Index

LAW OFFICES OF DAVID W. AFFELD
A Professional Corporation
David W. Affeld (CA State Bar No. 123922)
Christopher D. Higashi (CA State Bar No. 168667)
333 South Grand Avenue, 37th Floor
Los Angeles, California 90071-1599
Telephone: (213) 229-0073

Guy T. Saperstein (CA State Bar No. 46354)
52 Glen Alpine Road
Piedmont, CA 94611
Telephone: (510) 595-1461

David E. Adelman (D.C. Bar No. 458346)
Natural Resources Defense Council
1200 New York Ave., N.W., Suite 400
Washington, D.C. 20005
(202) 289-6868

Attorneys for Plaintiff
and Relator Dr. Nira Schwartz

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA


UNITED STATES OF AMERICA EX REL			CASE NO. CV 96-3065 CM (RMCx)
NIRA SCHWARTZ,

	Plaintiff,				FOURTH AMENDED COMPLAINT FOR:
	
vs.						1. VIOLATION OF THE FALSE
						CLAIMS ACT, 31 U.S.C.
						§3729 (a)(1), (a)(2) and (c);
TRW, INC., an Ohio corporation, and
BOEING N. AMERICA INC., a Delaware		2.  EMPLOYMENT RETALIATION
corporation,					IN VIOLATION OF THE FALSE
						CLAIMS ACT, 31 U.S.C.
	Defendants.				§ 3730(h); and

						3. WRONGFUL TERMINATION IN
						VIOLATION OF PUBLIC
						POLICY

						DEMAND FOR JURY TRIAL

This is an action by relator Dr. Nira Schwartz ("Schwartz"), in the name of the United States Government (the "Government"), to recover penalties and damages arising from fraud on a vast scale perpetrated by defendants TRW, Inc. ("TRW") and Boeing North America, Inc. ("Boeing") in connection with the efforts of the U.S. Army's Space and Strategic Defense Command to develop a Ground Based Interceptor ("GBI") for possible deployment by the United States' National Missile Defense ("NMD") program. The claims asserted herein include counts under the False Claims Act, 31 U.S.C. §§ 3727 et seq. They also include a count by Schwartz as plaintiff under California state law for wrongful termination in violation of public policy.

I.

JURISDICTION AND VENUE

1. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1345 and 31 U.S.C. § 3732(a). This Court also has supplemental jurisdiction over Schwartz's related California state law claim for wrongful termination in violation of public policy pursuant to 28 U.S.C. § 1367.

2. Venue is proper in the Central District of California under 31 U.S.C. § 3732(a) and 28 U.S.C. §§ 1391(b), (c). A substantial part of the acts or omissions alleged herein occurred within the Central District of California. Moreover. defendants TRW and Boeing transact business in this District.

3. Plaintiff and relator Schwartz demands trial by jury.

II.

PRELIMINARY STATEMENT

4. The events underlying this case arise out of the roles of TRW and Boeing in the NMD program. The NMD program is intended to develop a system to protect the United States from a limited attack of ballistic missiles containing weapons of mass destruction. The NMD program is premised on developing a "kill vehicle" that can locate, intercept and destroy an incoming warhead.

5. The task of the kill vehicle intercepting a warhead is tantamount to hitting a bullet with a bullet. To intercept successfully, the kill vehicle must also differentiate between an actual warhead and decoys designed to draw the kill vehicle to the wrong target. Experts on missile technology, including at the U.S. Central Intelligence Agency, have concluded that a potential adversary's use of decoys is inevitable because effective decoys require much less sophisticated engineering than that necessary for an intercontinental ballistic missile.

6. Boeing was a prime contractor in the NMD program during the times relevant to this action. TRW's role in the NMD program included purportedly developing technology for the kill vehicle to distinguish warheads from decoys. TRW, and Boeing as the prime contractor to whom TRW reported, have claimed to the Government that the TRW discrimination technology is effective. In fact, however, TRW's technology has always failed fundamentally.

7. Despite actual knowledge of the failure of TRW's technology, or in reckless disregard of that failure, TRW and Boeing have made multiple false claims to the Government regarding the efficacy of TRW's discrimination technology. TRW and Boeing have also engaged in a campaign to cover up the severe scientific and technical flaws in the TRW technology. The claims of TRW and Boeing defy scientific principles and contradict extensive test data TRW collected, but systematically failed to disclose to the Government. Schwartz is informed and believes that this misconduct has occurred since at least as early as 1994 and continues to the present day.

8. The TRW-Boeing kill vehicle prototype purportedly attempts to discriminate between a target warhead and any decoys deployed with it based on "characteristic" or "systematic" differences in the relative intensity, including its fluctuation over time, of certain wavelengths (i.e., "colors") of infrared light emitted by the warhead and decoys. The premise of the system, however, is false, because neither the intensity nor the variation in the intensity of the infrared light from space objects, such as a warhead or a decoy, is a fixed and unique "characteristic" of such an object that could be used to determine what kind of object it is. Without such unique differences, there is no basis on which to discriminate between warheads and decoys.

9. Moreover, relative to the difficulty of developing intercontinental ballistic missiles in the first place, it is simple to modify or construct decoys and warheads to mimic each other, or to look indistinguishably different from each other, thereby making it impossible for the kill vehicle's infrared sensors to gather meaningful data to distinguish between warheads and decoys. It would thus be highly likely that if an emerging missile state such as North Korea were to develop intercontinental ballistic missile capability, it would easily develop decoys.

10. In short, TRW's technology purports to discern characteristic signals for warheads versus decoys in numerous threat scenarios required by contract with the Government, where such signals cannot be discerned. TRW and Boeing falsely claimed to be able to extract meaningful information from meaningless data.

11. In their effort to conceal the fundamental problems with their discrimination system, TRW and Boeing (1) falsified data, (2) misrepresented the effectiveness of the system, and (3) recklessly disregarded well-established standards of engineering and scientific methods. In at least two instances, TRW knowingly falsified data.

12. The severe flaws in the TRW system have been concealed through a concerted effort by TRW and Boeing to limit the data that they disclosed to the Government. TRW and Boeing have systematically avoided disclosing to the Government the extensive data generated by TRW that expose the serious flaws in the discrimination system. Instead, they cherry-picked a few, highly contrived instances in which the system purportedly met contractually required standards (although even in the cherry-picked examples, the truth is that the system failed). Examples of this "cherry-picking" abound and include the following:

13. In seeking to protect their government contracts, TRW and Boeing recklessly disregarded established standards of engineering and science. TRW and Boeing systematically omitted essential tests, ignored critical data, and improperly manipulated data to create the illusion that the TRW discrimination system performed at the levels claimed by TRW and Boeing in statements to the Government to support requests by TRW and Boeing for payment under their contracts with the Government. These practices were used falsely to legitimize performance claims by TRW and Boeing regarding the TRW system. These practices were also used to conceal from the Government the fundamental flaws of the TRW discrimination system. These practices violated canonical principles of objective, verifiable scientific methods and constituted a fraud against the Government.

III.

THE PARTIES

14. Schwartz is an engineer with a combined specialty in physics, mathematics, and electronics. Schwartz obtained a doctorate from the University of Tel Aviv in 1979. Schwartz was employed by TRW from September 199.5 until late February 1996 in the Space and Technology Division of TRW's Space and Electronics Group in Redondo Beach, California. While at TRW, Schwartz was a Senior Staff Engineer involved in testing and analyzing the algorithms, computer programs, technologies, mathematical and physical concepts, and signal phenomenology being researched and developed by TRW for the NMD program. Schwartz brings this action on behalf of herself individually and on behalf of the United States of America pursuant to the provisions of 31 U.S.C. § 3730(b)(1).

15. Schwartz is informed and believes, and on that basis alleges, each of the following matters throughout this paragraph: defendant Boeing is a Delaware corporation. In or about August 1996, Boeing acquired Rockwell International Corporation ("Rockwell"). For purposes of this action, Boeing is the successor in interest to Rockwell for any liability on the part of Rockwell relating to the events alleged below that occurred prior to the effective date of Boeing's acquisition of Rockwell. After that acquisition, Boeing is liable for its own conduct as alleged below. Unless specified otherwise, hereafter references to Boeing include Rockwell where Boeing is its successor in interest.

16. Schwartz is informed and believes, and on that basis alleges, each of the following matters throughout this paragraph: As the successor in interest to Rockwell, Boeing became a prime contractor and system integrator responsible for development of a U.S. National Missile Defense system. Until October 1999, Boeing and TRW were contracted by the Government (contract number DASG60-90-C-0 165) (the "Boeing Contract") to develop the"exoatmospheric kill vehicle" and its flight test system. The original contractor for the exoatmospheric kill vehicle had been the aerospace and defense divisions of Rockwell. The agents for Boeing are located at 12214 South Lakewood Blvd., Downey, California 90242, and 2201 Seal Beach Boulevard, WSB37, P.O. Box 2515, Seal Beach, California 90740-1515.

