A U.S. senator is asking whether the federal government is paying the costs to defend Bechtel National against a claim filed by Hanford whistleblower Walter Tamosaitis.
Sen. Claire McCaskill questioned the legality of the government paying for the defense in a letter sent Wednesday to Thomas D'Agostino, Department of Energy undersecretary for nuclear security.
Tamosaitis has filed a lawsuit in Benton County Superior Court accusing Bechtel of interfering to get him removed from his job as research and technology manger of the Hanford vitrification plant after he raised safety issues.
Bechtel and subcontractor URS, Tamosaitis' employer, deny that Tamosaitis was removed for raising safety issues. He was removed from the project because his work assignment was ending and he sent a disrespectful email, according to Bechtel.
Earlier this month, Tamosaitis testified before a Senate hearing led by McCaskill, D-Mo., the chairwoman of a Senate subcommittee on contracting oversight. McCaskill has introduced legislation designed to improve protections for federal contractor whistleblowers.
Bechtel was not invited to testify but this week sent a rebuttal to Tamosaitis' testimony to the subcommittee.
Bechtel is being reimbursed for its legal expenses, Tamosaitis indicated at the hearing.
"If true, this raises serious concerns," McCaskill wrote in her letter.
Reimbursing a contractor's legal costs for defending against whistleblower claims appears to contravene policies meant to protect whistleblowers from retaliation, she wrote.
In addition, it may not comply with recent federal court decisions, including the Federal Circuit Court of Appeals decision in Tecom II, which significantly expanded the types of legal costs that cannot be reimbursed by the federal government, she wrote. That includes costs associated with defending against the third-party lawsuits, except where the plaintiff has "very little likelihood of success," she wrote.
She has requested a briefing to the subcommittee staff that covers National Nuclear Security Administration policies regarding the reimbursement of contractors' legal expenses for whistleblower reprisal claims by Jan. 20.
Bechtel's contract with DOE includes a standard contract provision for reimbursement of legal expenses, said Jason Bohne, Bechtel spokesman, in a statement.
DOE's policy is to determine the allowability of legal costs claimed by contractors after issues are resolved. The final decision on what legal costs are reimbursed is made by a DOE contracting officer.
Bechtel is receiving provisional payments now. But Bohne said DOE will determine the allowability of costs in the Tamosaitis matter after the case is resolved, as is customary for DOE.
During the subcommittee hearing, Tamosaitis said he continued to work for URS since being dismissed from the vitrification plant project, but had been assigned to a basement office he shares with copy machines.
"So every day you are an example to all the workers there, whether they're federal employees or Bechtel employees, don't say anything or you too will be banished to the basement?" McCaskill asked.
However, Bechtel in a submission for the record to McCaskill's subcommittee said that was not the case.
The submission quoted a response made by URS after Tamosaitis appeared on The Rachel Maddow Show on MSNBC last week.
"He was offered a comparable position at another URS project but turned it down," URS said. "He was moved to the company's downtown Richland corporate building and given the only available office at the time, which was one of the offices in the basement."
Tamosaitis has worked on several important assignments for the company since then and until November had declined on multiple occasions the opportunity to move to the first floor of the two-story office building, according to the URS statement.
Tamosaitis said Wednesday that he had worked on a tank farm project for URS after leaving the vitrification plant project, but that it lasted only a month. Bechtel said in its court filings that Tamosaitis had earlier requested that assignment.
Since then, Tamosaitis has had two other assignments, but neither offered the responsibility and authority he had with the vitrification plant, Tamosaitis said.
At one point he was offered the chance to share an above-ground office with another employee, but decided that was no better than the basement office, he said. After the Senate subcommittee hearing, he did move into an upstairs office, he said.
* More Hanford news at hanfordnews.com.
