Wilma A. Lewis
Dear Inspector General Lewis:
This is to request that the Inspector General promptly investigate a contract entered between the Bureau of Land Management and Dr. Martin D. Mifflin to determine compliance with federal procurement regulations. The procurement relates to studies affecting the transfer of 1,000 acres of BLM-managed land to the State of California for purposes of constructing a state-licensed low-level radioactive waste disposal facility.
I am deeply troubled that the Department entered into this contract on a sole source basis despite numerous questions brought to its attention regarding Dr. Mifflin's objectivity on this and other radioactive waste disposal matters. Also troubling are admissions by the, BLM California State Office which make clear that office lacks the expertise needed to oversee Dr. Mifflin's work.
My concerns are amplified by Deputy Secretary Garamendi's personal role in directing the Mifflin procurement, and the larger questions raised about Department actions by General Accounting Office report GAO/RCED-97-184, "Radioactive Waste - Interior's Continuing Review of the Proposed Transfer of the Ward Valley Site" (enclosed). The GAO concluded, among other things, that "Interior ... has neither criteria or technical expertise in radiological safety matters to independently determine if the site is suitable for a disposal facility, nor has it sought technical assistance from the Nuclear Regulatory Commission (NRC) or - with one exception - the Department of Energy."
In sum, it appears that the Department has ignored or avoided objective assistance and procured the services of a biased individual to help it justify a preordained political decision to deny the State of California's land transfer request. Given litigation now pending in federal court as a result of Interior's failure to complete the Ward Valley transaction, potential losses to the government go well beyond the limited funds involved in the Mifflin contract. We therefore request that the Mifflin contract be suspended pending resolution of the following areas of concern:
1. Other qualified service providers were excluded from bidding on the contract, which was executed through a seemingly inappropriate sole source procurement.
The only reason for sole-sourcing to Dr. Mifflin and a second individual given in an October 9, 1997 memo from the California State Office to the Contracting Officer (See Exhibit 1) is prior involvement on the National Academy of Sciences Panel which studied Ward Valley. Why were the other fifteen NAS Panel members not afforded an opportunity to bid? At least one nationally prominent environmental services company presented its qualifications and expressed interest in performing this specific work. (See Exhibit 2, December 13, 1996 letter from Geraghty and Miller, Inc. to BLM) Is prior NAS Panel involvement a valid prerequisite to perform the work?
As a matter of law, an agency is supposed to utilize competitive procedures -- not make a sole source award -- under these circumstances. None of the exceptions for a competitive award appear applicable to this contract. See 41 U.S.C. § 253(c); 10 U.S.C. § 2304(c). This sole source award of a consulting contract thus appears improper and should be set aside. See, CK Technologies, Inc., 93-2 Comp. Gen. Proc. Dec. $20 (1993).
2. Deputy Secretary Garamendi personally authorized the procurement despite knowledge that Dr. Mifflin was a dissenting member of the National Academy of Sciences Panel, allegations he may have leaked confidential NAS drafts to project opponents, and other information that the contractor has demonstrated strong bias against the Ward Valley project.
The propriety of involving Dr. Mifflin in Ward Valley studies has been raised with Interior by both the National Association of Cancer Patients and the California Department of Health Services. The state noted that Dr. Mifflin was recommended to the NAS by the "Committee to Bridge the Gap" (an anti-nuclear organization which has pursued litigation to block development of the Ward Valley project), and "...has already demonstrated a very strong bias against the project." The cancer patients' croup informed the Department that "During preparation of the NAS report, it became apparent that draft materials intended solely for the review and use of Committee members were being leaked by one or more committee members to project opponents." (See Exhibit 3).
Despite the seriousness of this allegation and Interior's oft-stated concern that the Ward Valley review process earn public confidence, I am unaware that the Department contacted NAS staff responsible for the study to determine if Dr. Mifflin may have engaged in misbehavior by leaking confidential materials to project opponents. If the Department did conduct such an investigation, what were the results? If no investigation was conducted, is this allegation supported by the facts?
As the Department is also aware, Dr. Mifflin was the only NAS Panel member who believed comparisons between Ward Valley and the closed Beatty, Nevada site were useful. (See Exhibit 4, October 30, 1995 note by Interior Solicitor John Leshy) Conversely, the Department's Geological Survey Director has agreed with the other NAS panelists and the state in concluding that such comparisons are too tenuous to be of scientific value. On what basis were the Survey's views ignored ? Why did Deputy Secretary Garamendi personally direct the contract award (See Exhibit 5), and how did he come to identify Dr. Mifflin as the uniquely qualified sole source provider he apparently insisted upon? Were any discussions held between Mr. Garamendi or his staff with the "Committee to Bridge the Gap" relative to Dr. Mifflin's role or the terms of the contract?