17. Schwartz is informed and believes, and on that basis alleges, each of the following matters throughout this paragraph: defendant TRW is an Ohio Corporation. TRW served as a government contractor subcontracted to Boeing, responsible for, among other things, developing discrimination algorithms and software to distinguish incoming warheads from decoys. TRW operated under a subcontract with Boeing, contract number RI 1108MA96 (the "TRW Contract"), and a purchase order for work pursuant to the TRW Contract, purchase order number MlM8XXK-485831M (the "TRW Purchase Order"). TRW's subcontract to develop the discrimination technology was terminated in October 1999.

18. Schwartz is informed and believes, and on that basis alleges, each of the following matters throughout this paragraph: TRW continues to play a major role in the development of the current NMD system as the lead contractor for the so-called "battle management" (surveillance communications and control) elements for the NMD program that tie together the various components of the overall NMD system.

19. Schwartz is informed and believes, and on that basis alleges, each of the following matters throughout this paragraph: the Government has contracted with TRW for System Engineering and Integration support for the BMD Deployment Readiness Program. TRW is referred to as the "System Engineer" in the Boeing Contract. As system engineer, TRW was and is responsible for independently reviewing the development of the technology for the kill vehicle. The agents for TRW are located at One Space Park, Redondo Beach, California 90278.

III.

FACTUAL BACKGROUND

A. The Goal of U.S. National Missile Defense: A Space-Based, Direct-Impact System

20. The Government has contracted with TRW, Boeing, and other companies to develop a national missile defense (NMD) system. The NMD system is being developed to protect the United States against a limited attack by long range ballistic missiles armed with weapons of mass destruction: nuclear, chemical, and biological weapons. Such attacks could include, for example, a deliberate attack by an emerging missile state, such as North Korea, that might acquire such missile technology in the future; an accidental, unauthorized, or erroneous attack by Russia; or an attack by China. This mission places a very high requirement on defense effectiveness -- much higher than the requirement on offense effectiveness. Failure of the defense system to intercept even one missile warhead armed with such lethal weapons could lead to large numbers of deaths, whereas an offense that largely failed could still inflict severe damage upon the United States.

21. The Ballistic Missile Defense Organization ("BMDO") manages, directs, and executes the NMD program for the Department of Defense.

22. BMDO traces its roots to the Strategic Defense Initiative (SDI) program that President Ronald Reagan started in 1983. Until 1989 the mission of the NMD program was to enhance deterrence of a first strike by the Soviet Union, by deploying a defense of thousands of interceptors. This mission has now gone through four major program changes, to its current status, with a protection role against a small number of threats. Over $56 billion dollars has been spent by the United States on missile defense since 1983, with no system currently scheduled for deployment. A central reason for these poor results are the steep technical challenges posed by relatively simple "countermeasures" that can be taken to defeat an NMD system.

23. The current NMD system includes a Ground Based Interceptor ("GBI"), which BMDO characterizes as the "weapon" of the system. The GBI mission is to strike high-speed ballistic missile warheads in the mid-course of the exoatmospheric phase of their trajectories and destroy them by force of impact.

24. As detailed further below, Boeing and TRW were involved in developing a GBI system. That system is intended to use a ground-based interceptor missile to launch an Exoatmospheric Kill Vehicle ("EKV" or "kill vehicle") designed to seek out and destroy an enemy missile's warhead-bearing "reentry vehicle" by colliding with it outside the Earth's atmosphere. The system design requires that incoming "threat clouds," composed of warheads, missile debris, decoys, and other accompanying space objects, be tracked using ground-based radar and satellite-based infrared sensors (i.e., sensors that detect low-energy light emitted from the warhead) to direct the kill vehicle to an area in space in which to intercept the threat cloud. As it approaches the interception point, the "kill vehicle" is supposed to use its onboard sensors and computer to identify the warhead reentry vehicle and to maneuver to collide with and destroy it.

25. The NMD interceptor missile will consist of an EKV mounted on top of a booster rocket, which will be based in an underground silo. The booster rocket will transport the EKV outside of the Earth's atmosphere before releasing it. The EKV design includes an infrared sensor, a source of propulsion for maneuvering, a communications system, and a computer-based guidance system. The EKV relies on the infrared-light sensor to identify the warhead among decoy(s) and other objects deployed by an enemy missile. Because infrared light is emitted naturally by all objects, including the Earth and its atmosphere, the infrared sensor limits the minimum altitude (estimated to be greater than 100 kilometers) above which the discrimination system can effectively operate.

26. The TRW-Boeing design for the NMD system called for it to carry out the following operations:

27. Prior to launching the interceptor, the NMD analysts must identify the missile type (referred to as "threat typing") and download data (the "Mission Data Load") into the EKV computer. These data correspond to certain "features" of the infrared signal emitted by the target warhead reentry vehicle and potential decoys. These features are used by the EKV's computer system to discriminate between the target warhead and any decoys traveling with it.

28. The number of attacking missiles will have a significant impact on the operational effectiveness of the NMD system. Also important are the "countermeasures" an attacker can use to confuse, overwhelm, or otherwise defeat the NMD system. All of the countries that have deployed long-range ballistic missiles (Britain, China, France, Russia, and the United States) have developed, produced and, in some cases, deployed such countermeasures for their missiles. The 1999 National Intelligence Estimate on the ballistic missile threat to the United States - a document prepared by the U.S. intelligence community-stated that such countermeasures would be available to emerging missile states.

29. Many effective countermeasures require a much lower level of technology than that required to build a long-range ballistic missile (or a nuclear weapon) and utilize basic physical principles and well-understood technologies. Any country capable of building a long-range ballistic missile would have the scientific and technical expertise to exploit technologies available to construct effective countermeasures.

30. An attacker using nuclear weapons could, for example, overwhelm the system by using "balloon decoys," by deploying its nuclear warhead inside a balloon and releasing numerous empty balloons along with it. Alternatively, an attacker could cover a nuclear warhead with a cooled shroud, which would prevent the EKV's sensor from detecting or properly identifying the warhead and therefore from homing on the warhead for interception. There are many variations on these and other tactics.

31. The system developed by TRW and Boeing has been tested under conditions in which a warhead was accompanied by one to nine decoys to determine whether the EKV could distinguish between decoys and a mock nuclear warhead. These tests are discussed in greater detail below. This feature of the system - discriminating between a warhead and accompanying decoys - is the subject of the false representations and material nondisclosures by TRW and Boeing to the Government in this case.

B. The Boeing-TRW NMD Contracts

32. In 1990, Boeing's predecessor in interest, Rockwell, was awarded a contract as prime contractor for development related to the EKV and Ground Based Interceptor, contract number DASG60-90-C-0165 (previously identified above as the Boeing Contract). Boeing was one of three prime contractors awarded such a contract; the other two were Martin Marietta Corporation and Raytheon (as successor in interest to the original prime contractor, Hughes Electronics Corporation, which Raytheon acquired in 1997).

33. From 1990 to 1994, the three contractors were in competition simultaneously to develop EKV technology. A "down-select" would eliminate one of the three in 1994, and the other two would then compete to obtain the final, sole contract for developing the EKV. In 1994, Martin Marietta Corporation was eliminated from the competition.

34. After the Integrated Flight Test-3 ("IFT-3") in October 1999 and Schwartz's exposure of the numerous faults with TRW's discrimination system, as described in greater detail below, the TRW technology was dropped and Raytheon was selected as the contractor to develop the EKV's discrimination system. Although the TRW Contract for the EKV was terminated on April 5, 1999, Boeing retained TRW to continue development of the Baseline Algorithms as part of a "hot standby" (i.e., backup) technology to the Raytheon system. That is, the Baseline Algorithms were to remain as a potential replacement for the Raytheon discrimination system if the latter were to fail. TRW continued work under a separate contract to develop the command-and-control system for the NMD program.

35. Originally, in 1990, the Boeing Contract was for the Ground Based Interceptor Experimental ("GBI-X") program. Schwartz is informed and believes, and on that basis alleges, that since 1990, the Boeing Contract has been modified numerous times. Unless specified otherwise, the term Boeing Contract as used herein means and refers to the original Boeing Contract and any modifications in effect at the time of the particular event described below.

36. The scope of work for the Boeing Contract is described in the document SW-K08-90 (the "Boeing Statement of Work"). Schwartz is informed and believes, and on that basis alleges, that the Boeing Statement of Work has also undergone numerous modifications since 1990. Unless specified otherwise, the term Boeing Statement of Work as used herein means and refers to the original Boeing Statement of Work and any modifications in effect at the time of the particular event described below.

37. In 1990, TRW was awarded a subcontract from Boeing (Rockwell) for development of certain systems related to the GBI-X program in support of the Boeing Contract. This subcontract was identified above as the TRW Contract. Schwartz is informed and believes, and on that basis alleges, that since 1990, the TRW Contract has been modified numerous times. Unless specified otherwise, the term TRW Contract as used herein means and refers to the original TRW Contract and any modifications in effect at the time of the particular event described below.

