Chevron U.S.A., Inc. v. United States

Breach of Contract; Department of Energy Organization Act, Pub. L. No. 95-91 (1977); Implied Covenant of Good Faith and Fair Dealing; National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106 (1996); Naval Petroleum Reserves Production Act of 1976, Pub. L. No. 94-258 (1976); Privileged Documents; Reliance Damages; Sanctions for “Bad Faith” Conduct During Discovery; Pub. L. No. 105-261 (1998); Restatement (Seoond) of Contracts §§ 344(b) (Purposes of Remedies), 349 (Reliance Damages), 350 (Mitigation).

MEMORANDUM OPINION AND ORDER

SUSAN G. BRADEN, Judge

This case arises from a commercial dispute between Chevron U.S.A., Inc. (“Chevron”) *750 and the Department of Energy (“DOE”) about the finalization of their respective equity interests in oil and gas deposits, located in the Elk Hills Reserve of California, worth approximately $37.3 billion. To accomplish equity finalization, Congress enacted a law that required DOE to finalize equity by an “independent petroleum engineer” that was “mutually acceptable” to Chevron and DOE. See National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, § 3412 (a), (b), 110 Stat. 186 , 631-32 (“the 1996 NDA Act”). Accordingly, on July 8, 1996, DOE entered into a contract with an Equity Independent Petroleum Engineer (“Equity IPE”). On May 19, 1997, DOE entered into an Equity Process Agreement with Chevron. The purpose of both of these agreements was to ensure that, despite past disputes about how equity finalization was conducted, in the future, the process would be impartial, unbiased, and transparent. That did not happen.

The court has determined that DOE repeatedly and materially violated the May 19, 1997 Equity Process Agreement with Chevron. In addition, DOE repeatedly and materially violated a separate July 8, 1996 contract with the Equity IPE, to which Chevron was the direct and intended third party beneficiary. As a result, DOE is liable to Chevron for damages in an amount to be determined.

To facilitate a review of this Memorandum Opinion and Order, the court has provided the following outline:

I.STATUTES GOVERNING THE ELK HILLS RESERVE AND GOVERNMENT AGREEMENTS TO FINALIZE EQUITY.

A. The 1944 Department Of The Navy’s Unit Plan Contract.

B. In 1977, The Department Of Energy Assumed The Obligations Of The 1944 Unified Plan Contract And Initial Equity Finalization Efforts Commenced.

C. On February 10, 1996, Congress Enacted The National Defense Authorization Act, Mandating Equity Finalization.

D. On July 8, 1996, The Department Of Energy Entered Into A Contract With An Equity Independent Petroleum Engineer To Finalize Equity.

E. On October 11, 1996, The Department Of Energy Appointed An Independent Legal Advisor To Provide Legal Advice To The Independent Petroleum Engineer.

F. The May 19, 1997 Decoupling And Final Equity Process Agreements.

1. The Decoupling Agreement.

2. The Equity Process Agreement.

G. The February 5, 1998 Agreement To Terminate The 1944 Unit Plan Contract.

II. ZONE BY ZONE ANALYSIS OF EQUITY FINALIZATION.

A. The Carneros Zone.

1. The Independent Petroleum Engineer’s Provisional Recommendation.

2. The Independent Petroleum Engineer’s Final Recommendation.

3. The Assistant Secretary For Fossil Energy’s Preliminary Decision.

4. The Assistant Secretary For Fossil Energy’s Final Decision.

5. The Appeal To The Department Of Energy’s Office Of Hearings And Appeals.

B. The Dry Gas Zone.

1. The Independent Petroleum Engineer’s Provisional Recommendation.

2. The Independent Petroleum Engineer’s Final Recommendation.

3. The Assistant Secretary For Fossil Energy’s Preliminary Decision.

4. The Assistant Secretary For Fossil Energy’s Final Decision.

C. The Stevens Zone.

1. The Equity Independent Petroleum Engineer’s Provisional Recommendation.

2. The Assistant Secretary For Fossil Energy’s Decision Regarding The Data Cutoff Date.

*751 3. The Equity Independent Petroleum Engineer’s Final Recommendation.

4. The “Secret Report.”

5. The Assistant Secretary For Fossil Energy’s Preliminary Decision.

6. The Assistant Secretary For Fossil Energy’s Final Decision.

7. The Department Of Energy’s Office Of Hearings And Appeals Remand Decision.

8. The Assistant Secretary For Fossil Energy’s Preliminary Remand Decision.

9. The Assistant Secretary For Fossil Energy’s Final Remand Decision.

D. The Shallow Oil Zone.

1. The Independent Petroleum Engineer’s Provisional Recommendation.

2. The Shallow Oil Zone Equity Was Never Finalized.

III. PROCEDURAL HISTORY.

IV. JURISDICTION.

A. Pre-Trial Decisions Regarding Jurisdiction.

B. The Effect Of The United States Court Of Appeals For The Federal Circuit’s Post Trial Decision In Rick’s Mushroom Service.

1. The Government’s Argument.

2. The Plaintiffs Response.

3. The Court’s Resolution.

C. Other Jurisdictional Issues Raised In The Government’s May 14, 2010 Post-Trial Brief.

1. Jurisdictional Arguments That Are Not At Issue Or Are Irrelevant In This Case.

2. Whether The United States Court Of Federal Claims Has Jurisdiction To Adjudicate Plaintiffs Claims That The Department Of Energy Breached The Equity Independent Petroleum Engineer Protocol.

a. The Plaintiffs Argument.

b. The Government’s Response.

c. The Court’s Resolution,

i. The Equity Independent Petroleum Engineer Protocol Was Not A Contract Between Plaintiff And The Department Of Energy.

ii. The Equity Independent Petroleum Engineer Protocol Was Not Incorporated Into The Equity Process Agreement As To The Carneros, Dry Gas, And Stevens Zones.

iii. Plaintiff Was A Third Party Beneficiary Of The July 8, 1996 Contract Between The Department Of Energy And The Equity Independent Petroleum Engineer.

V.DISCUSSION.

A. Whether The Secretary Of The Department Of Energy Had Authority To Prohibit Staff Attorneys From Having Ex Parte Communications With The Assistant Secretary For Fossil Energy.

1. The Government’s Argument.

2. The Plaintiffs Response.

3. The Court’s Resolution.

B. Whether Department Of Energy Attorneys Who Served As Advocates In The Equity Finalization Process Were Subject To The Ex Parte Prohibitions Of The Equity Process Agreement.

1. The Plaintiffs Argument.

2. The Government’s Response.

3. The Court’s Resolution.

C. Whether Ex Parte Communications Between Department Of Energy Staff Attorneys And The Assistant Secretary Of Fossil Energy, In Fact, Were A Breach Of The Equity Process Agreement.

1. The Plaintiffs Argument.

2. The Government’s Response.

3. The Court’s Resolution.

a. Specific Government Defenses Are Denied.

b. The Equity Process Agreement Was Repeatedly And Materially *752 Breached By The Department Of Energy.

D. Whether The Department Of Energy Breached The July 8, 1996 Contract With The Independent Petroleum Engineer, To Which Plaintiff Was A Third Party Beneficiary.

1. The Plaintiff's Argument.

2. The Government’s Response.

3. The Court’s Resolution.

E. Damages.

1. Whether Plaintiff Is Entitled To Recover Reliance Damages.

a. The Plaintiffs Argument.

b. The Government’s Response.

c.The Court’s Resolution.

F.Sanctions For The Government’s “Bad Faith” Conduct During Discovery.

VI. CONCLUSION.

I. STATUTES GOVERNING THE ELK HILLS RESERVE AND GOVERNMENT AGREEMENTS TO FINALIZE EQUITY. 1

A. The 1944 Department Of The Navy’s Unit Plan Contract.

Chevron is a publicly-traded corporation organized under Delaware law. Chevron’s *753 predecessor, Standard Oil Company (“Standard Oil”), and the United States entered into a June 19,1944 Unit Plan Contract (“the UPC”) governing the joint operation and production of Naval Petroleum Reserve No. 1 (the “Elk Hills Reserve”). JE 1; see also United States v. Standard Oil Co., 545 F.2d 624, 626-28 (9th Cir.1976) (discussing the history of the Elk Hills Reserve and the origins and purpose of the UPC). Under the UPC, Standard Oil and the United States, acting through the Secretary of the Navy (“Navy”), agreed to operate the Elk Hills Reserve as a unit and allocate production costs, based on the parties’ ownership interests in the underlying oil and gas. JE 1.

To accomplish this objective, the UPC divided the Elk Hills Reserve into three commercially productive zones: 2 the Dry Gas Zone; the Shallow Oil Zone; and the Stevens Zone. JE 1 § 2(c) at 7. The UPC also assigned the following ownership interests in the “commercially productive zones:”

Dry Gas Zone Navy Standard Oil 77.0492% 22.9508%

Shallow Oil Zone Navy Standard Oil 63.9301% 3 36.0699%

Stevens Zone Navy 65.4517% Standard Oil 34.5483%

Editor’s Note: The preceding image contains the reference for footnote: 3

*754 JE 1 § 2(d) at 7. 4

Little was known at that time about the geology of these zones, because very few producing wells had been drilled. TR at 165-66 (Stone). For this reason, the UPC provided that the interests of Standard Oil and the Navy would be subject to revision, at the request of either party, by a jointly appointed Engineering Committee. JE 1 § 2(f) at 7-8. The UPC also provided for a dispute resolution procedure in the event the Engineering Committee was unable unanimously to agree on any revision to the initial ownership interest. JE 1 § 9(b) at 19. In addition, either party could request an opinion by an “independent petroleum engineer” (“IPE”) that would be submitted to the Secretary of the Navy, whose “decision in each such instance shall be final and shall be binding upon [the] Navy and Standard.” JE 1 § 9(b) at 19. Although equity redetermi-nations were delegated to the Navy, the UPC did not address the process for post-termination adjustments. JE 1 § 11(b) at 20 (stating only that “[germination shall be followed by an adjustment of all such rights and obligations, including the rights and obligations growing out of the costs incurred, under the contract, on a fair and equitable basis”).

In 1976, Congress determined that the Navy no longer needed to maintain a petroleum reserve for a national emergency. See Naval Petroleum Reserves Production Act of 1976, Pub. L. No. 94-258, 90 Stat. 303 (1976); see also H.R. Conf. Rep. No. 94-942, at 15 (1976), reprinted in 1976 U.S.C.C.A.N. 516, 517 (“Under the compromise, petroleum at the ... reserves is to be produced at the maximum efficient rate for a period of six years, with provisions for an indefinite number of extensions for [a] period of three years each under specified circumstances.”). Accordingly, on May 25, 1976, the Navy and Standard Oil executed an amendment to the UPC, removing any reference to the need for a petroleum reserve and substituting language emphasizing the new national policy to encourage economic productivity.

B. In 1977, The Department Of Energy Assumed The Obligations Of The 1944 Unified Plan Contract And Initial Equity Finalization Efforts Commenced.

In 1977, pursuant to section 307 of the Department of Energy Organization Act, Pub. L. No. 95-91, 91 Stat. 565 (1977) (codified at 42 U.S.C. §§ 7101-7352 ), Congress transferred the Navy’s interests and management of the Elk Hills Reserve 5 to DOE, including the Navy’s obligations under the UPC.

Sometime in December 7, 1994, DOE and Chevron began efforts to finalize equity in the Shallow Oil Zone, utilizing an IPE, as required by sections 2(f) and 9 of the Unit Plan Contract. JE 21 at P-04144. On November 8, 1995, the IPE issued a report to the ASFE recommending that DOE be awarded an equity interest of 65.78% in the Shallow Oil Zone and Chevron a 34.22% equity interest. JE 21 at P-04145. The IPE’s recommendation afforded Chevron an additional 4 percentage points of equity interest over the most recent equity allocation, an increase worth $340 million. JE 21 at P-04160; JE 1225 at 8; TR at 173-74 (Giumar-ra).

The ASFE, however, “was troubled by the extremely summary nature of the [IPE Report], and was not convinced that there was sufficient support for the accuracy of its findings.” JE 1536 (10/2/09 ASFE Godley Decl.) ¶ 21 at 8. Therefore, the ASFE requested that DOE’s headquarters staff obtain supporting documentation for the IPE’s Report, but the IPE resisted. JE 1536 (10/2/09 ASFE Godley Decl.) ¶ 21 at 8. In response, the ASFE decided to retain Systems Technology Associates to advise the ASFE about *755 this situation. DTR at 1037 (Burzlaff) (“[We were asked] to evaluate what [the IPE] had done in his report and understand and explain to [DOE] how he had arrived at his conclusions, and in our analysis of his report, we pointed out to them his impermissible ... methodology that he had used.”). In the face of the IPE’s reluctance to share back-up documentation, apparently the ASFE authorized the seizure of the IPE’s computer. DTR at 1045 (Burzlaff) (“DOE did come and confiscate [the IPE’s] computer.”). The record does not evidence who reviewed the seized computer data, but the ASFE then toned to headquarters staff to prepare the technical analysis for the ASFE’s preliminary decision regarding the Shallow Oil Zone. DTR at 911-12 (ASFE Godley) (“Q. But your recollection isn’t that you personally drafted the technical analysis in your preliminary decision, is it? A. No, that would have been Gary Latham and Arnie [Smits] and ... Lou Capitanio.”). The ASFE, however, appeared to have been unaware that the DOE’s EFT also was involved in drafting the ASFE’s preliminary decision. DTR at 910 (ASFE Godley) (“I’m not — don’t know that I would have been aware [that Mr. Gangle and Mr. Burzlaff had provided technical input into the decision] because my headquarters staff were the ones whose decision or — I’m sorry, whose advice and advisory information I relied on.”). On December 20, 1996, the ASFE sent a draft of the preliminary decision of the Shallow Oil Zone to an outside consultant to review the technical analysis. JE 158.

C. On February 10, 1996, Congress Enacted The National Defense Authorization Act, Mandating Equity Finalization.

On February 10, 1996, Congress enacted the 1996 NDA Act (JE 2), requiring DOE, no more than eight months after the effective date of the legislation, i.e., by October 10, 1996, to “finalize [the owners’] equity interests” in the Elk Hills Reserve after obtaining the recommendation of an “independent petroleum engineer” that was “mutually acceptable.” JE 2 at CME002 00450. DOE also was required to sell all interests in the Elk Hills Reserve no later than two years after the effective date of the legislation, i.e., by February 10,1998. JE 2 at CME002 00449-50. The 1996 NDA Act also provided: “If, on the effective date, there is an ongoing equity redetermination dispute between the equity owners under Section 9(b) of the unit plan contract, the dispute shall be resolved in the manner provided in the unit plan contract within eight months after the effective date. The resolution shall be considered final for all purposes under this section.” JE 2 at CME002 00450.

D. On July 8,1996, The Department Of Energy Entered Into A Contract With An Equity Independent Petroleum Engineer To Finalize Equity.

After the 1996 NDA Act became effective, DOE and Chevron appointed EFTs. JE 3 ¶ C.2 at 2; TR at 2021-23 (Egger). DOE and Chevron also established an Owners Issues Group, through which they negotiated a process for interacting with the IPE. JE 33 at 1. After initially objecting to having the Owners Issue Group jointly meet with the IPE, because of confidentiality concerns, Chevron ultimately agreed to participate. JE 40 at CGC002 00007-08. At a May 10, 1996 meeting of this group, DOE suggested that “[b]oth owners interact with the IPE in a fully open environment [and that a]ll equity information presented to the IPE will be distributed to both owners.” JE 40 at CGC002 00006-07. But, the May 10, 1996 meeting did not resolve how the IPE would function, requiring the parties to continue negotiations, so that DOE proposed that “all oral and written materials, submitted to the IPE (excluding contract formation and administration communications) will also be transmitted concurrently to the other owner. This will ensure complete transparency and integrity in the process — factors which are critical to both our organizations as we complete the sales process.” JE 48 at 3. In addition, DOE accepted Chevron’s suggestion that Netherland, Sewell & Associates, Inc. be appointed to serve as the Equity IPE. JE 48 at 1.