3. Dr. Mifflin was involved in other nuclear waste studies implicated for bias.
A 1996 GAO study ("Nevada's Use of Nuclear Waste Grant Funds") concluded that "Nevada has inappropriately used federal grant funds to advance, on a national stage, its opposition to a repository at Yucca Mountain." Appendix IV of that report identified Mifflin and Associates as the recipient of $392,777 in payments. (See Exhibit 6, GAO/RCED-96-72) While Dr. Mifflin's firm was not singled out for inappropriate activities, his significant involvement in a broader project opposition effort and ties to "Committee to Bridge the Gap" raise sole source procurement concerns if the true intent is to obtain unbiased input. For the procurement to have credibility, agencies must use consultants untainted by bias or the appearance of bias. See Aetna Government Health Plans, Comp. Gen. Proc. Dec. § 129 (1995) (when sustaining a protest in light of questions about a consultant's objectivity, the GAO held that "a key purpose of FAR Subpart 9.5 is to avoid the appearance of impropriety in government procurement").
4. Unqualified parties have responsibility for technical oversight of Dr. Mifflin.
An August 30, 1996 note from BLM California State Office Director Ed Hastey states that "The technical aspects of using Ward Valley for low-level waste disposal are beyond the Bureau's technical capabilities or legal authority." (See Exhibit 7) This mirrors the April 8, 1993 view of Deputy State Director Richard Johnson that the very same public health and safety issues explored by the contract "...are beyond our technical specialization". (See Exhibit 8)
Remarkably, the same Richard Johnson is identified as the Contracting Officer's Representative ("COR") responsible for approving Dr. Mifflin's work on "...a draft and final protocol for the testing (drilling) of tritium and Chlorine-36 at the Ward Valley, California proposed low-level radioactive waste disposal site." Moreover, the Project Inspector responsible for "...providing on site inspection and/or super-vision of the work" is John Mills; also from the BLM California State Office. (See Exhibit 9, excerpts from Draft contract with Dr. Mifflin).
How can the government possibly ensure that Dr. Mifflin's work meets professional standards when, by their own admission, the Office and employees responsible for oversight offer no acquaintance with the highly technical subject areas involved? Why was the Geological Survey (the only entity within the Department offering expertise in radioactive waste disposal) not designated for this oversight role?
5. The U.S. Nuclear Regulatory Commission recently criticized the Department for issuing public information "factsheets" containing misinformation attributed to the "Committee to Bridge the Gap", and confirmed that Interior has not previously sought the NRC's technical assistance on Ward Valley.
In a recent letter to Secretary Babbitt, NRC Chairman Shirley Jackson detailed a series of inaccuracies in a so-called "factsheet" distributed at a July 22, 1996 press conference held by Deputy Secretary Garamendi. Among other criticisms implying bias on Mr. Garamendi's part, Chairman Jackson noted that unsubstantiated data erroneously attributed to legitimate information sources "...are identical to those in a March 1994 Committee to Bridge the Gap report." (See Exhibit I0, July 22, 1997 letter and attachment). Chairman Jackson further confirms that "...there are no formal arrangements that permit NRC to review and comment on the technical accuracy of various DOI documents on LLW and Ward Valley".
Why has Interior failed to seek assistance from the federal agency responsible for radiation safety and oversight of California's regulatory program? Might such assistance obviate the need for the, Mifflin procurement? How did the Department come to use Committee to Bridge the Gap documents while erroneously attributing the source to parties the Department was not even in contact with? Did Mr. Garamendi in fact rely upon Committee to Bridge the Gap for technical support in preparing the factsheet? What source did Mr. Garamendi rely on for his characterization of federal regulations for low-level radioactive waste as "...an unfortunate and misleading catch-all definition..."?
It is my further understanding that Mr. Garamendi voted against enactment of legislation to create the Southwestern Low-Level Radioactive Waste Disposal Compact while a member of the, California State Senate (See Exhibit I 1). The Ward Valley disposal site is being developed to meet California's responsibilities under that since passed, Congressionally approved Compact law. The Deputy Secretary's apparent biases against both the mission of the Southwestern Compact and the federal laws and regulations governing approval of the Ward Valley project suggest that Mr. Garamendi be excused from the land transfer matter.
6. Are federal funds being improperly expended ?
Taken together with findings of the recent GAO report and litigation now before the federal courts, a picture emerges of a senior political appointee ordering an unjustified, improperly managed sole-source procurement to frustrate the Ward Valley land transfer. Irrespective of the motives driving this agenda, it is the job of the Inspector General's Office to ensure that federal procurement regulations are adhered to, and that Department funds are not being improperly expended.
I further request that your office examine the propriety of Mr. Garamendi's future involvement in matters pertaining to the Ward Valley land transfer. I urge you to contact the General Accounting Office, the National Academy of Sciences National Research Council, the NRC and the California Department of Health Services to assist you in obtaining relevant documents and related information.
I look forward to hearing from you soon regarding this very serious matter.
LARRY E. CRAIG