B-223253, NOV 21, 1986, OFFICE OF GENERAL COUNSEL

B-223253, NOV 21, 1986, OFFICE OF GENERAL COUNSEL

APPROPRIATIONS/FINANCIAL MANAGEMENT - CLAIMS AGAINST GOVERNMENT - TORTS - GOVERNMENT LIABILITY DIGEST: IN THIS LETTER, WE RESPOND TO A CLAIM FILED AGAINST THE GENERAL ACCOUNTING OFFICE (GAO) UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS. 1346(B) AND 2671-2680 (1982) ALLEGEDLY RESULTING FROM WORK PERFORMED AT THE ROCKWELL INTERNATIONAL ROCKY FLATS PLANT IN COLORADO. THE CLAIM WAS BASED UPON GAO'S FAILURE TO PROVIDE ADEQUATE SUPERVISION. WE RESPOND THAT GAO HAS NO SUCH DUTY; THE EXTENT OF GAO'S AUTHORITY AS RELEVANT HERE IS TO CONDUCT AUDITS AND EVALUATIONS, AND ISSUE REPORTS. SEE 31 U.S.C. SECS. 712, 717, AND 3523 (1982).

SUSAN SMITH FISHER, ESQUIRE:

THIS RESPONDS TO YOUR LETTER DATED MAY 16, 1986, WHICH TRANSMITTED TO US THE CLAIMS OF MR. LEO ALFRED BOGENSCHUTZ AND MRS. RITA BOGENSCHUTZ AGAINST THE UNITED STATES DEPARTMENT OF ENERGY (DOE) AND ITS PREDECESSORS, THE ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION AND THE ATOMIC ENERGY COMMISSION, AND AGAINST THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO). THIS IS A CLAIM FILED UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS. 1346(B) AND 2671-2680 (1982), RESULTING FROM BERYLLIOSIS ALLEGEDLY DEVELOPED WHILE MR. BOGENSCHUTZ WORKED AT THE ROCKWELL INTERNATIONAL ROCKY FLATS PLANT IN COLORADO. WE ARE AWARE FROM YOUR LETTER THAT YOU HAVE ALSO FILED THIS CLAIM WITH DOE. FROM A SUBSEQUENT CONVERSATION THAT MR. STEWART GRAHAM OF OUR OFFICE HAD WITH YOU ON JULY 8, 1986, WE UNDERSTAND THAT THE ALLEGED DUTIES TO EMPLOYEES OF THE CONTRACTORS AT THE ROCKY FLATS PLANT WHICH SERVE AS THE BASIS FOR THIS CLAIM AGAINST GAO-- SET FORTH AS ITEM "Y" IN YOUR ATTACHMENT 2 - ARE: "TO SUPERVISE THE ACTIVITIES OF THE OTHER GOVERNMENT AGENCIES NAMED IN THIS CLAIM, AND TO SUPERVISE THE ACTIVITIES OF THE CONTRACTORS, DOW CHEMICAL AND ROCKWELL INTERNATIONAL, WITH REGARD TO THE PERFORMANCE OF (OTHER) DUTIES."

PLEASE BE ADVISED, AS WE UNDERSTAND MR. GRAHAM HAS ALREADY INFORMED YOU, THAT GAO HAS NO SUCH DUTIES. THE EXTENT OF GAO'S AUTHORITY AS RELEVANT HERE IS TO CONDUCT AUDITS AND EVALUATIONS, AND ISSUE REPORTS. SEE 31 U.S.C. SECS. 712, 717, AND 3523 (1982). THERE HAVE BEEN FIVE GAO REPORTS INVOLVING THE ROCK FLATS PLANT. THERE ARE:

(1) GAO, SECURITY CONCERNS AT DOE'S ROCKY FLATS NUCLEAR WEAPONS PRODUCTION FACILITY (RCED-85-83, B-217647, APRIL 22, 1985);

(2) GAO, CONSTRUCTION MANAGEMENT PROBLEMS HAVE DELAYED COMPLETION OF THE NEW PLUTONIUM FACILITIES AT ROCKY FLATS, COLORADO, (PSAD-78-90, JUNE 2, 1978);

(3) GAO, AN UNCLASSIFIED DIGEST OF A CLASSIFIED REPORT ENTITLED "SAFETY AND TRANSPORTATION SAFEGUARDS AT ROCKY FLATS NUCLEAR WEAPONS PLANT" (EMD- 77-9A, JANUARY 11, 1977);

(4) B-183920, JUNE 4, 1976; AND

(5) B-183920, AUGUST 29, 1975.

AS YOU REQUESTED OF MR. GRAHAM, WE HAVE ENCLOSED COPIES OF THESE MATERIALS FOR YOUR INFORMATION.

IF YOU NEED TO COMMUNICATE FURTHER WITH US ANYTIME ON THIS, PLEASE WRITE TO MR. GRAHAM AT THE ABOVE ADDRESS OR CALL HIM ON (202) 275 6410.