38. The TRW purchase order for work pursuant to the TRW Contract is number M 1 M8XXK-48583 1M (as identified above, the "TRW Purchase Order"). Schwartz is informed and believes, and on that basis alleges, that since 1990, the TRW Purchase Order has been modified numerous times. Unless specified otherwise, the term TRW Purchase Order as used herein means and refers to the original TRW Purchase Order and any modifications in effect at the time of the particular event described below.

39. In January 1991, an "Interim Statement of Work" was issued which described the systems to be developed by TRW pursuant to the TRW Purchase Order in support of the GBI-X program for Rockwell. These systems included "Seeker Tracking/ Data Fusion/Discrimination Algorithm and Software Development" as described in the statement of work, document number SW-MO72383 (the "TRW Statement of Work"). Schwartz is informed and believes, and on that basis alleges, that the TRW Statement of Work has also undergone numerous modifications since 1991. Unless specified otherwise, the term TRW Statement of Work as used herein means and refers to the original TRW Statement of Work and any modifications in effect at the time of the particular event described below.

40. TRW's role in the Boeing NMD program pursuant to the TRW Contract was to develop and deliver operational data processing software for the on-board functions of tracking, data fusion and discrimination by discrimination concepts, algorithms, and systems design for the flight test of the operational ground based interceptor, including threat analysis and modeling, statistical performance evaluation and simulation. The TRW end product software was to be incorporated into the on-board data processing software for the Boeing EKV system.

41. The Government has contracted with TRW for System Engineering and Integration support for the BMD Deployment Readiness Program. TRW is identified as the "System Engineer" as that term is used in the Boeing Contract.

42. As "System Engineer," TRW was responsible for independently reviewing the development of the technology for the EKV. At the same time, TRW was also working as a subcontractor to develop one of the key technologies. TRW and Boeing were explicitly obligated to abide by conflict of interest provisions in the Boeing Contract.

43. The technical requirements for the Boeing Contract are set forth in the Technical Requirements Document ("TRD"). Schwartz is informed and believes, and on that basis alleges, that the TRD has also undergone numerous modifications since 1990. Unless specified otherwise, the term TRD as used herein means and refers to the original TRD and any modifications in effect at the time of the particular event described below, including without limitation a revision of the TRD dated September 28, 1993.

44. Unclassified public sources, including the February 24, 1997 edition of Aviation Week and Space Technology at 54, establish a level the TRW discrimination technology minimally must meet: "NMD designers ‘expect roughly an 85% probability of kill from a single shot." Necessarily, the probability of the discrimination technology functioning properly must be at least as high as the compound probability of all the aspects of the interceptor collectively working properly. Thus, the minimum performance required of the discrimination is a probability of at least 85%.

45. Paragraphs 2.0, 2.1, and 2.2 of the TRW Statement of Work specifies that TRW must comply with the TRD for the Boeing Contract. TRW was obligated to comply with all requirements imposed on Boeing pursuant to the Boeing Contract for warhead and decoy discrimination by the EKV. TRW was also required to comply with the provisions of the Boeing Statement of Work and the TRW Statement of Work.

46. The TRD specifies the range of threat conditions under which the Ground-Based Interceptor design must provide a "robust" defense. The "design-to" threat cases are defined in Table 2.0-l in accordance with Appendix 2 of the TRD. The TRD refers to these design-to cases as the "near-term threat scenarios."

47. Thirteen (13) specific threat scenarios are defined in the TRD. These scenarios describe specific missile threat-types, attack conditions, and aim points for the warheads. A central element of these scenarios is a description of the countermeasures associated with each warhead reentry vehicle, including the reentry vehicle characteristics, the number and types of decoys, and descriptions of other objects in a threat cloud.

48. The TRD places specific bounds for a range of conditions, such as a range of temperatures, that are considered "normal" and over which the system must be able to function. The TRD also requires the system design to be able to handle each of the thirteen scenarios under "off-normal" conditions, for example the temperature or motion of the warhead are outside the range expected.

49. The TRD also requires that, in addition to these thirteen scenarios, the Ground-Based Interceptor must be designed to defend against a generic missile system where prior data about the attacking missile are not available. There is a substantial likelihood that little or no such prior data will be available in the event of a real threat.

C. The Critical Element of the Boeing NMD System: Discriminating Between Incoming Warheads and Decoys

50. While the technical challenges of the NMD system are not limited to the process of discriminating between an incoming warhead and a decoy(s), it has proved to be one of the most technically difficult - and critical - elements of the system. "Discrimination" is premised on identifying detectable and measurable characteristics of the target warhead upon which to distinguish it from accompanying decoys.

51. In theory, three basic characteristics can be used to distinguish a target warhead from a decoy: (1) its size; (2) its shape; and (3) its temperature. In different ways, each of these characteristics influences the "infrared" (low-energy, long-wavelength) light emitted by a warhead. This infrared light can be detected by a specialized sensor. All objects naturally emit a range of wavelengths/energies of infrared light. The overall intensity of an object's infrared emissions as viewed by a single observer/sensor are affected by its size and its temperature: (1) the larger an object is, the brighter it appears; (2) the hotter an object is, the brighter it appears and the higher in energy (shorter in wavelength) are its infrared emissions. The infrared signal from the warhead changes with temperature of the warhead reentry vehicle, which in turn depends on the conditions of the launch - including whether the reentry vehicle is heated or cooled - as well as with the type of material from which the reentry vehicle is constructed. In addition, the infrared signal from either a warhead or a decoy can be very substantially altered by painting or coating it with well-known special materials.

52. For a single observer, such as the infrared sensor mounted on the EKV, the intensity of the infrared emissions it sees will vary as a space object's visible surface area changes--only emissions from exposed surfaces of a warhead reentry vehicle or decoy are observable. In addition, the infrared signal from an object can be expected to contain a substantial amount of infrared energy reflected from the Earth below, and from the sun if the object is not in the Earth's shadow. Accordingly, both the intensity of a warhead's infrared signal and the variation of that intensity over time as viewed by an observer are affected by its motion (i.e., whether it is tumbling, wobbling on its major axis, or spinning); temperature; materials construction (coatings will alter an object's infrared emissions); size; shape (for example, a sphere appears the same from any angel, whereas a cone has a very different appearance depending on whether it is viewed head-on or from the side), and the position of the Earth, sun, and spatial orientation of the target relative to the observer.

53. The EKV uses an infrared sensor to observe (1) the intensity, (2) the variation in the range of intensities, and (3) the rate of change in intensity of infrared emissions from an incoming warhead and decoy(s). The sensor used by the EKV to detect infrared light emitted by a warhead or decoy(s) is extremely sensitive and must be super-cooled to eliminate thermal noise from the detector assembly itself that would interfere with the system. It also would be "blinded" at lower altitudes where the natural infrared emissions from the Earth and its atmosphere are too intense. The Mission Data Load also must be carefully calibrated to account for the position of the sun and the Earth relative to the sensor and the threat cloud.

54. Prior to being launched, the EKV must be programmed with data (the Mission Data Load) that are assumed to predict the characteristics of the infrared signals from target warheads and possible decoys. The Mission Data Load is chosen based on analysts' predictions of the type of warhead to be intercepted ("threat typing") and the conditions of the attack that are determined soon after the missile launch is detected. Each type of missile has corresponding Mission Data Loads, which are constructed using available intelligence information and computer simulations. The fidelity of the simulated data to that collected by the EKV's sensor is highly sensitive to the specific size, shape, construction materials, deployment dynamics (motion), and temperature of the warhead reentry vehicle and decoys. For each threat type, multiple Mission Data Loads are available to account for different conditions under which a missile is launched. Schwartz is informed and believes, and on that basis alleges, that the decision on which of these Mission Data Loads to use (a single missile type may have 150 Mission Data Loads) to account for different launch conditions is made just prior to the launch of the EKV.

55. The Mission Data Load is used by the data processing system on board the EKV to predict and compare the infrared signal features from warheads and decoys observed by the EKV's sensor. Using elaborate mathematical algorithms, the EKV attempts to pick out the warhead from the complex of tracked objects by choosing the object that has signal characteristics which most closely match those predicted by the Mission Data Load for the warhead. The NMD system succeeds or fails based on, among other factors, the accuracy of the Mission Data Load and thus the ability of the NMD analysts to identify accurately the missile type and the physical characteristics of its warhead reentry vehicle(s). Even small errors in estimates of a warhead's temperature, for example, drastically reduce the reliability of the discrimination process.

56. Part of constructing the Mission Data Load involves selecting which signal features to use. The Baseline Algorithms and Kalman Filter were developed to operate pre-flight with TRW's "BEST" algorithm, which supposedly preselected the "best" signal features for the Mission Data Load that will be matched against observed threats by the EKV during engagements. The BEST algorithm is purportedly able to determine which features of the signals from a group of threat objects can most reliably be used for matching and distinguishing between warheads, decoys, and other possible targets observed by the EKV during an engagement. The BEST algorithm, however, was not part of the EKV's onboard software. It was designed to be used on the ground prior to engagements against missile threats and in combination with a signal simulation program called OPTISIG. It would thus not be possible for the EKV to change the signal features selected by the BEST algorithm in real-time during an engagement.