On June 17, 1996, the Secretary of DOE issued Delegation Order No. 0204-158, pursuant to a September 29, 1994 Executive Oi’der 12929 and section 642 of the Depart *756 ment of Energy Organization Act, that vested “all duties and responsibilities” of the Secretary of DOE under the UPC and “all functions” under the portion of the 1996 NDA Act concerning Elk Hills in the ASFE. JE 1462 at 1. The Delegation Order included a “limitation” provision, stating, “In exercising the authority delegated by this Order, or as redelegated pursuant thereto, the delegate shall be governed by the rules and regulations of the Department of Energy and the policies and procedures prescribed by the Secretary and the Secretary’s delegates.” JE 1462 at 2.

At a June 26, 1996 meeting, DOE’s General Counsel informed Chevron: “We would like to decide on a procedure that both parties are comfortable with, but [DOE] is prepared to go forward without Chevron’s agreement.” JE 54 at 2. On July 2, 1996, DOE sent Chevron a draft of an Administrative Order for “review and comment.” JE 58 at 1 (requesting “expedited review ... as we hope to promulgate the order in conjunction with the execution of the [Equity IPE’s] contract.”). Some of Chevron’s proposed changes were incorporated into the final version of this Administrative Order. Compare, e.g., JE 60 at 4 (July 3,1996 draft of Administrative Order), with JE 3 ¶ C.12 (final Administrative Order).

On July 8, 1996, the ASFE issued Administrative Order No. 96-01, “Protocol on Naval Petroleum Reserve Numbered 1 Equity Finalization Implementation Process” (the “Equity IPE Protocol”), by which Chevron and DOE agreed to “present their respective final equity positions to the mutually acceptable independent petroleum engineer ... to be retained by the Secretary [of DOE] to provide final equity recommendations in the Dry Gas Zone, Carneros Zone, and the Stevens Zone.” JE 3 HB.3; see also JE 2 at CME002 00450 (authorizing the Secretary of DOE to retain an IPE). 6 The Equity IPE Protocol reflected that, “Chevron has been provided an opportunity to comment on this Protocol and its comments have been considered by DOE. Chevron has informed DOE that the ... Protocol is acceptable.” JE 3 ¶ B.6; TR at 705 (Giumarra) (Chevron considered the Equity IPE Protocol as binding on Chevron and DOE).

Specifically, the Equity IPE Protocol prohibited Chevron and DOE from having ex parte communications with the Equity IPE. JE 3 11 C.5 (“There will be no written or oral equity-related communication or meeting with the Equity IPE (this term excludes contract administration communications or meetings) by an owner (including its agents and contractors) without the participation or opportunity to participate by the other owner.”); JE 3 ¶ C.9 (“All equity-related meetings with the Equity IPE, including the presentation by the owners of them respective equity positions for each zone, will be sessions at which both owners are invited to attend (this excludes contract administration meetings that may be required by DOE)”); JE 3 ¶ C.21 (“In the event a disagreement arises regarding the equity finalization implementation process or this Protocol ... the matter shall be referred to the [ASFE] (or designee) for resolution. Prior to resolution, the [ASFE] will consult with Chevron.”).

On that same date, i.e., July 8, 1996, DOE entered into a separate contract with Nether-land, Sewell & Associates, Inc. to serve as the Equity IPE under the terms specified in the Equity IPE Protocol, that was incorporated by reference. JE 1372 at CBL003 00489 (stating that the Equity IPE Protocol was “Attachment 2 to Part III, Section J, of the [7/8/96] contract”), CBL003 00533 (requiring that the Equity IPE’s “work and recommendations should be independent and impartial, and not concerned with the financial impact the recommendations may have on the owners”).

E. On October 11, 1996, The Department Of Energy Appointed An Independent Legal Advisor To Provide Legal Advice To The Independent Petroleum Engineer.

After the July 8, 1996 contract with the Equity IPE was executed, a dispute arose *757 between the parties and the Equity IPE, because Ms. Egger took the position that she was authorized to provide the Equity IPE with legal advice about equity finalization. JE 94 (8/28/96 Egger memo to the Equity IPE). Chevron objected and asked the Equity IPE to suspend work. JE 101 at 1-3. To resolve this dispute, on October 11, 1996. the ASFE issued a supplement to DOE Administrative Order No. 96-01 with an Independent Legal Advisor Protocol (“ILA Protocol”). JE 4, ¶0.3. The ILA Protocol authorized DOE to hire an Independent Legal Advisor (“ILA”) acceptable to both parties who “will be consulted only in the event the owners cannot reach agreement after consultation with the [ILA] on a given legal issue” and provide the Equity IPE with legal advice. JE 4 ¶ C.3. The ILA was charged with resolving legal disputes raised by the parties, but if the ILA could not do so, the ILA was authorized to provide the Equity IPE with legal advice that would be deemed as binding on the Equity IPE. JE 4 ¶ C.3; TR at 731-32 (Giumarra) (“[T]he legal issue wouldn’t become ripe unless the [Equity] IPE said ... I need some guidance on this, I need to know how that contract is to be interpreted so I can do my technical work.”).

F. The May 19, 1997 Decoupling And Final Equity Process Agreements.

The equity finalization process took longer than the parties expected. JE 307 at P-04005; TR at 762 (Giumarra); TR at 909-10 (Stay). This required the July 8, 1996 Equity IPE Protocol be amended on January 21, 1997. JE 5. Nevertheless, Congress required that DOE sell its interest in the Elk Hills Reserve no later than February 10, 1998. JE 2 at CME002 00449-50. To meet this deadline, the parties discussed “decoupling” the “equity finalization process” from the sale of DOE’s interests in the Elk Hills Reserve. TR at 909-10 (Stay); JE 1533 ¶ 46 (10/19/2009 Egger Deck). As a practical matter, this led to a negotiated process for finalizing equity. TR at 749 (Giumarra) (“We started negotiations on the decoupling agreement first, and before it was final, we started negotiations on the equity process agreement.”); JE 1533 ¶47 (Egger Deck) (“The idea and negotiations for [the] Decoupling Agreement started first, followed by negotiations for the Equity Process Agreement, although at some point parts of the agreements were discussed together.”). 7

To resolve these matters, on May 19,1997, DOE and Chevron executed two documents: “Agreement Regarding Fixing of Equity Interest at Naval Petroleum Reserve No. 1 for Purposes of Sale” (the “Decoupling Agreement”) (JE 7) and an “Agreement Regarding Equity Redetermination Process” (the “Equity Process Agreement”) (JE 6).

1. The Decoupling Agreement.

The Decoupling Agreement fixed DOE’s and Chevron’s ownership interests in the Elk Hills Reserve for purposes of sale. TR at 741^43 (Giumarra) (“Chevron and the DOE fixed equity numbers solely for the purpose of moving the sale forward and letting the companies coming into the bid know they were buying a certain specific ... unchangeable interest in the field.”); JE 1533 (Egger Deck ¶ 47) (“The purpose of the Decoupling Agreement was to provide certainty to potential buyers of the extent of equity interests in Elk Hills that [DOE] was selling.”). The Decoupling Agreement estimated that the parties’ interests in the four unitized zones were as follows:

*758 Dry Gas Zone DOE Chevron 83.8726% 16.1274%

Shallow Oil Zone DOE Chevron 70.0119% 29.9881%

Stevens Zone DOE Chevron 79.6357% 20.3643%

Cameros Zone DOE Chevron 100.00% 0.00%

JE 7 § 1.1(a). 8

A final equity determination, however, would not take place until after the sale. JE 7 § 1.2. If the final equity determination differed from the pre-sale determination, one party would pay the other as compensation for the difference. JE 1533 ¶ 48 (10/19/2009 Egger Decl.) (“The Decoupling Agreement specified that DOE and Chevron would continue to implement the equity finalization process, and, once that process was completed, there would be a financial adjustment to resolve any differences between the actual final equity percentages in the four zones and the fixed equity interests that had been agreed upon for purposes of the sale.”). The Decoupling Agreement also included an integration clause to clarify that: “This Agreement is intended by the parties as a final expression of their agreement with respect to the specific subject matter hereof, and is intended as a complete and exclusive statement!;.]” JE 7 § 6.6.

The Equity Process Agreement was contingent “upon the execution of’ the Decoupling Agreement. JE 6 at 1; see also JE 1533 ¶ 53 (10/19/2009 Egger Decl. stating that DOE “would not have executed the EPA without Chevron executing the Decoupling Agreement, and vice versa[.]”). Chevron also would not have signed one document without the other and viewed both as reflecting Chevron’s agreement to accommodate DOE’s need to divest ownership in Elk Hills and forgo judicial review of equity finalization, in exchange for a transparent process governing equity finalization. TR at 911, 913 (Stay). After execution of the Decoupling Agreement, the ASFE’s March 28, 1997 Preliminary Decision regarding the Shallow Oil Zone was set aside. JE 6 ¶ A.5. Other conditions also were attached. JE 6 ¶¶ A6-8.

2. The Equity Process Agreement.

The Equity Process Agreement established the procedure for “finaliz[ing] all equity interests in the four unitized productive zones within [the Elk Hills Reserve] pursuant to section 3412(b) [of the 1996 NDA Act.]” JE 6 (Preamble). Therein, DOE and Chevron agreed that the Equity IPE would provide a “provisional equity recommendation report” for each zone. JE 6 ¶ B.l. DOE and Chevron would then review the provisional recommendation and provide written comments to the Equity IPE within 30 days. JE 6 ¶13.1. The Equity IPE then would make a Final Recommendation. JE 6 ¶ B.2. After reviewing the Equity IPE’s Final Recommendation, DOE and Chevron would provide the ASFE with written comments. JE 6 ¶ B.2. Thereafter, the ASFE would issue a Preliminary Decision. JE 6 ¶ B.3. After any further comment from the parties, the ASFE would issue a Final Decision. JE 6 ¶¶ B.3, 5. In making equity redetermination decisions, the ASFE could overrule the Equity IPE’s final recommendation, but only under specified circumstances:

In issuing the equity redetermination decisions for a zone, the ASFE may accept the [Equity IPE] recommendations or reject *759 the [Equity IPE] recommendations in whole or in part. If the ASFE decides to reject the [Equity IPE] recommendations in whole or in part, such decision must be based on a determination by the ASFE that one or more of the following criteria exist:

a. The [Equity IPE’s] recommendation(s) was arbitrary or capricious;

b. The [Equity IPE’s] recommendation(s) was a result of fraud;

e. The [Equity IPE’s] reeommendation(s) was a result of undue influence, unless such undue influence had no impact on [the Equity IPE’s] recommended equity participation percentages;

d. The [Equity IPE’s] reeommendation(s) was inconsistent with statute, the UPC or an applicable Settlement Agreement between Chevron and DOE, unless such inconsistency had no impact on [the Equity IPE’s] recommended participation percentages;

e. The [Equity IPE’s] reeommendation(s) was not based on substantial geophysical, geological and/or petro-physical data; or

f. The [Equity IPE’s] recommendation(s) resulted from an approach or methodology which is inconsistent with sound oil field engineering principles.

JE 6 ¶ B.6.

The Equity Process Agreement also provided Chevron with an opportunity to appeal the substance of the ASFE’s Final Decision to DOE’s Office of Hearings and Appeals (“OHA”) if, and only if, the ASFE’s Final Decision “rejects, in whole or in part, [the Equity IPE’s] participation percentage recommendations.” JE 6 ¶ B.7.

Paragraph B.4 of the Equity Process Agreement provided that during this equity finalization:

The ASFE will not consult, directly or indirectly, with the DOE field equity technical team concerning equity redetermination-related matters without also consulting with the Chevron equity team on any such matter ( ... not including] the DOE technical staff in Washington, D.C.). No such communications by the ASFE with either equity team shall be on an ex parte basis. Any written materials submitted to the ASFE by either equity team shall be provided to the other party. The provisions of this paragraph B.4 shall cease to apply with respect to a zone upon the ASFE’s issuance of her final equity decision for such zone.

JE 6 ¶ B.4.

Court Exhibit A, attached in an Appendix to this Memorandum Opinion and Order, is a flow chart that shows an overview of the equity finalization process and the participants.

G. The February 5, 1998 Agreement To Terminate The 1944 Unit Plan Contract.

On February 5, 1998, pursuant to an Agreement To Terminate The 1944 Unit Plan Contract, DOE’s interest in the Elk Hills Reserve was sold to Occidental of Elk Hills, Inc. JE 1548. Although Congress did not extend the October 10, 1996 equity finalization deadline specified in the 1996 NDA Act, on October 17, 1998, Congress authorized continued funding to finalize equity in the Elk Hills Reserve. See Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub. L. No. 105-261, § 3402 , 112 Stat. 1920 (1998).

II. ZONE BY ZONE ANALYSIS OF EQUITY FINALIZATION.

As previously discussed, the equity finalization of the Shallow Oil Zone was started in 1995 and suspended in 1997. The equity finalization of the Carneros Zone and Dry Gas Zone began in 1996 and finalization in both zones proceeded in tandem during 1997 and 1998. The finalization of the Stevens Zone began in 1997. The equity finalization of the Shallow Oil Zone resumed in 2002, but neither the Shallow Oil Zone nor the Stevens Zone equity finalizations were completed.

A zone by zone analysis of the efforts to finalize equity follows:

*760 A. The Carneros Zone. 9

The Carneros Zone, located 8000 to 10,000 feet below the surface, represented approximately .5% of the value at stake in Elk Hills Reserve, as of February 5, 1998. JE 1225 at 2, 3. Each equity percentage point was valued at $2 million. JE 1225 at 8. The total value of the Carneros Zone was approximately $200 million.

1.The Independent Petroleum Engineer’s Provisional Recommendation.

A major dispute that arose during equity finalization of the Carneros Zone was whether certain land “underlying a portion of the Northeast Quarter of Section 25Z is ... included in the Unit formed by the UPC.” JE 140 at CME001 00305. DOE and Chevron presented this dispute to the ILA to provide legal guidance to the Equity IPE. Ms. Eg-ger, DOE’s Deputy General Counsel for Technology Transfer and Procurement, appeared as an advocate of the DOE EFT before the ILA. JE 140 (Nov. 20, 1996 letter from Ms. Egger to the ILA attaching a joint statement of legal issues); TR at 417-18 (Stone); TR at 997 (Renwick); TR at 2184-85 (Egger). The ILA decided on a compromise position. JE 177 at 7 (Jan. 31, 1997 letter from the ILA to the Equity IPE re: the Carneros Zone 25Z issue, explaining that it was 60% likely that a court would adopt DOE’s view that the 25Z section should be excluded for equity redetermination purposes, it was 40% likely that a court would side with Chevron, and therefore “[the Equity IPE] should treat an undivided 40% of the contested portion of the Carneros as being included and an undivided 60% of the contested portion as being excluded”).

During this same period, however, Ms. Eg-ger also served as legal advisor to the ASFE, as evidenced by her recommendation to the ASFE that any IPE ruling favorable to Chevron be handled in one of two ways: “(1) abide by the decision and resolve it administratively (ether the same or differently) at the time of the [ASFEJ’s final equity decision, [or] (2) request that [the ILA] decide the matter and reissue a definitive decision.” JE 178 at 2 (2/3/97 memo from Ms. Egger to the ASFE and senior DOE General Counsel attorneys); TR at 2348 (Egger).

On February 11, 1997, the IPE issued a Provisional Recommendation awarding 96.78% of Carneros Zone equity to DOE; 3.22% to Chevron. JE 9 at 13.

2. The Independent Petroleum Engineer’s Final Recommendation.

On March 6,1997, the Equity IPE issued a Final Recommendation implementing the ILA’s advice to consider 40% of Section 25Z land as inside the UPC unit, resulting in an award of 96.6138% of the Carneros Zone equity to DOE; 3.3862% to Chevron. JE 9 at 13 & n.16. Thereafter, the DOE EFT asked Ms. Egger to review an engineering assessment of the Equity IPE’s Final Recommendation in preparation for the DOE EFT’s comment to the ASFE. JE 203 (3/23/97 fax from Mr. Burzlaff to Ms. Egger re: “engineering assessment of [the Equity IPE’s] Final Recommendation report for the Carneros Zone”).

