” said Tyler Przybylek, who was NNSA’s general counsel during the Bush administration. When Przybylek was at the agency, this didn’t always work swimmingly, but by the end of the Bush administration NNSA routinely gave the Journal lab performance evaluations when the newspaper asked.

That changed soon after Obama took office, with an October 2009 memo from David Boyd, director of NNSA’s Office of Acquisition and Supply Management laying out the concern that the evaluations could be used against the contractor.

And thus the game of cat-and-mouse under the federal Freedom of Information Act began.

A Journal FOIA request, filed in 2010 when I first encountered the new policy, was denied. When the DOE’s Office of Hearing and Appeals ruled last year that the Boyd memo’s rationale violated the Freedom of Information Act, I filed a fresh request.

That was eleven months ago. At this point, the NNSA’s Freedom of Information Act office hasn’t even bothered to turn me down. They keep telling me they’re working on it. Others, including the activists at the Los Alamos Study Group, whose document archive was helpful in writing this column, have had similar experiences.

The NNSA last month decided to hold a competition to determine which company gets the contract to manage Sandia once Lockheed Martin’s current term runs out.

Without access to past performance reports, Przybylek told me in an interview last week, it is impossible for anyone other than agency insiders to participate. Like, for example, the public.

“We can’t have a sensible discussion,” Przybylek said.