57. During the last sixty seconds prior to intercept, when the EKV is within 400 kilometers of the target, the EKV seeks to identify the target warhead. At that point, the EKV is controlled exclusively by the processing of information that it receives from its onboard infrared sensor. The discrimination method described above dictates whether the EKV hits and disables the warhead, or mis-guesses and fails. The discrimination method is thus critical to the effective operation of the system.

58. TRW and Boeing were responsible for developing the equipment and computer programs used to generate the simulated data and to analyze the infrared-signal data from the EKV's sensor. As detailed further below, to receive payment, directly or indirectly, from the Government pursuant to the Boeing Contract, the TRW Contract, and the TRW Purchase Order, TRW and Boeing made fraudulent misrepresentations and omissions to the Government about the capabilities and robustness of the discrimination technology, and falsified and withheld crucial data.

D. TRW's Purported Technology for Extracting Information from a Target Warhead's Infrared Signal and Discriminating Between A Warhead and Decoys.

59. The infrared sensor used by the EKV views space-objects, such as warheads and decoys, as points of infrared light. There are three basic characteristics of this light that can be measured: (I) its intensity, that is how bright it appears at a given distance; (2) its wavelength, which corresponds to how much energy is released in a fixed quantity of light (shorter wavelengths of light being more energetic per unit of light emitted); and (3) the variation in its intensity over time (i.e., does the light emitted have a fixed intensity or does it have a characteristic cyclical variation and, if so, is the time for this cycle very short or quite long and what is the magnitude of these fluctuations).

60. The TRW system does not measure all wavelengths of infrared radiation emitted from the objects it views. Instead, the TRW system uses two specific wavelengths of infrared light to be measured by the EKV's sensor.

61. These wavelengths were chosen by Boeing, the sensor designer, because they supposedly would provide information about a potential target object's temperature.

62. The TRW system purports to assemble a time-sequence of the signal from each object at the two wavelengths and purportedly uses this information to determine certain statistical properties of each time sequence. These properties include the time-averaged intensity and the magnitude of any fluctuations in intensity. This information is then analyzed in real-time using mathematical algorithms. The signal "features" obtained for each tracked object from this analysis are iteratively "matched" against the expected features for each object in the Mission Data Load to identify the warhead among the space-objects being tracked. At the point defined by the EKV's capacity to maneuver successfully to intercept alternate likely targets, the discrimination algorithm purportedly conducts a final match against the Mission Data Load, identifies the warhead, and sends relevant data to the Boeing Navigation and Control System (for example, the target line-of-sight rate) for guidance of the EKV to collide with the object determined to be the warhead.

63. TRW developed two separate sets of algorithms, the "Baseline Algorithms" and the "Kalman Filter," that were to be the heart of the discrimination process used by the EKV. Development of the Baseline Algorithms began in 1990 and was purportedly completed by 1994.

64. In 1995, development of the Baseline Algorithms was suspended because of continuing difficulties in demonstrating that warhead reentry vehicles have characteristic features in the intensity of their infrared emissions on which to apply the Baseline discrimination method. After more than a year hiatus, TRW returned to the Baseline Algorithms in 1996 when it ran into technical obstacles (discussed below) with the Kalman Filter.

65. Schwartz is informed and believes, and on that basis alleges, that work on the Kalman Filter began in or about 1993 and extended into 1996. Ultimately it was abandoned.

66. In explaining its abandonment of the Kalman Filter approach, TRW claimed that memory limitations and computer speed of the EKV's computer precluded its use in scheduled and possible future flight tests. This explanation was false. The truth was that TRW's ground-simulation testing of the Kalman Filter had already demonstrated that it did not meet the Government's technical requirements.

67. The two mathematical methods operate pursuant to the same principles but differ with respect to how they utilize the input signal data. TRW's Baseline Algorithms purport to analyze two basic quantities: (1) the intensity and (2) the magnitude of the fluctuations in the intensity of the infrared emissions from space objects. The Kalman Filter purports to analyze the rate of change in the infrared intensity fluctuations, supposedly to identify a characteristic frequency of these fluctuations for an object in addition to analyzing the two quantities measured by the Baseline Algorithms.

68. TRW tailored the form of these quantities (referred to as "features") for each warhead type supposedly to maximize the effectiveness of the system. For example, features used for one threat type might be the fluctuations in intensity of both infrared wavelengths, whereas only one wavelength might be used for another threat type.

69. The Kalman Filter always relies -- supposedly -- on identifying a characteristic frequency for the variation in an object's infrared signal as a feature in the discrimination process.

70. These features also are used to generate the simulated data for the Mission Data Loads, which must be sufficiently "characteristic" of each warhead reentry vehicle and decoy to permit effective discrimination.

71. The appearances of space objects in a threat cloud change as the EKV approaches them. Almost invariably, the EKV changes its mind and selects different space objects over time as the most likely candidate to be the warhead, as first one and then another potential target object exhibits features that most closely match those of the target warhead profiled in the Mission Data Load.

72. Supposedly, the mathematical methods used by TRW are designed to generate feature values for the target warhead that converge towards the selected Mission Data Load values. In reality, no such convergence occurs. In simulated tests and using actual flight test data, the TRW technology regularly failed to select the correct target. It sometimes failed to select any target at all.

73. TRW's discrimination approach operates on the premise that the information supporting the Mission Data Load (i.e., threat type, warhead and decoy(s) temperature, motion (tumbling, spinning), materials, shape, and size) are accurate and that the feature values for the warhead reentry vehicle will be distinct and identifiable relative to those of the decoys-that is decoys have not been constructed so that their infrared signals closely mimic those of the warhead. The reliability of the system is strongly dependent on the accuracy of the information about the expected appearance of all the objects that will be encountered by the EKV, including accurate prior knowledge of which reentry vehicle will be used to carry the warhead. If the data on the expected appearance of the objects are faulty, the system will not reliably identify the warhead.

E. TRW's Testing and Development of the Baseline Algorithms and Kalman Filter

74. TRW tested the discrimination performance of the Baseline Algorithms and Kalman Filter using data from computer simulations (the "OPTISIG" program) and flight tests, such as the MSX flight tests, the Delta 181 flight tests, and later the Integrated Flight Test-1A.

75. Simulated data were based on the 13 near-term missile threat scenarios provided in the TRD for the Boeing contract, and the basic parameters for each scenario (i.e., warhead reentry vehicle and decoy temperature, motion, and construction) were varied.

76. For the flight tests, the Army provided (after the flights) detailed information on the temperature and dynamics of the warhead reentry vehicle and decoys for the purpose of evaluating the performance of the EKV's sensor and discrimination system.

77. For the flight tests, TRW and Boeing incorporated the data provided by the Army, after the fact, into the underlying discrimination calculations to artificially construct the discrimination system around the conditions of each flight test. TRW and Boeing retroactively tailored the discrimination system to the particular conditions of each experiment.

78. In order to test the discrimination system's degree of "robustness," TRW examined performance levels using varying levels of threat typing information. TRW performed a comprehensive series of studies by running what it referred to as an "exhaustive" set of statistical simulations covering all combinations of typing information, methods of constructing the threat typing classifier database, threat scenarios, and warhead reentry vehicle variants. Concurrent with these studies, TRW conducted a tine-tuning iteration of the requirements balancing process.

79. As early as 1992, TRW determined that without direct information on the physical characteristics of each missile threat type, factoring in the probability of incorrectly selecting the Mission Data Load parameters substantially reduced its own estimates of the discrimination system's predicted performance. TRW found that unless it had access to detailed and accurate threat information, its system performed no better than making random guesses. Schwartz is informed and believes, and on that basis alleges, that TRW failed to notify the Government about these negative results.

80. TRW's testing of the Baseline Algorithms regularly produced results in which the system failed to select the warhead. TRW tried to readjust the parameters of the Baseline Algorithms (there were about 60) to improve its performance. However, after the system was re-calibrated based on the results from one test run, the system failed to select the warhead when the test conditions were altered even slightly (i.e., by as little as ten percent).

81. The Baseline Algorithms also failed catastrophically when spikes, gaps, or dips were introduced into the infrared signal data. Spikes, gaps, and dips are common under real-world conditions.

82. TRW's test results showed that the Baseline Algorithms could not discriminate between a warhead and decoy(s), except for a very few highly contrived scenarios not representative of real-world conditions or the near-term scenarios required by the Technical Requirements Document.

83. TRW's testing of the Kalman Filter regularly produced results in which the system alternated randomly between selecting the warhead and decoys that were being monitored, without fixing on a single object as the warhead. In evaluating the output of the Kalman Filter, TRW found that it did not "converge" on a specific feature value but instead oscillated between values, converged to a value other than that for the warhead, or converged to a value that was determined by the signal's "noise" level or signal spikes, dips, or gaps.