3. The Assistant Secretary For Fossil Energy’s Preliminary Decision.

Despite Ms. Egger’s prior role as an advocate for the DOE EFT before the ILA and her work on the DOE EFT’s presentations to the Equity IPE, Ms. Egger proceeded, without Chevron’s knowledge, to assist in the preparation of ASFE’s Preliminary Decision after the May 19, 1997 Equity Process Agreement was executed. JE 174 (1/27/97 email from Ms. Egger to ASFE Godley re: format for DGZ/Carneros Zone Equity Decision.” The rest of the document was redacted and designated as subject to the attorney-client and/or deliberative process privileges. As such, more than just “format” was discussed.); JE 1422 at 46 (Gov’t Resp. to Chevron’s Interrog. No. 17(c) confirming that Ms. Egger provided “input” for the ASFE’s Preliminary Carneros Zone Decision); TR at 2606-07, 2692-94 (ASFE Godley confirming that Ms. Egger reviewed and commented on the ASFE’s draft decisions, without Chevron being informed of that fact); 5/19/09 Burzlaff Dep. at 193 (confirming that Ms. Egger was *761 involved in commenting on the Preliminary Carneros Zone Decision, “because there was this legal issue involving the [Section] 25Z area”).

The ASFE’s November 24, 1997 Preliminary Carneros Zone Decision, however, disregarded the ILA/Equity IPE’s February 11, 1997 recommendation and, instead, adopted the DOE EFT’s position that the 25Z Section lands should not be included in the Carneros Zone. Compare JE 342 (9/29/97 memo from ASFE Godley to Ms. Egger re: “Carneros Zone — Additional Inclusion of Lands”) with JE 9 at 13 & n. 16, 20-21, 23 (11/24/97 ASFE Preliminary Decision Re Carneros Zone rejecting the ILA/Equity IPE 2/11/97 recommendation to include 40% of the Section 25Z lands and concluding that “DOE’s participation percentage interest in production from the Carneros is 100% and Chevron’s interest is zero %”).

4. The Assistant Secretary For Fossil Energy’s Final Decision.

After reviewing the ASFE’s November 24, 1997 Preliminary Decision, Chevron sent a February 24, 1998 letter to the ASFE to ascertain whether DOE breached the Equity Process Agreement:

It is apparent from a review of the Preliminary Decision that you reviewed not only the mediation/arbitration legal briefs submitted by DOE as part of DOE’s Comments to the Assistant Secretary for Fossil Energy Regarding Inclusion of the 25Z Area Carneros Formations in Final Equity Recommendations for Carneros Zone (March 21, 1997), but also the legal briefs which were submitted by Chevron to the Independent Legal Advisor, Mr. Edward Renwick, during the mediation/arbitration. Inasmuch as you did not request that Chevron provide youwith them, the circumstances surrounding your receipt of these documents are not clear. I would appreciate any information you can provide Chevron about this (e.g. From whom did you receive the documents? Were there discussions with the party from which you received the documents as to the documents’ contents? If so, what was the gist of those discussions?) as well as a copy of the documents actually provided to you.

JE 359 at 1 n.l.

On May 19, 1998, the same date the ASFE’s Carneros Zone Final Decision issued (JE 397), the ASFE responded to Chevron in a separate letter that stated:

So that I could consider the full written record of Chevron’s position on the 25Z Area legal issue for the purpose of issuing a Carneros equity determination, I requested from Mary Egger, Assistant General Counsel, Department of Energy, copies of Chevron’s briefs submitted to the ILA. You may recall that Chevron referenced its position on the legal issue on page 3 of Chevron’s Final Comments. The copies of the briefs that I reviewed had no notations, highlighting or notes attached, and I had no discussions with DOE attorneys or any other DOE personnel regarding the briefs. With respect to your request that I provide to you the copies I reviewed, I decline to do so because, since receiving the documents, I have added comments, highlighting and notes that reflect my decisionmaking process. It would be inappropriate to provide such predeci-sional information to you.

JE 396 at 1.

The ASFE’s letter, however, did not advise Chevron that Ms. Egger had separate ex parte communications with the ASFE about the Section 25Z land issue or that Ms. Egger helped prepare the ASFE’s Preliminary Decision. JE 342 (9/29/97 redacted memo from Ms. Egger to ASFE Godley re: “Carneros Zone — Additional Inclusion of Lands”); JE 1422 at 46 (Gov’t Interrog. Resp. to Chevron Interrog. No. 17(b) confirming that Ms. Eg-ger provided “input” for the ASFE’s November 24, 1997 Preliminary Carneros Zone Decision).

Nor did the ASFE reveal that she intended to request that Ms. Egger draft the Final Decision. JE 1422 at 47 (Gov’t Resp. to Interrog. No. 17(b)) (confirming that Ms. Eg-ger also provided “input” for the ASFE’s Final Decision); TR at 2693 (ASFE Godley) (“[A]ll the drafts of my decision went to both my technical staff as well as to the [G]eneral [CJounsel’s office, through Mary [Egger] or *762 Gena [Cadieux.]”). More importantly, the ASFE did not advise Chevron that Ms. Eg-ger had made an ex parte suggestion to her as early as February 3, 1997, about how to deal with the ILA/Equity IPE’s Final Recommendation. The May 19, 1998 ASFE’s Final Carneros Zone Decision rejected the Equity IPE’s Final Recommendation, consistent with Ms. Egger’s prior advice. JE 397 CSI001 0175-81 (5/19/98 ASFE Final Carne-ros Zone Decision); JE 178 (2/3/97 memo from Ms. Egger to ASFE Godley reporting on the ILA’s determination about the Section 25Z land issue, suggesting that the ASFE “handle” that issue “administratively” when the ASFE’s Final Equity Decision is made).

5. The Appeal To The Department Of Energy’s Office Of Hearings And Appeals.

On November 18,1998, Chevron lodged an appeal of the ASFE’s May 19, 1998 Final Carneros Zone Decision with OHA. JE 17 at 2.On July 6, 2000, OHA denied Chevron’s appeal and thereby, in Dr. Latham’s estimation, saved DOE “about $11 million.” 10 JE 17 at 3; JE 872 (7/7/00 email between Dr. Latham and Ms. Egger).

B. The Dry Gas Zone.

The Dry Gas Zone, located 1000 to 2000 feet below the surface, represented approximately 1% of the value of the Elk Hills Reserve, as of February 5,1998. JE 1225 at 2-3. According to DOE, each equity percentage point was estimated to be worth $2 million. JE 1225 at 8. The total value of the Dry Gas Zone was approximately $200 million.

1. The Independent Petroleum Engineer’s Provisional Recommendation.

On February 11, 1997, the Equity IPE issued a Provisional Recommendation apportioning 83.56% of Dry Gas Zone equity to DOE and 16.44% to Chevron. JE 8 at 8.

2. The Independent Petroleum Engineer’s Final Recommendation.

On March 6,1997, the Equity IPE issued a Final Recommendation apportioning 84.382% of the Dry Gas Zone to DOE and 15.618% to Chevron. JE 8 at 8-9.

3. The Assistant Secretary For Fossil Energy’s Preliminary Decision.

After the Equity IPE issued the March 6, 1997 Final Recommendation, the ASFE asked Ms. Cadieux, from the office of DOE’s General Counsel, to prepare a draft preliminary decision regarding the Dry Gas Zone. JE 233 (5/1/97 email from Ms. Cadieux to ASFE attaching a portion of the draft). Ms. Egger also was actively involved in preparing the ASFE’s September 2, 1997 Preliminary Decision. JE 233 at CLC001 04049 (listing Ms. Egger as a recipient of Ms. Cadieux’s draft); TR at 2606-07 (ASFE Godley); JE 1422 at 45 (Gov’t Interrog. Resp. No. 17(a) stating that Ms. Egger provided input for the ASFE’s Preliminary Decision).

On September 2, 1997, the ASFE issued a Preliminary Decision regarding the Dry Gas Zone adopting the percentages in the Equity IPE’s Final Recommendation. JE 8 at 16.

4. The Assistant Secretary For Fossil Energy’s Final Decision.

On May 19,1998, the ASFE issued a Final Decision regarding the Dry Gas Zone, in which she continued to adopt the percentages in the Equity IPE’s Final Recommendation. JE 397 at 17. Ms. Egger also actively was involved in preparing the ASFE’s Final Decision. JE 1422 at 45-46 (Gov’t Interrog. Resp. No. 17(b) stating that Ms. Egger provided input for the ASFE’s Final Decision).

C. The Stevens Zone. 11

The Stevens Zone, located 5000 to 8000 feet below the surface, represented 73.15% of the entire value of the Elk Hills Reserve, as of February 5, 1998. JE 1225 at 2-3. Ac *763 cording to DOE, this zone was the most valuable, with each equity percentage point estimated to be worth $184 million. JE 1225 at 8. The total value of the Stevens Zone was approximately $18.4 billion.

1. The Equity Independent Petroleum Engineer’s Provisional Recommendation.

On November 4, 1997, the Equity IPE issued a Provisional Recommendation regarding the Stevens Zone that allocated 81.1572% of the Stevens Zone to DOE and 18.8428% to Chevron. JE 14 at CSI005 1194.

2. The Assistant Secretary For Fossil Energy’s Decision Regarding The

Data Cutoff Date.

The parties agreed that the Equity IPE would not consider data collected after March 1, 1997, except for “critical new data.” JE 12 at 2; see also JE 12 at 2 n.l (explaining that the parties also sometimes referred to the data cutoff date as February 28,1997); JE 1486. Nevertheless, Chevron submitted new data in its March 27, 1998 comment on the Equity IPE’s November 4, 1997 Provisional Recommendation. JE726 at 3 (9/23/99 ASFE Decision Re Dispute Over Data, stating that “Chevron’s comments on ... the [Equity] IPE’s provisional recommendation used, among other things, production data ... after March 1, 1997”); JE 363 (Chevron’s 3/27/98 comments on the Equity IPE’s 11/4/97 Provisional Recommendation). In response to Chevron’s comment, the Deputy Director of the DOE’s Naval Petroleum Reserve in California and a member of the DOE EFT sent an ex parte letter to the ASFE requesting that she permit the parties to submit a second round of comments on the Equity IPE’s November 4, 1997 Provisional Recommendation. JE 365 (4/7/98 letter from Mr. Kauffman to ASFE Godley). On April 9, 1998, the ASFE, Ms. Egger, and Dr. La-tham initiated a telephone conference with the Equity IPE during which they discussed “isolating] a list of questions to ask both owners — technical in nature” and “separate questions to owners regarding their cases.” JE 366. On April 27, 1998, the Equity IPE asked the ASFE for permission to submit the list of questions to the EFTs. JE 384 at CAS0031877-78. On May 1,1998, the ASFE granted this request, copied both EFTs, and enclosed the April 7, 1998 ex parte letter from Mr. Kauffman to ASFE Godley requesting that she permit the parties to submit a second round of comments on the Equity IPE’s November 4, 1997 Provisional Recommendation. JE 384 at 1. Chevron responded with a May 7, 1998 letter to the ASFE objecting

to the manner in which you handled the DOE equity team’s ex parte communications; to your failure to consult with Chevron about that communication; and your attempt in your letter to [the Equity IPE] of May 1, to change the Equity Process Agreement. As a result of these actions, Chevron is gravely concerned that you (and possibly [the Equity IPE] as well) may have jeopardized your required status as independent decision-makers.

JE 388; see also TR at 398-99 (Stone) (testifying that these discussions “completely undermine[d]” Chevron’s position with the Equity IPE).

On May 13, 1998, the ASFE responded that the April 7, 1998 letter from Mr. Kauff-man was not prohibited by the Equity Process Agreement, because it did not concern “equity redetermination-related matters,” subject to paragraph B.4 of the Equity Process Agreement. JE 393. The ASFE, however, added that “I have not and will not engage in communications with the [Equity] IPE concerning the merits of either party’s position, the [Equity] IPE’s equity recommendations, or other substantive matters without advance notice and opportunity for participation by both parties.” JE 393 at 2. Chevron relied on that representation. JE 512 (12/11/98 letter from Chevron to Ms. Egger stating: “Chevron is satisfied that ex parte communications between DOE Washington personnel and DOE’s field equity team have not occurred and will not occur in the future.”); TR at 350-51 (Stone); TR at 828 (Giumarra); TR at 2680-81 (ASFE God-ley) (affirming that Chevron could rely on her 12/11/98 letter); TR at 1732-34 (ASFE Kripowiez) (testifying that it would have been reasonable for Chevron to rely on ASFE Godley’s representation).

*764 Relying on the ASFE’s May 19, 1998 assurances that DOE was complying with the Equity Process Agreement, Chevron continued to incur substantial costs to participate in the equity finalization of the Stevens Zone.

Ms. Egger, however, continued to work with Mr. Gangle, Mr. Burzlaff, and Mr. Thorpe to develop and prepare the DOE EFT’s position on the data cutoff date that would be presented to the ASFE. JE 451 (8/3/98 email from Mr. Burzlaff to Mr. Thorpe, Mr. Kauffman, and Ms. Egger re: “Equity Finalization Data Cutoff Dates”); JE 466 (10/6/98 email from Ms. Egger to Mr. Thorpe forwarding text she drafted for inclusion in DOE EFT’s data cutoff briefs); JE 476 at 1 (10/23/98 email exchange between Mary Egger and other members of the DOE EFT, in which Mr. Sehuessler advised, “Restricting [the Equity IPE] will substantially affect [the Equity IPE’s] request.... [The Equity IPE] can use this to reinforce interpretations that contain errors, etc., and include them in a Final Recommendation, which will be difficult to move the ASFE from, regardless of the validity of the written owner response. Unfortunately, I think we are in the position in the Stevens [Zone] that if we crack open the door to allow [the Equity IPE] to use new data, something more than just ‘objective’ owner input should be allowed.”); JE 516 (12/18/98 email between Ms. Egger, DOE EFT’s outside counsel, and other DOE EFT members re: data cutoff dates, including draft red-line transmittal letter and cutoff date proposal letter); JE 530 (2/8/99 same); JE 607 (7/23-7/26/99 email exchange between Ms. Egger and DOE EFT showing her substantive and strategic role in advising the DOE EFT re: data cutoff issue); JE 615 (7/29/99 DOE EFT position paper on the Stevens Zone data cutoff dispute sent by DOE EFT’s outside counsel to Ms. Egger, Mr. Gangle, and the other DOE EFT members for final approval); JE 625 (8/11/99 email from Ms. Egger to DOE EFT’s outside counsel forwarding her suggestions on “letter to Krip”); see also TR at 978-79 (Senior Counsel for Chevron Global Gas testifying that he believed Ms. Egger was representing the DOE equity team, because “she was articulating the DOE equity team’s position with regard to this data eut-off matter”); TR at 1307-08, 1313-15, 1323 (Gangle); TR at 2436-38 (Ms. Egger) (testifying that she advised the DOE EFT about the data cutoff dispute). On July 29, 1999, the DOE EFT’s outside counsel sent a letter to the ASFE, forwarding the DOE EFT’s position with a copy to Ms. Egger. JE 616. 12

On the same day the DOE EFT’s position paper on the data cutoff dispute was filed with the ASFE, Ms. Egger reassumed her role as a legal advisor to the ASFE about the same issue. In that capacity, the ASFE asked Ms. Egger her views as to how to resolve the data cutoff date dispute. JE 614 (7/29/99 email from Ms. Egger to ASFE Kri-powiez re: draft letter on admissibility of Stevens Zone data); TR at 1179-80 (Latham) (stating that Ms. Egger was “coordinating all the comments on [the Stevens data cutoff] decision”). Thereafter, Ms. Egger participated in four data cutoff date meetings during a three-day period in August 1999: one with the DOE EFT (JE 608); a second on August 23,1999 with the ASFE and technical advisory team (JE 632); a third with both parties’ EFTs (JE 1491); and a fourth with the Equity IPE, the ASFE, and the ASFE’s technical team. TR at 2439-41 (Egger).