84. TRW's results showed that the Kalman Filter could not discriminate between a warhead and decoy(s), except for a very few highly contrived scenarios not representative of real-world conditions or the near-term scenarios required by the Technical Requirements Document.

85. The Baseline Algorithms and the Kalman Filter were purportedly operated in conjunction with TRW's "BEST" algorithm. The BEST algorithm is used on the ground prior to the EKV flight, and supposedly selects the best signal features for identifying space objects tracked by the EKV's sensor in flight tests or for ground simulations using the OPTISIG program.

86. During the tests described above, TRW discovered that the BEST algorithm was highly sensitive to minor variations from the conditions under which empirical (i.e., experimentally based) parameters used to construct it were derived. Even slight deviations from these conditions caused the BEST algorithm to fail. TRW was never able to identify empirical parameters that permitted the BEST program to operate successfully under new conditions; it could only operate on a case-by-case basis in which the test conditions were predetermined.

87. The failure of the BEST program was demonstrated by TRW's and Boeing's decision to hand-select (after the fact) the "best" signal features for use in the analysis of flight-test data taken from the first Integrated Flight Test ("IFT-1A") of the TRW-Boeing infrared sensor system in July 1997. Hand-selection of features by human operators after the fact cannot be a part of the EKV performance in an actual deployment against a real threat. The system must discriminate in real-time, not in retrospect. Moreover, the EKV must perform autonomously.

88. During the IFT-1 A, the features extracted by the BEST algorithm on the ground did not match the features extracted in real-time by the EKV in flight. This mismatch further demonstrates the failure of the BEST algorithm.

89. Schwartz is informed and believes, and on that basis alleges, that TRW and Boeing continued to rely on hand selection of signal features until TRW was removed from the project in 1999.

IV.

THE PHYSICAL AND TECHNICAL FAULTS OF THE TRW-BOEING
DISCRIMINATION SYSTEM FIRST DISCLOSED TO THE GOVERNMENT
BY DR. SCHWARTZ

A. Dr. Schwartz's Work on the TRW-Boeing Discrimination Technology

90. Schwartz was employed by TRW from September 1995 until late February 1996 in the Space and Technology Division of TRW's Space and Electronics Group in Redondo Beach, California.

91. Schwartz was responsible for analyzing many aspects of the TRW discrimination technology, including (1) the sensitivity of its performance to different threat types and Mission Data Load parameters; (2) the physical causes of an object's infrared signal; (3) the impact of an object's temperature on its infrared signal; (4) discrimination concepts analysis; (5) discrimination feasibility and performance studies; (6) review of TRW test plans, procedures, and validation; and (7) assessment of the EKV's infrared sensor.

92. As part of her work at TRW, Schwartz reviewed most, if not all, of the TRW-Boeing test results and performance reports concerning the Baseline Algorithms and the Kalman Filter that were both for internal use and provided to the Government over the years 1993 to 1996.

93. Schwartz recorded her findings in test files, computer files, and weekly and daily Quick Mail reports she sent to TRW colleagues. Schwartz prepared numerous reports, including the following: (1) discrimination performance reports based on simulated and flight test data; (2) discrimination concept performance and validation reports; (3) feature analysis performance and validation reports based on simulated and flight-test data; (4) flight test analysis and validation reports on the MSX and Delta 18 1 missions; and (5) reports on threat typing analyses.

94. Schwartz's analyses of the Kalman Filter and Baseline Algorithms were supported by extensive computer-based testing that Schwartz conducted with the assistance of other employees at TRW, including Robert D. Hughes, Department Head; Ray Maddalone, Project Manager; Wally Beitzel, Chief Engineer; Hank Crowder, Senior Staff Engineer; John T. Tang, Senior Staff Engineer; Clifford E. Freiler, Senior Staff Engineer; and Scott A. Cook, Staff Engineer.

95. During the period December 1995 through February 1996, Schwartz informed her superiors, Clifford E. Freiler, Scott A. Cook, Robert Hughes, Ray Maddalone, Walter Beitzel and Henry Crowder, of the fundamental problems with the TRW discrimination system.

96. Wally Beitzel, Robert D. Hughes, Crowder, Ray Maddalone, John Tang and Scott Cook acknowledged that the test results and analyses performed by Schwartz and other TRW employees demonstrated that the Kalman Filter and Baseline Algorithms contained numerous fundamental flaws. They also acknowledged that the results reported to the Government that the discrimination system met contractual specifications were false.

97. When Schwartz explained her test results to Clifford E. Freiler, Scott A. Cook, Robert D. Hughes, Wally Beitzel, Hank Crowder, and Ray Maddalone and urged them to inform the Government and Boeing about the deficiencies in the discrimination system, they refused.

98. Schwartz is informed and believes, and on that basis alleges, that TRW personnel refused to inform the Government and Boeing about the deficientcies in the discrimination system for the following reasons:

99. When Schwartz informed her superior Robert D. Hughes in January 1996 that the Kalman Filter and Baseline Algorithms were defective, Mr. Hughes instructed her not to tell anyone and specifically directed her not to inform or contact the Govermnent. TRW elected to disregard the fundamental problems with the discrimination system that had been identified by Schwartz and its own extensive testing. At a TRW staff meeting held on February 26, 1996, TRW decided not to inform the Government about the fundamental flaws in the Baseline Algorithms and Kalman Filter or the system's failure to meet the standards established in the Technical Requirements Document incorporated into the TRW Contract.

100. On February 27,1996, TRW summarily suspended Schwartz from employment and prevented Schwartz from accessing the tests she and other TRW employees had conducted on the Kalman Filter and Baseline Algorithms. Schwartz was also precluded from disclosing her findings to the Government and Boeing. In retaliation against Schwartz's efforts to disclose the fundamental defects in TRW's discrimination system, TRW terminated her employment.

B. The Severe Technical Flaws in the Discrimination System.

101. The TRW system critically depends on accurate information regarding the materials, shape, size, motion, and temperature of a warhead and any accompanying decoys for a given missile type ("threat typing"). In TRW's system, this information is used to construct the Mission Data Load, against which data collected by the EKV's infrared sensor are compared to identify the warhead.

102. The Phase-One Engineering Team (POET) conducted an "Independent Review of TRW Discrimination Techniques" in 1998. POET concluded that sufficient information on many of the threat types included in the TRD of the Boeing Contract cannot be obtained.

103. Without information about an enemy missile and its countermeasures, construction of an accurate Mission Data Load is highly improbable. Without an accurate Mission Data Load, no mathematical methods for discrimination can be useful, regardless of sophistication. This informational deficit precludes the discrimination system from functioning effectively; without it, the system cannot work. Both TRW and Boeing understood this early on but failed to inform the Government that their system could not overcome such informational deficits. Instead, they repeatedly claimed that the system was "robust" with respect to uncertainties about the nature of the missile threat, meaning that the system would perform effectively when confronted with poorly defined threats.

104. The TRW discrimination system is particularly vulnerable to minor modifications (heating or cooling; specialized coating materials; altered motion) to a warhead reentry vehicle or decoy that substantially alter its observed infrared emissions. The system can also be overwhelmed by deploying warheads with decoys having infrared emissions that closely resemble those of the warhead reentry vehicle - an approach that involves simple technologies. Alternatively, the TRW discrimination system could be defeated by making all of the objects, warheads and decoys, appear unpredictably different to the EKV by heating or cooling them or coating them with common substances that alter their infrared emissions.

105. The problems with the TRW discrimination system are not limited to severe information gaps and simple countermeasures. Physical principles preclude the Baseline Algorithms and Kalman Filter from meeting the standards required by the Boeing Contract, the TRW Contract, or the TRD. The variation in intensity of light emissions from a warhead or decoy is affected by its motion (i.e., precession, spinning, tumbling) relative to an observer. The intensity of infrared emissions a sensor detects is affected by the surface area of the object that is visible; except for a perfectly uniform sphere, this changes as the object's orientation changes relative to the sensor (e.g., as the object spins or tumbles). The premise of the TRW discrimination system is that each warhead type and decoy has a unique motion (imparted by its deployment mechanism), shape, and construction that - purportedly - causes their observed infrared emissions to fluctuate with a "characteristic" frequency and intensity. (The Kalman Filter and the Baseline Algorithms both measure the average infrared signal intensity and the magnitude of its variation. The Kalman Filter also analyzes the rate (frequency) of the fluctuations in the infrared emissions from a warhead and any decoys deployed with it.) It is unrealistic to assume that each warhead type or decoy is deployed with a uniform motion having a characteristic rate.

106. Even if the warhead or decoy did have such a rate, a moving observer would nevertheless perceive varying frequency and magnitude of the fluctuations in the warhead or decoy's infrared emissions. These fluctuations are caused by the motion of the object. Their frequency and range of variation are sensitive to the angle from which the warhead is viewed. Consequently, as the EKV approaches a warhead or decoy - and their relative orientation changes - the fluctuations and average value of each object's infrared signal change from the perspective of the EKV's sensor.

107. Thus, as TRW and Boeing were well aware, the principle upon which the Kalman Filter and Baseline Algorithms purportedly were based - i.e., that the infrared signal from a warhead or decoy has such fixed "characteristic features" - is patently false because such features of an object's infrared signal will not, and cannot be, static given the dynamic conditions under which the discrimination system must operate.

C. TRW and Boeing Withheld Data From the Government Demonstrating the Severe Technical Flaws in the Discrimination System

108. In testing its system, TRW determined that resolution of a characteristic frequency in a warhead's or decoy's infrared signal is further complicated by "harmonic frequencies" in an object's infrared signal, which simply refers to signal fluctuations that are multiples of an object's base frequency (e.g., for a base frequency of 100 hertz, the harmonics are 200 hertz, 300 hertz, etc.). Any warhead or decoy that has sharp edges or an abrupt change of surface materials generates infrared signals that contain harmonic frequencies. The Kalman Filter cannot resolve these harmonic frequencies and instead jumps between them without ever being able to resolve one as being the characteristic frequency. In a great majority of the tests conducted by TRW, the Kalman Filter failed completely when harmonic frequencies were included in simulated tests. Harmonic signals would almost always be present in real world situations. Thus, the Kalman Filter never could have functioned effectively for this reason as well.

109. TRW also found in its testing that the limited range of the EKV's sensor creates serious problems. This constraint restricts the time over which data can be collected. The limited sensitivity of the infrared sensor creates gaps - periods when the signal cannot be resolved - in an object's infrared signal. The sensor's sensitivity is of particular importance when the EKV is distant from the warhead and decoys (approximately sixty to forty-five seconds before intercept) because this is when an object's infrared signal is weakest. Further, the "noise" in this early signal is amplified when the data are scaled to compensate for the increase in the signal that occurs as the EKV approaches the warhead and decoys. This re-scaling creates unavoidably large "spikes" and "dips" in the signal - observed in real and simulated data - during the period of sixty to forty-five seconds before intercept.

110. These data "gaps," as TRW discovered, cause sudden changes in the averaged infrared signal data analyzed by the Kalman Filter and Baseline Algorithms. The sudden changes in turn confused the discrimination system by creating erroneous fluctuations in the infrared signal that obscured the "real" fluctuations caused by an object's actual physical characteristics. During the period of these data gaps, an object's infrared signal is not consistent either in time variability or in measured intensity. Unless the discrimination system can accurately "fill" these gaps, the infrared signal cannot be relied on for discrimination until the EKV is very close (within approximately forty-five seconds) of the warhead and decoys. This is a critical constraint because effective targeting and kill-vehicle maneuvering require that the TRW discrimination system operate starting at about sixty seconds prior to interception.

111. Additional gaps in an object's infrared signal are introduced if the EKV's sensor cannot view simultaneously all of the objects it is tracking because they are spread out in space. Under these circumstances, the sensor's telescope must switch back and forth between the objects it is tracking. While the sensor is not trained on an object, a gap is created in the signal for that object. Because all information is lost during these intervals, neither the average intensity of nor the fluctuations in the infrared signal from objects the EKV is tracking can be accurately measured. This becomes a more serious problem the closer the EKV comes to a warhead and decoy(s) that are spaced far apart. These constraints create a narrow window within which the system can operate because the sensor's rapidly shrinking field-of-view (as it approaches the "threat cloud") precludes the tracking of multiple objects at close-range, while the weak infrared signals from these objects limit tracking at long-range.

112. During its extensive testing, TRW discovered that the Kalman Filter and Baseline Algorithms are highly sensitive to "spikes" - short bursts of infrared light - in the signal received by the EKV's infrared sensor. These signal spikes arise naturally from reflections of infrared light, typically from the Earth and its atmosphere, off the surfaces of space objects that the EKV is tracking and from the sun's infrared emissions. Such spikes in an object's infrared signal are unavoidable. Signal spikes, like gaps, obscure an object's "true" signal by introducing random infrared signals that are unrelated to the physical characteristics of the object being tracked. Removing such signal spikes is not an option because it creates gaps in the data that also distort the EKV's infrared signal measurements. Even assuming that characteristic features existed for each warhead reentry vehicle upon which discrimination could be based, TRW's testing demonstrated that the actual conditions under which discrimination must occur preclude the reliable operation of the Kalman Filter and Baseline Algorithms.

113. TRW and Boeing failed to divulge the defects described above to the Government.

V.

FLIGHT TESTING OF THE TRW-BOEING DISCRIMINATION SYSTEM EXPOSED
ITS FUNDAMENTAL FLAWS: THE 1997 INTEGRATED FLIGHT TEST-1A

114. On June 24, 1997, the Ballistic Missile Defense Organization ("BMDO") completed the IFT-1A. A specially configured Minuteman II rocket, fired from Vandenberg Air Force Base in California, transported a suite of ten test objects, which included eight decoys, one mock reentry vehicle (warhead) and a rocket upper-stage (the Mission Service Launch System, or MSLS), to deploy the decoys and mock warhead. The launch of the target cluster occurred twenty-one minutes before a payload launch vehicle lifted off from Kwajalein Missile Range in the Republic of the Marshall Islands with the TRW-Boeing sensor system. The sensor package acquired, tracked, and flew past the cluster of ten test objects, collecting an extensive amount of data on the objects that were analyzed using the Baseline Algorithms and Kalman Filter. No attempt was made to collide with the mock warhead during the IFT-1A mission.

115. The conditions of the test were precisely arranged to optimize the chances that the TRW discrimination system would correctly identify the mock warhead:

116. One unanticipated problem did arise during the IFT-1 A mission. A balloon decoy did not fully inflate, which, ironically, made it appear to the EKV's sensor almost identical to the warhead. Rather than acknowledging that its system could not perform discrimination between the warhead and the partially inflated balloon, TRW circumvented the problem by omitting the data pertaining to the partially inflated balloon from its analysis. TRW did so without first informing the Government. This omission is just one instance, in a long chain, of fraudulent manipulation of the IFT-1A data designed to maintain the appearance that the discrimination system is viable.

117. The data obtained during the fly-by also confirmed the technical and physical limitations of the system outlined above. First, the data showed no discernible time-fluctuating feature ("characteristic frequency") in the infrared signal that was unique to either the mock warhead or the decoys. Second, neither the intensity of the warhead's infrared signal nor its range of fluctuation consistently distinguished the warhead from the decoys. Instead, the analysis of the IFT-1A data revealed that the TRW system randomly shifted back and forth between the warhead and decoys in seeking to identify the warhead. Both of these results were predictable because these features of the infrared signal from the warhead and decoys change as the vantage point of the EKV's sensor changes, and the orientation of the EKV's sensor relative to the objects it is tracking unavoidably shifts as they approach each other.

118. TRW's discrimination system was also unable to contend with interfering infrared signals from sources other than the warhead and decoys. Spikes in the signal caused by random atmospheric interference and reflections off of the warhead and decoys led to substantial deviations between the idealized simulated data and those collected by the EKV's sensor, making accurate discrimination impossible. Consequently, rather than demonstrating the viability of the TRW-Boeing system, the IFT-1A mission confirmed the systemic flaws Schwartz reported to her superiors at TRW in 1995 and disclosed to the Government for the first time in April 1996, following her abrupt termination by TRW.

119. TRW produced a 45-Day Report (published on August 13, 1997) that analyzed the results of the IFT-1 A mission and the application of the Baseline Algorithms to the data it generated. The 45-Day Report employed a gap-filling algorithm to compensate for segments of unavoidably low signal and signal spikes (discussed above) in the simulated data used to construct the Mission Data Load for the IFT-1 A test. Incorporating this algorithm, TRW determined that the Baseline Algorithms had only a sixty percent chance of correctly identifying the warhead under the conditions of the IFT-1A test.

120. TRW, however, falsely represented to the Government that, had an interception been attempted, the Baseline Algorithms would have correctly identified the warhead because it did not assign a higher probability of being the target to any other object in the threat cloud. TRW, however, cannot claim that its discrimination system would, in fact, have correctly identified the warhead; the only accurate claim is that it had a sixty-percent chance of doing so - far below that required under the TRD.

121. TRW's 45Day Report was followed by a Boeing 60-Day Report (released on August 22, 1997) analyzing the performance of the EKV's infrared sensor. The 60-Day Report found that the infrared sensor operated well within specifications. In addition, in April 1998 Boeing published an Addendum to its 60-Day Report that reanalyzed the data from the IFT- 1 A mission.

122. In the Addendum, Boeing fraudulently manipulated the IFT-1 A data and the discrimination system itself in several critical ways. First, Boeing engaged in an exposte modification of the Mission Data Load to ensure that it "matched" the IFT-1 A data. Boeing, for example, hand-selected signal features (different from TRW's) and, contrary to the operation of the system, spliced two sets of signal features together when a single set did not produce the desired result.