Meanwhile, Chevron asked the ASFE for a meeting with the DOE EFT and the Equity IPE, but the ASFE never responded. TR at 1666 (ASFE Kripowicz stating that he did not recall why he did not respond to Chevron’s request). Instead, the ASFE and Ms. Egger initiated direct ex parte communications with the Equity IPE. JE 632 (referencing 8/25/99 telephone conference between the ASFE, Ms. Egger, and Equity IPE); JE 637 (8/25/99 teleconference notes of Mr. Capita- *765 nio listing the participants and their discussion about the impact of the data cutoff date on Chevron); JE 641 (typed notes of the 8/25/99 teleconference between the ASFE, Ms. Egger, and Equity IPE); see also 4/30/07 Krenek Dep. at 231-32; 4/21/09 La-tham Dep. at 450-53. 13

In early September 1999, the ASFE prepared an outline of a data cutoff date decision, without Ms. Egger’s input, that would have allowed the Equity IPE to consider part of Chevron’s post-cutoff data. JE 652 at CME01302005 (9/7/99 email from ASFE Kripowiez to Ms. Egger, Dr. Latham, re: rationale for Stevens Zone admission of additional data and requesting Ms. Egger’s input: “Mary, I’d like some guidance as to format and content of my findings.”); see also TR at 1673, 1675 (ASFE Kripowiez); TR at 1580-83, 1587-90 (Capitanio). In response, Ms. Egger prepared an initial draft decision, primarily based on the ASFE’s outline. JE 654; JE 659; JE 660; JE 1533 (Egger Deck ¶ 105) (“I understood that [ASFE Kripowiez] was initially inclined to allow the Equity IPE to consider some new data generated after the agreed upon data cutoff date that was mutually agreed to, but to exclude other new data such as Chevron’s April 3, 1999 submission.”). During the next days, Ms. Egger prepared several drafts of the data cutoff date decision, but continued to express disagreement with the ASFE’s initial inclination to allow the Equity IPE to consider some of Chevron’s post-cutoff date data. JE 673 (9/14/99 email from Ms. Egger to Mr. Capita-nio with a copy to the ASFE, stating that “[w]e may need to talk to the [Equity] IPE again ... to make sure we all understand what use if any they intend to make of the post-1997 data”); JE 674 (9/15/99 email from Ms. Egger to the ASFE (stating: “I’m still worried about the [data cutoff date] rationale”)); JE 675 (9/15/99 draft of Stevens Zone transmittal letter and data cutoff decision reflecting concern about “the 43 well submission”) JE 680 at CDE00304426 (9/16/99 email from Ms. Egger to the ASFE “reflecting changes of my own.... (You’ll see that we are having trouble with the post 1997 data[.])”).

On September 17, 1999, the ASFE met with the ASFE’s Technical Legal Staff, including Ms. Egger and thereafter agreed to exclude Chevron’s “new critical data.” JE 694 at 1 (9/17/99 draft decision with Mr. Capitanio’s handwritten note: “Mtg w/ Krip, M. Egger, A. Smits. Agreed that none of the post 1997 data will be allowed. Mary [Egger] will revise decision.”); see also TR at 1580-83, 1587-90 (Capitanio) (ASFE reversed initial determination and excluded Chevron’s post 1997 data). Accordingly, Ms. Egger finalized a “new and improved draft decision” that “changed substantially” the ASFE’s prior position and adopted DOE EFT’s view that the Equity IPE could not consider Chevron’s “critical new data[.]” JE 716 (9/20/99 email from Ms. Egger to the ASFE and his technical staff enclosing a new draft of the data cutoff date decision).

On September 23,1999, the ASFE issued a data cutoff date decision that substantially conformed to Ms. Egger’s post-September 17, 1999 draft. JE 726 at 13 (ASFE’s decision, stating, “I have determined that the 1998 data submitted by Chevron in response to the Equity IPE’s ... request for data and Chevron’s April 3, 1999 submission should not be considered by the IPE.”); TR at 1179-80 (Latham) (agreeing that Ms. Egger “coordinat[ed] all the comments on [the Stevens data cutoff] decision”); TR at 1679-1707 (ASFE Kripowiez) (describing the change in rationale). Chevron, however, was not aware of Ms. Egger’s role in preparing the ASFE’s decision. TR at 2442 (Egger); TR at 459 (Stone); TR at 980 (Henderson). The ASFE also was not aware of Ms. Egger’s prior work with the DOE EFT. TR at 1662 (ASFE Kripowiez). And, as Ms. Egger confirmed, she did not inform Chevron that she was involved in preparing the ASFE’s final “data *766 cutoff’ decision. TR at 2442 (Egger); TR at 459 (Stone).

3. The Equity Independent Petroleum Engineer’s Final Recommendation.

During the period that Ms. Egger worked on the data cutoff date dispute for the DOE EFT, Ms. Egger also worked to prepare the DOE EFT’s presentation to the Equity IPE in response to Chevron’s contention that the Equity IPE used an impermissible “capture” analysis. 14 JE 499 at 2 (11/24/98 fax from Ms. Egger to Mr. Gangle regarding “Capture Brief — technical review redraft”) (“Attached are a few comments on your rewrite. ... I am generally in favor of saying at every possible and appropriate juncture when the technical statements we are explaining constitute technical judgments of the IPE[.]”).

On March 2, 2000, the Equity IPE issued a Final Recommendation regarding the Stevens Zone, following the ASFE’s instruction that the Equity IPE not use posfrl997 data, determining that DOE’s equity interest in the Stevens Zone was 80.4884%; Chevron’s was 19.5116%. JE 818 at CA50020372.

4. The “Secret Report.”

On November 6, 2000, the ASFE informed DOE’s EFT and Chevron’s EFT that he intended to ask the Equity IPE for “clarifieation” regarding certain technical issues raised in the Equity IPE’s Final Recommendation. JE 951. Chevron responded that it did not object, so long as “the communication is done in writing and copies of the correspondence between your staff and [the IPE] are made available to the EFTs[.]” JE 954. The ASFE did not respond. TR at 1737 (ASFE Kripowicz). Instead, on the same day, the ASFE wrote the Equity IPE requesting that the Equity IPE provide the ASFE with an assessment of the technical issues, without sending Chevron a copy of the letter or otherwise advising Chevron. JE 952 at CN500900290; see also TR at 1800-01 (ASFE Kripowicz) (same); TR at 1734 (ASFE Kripowicz) (“I got advice ... from my legal counsel that it was permissible under the protocol to contact the [Equity] IPE after the final determination was made[.]”); TR at 1718-19, 1802 (ASFE Kri-powicz) (same). At Ms. Egger’s recommendation, the ASFE’s November 6, 2000 letter also directed the Equity IPE to: “please mark all materials that you prepare in response to this request: ‘Privileged & Confidential — Predecisional Analysis — Not for Distribution or Release!.]’ ”

On December 22, 2000, the Equity IPE sent the ASFE what became known within DOE as, the “Secret Report,” 15 wherein, in a *767 sixty-seven page document with charts and attachments, the Equity IPE revealed that his November 2, 2000 Final Recommendation overestimated DOE’s recoverable reserves in 26R by at least eight million barrels. JE 965; see also TR at 1168,1216 (Latham); TR at 2892-93 (Frost). The Equity IPE recommended in the “Secret Report” that the ASFE should reconsider his September 23, 1999 Data Cutoff Date Decision and “consider obtaining and using official updated production data[.]” JE 965 at CGC004 00453. Instead, the ASFE decided to “stick to the data cutoff point” and reject the Equity IPE’s recommendation to take corrective action. TR at 1785-86 (Kripowicz); see also TR at 1659-60 (ASFE Kripowicz). At trial, the ASFE conceded this mistake should have been corrected, “if it had a material effect.” TR at 1756 (ASFE Kripowicz). 16

5. The Assistant Secretary For Fossil Energy’s Preliminary Decision.

Ms. Egger’s complicity in the “Secret Report” affair did not deter her from preparing the ASFE’s Preliminary Decision, a project to which she had already been assigned. JE 834 (3/24/00 email from Dr. Latham to Ms. Egger, stating: “On the question of who takes the lead in developing the draft provisional decision for the Stevens Zone, we all agreed that you and your staff did such a fine job in the previous two cases, that we should continue in the same mode for the Stevens, i.e., that you take the lead[.]”); TR at 1807 (ASFE Kripowicz re: same); JE 1013 (10/25/01 email from Ms. Egger to the ASFE) (“At long last I’m forwarding to you today our draft (hard copy) preliminary Stevens Zone decision.”); JE 1015 at 1, 23 (10/25/01 memo from Ms. Egger to ASFE Kripowicz forwarding Preliminary Decision re: Stevens Zone).

On November 13, 2001, the ASFE issued a Preliminary Decision regarding the Stevens Zone that also adopted the DOE EFT’s position on “conversion.” 17 This aspect of the ASFE’s Preliminary Decision cost Chevron about $7 million, according to the ASFE’s technical expert, Dr. Latham, by increasing DOE’s equity from 80.4432% to 80.4900%. JE 995. In addition, the ASFE relied on selected excerpts from the “Secret Report” favorable to DOE without citing the entire report or disclosing its existence. JE 13; TR at 1794-98 (ASFE Kripowicz).

6. The Assistant Secretary For Fossil Energy’s Final Decision.

Ms. Egger also was the driving force behind the ASFE’s Final Decision regarding Equity Finalization of the Stevens Zone. This is best evidenced by examining the ASFE’s February 18, 2001 draft preliminary decision, prior to Ms. Egger’s involvement, that initially accepted the Equity IPE’s March 2, 2000 Final Recommendation to use current prices to determine conversion, instead of heating values, allocating 80.4884% of the Stevens zone equity to DOE; 19.5116% to Chevron. JE 979 at CAS0020924 (2/18/01 ASFE draft preliminary Stevens Zone decision) (“Use of relative prices is a standard technique ... for calculating equivalent barrels of oil for a given volume of gas. Thus, while it can be argued that the logic leading up to the ILA decision was flawed in some way, the decision nevertheless resulted in the use of a method consistent with accepted industry practices. I, therefore, can find no justification for rejecting the results obtained in favor of results produced by an alternative approach.”). *768 By June 2001, however, Ms. Egger began consulting with the ASFE’s technical advis-ors to suggest a basis for changing the ASFE’s approach to conversion to increase DOE equity from 80.4432% to 80.4900%, which would have resulted in a “$7 million plus interest” benefit to DOE. JE 995; JE 1000; JE 1006; 18 JE 1009; TR at 558-60 (Stone); TR at 1345^6 (Gangle); TR at 1812,1814-16 (ASFE Kripowicz).

In addition, Dr. Latham asked the Equity IPE to re-send him two specific sections of the “Secret Report” that could be cited in the ASFE’s Final Decision as separate standalone documents so Chevron would not be aware they were part of the “Secret Report.” TR at 1228-30 (Latham) (admitting that he requested that the Equity IPE re-send him two sections of the “Secret Report” as a stand-alone document). On February 23, 2001, the Equity IPE sent DOE those two sections. Compare JE 981 at CBG0060093-99 (fax from Mr. Frost to Dr. Latham discussing the amount of N/A shale-to-26R migration attributable to Chevron section 31 S), with JE 965 at CGC004 00454-61 (the “Secret Report” discussing same); compare also JE 981 at CBG0060100-04 (methodologies for proportional allocation of migrated volumes), with JE 965 at CGC004 00472-76 (same).

On June 18, 2002, the ASFE issued a Final Stevens Zone Decision that blended the DOE EFT’s approach with the Equity IPE’s recommendation, to achieve a hybrid conversion model “using the average of’ the heat-based and current price-based methodologies, allocating DOE 80.3761% of the equity in the Stevens Zone; and Chevron 19.6239%, resulting in a more favorable resolution to DOE than the Equity IPE’s initial proposal. JE 14 at CSI005 1209 (“Although I might have a preference for one method, because both methods are acceptable, rather than select between two rational methodologies, it seems appropriate to use them both. Therefore, ... Iam using the average [of the heat-based and the current price-based methodologies.]”). 19 The ASFE, however, did not reconsider his data cutoff ruling which Chevron estimated cost it $150 million. TR at 516 (Stone); TR at 1216 (Latham); TR at 2892-93 (Frost).

7. The Department Of Energy’s Office Of Hearings And Appeals Remand Decision.

On January 15, 2003, Chevron filed an appeal of the June 18, 2002 ASFE’s Final Decision regarding the Stevens Zone to OHA, challenging the ASFE’s use of a hybrid conversion method rather than the method that the ILA/Equity IPE recommended. JE 17 at 4; JE 1184.

On January 28, 2004, while the OHA appeal was pending, Chevron sent a letter to the ASFE again to complain about Ms. Eg-ger’s ex parte activities:

[I]t appears that personnel in DOE’s Office of General Counsel both acted as advocates before a decision maker who was supposed to be impartial and served as undisclosed participants in the decision-making itself. As a result, the dispute resolution mechanism agreed to by the parties has been completely undermined, one-sided rather than impartial decisions have been rendered against Chevron[], and substantial amounts of time and money have been wasted.

JE 1137 at 1.

On April 1, 2004, DOE’s General Counsel responded that “Ms. Egger was never a member of the ‘DOE field equity technical *769 team.’” JE 1164 at 2. 20 Instead, the DOE General Counsel insisted that both parties “have always understood” that Ms. Egger served the ASFE on Elk Hills matters in her role in the Office of the General Counsel. JE 1164 at 3; see also JE 1164 at 4 (“When you review the record you will find that Chevron clearly understood that Ms. Egger acted as counsel for DOE and the ASFE, not for the field equity team[.]”). DOE’s General Counsel further stated that the “record is thus flatly inconsistent with an assertion that there has been some ‘dual role of the [Office of General Counsel]’ that has ‘stripped the parties’ agreed-upon-procedures of any legitimacy.’ ” JE 1164 at 5.

On June 14, 2004, Chevron replied: Although you acknowledge that a lawyer in the Office of General Counsel of the Department of Energy acted as both counsel for one of the parties in an adversarial proceeding and simultaneously as an advisor to the decision maker, you interpret the Equity Process Agreement as permitting this dual role. Clearly, you must appreciate that in consenting to the procedures afforded in the Equity Process Agreement, and thereby waiving its right to recourse to a court to determine controversies, [Chevron] understood that it was agreeing to alternative procedures which, at a minimum, would provide an objective decision maker and which would be fair and equitable.

DOE’s conduct in the Stevens Zone proceeding constitutes a fundamental and material breach of the DOE’s obligations under the Equity Process Agreement. As a result of DOE’s breach, Chevron[ ] considers both the Equity Process Agreement and the Decoupling Agreement to be no longer operative.

Given the fact that the [Principal Deputy Assistant Secretary for Fossil Energy’s] decision for the Stevens Zone was not rendered in compliance with the requirements of the Equity Process Agreement and the expectations of the parties, the Office of Hearings and Appeals lacks authority to review that decision.

JE 1168 at 1-2.

On June 16, 2004, Chevron sent a letter to the Director of OHA apprising him of ex parte communications between the DOE EFT and the ASFE and alleging that DOE’s breach of the Equity Process Agreement deprived OHA of jurisdiction to resolve this issue:

In April, DOE’s General Counsel confirmed the existence of communications that [Chevron] believes violate the May 19, 1997 Equity Process Agreement between [Chevron] and DOE. As a result of these communications, the decision of the Principal Deputy Assistant Secretary for Fossil Energy currently under review in this proceeding was not rendered in accordance with the requirements of the Equity Process Agreement. In turn, because OHA’s authority to hear this matter derives solely from the same agreement, and extends only to review of decisions rendered in conformity with that agreement, OHA lacks jurisdiction to decide the pending appeal.

[Chevron] intends to proceed in the appropriate forum to seek redress for DOE’s breach. If OHA decides to go forward with the pending appeal under the circumstances, [Chevron] will continue to participate in these proceedings. However, such participation will be under protest and with full reservation of [Chevronjs rights to dispute the validity and effect of any decision rendered.

JE 1169.

On June 21, 2004, DOE sent a letter to the OHA disputing Chevron’s contentions:

The Department of Energy (DOE) completely disputes Chevron’s allegation that the Equity Process Agreement has been violated.

There simply is no basis for Chevron’s rather transparent attempt to derail these proceedings. Chevron and DOE specifically agreed *770 that disputes over legal issues addressed in the Principal Deputy Assistant Secretary for Fossil Energy’s ... decision would be reviewed by OHA on a “de novo ” basis. The current appeal is such a dispute over a legal issue. Accordingly, even if the [Principal Deputy] ASFE’s decision had not been rendered in accordance with the parties’ agreement, and again, DOE completely disputes this contention, OHA is free to render its own judgment. No one has questioned in any way OHA’s decision making process or procedures in this matter. OHA continues to have full authority and “jurisdiction” to decide this appeal. While Chevron, for reasons currently unknown, may wish to disrupt these proceedings, it does not have the right to do so. We respectfully submit that OHA should disregard Chevron's letter and complete these proceedings.

JE 1170 at 1-2.