123. Second, where Boeing was unable to fit the Mission Data Load to specific segment of experimental data, it omitted the experimental data altogether from its analysis.

124. Boeing, for example, removed the first 3 1 seconds of data because of poor signal and large signal spikes. Boeing justified this action by claiming that the EKV's sensor was not functioning properly over this period and that warhead discrimination does not occur more than fifteen seconds prior to interception. These claims were false: (1) the Boeing 60-Day Report found that the sensor had no problems; and (2) the design of Boeing's EKV requires that discrimination begin at least sixty seconds prior to interception. The removal of this 3 1 seconds of data was completely artificial, and was based on a claim Boeing knew to be false. In a real situation, the discrimination system would have to begin processing sensor tracking data early to classify all possible target objects before they pass from its field of view and to provide the EKV with enough time to maneuver towards the object it selects as the most probable target.

125. Third, without any valid rationale, Boeing removed approximately the last thirteen to sixteen seconds of the IFT-1 A data because one of the decoys was actually designated by TRW's system as the warhead during this segment.

126. It was only through such fraudulent manipulation of simulated and flight-test data and through reconstructing Mission Data Loads that Boeing was able to "fix" the results of the Baseline Algorithms to meet the performance requirements set by the Government.

VI.

THE DEFENDANTS' FALSE CLAIMS TO THE GOVERNMENT

127. TRW and Boeing knowingly and deliberately submitted to the Government false proposals, false performance reports, false assessment reports, false test plans, procedures, and reports, and invoices based on false claims. Schwartz is informed and believes, and on that basis alleges, that Boeing and TRW have been paid substantial sums by the Government over the period 1992-1999 in connection with the Boeing Contract, the TRW Contract and the TRW Purchase Order.

128. The Boeing employees involved in knowingly presenting false statements to the Government include, but are not limited to, Peter Chu, Robert Duffy, Daniel Garwich, C. Lee, Michael F. Madden, Len McAffee, David Pearson, John Ripley, and Linda Taylor. The TRW employees involved in knowingly presenting false statements to the Government include, but are not limited to, Wallace Beitzel, Scott Cook, Henry Crowter, C. Frieler, Robert Hughes, Ray Maddalone, and Jay Mitchell.

129. The statements enumerated below were presented in writing (e.g., the 1993 and 1995 Threat Typing Sensitivity Study Reports; March 1995 and April 1996 reports on the Kalman Filter) and orally (e.g., the TRW and Boeing in October 1995) to the Government at the Defendants' principal places, which are provided above in the section listing the parties to this action. In particular, since the time of the project down-select in 1994, TRW and Boeing have falsely claimed that the performance of the Baseline Algorithms met a contractual requirements. Some of these written reports and statements were made to or produced for the Government during the period from January 1993 until January 1996. A few additional reports (e.g., TRW's briefing entitled "GBI Discrimination Performance (U)" on November 18, 1996; TRW's April 1996 Kalman Filter Performance Report) and data were generated in the period from February 1996 until October 1999. Schwartz is informed and believes, and on that basis alleges, that there have been additional such statements made by TRW and Boeing to the Government, both in writing and orally.

130. Schwartz is informed and believes, and on that basis alleges, that when Boeing presented reports regarding the Boeing Contract to the Government, in most or all cases, TRW was the principal author of any portions pertaining to its discrimination technology.

131. TRW's reports to the Government falsely claimed that the system was in conformance with the TRD and Boeing's specifications that the discrimination system have, according to an unclassified Boeing document, a greater than a ninety-four percent probability of correctly selecting the warhead. TRW knowingly and falsely reported to the Government that the Baseline Algorithms and Kalman Filter could accurately discriminate between a warhead and decoys deployed with it. TRW falsely represented to the Government that the Kalman Filter could be used for discrimination when, for example, its tests showed that over 85% of the time the technology failed to perform. Defendants falsely represented the probability for successful discrimination by fraudulently ignoring and withholding from the Government the majority of the data they had collected indicating that the system performed far below the standards required under the Boeing Contract, the TRW Contract and the TRD.

132. TRW and Boeing knowingly submitted false performance reports claiming that the EKV's discrimination system was fully "autonomous" (i.e., functioned in a "closed-loop, object-level" mode) with respect to selecting the right signal features, as required by the TRD and paragraph 4.0 of the TRW Statement of Work. This statement is directly contradicted by extensive data and testing of the "BEST" algorithm TRW developed to select the optimal signal features. It is also refuted by the fact that TRW and Boeing never used the BEST algorithm in analyzing flight test data, but instead hand-selected features after the fact. Moreover, TRW and Boeing did not even choose the same features in their respective analyses; each used different signal features and different Mission Data Load values. Contrary to TRW's and Boeing's claims, no systematic method exists to select the "best" signal features that would enable the EKV to operate autonomously.

133. TRW and Boeing falsely asserted that the discrimination system complies with paragraph 3.1.1 of the TRW Statement of Work, the TRD, and Boeing specifications. TRW falsely stated that its discrimination technology is largely immune to fluctuations in Mission Data Load parameters and minimally sensitive to the level of threat typing information available. As TRW data show, the discrimination system is highly sensitive to changes or inaccuracies in the Mission Data Load parameters. Even minor perturbations (i.e., about ten percent) in the Mission Data Load parameters, for example, degraded the probability of accurate discrimination to less then 20% of the value TRW reported to the Government. TRW and Boeing concealed from the Government the high sensitivity of the discrimination system to differences/inaccuracies in the Mission Data Load parameters. TRW and Boeing withheld this information to stave off the crippling effect it would have on the NMD program, because accurate information on target missiles is rarely, if ever, available - meaning that under real-world conditions in which information is limited and uncertain, the system could not operate.

134. TRW and Boeing falsely asserted that validation of TRW's discrimination algorithms against phenomenology data acquired from experimental programs, such as Delta 18 1 and ERIS FTV, were in compliance with paragraph 3.1.1. of the TRW Statement of Work, the TRD, and specifications in the Boeing Contract.

135. TRW and Boeing falsely asserted that the discrimination system could identify a warhead among two widely spaced clusters of decoys as required in paragraph 1.0 of the TRW Statement of Work, the TRD, and specifications of the Boeing Contract. Selection between two clusters is impossible using the TRW-Boeing system because it cannot begin the discrimination process until less then 45 seconds prior to intercept, which does not afford the system adequate time to discriminate between two clusters of objects and maneuver to intercept the warhead.

136. In their analysis of the IFT-1 A mission data, TRW and Boeing falsely asserted that the discrimination system designates an object as the warhead if it retained the highest importance value for 2 seconds or more, and selects the target warhead only in the final 15 seconds prior to interception - despite the requirement that at least 60 seconds of discrimination time be available. Without any valid rationale, TRW also removed approximately the last thirteen to sixteen seconds of IFT-1 A data because one of the decoys was designated by its system as the warhead during this final segment. TRW and Boeing fraudulently manipulated the IFT-1A data and the Mission Data Load to make it appear that the discrimination system successfully identified the warhead and to protect their contracts with the Government.

137. An unclassified document entitled "Independent Review of TRW Discrimination Techniques Final Report", generated by Phase One Engineering Team ("POET") in the course purportedly of assessing TRW's technology, reflects results claimed by TRW of the performance of its Baseline Algorithms on IFT-1A data. As reflected in the POET report, TRW claimed performance of approximately 99% probability to assign the target. These claimed results are false.

138. TRW and Boeing falsely represented that there is rarely substantial overlap between the Mission Data Load for a warhead and that for a decoy when they had extensive data contradicting this claim.

139. TRW, for example, improperly incorporated data, such as gaps in the IFT-1A data, into the Mission Data Load for the IFT-1 A mission that were not, and could not have been, available prior to the test flight. In other words, when the test data did not match the Mission Data Load used to discriminate between the warhead and decoys in the IFT-1A mission, TRW and Boeing retroactively fit the Mission Data Load to the experimental data.

140. In December 1997, TRW acknowledged that the Mission Data Load had been manipulated in the 45-Day and 60-Day Reports and promised to provide the Government with an errata document. However, TRW never did so.

141. Thus, TRW and Boeing fixed the result of the IFT-1 A mission (after the fact) to give the Government the false impression that the discrimination system met contractual specifications.

142. Schwartz is informed and believes, and on that basis alleges, that TRW submitted claims for payment, directly or indirectly, to the Government for work TRW purportedly performed in its role as "System Engineer" under the Boeing Contract, and that expressly or implicitly, TRW thereby represented to the Government that it was in compliance with the conflict of interest provisions of the Boeing Contract and that it was not operating under any conflict of interest.

143. Schwartz is informed and believes, and on that basis alleges, that by failing to disclose the defects in TRW's discrimination technology to the Government as alleged above, TRW violated the conflict of interest provisions of the Boeing Contract regarding its duties as "System Engineer." Schwartz is further informed and believes, and on that basis alleges, that TRW acted in a blatant conflict of interest, which it also failed to disclose to the Government.