In response, on July 23, 2004, Chevron requested a stay of the OHA proceedings to allow Chevron to seek judicial review:

Since receiving DOE’s confirmation of ex parte contacts, [Chevron] has been evaluating its options. We expect in the near term to file a complaint in federal court seeking appropriate redress. In contrast with OHA, which previously has acknowledged that it “does not have the authority to review disputes over the [Equity Process] agreement,” (see February 26, 1999 letter [ ]), a court has such jurisdiction and affords a process, including discovery, that allows for the development of a factual record necessary for a full airing of Chevron! ]’s claims that DOE has materially breached the Agreement.

Assuming the court finds that DOE has breached the Agreement, any decision rendered by OHA in this appeal would be a nullity because, at minimum, a condition precedent to OHA’s jurisdiction — a decision by the Assistant Secretary (or his designee) untainted by ex parte communications — has not been satisfied. Under the circumstances, it appears that further expenditure of time and effort by OHA and the parties pending judicial resolution of the dispute over the parties’ rights and obligations under the Agreement could be wasted. [Chevron ] therefore respectfully requests that OHA stay the subject proceeding and await the outcome of the impending court case.

JE 1173 at 2 (first alteration in original) (emphasis added).

On August 10, 2004, Chevron received notice that OHA denied Chevron’s request for a stay, without comment. JE 1177. The same day, Chevron requested reconsideration. JE 1177. On August 12, 2004, OHA denied Chevron’s request for reconsideration: “As we have previously stated, disputes about the [Equity Process Agreement] are outside our purview. Accordingly, given the absence of a joint motion for stay, the proceeding should go forward.” 8/31/05 App. to Gov’t Mot. to Dismiss at 109.

On January 31, 2005, OHA vacated the ASFE’s Final Stevens Zone Decision and ordered a remand to the ASFE with instructions to apply a conversion factor based upon a weighted average of the price of oil and gas over the “life of the Unit.” JE 1184 at CDE00900037.

8. The Assistant Secretary For Fossil Energy’s Preliminary Remand Decision.

A central issue that arose during the OHA remand concerned whether to include natural gas liquids (“NGLs”) in the equity calculation. Doing so was favorable to DOE’s equity position. JE 1352. On May 4, 2006, Ms. Cadieux sent a draft preliminary decision to the ASFE, but did not indicate that inclusion of NGLs was controversial. JE 1253. At trial, the ASFE testified that he had no recollection of changing Ms. Cadieux’s May 4, 2006 draft before issuing it as his preliminary decision on May 23, 2006. TR at 1925 (ASFE Jarrett); see also TR at 1261-62 (Latham) (praising Ms. Egger’s review of the ASFE’s draft “Preliminary Decision on OHA Remand” as “thorough” and “meticulous”). The Preliminary Remand Decision noted that the ASFE adopted the “Headquarters Equity Advisory Team’s recommendation to exclude [certain] months [for which there was no data] from the calculation [of monthly price ratios].” JE 15 at 7-8. At trial, it was clear that the ASFE misunderstood the fac *771 tual basis for the decision issued in his name. Notably, the ASFE’s Preliminary Remand Decision stated that unavailable pricing information was not an issue, because the decision covered a period during which sales were “so small as to be immaterial to the overall calculation.” JE15 at 8 (Preliminary Remand Decision). Chevron contends that the potential sales during those months were worth $2.5 billion. TR at 1927-36 (ASFE Jarrett admitting that he was unaware of the $2.5 billion in sales).

9. The Assistant Secretary For Fossil Energy’s Final Remand Decision.

After the May 23, 2006 ASFE Preliminary Remand Decision, Ms. Egger resumed her involvement with Ms. Cadieux in drafting the ASFE’s Final Remand Decision. See e.g., JE 1352 (12/8/06 email from Ms. Cadieux to Dr. Latham and Mr. Smits stating: “Help! I’m going through the record to develop the concept that the IPE included NGLs in his recommendation and that has never been challenged, but I’m not sure whether I’m headed off on a tangent.”). Prior to trial, the ASFE insisted that “[n]either Ms. Egger nor Ms. Cadieux in any way influenced my decision on [conversion] issues or the final deeision[.]” JE 1538 ¶¶ 23-24 (ASFE Jarrett Deel.). But see JE 1360 (2/7/07 email entitled “Stevens Zone draft final decision on remand” from Ms. Cadieux to Ms. Egger, Mr. Smits, and Dr. Latham, enclosing a draft of the remand decision and stating “I’ve incorporated the comments from Mary [Eg-ger], Gary [Latham], and Arney [Smits] into this document and gone through it again. If we are all ok with this proposed version, I propose that we provide it to [the ASFE] and schedule a meeting to address any questions.”). At trial, however, the ASFE testified that he only spent “maybe a few days at the most” on the Stevens Zone Remand Decision. TR at 1881,1963 (ASFE Jarrett). He admitted he relied on Ms. Egger and Ms. Cadieux for “sound and unbiased advice on the [Final Remand] decision.” TR at 1886, 1963 (ASFE Jarrett); JE 1538 ¶ 11 (ASFE Jarrett Deck) (“I relied upon Ms. Egger regarding all legal matters relating to the equity finalization proeessf.]”). In fact, by this time, the ASFE abdicated any substantive role in the final equity determination of the Stevens Zone and delegated his responsibility to Ms. Egger and Ms. Cadieux. TR at 1881-83, 1885, 1925, 1928-32, 1936-37, 1939, 1942, 1945-46,1956-57,1963 (ASFE Jarrett). The ASFE, however, was aware that Chevron wanted to exclude the sale of NGLs and that the options proposed to him by the ASFE’s Technical & Legal Team all included the sale of NGLs. TR at 1969 (ASFE Jarrett).

On February 21, 2007, the ASFE issued the Final Remand Decision on the Stevens Zone that apportioned equity of 80.354% to DOE and 19.646% to Chevron. JE 16 at 5. In response, Chevron filed a notice of appeal with OHA and a simultaneous motion to stay or continue the appeal, pending a ruling in the United States Court of Federal Claims that might affect OHA’s jurisdiction. See Chevron USA Inc., No. TES-0010 (Dep’t of Energy Dec. 4, 2007) (denying Chevron’s motion to continue). On July 10, 2008, OHA issued an interlocutory order granting DOE’s February 11, 2008 Motion To Dismiss Chevron’s appeal with respect to: “the inclusion of non-eycled NGLs in the gas component of the conversion formula”; the Equity IPE’s calculations based on “ ‘abandonment pressures’ of 500 psi in the 26R and NWS A-l to A-3 reservoirs”; “[w]hether equity participation percentages should be established without regard to publicly available data that is obtained by the IPE and that affects the IPE’s estimates of one party’s share of recoverable oil by approximately eight million barrels”; and “[w]hether, in establishing equity participation percentages, the results of a simulation model which has not been found to be biased in any way may be diluted by using an average recovery based upon the combination of parcels owned by each party.” Chevron USA Inc., No. TEZ-0010, at 8-9 (Dep’t of Energy July 10, 2008).

On August 27, 2009, OHA issued an interlocutory order addressing issues raised in Chevron’s appeal and requesting further briefing. See Chevron USA Inc., No. TEZ-0011 (Dep’t of Energy Aug. 27, 2009). On June 17, 2010, Chevron filed its final brief in the appeal. Supplemental Reply Brief of Chevron U.S.A Inc., No. TEA-0010 (Dep’t of Energy June 17, 2010).

*772 D. The Shallow Oil Zone.

The Shallow Oil Zone, located 2000 to 5000 feet below the surface, represented approximately 25% of the value of the Elk Hills Reserve, as of February 5, 1998. JE 1225 at 2-3. Each equity percentage point was valued at $85 million. JE 1225 at 8. As such, the estimated total value of the Shallow Oil Zone was $8.5 billion.

1. The Independent Petroleum Engineer’s Provisional Recommendation.

A central issue in the equity finalization of the Shallow Oil Zone that resumed after the May 19,1997 Equity Process Agreement was executed was whether the Equity IPE should use a “simulation model” to determine equity shares. The DOE EFT argued that the Equity IPE should use a simulation model. JE 958; JE 990. Chevron favored “analytical” methods. TR at 1298-99 (Gangle). Before the Equity IPE issued a Provisional Recommendation, Dr. Latham, a member of the ASFE’s technical team, had an ex parte communication with the Equity IPE to convince him not to adopt “a strategy whereby the interim equity does not include the simulation model.” JE 1050; 4/30/07 Krenek Dep. at 233.

On October 2, 2002, the Equity IPE issued a Provisional Recommendation that apportioned DOE a 1.01 percentage point increase over its equity percentage in the Decoupling Agreement, resulting in an estimated $100 million benefit to DOE. JE 1086 (10/3/2002 email from Dr. Latham to the ASFE stating that “[tjhis increase, including interest, would be worth about $100 million to the DOE”); JE 1225 at 8 (1/12/2006 DOE PowerPoint slide stating that DOE’s gain was $85 million); JE 7 at 2 (Decoupling Agreement equity percentages); see also JE 1085 (10/3/02 email from Ms. Egger congratulating the DOE EFT on the Equity IPE’s Provisional Recommendation).

2. The Shallow Oil Zone Equity Was Never Finalized.

On January 7, 2003, Chevron’s outside counsel sent a letter to DOE under the Freedom of Information Act (“FOIA”), requesting twelve categories of documents related to the Elk Hills equity determination process. JE 1101. The request asked for: documents that the ASFE and ASFE representatives used or relied upon in preparing Preliminary and Final Decisions; meeting notes and telephone logs; written communications; contracts between DOE and the Equity IPE; instructions and guidance provided to the Equity IPE; other materials provided to the Equity IPE; communications between DOE and the Equity IPE; documents about payments to the Equity IPE, the ILA, and consultants; and DOE submissions to members of Congress. JE 1101 at 1-2. On January 30, 2003, DOE informed Chevron’s outside counsel that DOE would be unable to respond to the FOIA request within the twenty days provided for by statute. JE 1135 at 1 (12/19/03 letter from Chevron’s outside counsel quoting a 1/30/03 letter from Dr. Latham); see also 5 U.S.C.A. § 552 (a)(6)(A)(i) (2010) (giving an agency twenty working days to notify a requester whether the agency will comply with a FOIA request). On April 17, 2003, Chevron’s outside counsel received a single, redacted document from DOE and a letter denying the remainder of the FOIA request for lack of specificity. JE 1135 at 1-2. On December 19, 2003, Chevron’s outside counsel notified DOE that Chevron would file a complaint in United States District Court on January 7, 2004 if DOE did not fully comply with the FOIA request. JE 1135 at 1. Four days later, DOE sent Chevron “three loose-leaf binders’ worth of documents (heavily redacted).” JE 1137 at CA5031059 (1/28/04 letter from the vice president of Chevron’s Exploration & Production Company to the ASFE).

On February 19, 2004, Chevron’s outside counsel filed a second FOIA request to obtain: documents that the ASFE and the ASFE’s representatives used or relied upon in preparing Preliminary and Final Decisions for the Dry Gas Zone and the Carneros Zone; meeting notes and telephone logs memorializing discussions with respect to equity determinations in those zones; written communications regarding those equity determinations; records discussing the propriety or impropriety of the involvement of Ms. Egger or others in those equity determinations; lists of the DOE EFT’s members and law *773 yers; and written communications between DOE and the Equity IPE regarding those equity determinations. JE 1147 at 1-2.

On August 20, 2004, Chevron filed a Complaint in the United States Court of Federal Claims (“Compl.”) that alleged that DOE breached the Equity Process Agreement and the Decoupling Agreement (Compl.ffl 63-64) and breached the implied covenant of good faith and fair dealing (Compl.HI 67-69).

In 2005, after learning about this ease, the Equity IPE refused to renew its contract with DOE, unless Chevron executed a retroactive waiver of liability. JE 1257 (5/9/06 letter from DOE’s Secretary to the Vice President of the United States advising of the Equity IPE’s concern about liability). DOE requested Congress to authorize DOE’s Secretary to immunize the Equity IPE. JE 1257; JE 1258 (5/9/06 letter from DOE’s Seeretai’y to the Speaker of the House of Representatives). No congressional response was received. In November 2006, the Equity IPE’s contract expired. JE 1431 at 1.

In September 2008, an Acting ASFE proposed that Chevron suggest a new Equity IPE to resume Shallow Oil Zone finalization. JE 1431 (9/12/08 letter from the ASFE to Chevron’s Vice President for Exploration and Production). The parties never agreed to a new Equity IPE.

III. PROCEDURAL HISTORY.

The early procedural history of this case was set forth in Chevron U.S.A., Inc. v. United States, 71 Fed.Cl. 236, 253-55 (2006) (“Chevron I ”). The court determined that it had jurisdiction to adjudicate the claims alleged in Chevron’s August 20, 2004 Complaint. Id. at 258-67 . On August 16, 2007, the Government filed a second motion to dismiss on jurisdictional grounds that the court denied on August 28, 2008. See Chevron U.S.A., Inc. v. United States, 83 Fed.Cl. 209, 213 (2008) (“Chevron II ”).

On September 15, 2009 the parties filed an Exhibit List and an Exhibit List Supplement, in addition to Pre-Trial Briefs. Subsequently, each party filed a Response.

On October 7, 2009, the parties filed a Second Supplemental Exhibit List. On October 9, 2009, the parties filed a Third Supplemental Exhibit List. On October 22,2009, the parties filed a Fourth Supplemental Exhibit List. On October 27, 2009, the parties filed a Fifth Supplemental Exhibit List. The Government also filed an October 10, 2007 Motion In Limine Re: Plaintiffs Designated Experts. On April 17, 2009, Chevron filed a Response. On May 15, 2009, the Government filed a Reply. On August 5, 2009, the court denied the Government’s October 10, 2007 Motion In Limine.

On October 13-26, 2009, the court held a trial on liability in Washington, D.C. The court reconvened the trial on December 3, 2009, in Dallas, Texas.

On January 15,2010, Chevron filed a Post-Trial Brief (“PI. PT Br.”) and Proposed Findings Of Fact And Conclusions Of Law (“PI. PFOF”). On the same day, Chevron also filed the Supplemental Declaration Of Marshall J. Breger and a Motion For Leave To File Amended Complaint To Conform To The Evidence Adduced At Trial. On February 2, 2010, the court granted Chevron’s January 15, 2010 Motion For Leave To File Amended Complaint (“Am. Compl.”). 21 The January 15, 2010 Amended Complaint alleges that DOE breached the Equity Process Agreement and the Decoupling Agreement (Am. Compl. ¶ 75); breached the Equity IPE Protocol (Am. Compl. ¶ 87); breached DOE’s contract with the Equity IPE, to which Chevron was a third party beneficiary (Am. Compl. ¶¶ 91, 93); breached the implied covenant of good faith and fair dealing with respect to the Equity Process Agreement and the Decoupling Agreement (Am. Compl. ¶¶ 98, 100); and tortiously and fraudulently breached the Equity Process Agreement, the Equity IPE Protocol, and DOE’s contract with the Equity IPE (Am. Compl. ¶ 117).

On May 14, 2010, the Government filed a Post-Trial Response Brief (“Gov’t PT Resp.”). On June 11, 2010, Chevron filed a Post Trial Reply (“PI. PT Reply”).

*774 On March 11, 2011, the Government filed a motion requesting the court to defer the damages portion of the trial, then scheduled for May 31, 2011, until September 2011. On March 14, 2011, the court denied that motion.

After the liability trial concluded, at the court’s suggestion, the parties agreed to engage in private mediation. On April 21, 2011, the parties entered into a Settlement Agreement And Release Regarding Elk Hills Equity Percentages (the “April 21, 2011 Settlement”) (JE 1731). The April 21, 2011 Settlement resolved the parties’ dispute regarding the determination of final equity as to all zones, resulting in an undisclosed lump sum payment, the amount of which is confidential. JE 1731 ¶ 6.3. The April 21, 2011 Settlement also rescinded all prior decisions issued by the Equity IPE, the ASFE, and OHA. JE 1731 ¶ 6.2. The Settlement, however, expressly reserved Chevron’s right to proceed with this case to seek damages for DOE’s breach of the Equity Process Agreement. JE 1731 ¶¶ 5.1-5.3. 22

Thereafter, the parties also filed a number of motions in limine, 23 all of which are resolved in substance by this Memorandum Opinion and Order. In addition, on May 25, 2011, the Government filed a Partial Motion To Dismiss that the court hereby grants, because the Fifth Cause of Action in the Amended Complaint alleges claims for a “tor-tious and fraudulent breach of contract” that sound in tort, and over which the court does not have jurisdiction.

On May 27, 2011, the parties filed PreTrial Damage Briefs. On May 30, 2011, Chevron filed a Corrected Damages Phase Trial Brief. On May 31, 2011, the parties filed a Sixth Exhibit List. The damages portion trial was held in Washington, D.C. from May 31, 2011 through June 3, 2011 (“DTR at 1-1250”).

On June 6, 2011 the Government filed a Motion For Judgment On Partial Findings asking the court to enter judgment in its favor on the grounds that Chevron was legally precluded from reliance damages and had not proven entitlement to expectation damages.

On August 5, 2011, Chevron filed a Post-Trial Brief (“PI. PT D Br.”), Proposed Findings Of Fact And Conclusions Of Law (“PI. D PFOF”), and responses to four of the Government’s pending Motions In Limine; the Government’s May 25, 2011 partial Motion To Dismiss; and the Government’s June 6, 2011 Motion For Judgment On Partial Findings.

On September 29, 2011, Chevron filed a Supplemental Brief Addressing The Alternative Damages Scenarios Requested By The Court (“PL Supp. D Br.”).

On November 18, 2011, the Government filed a Post-Trial Brief (“Gov’t PT D Br.”) and a Response To Plaintiffs Motions In Limine.

On December 16, 2011, the parties filed a Seventh Supplemental Exhibit List. On December 16, 2011, the Government filed a Response To Plaintiffs Supplemental Damages Brief (“Gov’t Supp. D Resp.”). On December 23, 2011, Chevron filed a Post Trial *775 Reply Brief (“PI. PT D Reply”). On January 20, 2012, Chevron filed a Supplemental Reply Brief to the Government’s December 16, 2011 Response (“PL Supp. D Reply”).

On September 27, 2012, the Government filed a Renewed Motion To Dismiss (“9/27/12 Gov’t Mot.”). On October 3, 2012, Chevron filed a Response (“10/3/12 PI. Resp.”). On October 22, 2012, the Government filed a Reply (“10/22/12 Gov’t Reply”).

On October 5, 2012, the court heard oral argument on the Government’s September 27, 2012 Renewed Motion To Dismiss, pursuant to RCFC 12(b)(1), and the parties’ damage theories and proposed damage findings.

On January 11, 2013, the parties filed an Exhibit List Amendment and an Eighth Supplemental Exhibit List. On February 15, 2013, the parties filed a Ninth Supplemental Exhibit List and a Consolidated Exhibit List.

IV. JURISDICTION.

A. Pre-Trial Decisions Regarding Jurisdiction.

Prior to trial, the court issued two Memorandum Opinions regarding jurisdiction. In Chevron I, the court addressed four jurisdictional challenges by the Government.

In this case, Chevron has alleged two claims for breach of contract. Therefore, as a matter of law, Chevron is not required to identify a specific money-mandating provision in the Equity Process Agreement, because inherent in every breach of contract is a right to money damages. ... Moreover, Chevron’s claims also satisfy the requirement of a substantive right to money damages by seeking reliance damages. ... Therefore, the Equity Process Agreement inherently provides a substantive right to money damages.

Chevron I, 71 Fed.Cl. at 261-62 (citations omitted).

[T]he [1996 NDA Act] did not implicitly repeal the Tucker Act jurisdiction vested by Congress in the United States Court of Federal Claims to adjudicate claims alleging that the Government has breached a contract with a private citizen.

Id. at 267 .

[T]he American Rule does not bar recovery of reliance damages, including attorney’s fees.... Chevron seeks recovery of expenses, including attorney’s fees, that were incurred relying on the process established by the Equity Process Agreement^]

Although the attorney’s fees that Chevron seeks as damages were incurred advocating Chevron’s final equity position, they were not incurred in litigation against the United States. Instead, the attorney’s fees are a measure of Chevron’s reliance on the Equity Process Agreement, assuming that Chevron can establish the breach alleged.

Id. at 268-70 (citations omitted).

A fourth jurisdiction argument, based on the Non-Appropriated Funds Instrumentality Doctrine, also was rejected. See Chevron I, 71 Fed.Cl. at 271 ; see also Slattery v. United States, 635 F.3d 1298, 1321 (Fed.Cir.2011) (en banc) (holding that “the jurisdictional foundation of the Tucker Act is not limited by the appropriation status of the agency’s funds or the source of funds by which any judgment may be paid”).

On August 28, 2008, the court issued a Memorandum Opinion and Order denying the Government’s (Second) Motion To Dismiss paragraphs 64 and 70 of the August 20, 2004 Complaint. See Chevron II, 83 Fed.Cl. at 213 . Therein, the court ruled that allegations in paragraphs 64 and 70 therein, as to the Government’s “material breach” did not seek declaratory relief, but a monetary award, and denied the Government’s motion. Id.

B. The Effect Of The United States Court Of Appeals For The Federal Circuit’s Post Trial Decision In Rick’s Mushroom Service.

After the court issued jurisdictional decisions in Chevron I and Chevron II, the United States Court of Appeals for the Federal Circuit held in Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338 (Fed.Cir. *776 2008), that “[t]he [G]overnment’s consent to suit under the Tucker Act does not extend to every contract.” Id. at 1343 . Therefore, after trial, the court sua sponte requested that the parties address the effect of Rick’s Mushroom on the court’s prior determinations that the May 19, 1997 Equity Process Agreement was money-mandating. See Gonzalez v. Thaler, — U.S.-, 132 S.Ct. 641, 648 , 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”).

1. The Government’s Argument.

The Government argues that “the [May 19, 1997 Equity Process Agreement] includes no monetary component at all, and therefore is ... obviously not a money-mandating contract.” 9/27/12 Gov’t Mot. at 7. The contract in Rick’s Mushroom set forth the terms of the Government’s agreement for certain construction specifications; similarly, the Equity Process Agreement at issue in this case set forth the terms of the Government’s agreement regarding the procedures for finalizing the parties’ equity interests in an oil field. 9/27/12 Gov’t Mot. at 7. And, like the plaintiff in Rick’s Mushroom, Chevron seeks the costs that it incurred to comply with these procedures. 9/27/12 Gov’t Mot. at 8.

In addition, the Government also emphasizes that the Equity Process Agreement was “a contract for a process only.” 9/27/12 Gov’t Mot. at 9. The Equity Process Agreement guaranteed no particular outcome. 9/27/12 Gov’t Mot. at 9. More importantly, it specifically barred judicial review. 9/27/12 Gov’t Mot. at 11 (quoting JE 6 ¶ B.9 (stating that Chevron “knowingly and voluntarily waive[d] any and all rights it may have ... to bring any other judicial ... challenge to the final equity determination decisions by the ASFE”)). Therefore, the Equity Process Agreement bars this court from jurisdiction over any dispute regarding the Equity Process Agreement. 9/27/12 Gov’t Mot. at 10,12 (citing New Valley Corp. v. United States, 119 F.3d 1576, 1583 (Fed.Cir.1997) (holding that where a contract clause “indicates that the parties intended for any joint decision to be final and conclusive ... [s]ueh a decision would be barred, then, from judicial review”)).

The Government further argues that contracts for process are not analogous to bid protest cases, that authorize recovery of bid preparation costs only when protesters demonstrate an agency’s failure to follow a legally mandated process. 10/22/12 Gov’t Reply at 5. Those recoveries do not flow from contract law, but arise from an express statutory provision, 28 U.S.C. 1491(b). 10/22/12 Gov’t Reply at 5.

In addition, although the Government disputes the validity of analogizing the Equity Process Agreement to an arbitration agreement, the Government contends that analogy supports its motion. 10/22/12 Gov’t Reply at 6-7 (quoting Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476, 487 (5th Cir.2002) (“[E]nforeement of an agreement to arbitrate ... does not appear to include any mechanism beyond those geared toward returning the parties to arbitration, thus appearing not to authorize compensation by a court to parties in the form of damages prior to the issuance of the arbitral award” (emphasis added in the Government’s brief))).

2. The Plaintiffs Response.

Chevron responds that the “default presumption” remains that contracts are money mandating. 10/3/12 PL Resp. at 2. Moreover, the holding in Rick’s Mushroom “was limited to the specific facts of that case,” applying only to “exceptional contracts [that] ... overcome the ordinary presumption that their breach gives rise to money damages.” 10/3/12 PL Resp. at 3-4. The Equity Process Agreement at issue in this case established a process for finalizing ownership interests in an oil field. Since that determination necessarily required the payment of money from one party to the other, the Equity Process Agreement “inherently relate[s] to monetary compensation.” 10/3/12 PL Resp. at 5-6, 8-9 (quoting Holmes v. United States, 657 F.3d 1303, 1316 (Fed.Cir.2011)). Chevron also cites to the availability of reliance damages in other cases involving breach of contracts for process, such as the recovery of bid preparation costs, even when the contract contains no money-mandating provision. 10/3/12 Pl. *777 Resp. at 6 (citing Heyer Prods. Co. v. United States, 140 F.Supp. 409, 413-14 (Cl.Ct.1956)). Finally, Chevron contends that, although the Equity Process Agreement excludes decisions of the ASFE and OHA from judicial review, it does not bar judicial review of the breach of the Equity Process Agreement. 10/3/12 PI. Resp. at 6.

3. The Court’s Resolution.

The United States Court of Appeals for the Federal Circuit held that the agreement at issue in Rick’s Mushroom did “not provide a substantive right to recover money-damages,” because it was a cooperative cost-share agreement, 24 and “there was no evidence of a buyer-seller relationship, and the government did not receive a direct benefit from the operation of the [mushroom processing] facility.” Rick’s Mushroom, 521 F.3d at 1343-44 (emphasis added).

Subsequently, the United States Court of Appeals for the Federal Circuit clarified that Rick’s Mushroom did not alter the general rule that

in the area of government contracts, as with private agreements, there is a presumption in the civil context that a damages remedy will be available upon the breach of an agreement. Indeed, as a plurality of the [United States] Supreme Court noted in United States v. Winstar Corp., 518 U.S. 839 , 116 S.Ct. 2432 , 135 L.Ed.2d 964 (1996), “damages are always the default remedy for breach of contract.”

Holmes, 657 F.3d at 1314 (quoting Sanders v. United States, 252 F.3d 1329, 1334 (Fed.Cir. 2001)).

Accordingly, “when a breach of contract claim is brought in the [United States] Court of Federal Claims under the Tucker Act, the plaintiff comes armed with the presumption that money damages are available, so that normally no further inquiry is required.” Id. In the ease of unconventional contracts, the court must inquire whether the agreement “could fairly be interpreted as contemplating money damages in the event of breach.” Id. at 1315. Holmes provided the court with a two-part analysis for making this determination.

First, the court must determine whether money damages would be available for a breach of the type of contract at issue. Id. at 1314-15 (explaining that there is no presumption that money damages are available for cost-sharing agreements or Title VII discrimination complaints). Second, the court must examine the details of the specific contract at issue. Id. (explaining that, for example, “[a] contract expressly disavowing money damages would not give rise to Tucker Act jurisdiction”). This second step was dispositive in Holmes , where the Navy entered into a settlement agreement to expunge negative information from plaintiffs record, but did not agree to make any specific monetary payments. Id. at 1315 . Nevertheless, the settlement agreement was held to be “inherently relate[d] to monetary compensation through [its] relationship to [plaintiffs] future employment [prospects].” Id. at 1316 .

In this case, the Equity Process Agreement, in effect, is a contract for a quasi-judicial procedure, akin to an arbitration agreement. JE 1522 at ¶ 9 (Expert Report of Professor Geoffrey C. Hazard, Jr.); 25 see also Black's Law Dictionary 112 (9th ed. 2009) (defining “arbitration” as “[a] method of dispute resolution involving one or more neutral third parties who are usu[ally] agreed to by the disputing parties and whose decision is binding”); George J. Grant Const. Co. v. United States, 109 F.Supp. 245, 247 (Ct.Cl.1953) (a government agreement that includes a dispute resolution procedure authorizing federal officials to act in a quasi-judicial manner is “a sort of arbitration, albeit by agents of one party to the contract.”); *778 Harvey v. Joyce, 199 F.3d 790, 792-94 (5th Cir.2000) (construing a paragraph in an agreement among three business associates as an arbitration clause, although the text did not use the words “arbiter,” “arbitrate,” or “arbitration”).

The Government’s reliance on Gulf Guaranty is misplaced, because the United States Court of Appeals for the Fifth Circuit held in that ease only that a federal tidal court may not award damages for breach of an arbitration agreement while an arbitration process is ongoing. See Gulf Guar., 304 F.3d at 487-88 (holding that the Federal Arbitration Act bars a court from awarding damages for breach of an arbitration agreement “prior to issuance of the arbitral award”). To the contrary, federal courts award damages for a breach of an arbitration agreement. See Bergquist v. Mann Bracken, 592 F.3d 816, 818-19 (7th Cir.2010) (“[W]hen injuries created by the process of arbitration are redressa-ble in damages, federal courts are competent to act[.]”); Munson v. Straits of Dover, S.S. Co., 102 F. 926, 927 (2d Cir.1900) (awarding nominal damages for failure to engage in eontracted-for arbitration, and stating that “[t]here are many cases in the books where” actual damages have been awarded to parties who have engaged in an arbitration process that has been vitiated by the other party’s withdrawal after the process began); see also Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 121 , 44 S.Ct. 274 , 68 L.Ed. 582 (1924) (Brandeis, J.) (“If [an arbitration agreement is] executory, a breach will support an action for damages.”). Therefore, the court is satisfied that the first part of the Holmes analysis supports the presumption in this ease that the Equity Process Agreement could “fairly be interpreted as contemplating money damages.”

The second part of the Holmes analysis also supports the presumption that the Equity Process Agreement is money-mandating, because it is “inherently related” to monetary compensation, because it created a process that would result in one party paying the other money to finalize a commercial dispute concerning equity interests in oil and gas reserves. JE 6 (Equity Process Agreement); JE 1548 ¶ 10.4 (Termination Agreement, discussing “payments between the [p]arties ... arising from ... equity finalization”). In addition, the April 21, 2011 Settlement terminated the Equity Process Agreement with the payment of money, albeit the amount was not disclosed. Since the Equity Process Agreement directly was related to the payment of money, the court has determined that it could “fairly be interpreted as contemplating money damages,” in the event of a breach. 26

In addition, the court also rejects the Government’s argument that the Equity Process Agreement explicitly bars the court from adjudicating claims arising from its breach. 9/27/12 Gov’t Mot. at 11. To the contrary, the Equity Process Agreement bars judicial review of the ASFE’s final equity determination, but not the parties’ compliance with the terms of the Equity Process Agreement. Compare JE 6 ¶ B.9 (barring review of the ASFE’s decisions), with JE 6 ¶ C.4 (stating that the Equity Process Agreement “constitutes the legal, valid and binding obligation of the parties, enforceable against them in accordance with its terms”).

For these reasons, the court has determined that the Equity Process Agreement is money-mandating and that Rick’s Mushroom Service does not bar the court from adjudicating the claims alleged in the August 20, 2004 Complaint, as amended. The Government’s September 27, 2012 Renewed Motion To Dismiss therefore is denied.

C. Other Jurisdictional Issues Raised In The Government’s May 14, 2010 Post-Trial Brief.

a. Jurisdictional Arguments That Are Not At Issue Or Are Irrelevant In This Case.

The Government’s May 14, 2010 Post-Trial Brief also raised several “straw man” jurisdictional arguments:

*779 1. The [United States Court of Federal Claims] does not have jurisdiction to adjudicate claims arising under the Administrative Procedure Act (“APA”) (Gov’t PT Resp. at 5-6).

2. The [United States Court of Federal Claims] does not have jurisdiction to adjudicate claims arising under OHA’s Decisions (Gov’t PT Resp. at 24).

3. The [United States Court of Federal Claims] does not have jurisdiction to adjudicate claims alleged by Chevron as to the legal aspects of the ASFE’s Equity Redetermination Decisions (Gov’t PT Resp. at 25).

4. The [United States Court of Federal Claims] does not have jurisdiction to adjudicate claims alleged by Chevron as to the technical aspects of the ASFE’s Equity Redetermination Decisions (Gov’t PT Resp. at 25).