FIRST CLAIM FOR RELIEF

(False Claims Act, Against TRW and Boeing for False Claims to the United States Army)

144. Schwartz realleges and incorporates by reference the allegations contained in paragraphs 1 through 143 of this Complaint as if set forth here in full.

145. Schwartz is informed and believes, and on that basis alleges, that to receive payment, directly or indirectly, from the Gov

ernment pursuant to the Boeing Contract, the TRW Contract, and the TRW Purchase Order, TRW and Boeing made fraudulent misrepresentations and omissions to the Government about the capabilities and robustness of the discrimination technology, and falsified and withheld crucial data.

146. Schwartz is informed and believes, and on that basis alleges, that beginning in or before 1990, and continuing until the tiling of this Complaint, TRW and Boeing knowingly presented or caused to be presented to the Government false and fraudulent claims for payments, costs, compensation, and awards under their contracts with the Government for the research and development of the discrimination system for the EKV used in the proposed NMD system, as such claims pertained to the viability of the Kalman Filter and Baseline Algorithms used in the discrimination system. These claims were false and fraudulent, were contained or based upon the false statement and representations described in part in Section V of this Complaint, and were further based upon false records containing such false statements.

147. Defendants TRW and Boeing knowingly presented, or caused to be presented, to the United States Government for payment or approval, false or fraudulent claims, these claims being the above described requests for payment, and statements and certifications submitted to obtain such payments; each instance being in violation of 3 1 U.S.C. § 3729(a)( 1).

148. Defendants TRW and Boeing knowingly made or used, or caused to be made or used, false records or statements to have false or fraudulent claims paid or approved by the United States Government, such records and statements being further described in Section VI of this Complaint; each instance being in violation of 31 U.S.C. § 3729(a)(1).

149. As a result of the conduct of the Defendants corporations, as described in this Complaint, the United States suffered actual damages.

SECOND CLAIM FOR RELIEF

(False Claims Act, Against TRW and Boeing for False Claims to Congress)

150. Schwartz realleges and incorporates by reference the allegations contained in paragraphs 1 through 143 of this Complaint as if set forth here in full.

151. Beginning in or before 1990, and continuing until the filing of this Complaint, TRW and Boeing knowingly presented or caused to be presented to the Government false and fraudulent claims for payments, costs, compensation, and awards under their contracts with the Government for the research and development of the discrimination system for the EKV used in the proposed NMD system, as such claims pertained to the viability of the Kalman Filter and Baseline Algorithms used in the discrimination system. These claims were false and fraudulent, were contained or based upon the false statement and representations described in part in Section VI of this Complaint, and were further based upon false records containing such false statements.

152. Defendants TRW and Boeing knowingly presented, or caused to be presented, to the United States Government for payment or approval, false or fraudulent claims, these claims being the above described requests for payment, and statements and certifications submitted to obtain such payments; each instance being in violation of 31 U.S.C. § 3729(a)( 1).

153. Defendants TRW and Boeing knowingly made or used, or caused to be made or used, false records or statements to have false or fraudulent claims paid or approved by the United States Government, such records and statements being further described in Section V of this Complaint; each instance being in violation of 31 U.S.C. § 3729(a)(l).

154. As a result of the conduct of the Defendants corporations, as described in this Complaint, the United States suffered actual damages.

THIRD CLAIM FOR RELIEF

(False Claims Act, Against TRW, for Violation of 31 U.S.C. § 3730(h))

155. Schwartz realleges and incorporates by reference the allegations contained in paragraphs 1 through 143 of this Complaint as if set forth here in full.

156. Schwartz was employed by TRW from September 1995 through late February 1996.

157. Schwartz performed all labor and services required of her except to the extent that such performance was excused or made impossible due to the actions of TRW.

158. As alleged above, Schwartz brought serious questions regarding the failings of TRW's discrimination technology to the attention of her superiors. She presented test results demonstrating that the technology did not work. She raised issues casting doubt that the technology could ever work. She urged TRW to convey this information to Boeing and the Government.

159. On February 27, 1996, TRW responded to Schwartz not by doing as she requested, but instead by terminating Schwartz's employment without cause and without prior notice.

160. Schwartz is informed and believes, and on that basis alleges, that TRW terminated her employment in part to retaliate against her for raising difficult questions and in part to silence her, in an attempt to prevent the information she identified from reaching Boeing and the Government. Schwartz is further informed and believes, and on that basis alleges, that TRW did so to perpetuate its receipt of payments from the Government on the TRW Contract and the TRW Purchase Order; TRW feared that the matters raised by Schwartz would jeopardize its receipt of such payments.

161. Schwartz had received a raise from TRW less than two weeks before her termination.

162. Prior to being terminated by TRW, Schwartz had not been disciplined by TRW. TRW gave no adverse comments to Schwartz regarding her job performance. In terminating Schwartz as it did, TRW failed to follow its own practices and procedures regarding discipline of employees.

163. Schwartz was discriminated against in her termination by TRW, by and through its officers, agents, and employees, because of lawful acts done by her in furtherance of actions protected by the False Claims Act.

164. Schwartz was earning approximately $70,000 per year at the time of her termination, and received other employment benefits.

165. TRW's actions as alleged above violated 31 U.S.C. § 3730(h) and damaged Schwartz in an amount to be determined at trial.

FOURTH CLAIM FOR RELIEF

(Wrongful Termination in Violation of Public Policy - Against TRW)

166. Schwartz realleges and incorporates by reference the allegations contained in paragraphs 1 through 143 and 156-164 of this Complaint as if set forth here in full.

167. TRW's termination of Schwartz's employment violated substantial public policies embodied in the federal False Claims Act, 31 U.S.C. §§ 3729 et seq.

168. These substantial, fundamental public policies were enacted for the benefit of the public, were well-established during Schwartz's employment, and were applicable to employers such as TRW at the time of Schwartz's discharge.

169. As a direct, foreseeable, and proximate result of TRW's wrongful termination of Schwartz's employment, Schwartz has suffered, and will continue to suffer, loss of wages and employment benefits, and additional tangible and intangible benefits that Schwartz would have received if she had not been terminated unlawfully.

170. As a further proximate result of TRW's unlawful conduct, Schwartz has suffered, and will continue to suffer humiliation, embarrassment, mental anguish, emotional and physical distress, and other general damages in amount according to proof at trial.

171. By terminating Schwartz in violation of the foregoing substantial and fundamental public policies embodied in the federal False Claims Act, TRW acted with malice, fraud, and oppression, and subjected Schwartz to cruel and unjust hardship in conscious disregard of her rights. Schwartz is therefore entitled to an award of punitive damages to punish TRW and to make an example of it.

PRAYER FOR RELIEF

WHEREFORE, Schwartz prays for judgment against Defendants as follows:

1. On Claims One and Two, under the False Claims Act, for treble the damages sustained by the United States, plus civil penalties of ten thousand dollars ($10,000) for each false claim submitted to the Government and for each false statement made or used to induce each such false claim being paid or approved by the Government.

2. On Claims One and Two, under the False Claims Act, for interest on the above treble damages, from the date on which the original complaint in this action was served on TRW and Boeing.

3. On Claim Three, for two times her back pay, interest on the back pay, and compensation for all special damages she incurred, including without limitation attorneys' fees and costs; and reinstatement at the seniority she would have had but for the wrongful discrimination against her by TRW.

4. On Claim Four, for back pay and front pay; interest accrued thereon as permitted by law; and punitive damages in an amount to be determined at trial.

5. For all costs and expenses of this civil action, with interest thereon.

6. For such other and further relief as the Court deems just and equitable.

7. In addition, Schwartz, acting on her own behalf, demands and seeks that an award be made in her favor as follows:

8. For twenty-five percent (25%) of the proceeds collected by the Government, if the United States proceeds with this action; or for thirty percent (30%) of such proceeds if the Government does not proceed with this action.

9. For all reasonable expenses incurred by Schwartz in relation to this proceeding, plus all reasonable attorneys' fees and costs.

10. For such other and further relief to which Schwartz may be entitled.

Respectfully submitted,

Dated: January 5, 2001


DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P. 38(b) and Local Rule 3.4.10.1, plaintiff and relator Dr. Nira Schwartz demands trial by jury.

Dated: January 5, 2001


SERVICE LIST

Jeffrey Wienberger
Richard E. Drooyan
Donovan Cocas
Natalie P. Stone
MUNGER. TOLLES & OLSON LLP
355 S. Grand Avenue
Thirty-Fifth Floor
Los Angeles, CA 90071-1560
Attorneys for Defendant TRW, Inc.

James J. Gallagher
Susan A. Mitchell
Christopher B. McDavid
MCKENNA & CUNEO, LLP
444 South Flower Street
Eighth Floor
Los Angeles, CA 90071-2901
Attorneys for Boeing North American, Inc.

Dennis C. Egan
Department of Justice
Civil Division
Commercial Litigation Branch
Post Office Box 261
Ben Franklin Station
Washington, D.C. 20044


Complaint in PDF Format