5. The [United States Court of Federal Claims] does not have jurisdiction to adjudicate allegations that DOE attorneys violated the D.C.Code of Professional Responsibility (Gov’t PT Resp. at 26).

The court has determined that none of these issues are relevant nor at issue in this case.

b. Whether The United States Court Of Federal Claims Has Jurisdiction To Adjudicate Plaintiffs Claims That The Department Of Energy Breached The Equity Independent Petroleum Engineer Protocol.

i. The Plaintiffs Argument.

Chevron argues that the court has jurisdiction to adjudicate DOE’s alleged breach of the Equity IPE Protocol for three reasons. First, although the Equity IPE Protocol was issued as an Administrative Order, it evidenced an agreement between DOE and Chevron, because it: “fleshed out the understandings of the parties” (JE 58 — letter from Ms. Egger to Mr. Stay) and DOE viewed the Protocol as binding on both parties (JE 72— minutes of a meeting between Chevron and DOE at which Ms. Egger stated “[w]e have a protocol agreement that we hope the parties regard as binding”). Pl. PT Reply at 18-20; Pl. PT Br. at 51-54. In addition, the Equity IPE Protocol meets all the requirements for a contract, i.e., intent, consideration, acceptance, and signature by an authorized government official. Pl. PT Br. at 53-54 (citing D & N Bank v. United States, 331 F.3d 1374, 1378 (Fed.Cir.2003)).

Second, the Equity IPE Protocol implicitly was incorporated into the Equity Process Agreement. Pl. PT Br. at 54-55; Pl. PT Reply at 20-21. Although the Equity Process Agreement only expressly incorporated the procedures mandated by the Equity IPE Protocol with respect to the Shallow Oil Zone (JE 6 ¶ A(2)), this reflects the fact that the Protocol originally applied to the other three zones, so express incorporation was required to apply the Protocol to this last zone. Pl. PT Br. at 54. Moreover, it is implausible that the parties to the Equity Process Agreement intended to ban ex parte communications only as to the equity finalization of the Shallow Oil Zone, but not the other zones. Pl. PT Br. at 54-55.

Third, even if the Equity IPE Protocol was not a contract between Chevron and DOE, or incorporated into a contract between them, it was expressly incorporated into the July 8, 1996 Contract between the DOE and Equity IPE. JE 1372 at CBL003 00533 ¶ 1.0. Chevron was an intended beneficiary of that contract and therefore has standing to bring any suit, including for a breach of the incorporated Equity IPE Protocol. Pl. PT Br. at 55-56 (citing Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001) (“In order to prove third party beneficiary status, a party must demonstrate that the contract not only reflects the express or implied intention to benefit the party, but that it reflects an intention to benefit the party directly.”)); see also Pl. PT Reply at 21-22. The entire point of the July 8,1996 Contract with the Equity IPE was to provide an impartial process that would benefit DOE and Chevron, as the Equity IPE testified at trial. See JE 2 at CME002 00450 (1996 NDA Act requiring DOE to hire an IPE that is “mutually acceptable” to Chevron and DOE); see also TR at 2795 (Sewell); TR at 2854 (Frost).

ii. The Government’s Response.

The Government responds that the Equity IPE Protocol is an Administrative Order, not *780 a contract. Accordingly, it may only be challenged under the APA and the United States Court of Federal Claims does not have jurisdiction to adjudicate a claim under the APA. Gov’t PT Resp. at 3. Although the ASFE permitted Chevron to provide input into the terms of the Equity IPE Protocol, this does not establish that DOE intended the Equity IPE Protocol to be a contract between the parties. Gov’t PT Resp. at 3.

In addition, the Equity IPE Protocol was not incorporated into the Equity Process Agreement for all four zones. As the court previously found, the Equity Process Agreement “did not incorporate any procedures from [the Equity IPE Protocol]” with respect to the Carneros, Dry Gas, and Stevens Zones. See Chevron I, 71 Fed.Cl. at 247 . Accordingly, any violation of the Equity IPE Protocol by DOE as to these three zones is not a breach of the Equity Process Agreement. Gov’t PT Resp. at 3-4.

Chevron cannot argue that DOE’s alleged violation of the Equity IPE Protocol violated the July 8, 1996 contract between the Equity IPE and DOE. Gov’t PT Resp. at 4-5. Chevron was not a beneficiary of that contract nor has Chevron demonstrated that the contract was entered into for its “direct” benefit — a prerequisite for the court’s exercise of jurisdiction. See Glass, 258 F.3d at 1354 . More importantly, no language in the Equity IPE Protocol indicates that it was entered into for Chevron’s benefit. JE 1372.

iii. The Court’s Resolution.

i. The Equity Independent Petroleum Engineer Protocol Was Not A Contract Between Plaintiff And The Department Of Energy.

The United States Supreme Court has observed that consent decrees and administrative orders, “arrived at by negotiation between the parties,” have “attributes ... of contracts” and thus “are treated as contracts for some purposes[,] but not for others.” United States v. ITT Cont’l Baking Co., 420 U.S. 223 , 237 n.10, 95 S.Ct. 926 , 43 L.Ed.2d 148 (1975). For this reason, the United States Court of Appeals for the Federal Circuit has held that the United States Court of Federal Claims had jurisdiction to adjudicate a breach of contract claim arising from the Government’s violation of a consent decree entered by a federal district court. See VanDesande v. United States, 673 F.3d 1342, 1350 (Fed.Cir.2012) (“[T]he ITT line of cases supports a conclusion that settlement agreements, even if they are incorporated into judicial or administrative consent decrees, should be viewed for enforcement purposes as having the attributes of a contract.”). Accordingly, if an Administrative Order formalizes a negotiated agreement between the Government and a private party, our appellate court’s jurisprudence supports the proposition that a federal trial court has jurisdiction to adjudicate a breach of that Order.

In this case, DOE requested that Chevron comment on and approve the Equity IPE Protocol, as well as the two supplements. JE 65 (Equity IPE Protocol); JE 107 (First Supplement); JE 171 (Second Supplement). Thereafter, DOE consistently treated the Equity IPE Protocol as the product of negotiations between DOE and Chevron. JE 58 (7/2/96 letter from Ms. Egger to Chevron requesting “[i]f you find the [Equity IPE] Protocol acceptable, please so indicate by return telefax with your signature” and describing the Equity IPE Protocol as “flesh[ing] out the understandings of the parties”); JE 72 (minutes of 7/23/96 meeting between DOE and Chevron, where Ms. Egger advised Chevron that “[w]e have a[n Equity IPE Protocol agreement that we hope the parties regard as binding”); JE 171 (1/21/97 letter from ASFE Godley to Chevron stating “[ajlthough the [Equity IPE] Protocol did not contain every element initially desired by either party, it was, as noted in your January 8 letter, agreed to by Chevron prior to its issuance”); JE 107 (9/18/96 memorandum from Ms. Egger to Chevron describing the First Supplement to the Equity IPE Protocol and indicating that “[i]n order to accommodate DOE procurement practice, we have put this in the form of an agreed-upon protocol”).

The evidence suggests that, although DOE accepted input from Chevron in preparing the Equity IPE Protocol, it was done in the spirit of cooperation, not with an eye toward entering into a contractual agreement with *781 Chevron. For example, the January 21,1997 letter from DOE to Chevron stated:

Even before the retention of [the IPE], the [DOE] extensively discussed with Chevron the process to be used to finalize equity and sought to reach consensus with Chevron on the process and milestones for this complex undertaking. Of course, seeking to establish a mutually acceptable process is not required by the Act. Nevertheless, we believed such an effort was desirable, and a significant effort in this regard is reflected in the [Equity IPE Protocol.]

JE 171.

Moreover, although DOE invited Chevron to “review and comment” on a final draft of the Equity IPE Protocol, DOE was not required to secure Chevron’s approval. JE 58; see also JE 54 (minutes from June 26, 1996 meeting between DOE and Chevron where DOE’s General Counsel stated “[w]e would like to decide on a procedure that both parties are comfortable with, but the Department is prepared to go forward without Chevron’s agreement”). Although the 1966 NDA Act required that an IPE be “mutually acceptable” to Chevron and DOE, it did not require that the process followed by the IPE meet with Chevron’s approval. See JE 2 at CME002 00450 (stating that, in deciding whether to accept a recommendation from the IPE, “the Secretary [of Energy] may use such other method to establish final equity interest in the reserve as the Secretary considers appropriate”). In addition, there is no indication that Chevron provided DOE with any separate consideration for the Equity IPE Protocol, as it did when it signed the Equity Process Agreement and the Decoupling Agreement where Chevron agreed to forgo judicial review of final OHA decisions as to equity finalization.

For these reasons, the court has determined that the Equity IPE Protocol was not a contract between Chevron and DOE.

ii. The Equity Independent Petroleum Engineer Protocol Was Not Incorporated Into The Equity Process Agreement As To The Carneros, Dry Gas, And Stevens Zones.

Although Chevron I stated that the Equity Process Agreement “did not incorporate any procedures from Administrative Order No. 96-01,” that statement was made in describing the Equity Process Agreement on a motion to dismiss, based solely on the allegations in the August 20, 2004 Complaint. Since that was a pre-trial opinion, it was not a finding of fact or law subject to the law-of-the-case doctrine. See United States v. Palmer, 122 F.3d 215, 221 (5th Cir.1997) (recognizing that trial courts “are not always bound by their prior rulings on pretrial motions”); see also Outside the Box Innovations, LLC v. Travel Caddy, Inc., 695 F.3d 1285, 1307 (Fed.Cir.2012) (Newman, J., concurring in part, dissenting in part) (“The ‘law of the case’ does not apply to preliminary rulings made on pretrial motion.”).

In any event, the court has determined that the Equity Process Agreement cannot reasonably be interpreted as incorporating the Equity IPE Protocol as to all four zones, because the Equity Process Agreement expressly incorporated only the Equity IPE Protocol with respect to the Shallow Oil Zone. JE 6 ¶ A2 (“The procedures of [the Protocol] ... will be utilized for the [Shallow Oil Zone.]” (emphasis added)). Nothing in the Equity Process Agreement purports to incorporate the Equity IPE Protocol with respect to the remaining three zones and the court is not at liberty to incorporate a separate document as a contract term without evidence of the parties’ assent. See Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988) (“In construing a contract, we look first to the terms of the agreement itself. Our task is to determine the intent of the parties at the time they contracted, as evidenced by the contract itself. Only if there is ambiguity should parol evidence be considered.”). Therefore, the Equity Process Agreement is not ambiguous as it expressly incorporates the Equity IPE Protocol for the Shallow Oil Zone, but not the other zones. See Monroe M. Tapper Assoc. v. United States, 602 F.2d 311, 314 (Ct.Cl.1979) (“It is an established rule of contract interpretation that where several subjects of a class or group are enumerated and there are no general words to show that other subjects or items are included, it may reasonably be *782 inferred that the subjects or items not named were intended to be excluded.” (citing 3 Cor-bin on Contracts § 552, at 206 (I960))). Nor has Chevron provided convincing evidence to the contrary. See City of Oxnard v. United States, 851 F.2d 344, 347 (Fed.Cir.1988) (“A party contesting the reasonable construction of contract language must show either that both parties had a contrary intent, or that the party seeking relief had no reason to know of that reasonable construction at the time of making the agreement.”). Instead, Chevron simply asserts that “[t]here is no explanation as to why the parties would have added heightened procedural protections only with respect to the Shallow Oil Zone[.]” PL PT Br. at 54. Chevron cites no evidence that this was DOE’s intent, only post facto testimony by Chevron’s Program Director. Pl. PT Br. at 54 (citing TR at 914 (Stay)); see also Varilease Tech. Grp. v. United States, 289 F.3d 795, 799 (Fed.Cir.2002) (“[T]he intention of a party entering into a contract is determined by an objective reading of the language of the contract, not by that party’s statements in subsequent litigation.”). Therefore, as a matter of law, the court is not at liberty to import a term that is absent from the parties’ written agreement.

For these reasons, the court has determined that the Equity IPE Protocol was not incorporated into the Equity Process Agreement for any zone, except the Shallow Oil Zone.

iii. But, Plaintiff Was A Third Party Beneficiary Of The July 8, 1996 Contract Between The Department Of Energy And The Equity Independent Petroleum Engineer.

The July 8, 1996 contract between DOE and the Equity IPE implemented Congress’ directive that DOE retain an IPE who would be “mutually acceptable” to both parties, reflecting that the Equity IPE’s work would be of direct benefit to DOE and Chevron. JE 2 at CME002 00450. This objective also is reflected in the terms of the July 8, 1996 Contract, requiring the Equity IPE to “prepare recommendations on the respective final equity figures of the Department of Energy (DOE) and Chevron USA (Chevron), in the specified known oil and gas zones ... in accordance with section 3412(b)(2) of the [NDA Act].... The Equity IPE’s work and recommendations should be independent and impartial, and not concerned with the financial impact the recommendations may have on the owners." JE 1372 at CBL003 00533 ¶ 1.0 (emphasis added). 27 In addition, “[t]he Equity IPE shall develop the implementation plan based on the process framework contained in the [Equity IPE Protocol.]" Id. at CBL003 00534 ¶3.1.03 (emphasis added). Therefore, the July 8, 1996 Equity IPE Protocol was incorporated into the July 8, 1996 Contract by reference. The Equity IPE Protocol established a “process that is designed to be open, fair, transparent and one that will adequately protect the respective ownership interests of the owners ” (JE 3 ¶ B(5)). TR at 2795 (Sewell) (agreeing that the work the Equity IPE performed “[djefinitely” was “of benefit to both Chevron and the Department of Energy”); TR at 2854 (Frost) (same); TR at 2958 (Kre-nek) (agreeing that both Chevron and the DOE were the Equity IPE’s clients).

In Sullivan v. United States, 625 F.3d 1378 (Fed.Cir.2010), the United States Court of Appeals for the Federal Circuit held:

For third party beneficiary status to be conferred on a party, the “contract must reflect the express or implied intention of the [contracting] parties to benefit the third-party.” Montana v. United States, 124 F.3d 1269, 1273 (Fed.Cir.1997). While the third party does not need to be specifically identified in the contract, third party beneficiary status can only be bestowed on *783 those parties that “fall within a class clearly intended to be benefited” by the contract. Id. “[MJerely because a third party may derive a benefit, purely incidental and not contemplated by the contracting parties, from the performance of a contract does not entitle that party to enforce the contract.” Williston on Contracts § 37:7.

Id. at 1380 (alterations in original).

Accordingly, to determine whether a non-party to a contract is a third party beneficiary, the court must “look to whether the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right on him.” Dewakuku v. Martinez, 271 F.3d 1031, 1041 (Fed.Cir.2001). Moreover, when the contract at issue “implements a statutory enactment, it is appropriate to inquire into the governing statute and its purpose.” Roedler v. Dep’t of Energy, 255 F.3d 1347 , 1352 (Fed.Cir.2001).

In this case, the July 8, 1996 contract between DOE and the Equity IPE expressed that both DOE and the Equity IPE intended Chevron to benefit from the procedures set forth in the Equity IPE Protocol. The Equity IPE was retained to provide “independent and impartial” equity determinations to “adequately protect” the interests of both DOE and Chevron. In fact, Ms. Egger agreed that it was reasonable for Chevron to rely on the ex parte prohibition in the Equity IPE Protocol. TR at 2017 (“Q: And Chevron could reasonably rely on the expectation that the Department of Energy would abide by the provisions of this protocol? A: And vice versa, I think that’s correct.”).

For these reasons, the court has determined that Chevron was the direct and intended third party beneficiary of the July 8, 1996 contract between DOE and the Equity IPE, incorporating the Equity IPE Protocol as a material term therein. Accordingly, the court has determined that it has jurisdiction to adjudicate Chevron’s claims that DOE also breached the terms of the Equity IPE Protocol. See Roedler, 255 F.3d at 1352 (“To establish a right of action by a third person who is not a party to or identified in the contract as a beneficiary of its performance, the contract must show the intention of the contracting parties to provide a benefit to that person.”).

V. DISCUSSION.

A. Whether The Secretary Of The Department Of Energy Had Authority To Prohibit Staff Attorneys From Having Ex Parte Communications With The Assistant Secretary For Fossil Energy.

1. The Government’s Argument.

The Government argues that, even if the terms of the Equity Process Agreement prohibited ex parte communications by DOE lawyers with the ASFE, any such agreement “would be a legal nullity.” Gov’t PT Resp. at 18-24. On June 17, 1996, the Secretary of the DOE delegated responsibility to the ASFE to implement all duties required by the UPC and perform all functions required to finalize equity, in the Elk Hills Reserve. JE 1462 (DOE Order No. 0204-158). But, the ASFE and the ASFE’s agents were “governed by the rules and regulations of the Department of Energy and the policies and pi’oeedures prescribed by the Secretary and the Secretary’s delegates.” JE 1462 ¶ 3.a.

Two prior Orders issued by the Secretary of the DOE, however, required that all matters of DOE “legal policy, analysis, and advice” were to be coordinated with and determined by DOE’s Office of the General Counsel. JE 1454 (2/21/92 Order stating “[i]t is essential that all matters of legal policy, analysis, and advice affecting the Department be fully coordinated by, and consistent with the views, of the General Counsel”); JE 1458 (11/27/95 Order stating “all matters of legal policy, analysis, and advice affecting the Department must be coordinated with and subject to the direction of the General Counsel.”). Since the June 17, 1996 Order issued by DOE’s Secretary did not rescind these prior Orders, the Government insists that the ASFE did not have the authority to prohibit ex parte communications between DOE attorneys and the ASFE, whether the DOE attorneys also served on DOE’s EFT or not. Gov’t PT Resp. at 21-23. Likewise, DOE was prohibited from assigning an attorney from the Office of Gen *784 eral Counsel to provide advice to the EFT while utilizing different attorneys to provide legal advice to the ASFE, because the attorney advising the EFT would be required to coordinate legal advice through the Office of General Counsel so the “two attorneys [would be] required to take the same legal position, that is, the legal position as determined by the General Counsel.” Gov’t PT Resp. at 22. In other words, “the Secretary [of DOE] delegated authority to OGC to determine DOE’s authoritative position on virtually all [and] any questions of law,” so it was impossible for the ASFE to contract for a neutral process by which some DOE personnel could advocate legal positions different than those that might ultimately be adopted by the ASFE. Gov’t PT Resp. at 24.

2. The Plaintiffs Response.

Chevron responds that the Government’s contention that the June 17,1996 DOE Order did not authorize the ASFE' to make all decisions, including legal decisions, without the approval of the DOE Office of General Counsel is without support. PI. PT Br. at 39-43. That Order authorized the ASFE to “[p]erform all duties and responsibilities relative to the disposition of the United States share of petroleum produced from the Naval Petroleum Reserves[.]” JE 1462 ¶ l.e (emphasis added). This broad grant of authority, however, did not need to delegate to the ASFE the express authority to issue legal opinions, because it encompassed “all” necessary powers. PI. PT Br. at 40. Moreover, the Government’s position is not consistent with other federal agencies’ “widespread ... practice of separating General Counsel lawyers from decisionmaking functions[.]” PL PT Br. at 40. In addition, the February 21, 1992 Memorandum on which the Government relies (JE 1454) was rescinded on April 1, 1993, prior to DOE’s conduct at issue in this case. JE 1455 at 8. And, the other DOE Orders relied upon by the Government do not authorize DOE’s Office of General Counsel with final authority over the exercise of independent adjudicatory functions within DOE. PL PT Br at 41-42. Therefore, the more specific delegation to the ASFE trumps the generalized Order delegating legal functions to the DOE Office of General Counsel. PL PT Brat 42.

3. The Court’s Resolution.

The DOE Secretary’s November 27, 1995 Memorandum, entitled “Alignment of Legal Services” provides:

The General Counsel is accountable to me for the sufficiency and consistency of legal advice provided throughout the Department. For that reason, all matters of legal policy, analysis, and advice affecting the Department must be coordinated with and subject to the direction of the General Counsel. The General Counsel will establish procedures to ensure that this professional consultation occurs and that advice rendered on legal issues is consistent and correct.

JE 1458 at l. 28

The purpose of this Memorandum was to ensure that the legal advisors within DOE’s Office of General Counsel provided consistent advice to other DOE employees. JE 1458 at 1 (“With respect to the provision of legal services, I believe an important step towards operating more efficiently is a careful alignment of legal services provided throughout the Department, including a formalization of the relationship between [DOE] lawyers in the field and the General Counsel.” (emphasis added)).

The UPC provides that, if either the Operating Committee or Engineering Committee is “unable to agree upon any matter,” a resolution will be made by the Secretary of the Navy. 29 JE 1 § 9 (UPC “Determination of Disputes” clause). The 1996 NDA Act further provides that the Secretary of the Navy “may accept the recommendation of *785 the [IPE] ... or ... use such other method to establish final equity interest in the reserve as the Secretary considers appropriate.” JE 2 at CME002 00450 (emphasis added).

Pursuant to the 1996 NDA Act, the Secretary of Energy issued DOE Order No. 0204-158, delegating “all” powers under the UPC to the ASFE to:

a. Perform all functions vested in Subtitle B of the [NDA Act] relating to the sale of Naval Petroleum Reserve Numbered I and the study of options for maximizing the value of the other five Naval Petroleum and Oil Shale Reserves to the United States.

d. Perform all duties and responsibilities required by the Unit Plan Contract between the United States of America and Chevron U.S.A., Inc. [and amendments thereto].

e. Perform all duties and responsibilities relative to the disposition of the United States share of petroleum produced from the Naval Petroleum Reserves to or for the Department of Defense and the Strategic Petroleum Reserve pursuant to 10 U.S.C. section 7430 (k) and (l).

JE 1462 ¶ 1 (emphasis added).

Paragraph 3 entitled, “Limitation,” however, provided that the ASFE’s authority was subject to “the rules and regulations of the Department of Energy and the policies and procedures prescribed by the Secretary and the Secretary’s delegates.” JE 1462 ¶ 3.a.

Accordingly, the ASFE was expected to consult with and receive legal advice from attorneys in the DOE’s General Counsel’s Office, but the November 27,1995 Memorandum in no way required nor authorized the ASFE to perform quasi-adjudicatory duties in any manner that was not impartial and independent.

Therefore, the Government’s reliance on the November 27, 1995 Alignment of Legal Services Memorandum is misplaced. As Professor Breger observed at trial, the Government’s interpretation is

like telephone justice in the Soviet Union, [the ASFE] tries to do the right thing, [as] the judge, until he gets the call from the [C]ommissar. So, it’s almost analogous. [The ASFE] gets the answer[,] when he gets the phone call from the [G]eneral [C]ounsel’s office.

TR at 1032-33 (Breger).

Moreover, if the November 27, 1995 Memorandum were interpreted to prohibit the ASFE from exercising independent judgment in performing adjudicatory functions, substantial due process concerns would be implicated. JE 1522 at ¶ 11.1 (Expert Report of Professor Geoffrey C. Hazard, Jr.); see also Withrow v. Larkin, 421 U.S. 35, 47 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975) (“Not only is a biased decisionmaker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.’ ”) (quoting In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623 , 99 L.Ed. 942 (1955)); NEC Corp. v. United States, 151 F.3d 1361, 1372 (Fed.Cir.1998) (“The right to an impartial decision maker is unquestionably an aspect of procedural due process.”). But, “the blend of investigative and adjudicative functions ... found in modern administrative agencies requires that a pragmatic approach be taken to what qualifies as an ‘impartial’ decision maker.” Id. at 1371 . Of course, due process is not at issue even where an adjudicator could be characterized as having prejudged a ease “in some measure,” but due process is implicated where “the decision maker’s mind is ‘irrevocably closed’ on a disputed issue.” Id. at 1372-73 (quoting FTC v. Cement Inst., 333 U.S. 683, 701 , 68 S.Ct. 793 , 92 L.Ed. 1010 (1948)). Due process also prohibits an advocate from functioning as an adjudicator. See Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir.1991) (holding that due process was violated where “the same staff attorney ... functioned] both as the City’s attorney in the federal court case and as the decision-maker in [the contemporaneous administrative] hearing”).

For these reasons, the court has determined that DOE’s Secretary had the authority and the duty to prohibit DOE staff attorneys who served in an advocacy capacity from having ex parte communications concerning “equity redetermination-related mat *786 ters” with the ASFE, who was the adjudicator of the equity finalization of the Elk Hills Reserve.

B. Whether Department Of Energy Attorneys Who Served As Advocates In The Equity Finalization Process Were Subject To The Ex Parte Prohibitions Of The Equity Process Agreement.

1. The Plaintiffs Argument.

Chevron also argues that paragraph B.4 of the Equity Process Agreement “plainly precludes either side’s advocates [including attorneys] in the equity finalization process from engaging in ex parte communications— whether direct or indirect — with the ASFE.” Pl. PT Br. at 8. Although the term “equity team” was not defined in the Equity Process Agreement, a similar term, “equity finalization team (EFT),” was defined in the Equity IPE Protocol as individuals “appointed [by each owner] ... to develop and present its equity positions for each of the three zones under consideration.” JE 3 ¶ C(2). Since lawyers act as agents for their clients, an ex parte communication provision applicable to a party “inherently applies to that party’s lawyers.” Pl. PT Br. at 15. In addition, Paragraph B.4 of the Equity Process Agreement also applies to “indirect” ex parte communications, clarifying that a lawyer may not be a conduit through which ex parte communications occur between non-lawyers. Pl. PT Br. at 15.

Although paragraph B.4 of the Equity Process Agreement refers to “the DOE field equity technical team,” the second sentence of the same paragraph prohibits “communications by the ASFE with either equity team, ” on an ex parte basis. JE 6 ¶ B.4 (emphasis added). The term “equity team” is broader than the term “field equity technical team” as it includes any party representative “seeking to maximize [either] side’s share of ‘equity[.]’” Pl. PT Br. at 17. Chevron does not contest that the parties intended to permit the ASFE to have communications with DOE technical staff in Washington, D.C. It was the “field equity technical team” who were prohibited from having ex parte communications with the ASFE, because they served as advocates before the Equity IPE and ILA. Pl. PT Br at 17; see also id. at 18 n.10 (citing 6/25/09 Smits Dep. at 76; 5/19/09 Burzlaff Dep. at 159, 173-74; and JE 497 at 2 (showing that the term “equity field team” was widely used in communications between the parties to the equity finalization, but that the term “field equity technical team” was not).

Chevron’s interpretation of paragraph B.4 of the Equity Process Agreement is further supported by the drafting history. Initially, Chevron proposed a ban on ex parte communications between “the attorneys or technical team members who participated in the preparation of the DOE or the Chevron equity presentations to [the Equity IPE]” and the ASFE. JE 263 at 3. Although the word “attorney” was not included in paragraph B.4, the parties viewed DOE’s agreement to use the broad term “equity team” as sufficient to include attorneys within the ex parte prohibition. TR at 865 (Giumarra) (“When we started talking about equity teams in that provision, that took care of the need to call out attorneys or technical people with regard to the equity teams, other than mentioning the technical team in Washington.”). In addition, Chevron was satisfied that DOE attorneys could not circumvent the ex parte provision by DOE’s agreement to add the words “directly or indirectly” to paragraph B.4 of the Equity Process Agreement, to clarify that the ex parte prohibition was broad and inclusive. Pl. PT Br. at 23. Finally, if the court determines that paragraph B.4 of the Equity Process Agreement is ambiguous, the court must construe that ambiguity against DOE, under the doctrine of contra proferen-tem, since DOE drafted the Equity Process Agreement. Pl. PT Br. at 21-22 (citing Chevron II, 80 Fed.Cl. at 364).

2. The Government’s Response.

The Government responds that paragraph B.4 of the Equity Process Agreement does not prohibit communications “by DOE attorneys acting as such.” Gov’t PT Resp. at 6-18. The Government reads paragraph B.4 to prohibit only communications between the ASFE and the “DOE field equity technical team.” Gov’t PT Resp. at 8. Although the second sentence refers to the undefined term *787 “equity team” it also uses the word “such communications,” thereby referencing back to the previous sentence’s prohibition about communications between the ASFE and the DOE “field equity technical team.” Gov’t PT Resp. at 8-9. DOE’s technical team consisted of “engineers, geologists, or geophysicists.” Gov’t PT Resp. at 10. Therefore, an attorney in DOE’s Office of General Counsel, like Ms. Egger, was not a technical professional and therefore was not subject to the prohibition on ex parte communications in paragraph B.4 of the Equity Process Agreement. Gov’t PT Resp. at 10-11.

Moreover, even if the EPA is considered ambiguous, parol evidence supports the Government’s reading of the contract. Gov’t PT Resp. at 11. On May 14, 1997, Ms. Giumar-ra, Chevron’s Assistant General Counsel, proposed adding language to the second sentence of paragraph B.4 of the Equity Process Agreement to include attorneys in the prohibition on ex parte communications. JE 263. This confirms that Chevron did not view DOE attorneys as subject to the ex parte prohibitions applicable to DOE’s “field equity technical team.” Gov’t PT Resp. at 12-13. For this reason, DOE EFT’s outside counsel contacted Ms. Giumarra the same day to inform her that a prohibition on ex parte attorney communications was unacceptable. JE 1427 ¶ 41 (8/8/07 Thorpe Dec.). Nor did “[t]he addition of the phrase ‘directly or indirectly’ ” in the first sentence of paragraph B.4 of the Equity Process Agreement “change or supplement what was already prohibited.... It merely clarified that the ban upon consultation by the ASFE with the ‘DOE field equity technical team’ could not be evaded by communicating with the ‘DOE field equity technical team’ through an intermediary.” Gov’t PT Resp. at 15-16. Since Chevron was aware of DOE’s understanding that paragraph B.4 did not include ex parte attorney communications, Chevron’s interpretation must fail, because “[a] party contesting the reasonable construction of contract language must show ... that the party seeking relief had no reason to know of that reasonable construction at the time of making the agreement.” Gov’t PT Resp. at 16 (quoting City of Oxnard, 851 F.2d at 347 ). Moreover, Chevron’s subsequent conduct evidenced that it understood that lawyers, like Ms. Egger, were not part of DOE’s “field equity technical team,” and that she was permitted to consult with the ASFE’s office on an ex parte basis. Gov’t PT Resp. at 17 (citing JE 310 at 2 (June 2, 1997 letter from Ms. Giumarra to Ms. Egger suggesting that Ms. Egger discuss certain matters “with your technical team and with [the ASFE]”)).

3. The Court’s Resolution.

When interpreting a contract, the court must construe it “to effectuate its spirit and purpose giving reasonable meaning to all parts of the contract.” Hercules, Inc. v. United States, 292 F.3d 1378, 1381 (Fed.Cir.2002). In so doing, the court “look[s] first to the terms of the agreement itself.... Only if there is ambiguity should parol evidence be considered.” Greco, 852 F.2d at 560 .

Paragraph B.4 of the Equity Process Agreement states:

The ASFE will not consult, directly or indirectly, with the DOE field equity technical team concerning equity redetermination-related matters without also consulting with the Chevron equity team on any such matter (the reference in this sentence to the DOE field equity technical team does not include the DOE technical staff in Washington, D.C.). No such communications by the ASFE with either equity team shall be on an ex parte basis. Any written materials submitted to the ASFE by either equity team shall be provided to the other party. The provisions of this paragraph B.4 shall cease to apply with respect to a zone upon the ASFE’s issuance of her final equity decision for such zone.

JE 6 ¶ B.4.

The threshold issue is whether the term “equity team” in the second sentence is broader than the “field equity technical team” in the first sentence. The Government contends that the adjective “such” refers back to both the specific parties and subject matter listed in the first sentence, i.e., to communications “by the ASFE with the ‘DOE field equity technical team’ regarding equity redetermination-related matters.” Gov’t PT Resp. at 8. Under the Government’s *788 interpretation, the second sentence of paragraph B.4 effectively would read:

No [consultation by the ASFE with the DOE field equity technical team concerning equity redetei’mination-related matters] by the ASFE with either equity team shall be on an ex parte basis, (emphasis added)

This interpretation has no reasonable meaning, since the reference to “the DOE field equity technical team” is inconsistent with the reference to “either equity team.” See Gould v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (“ ‘[Provisions of a contract must be so construed as to effectuate its spirit and purpose ... an interpretation which gives a reasonable meaning to all of its parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result.’ ” (alterations in the original) (quoting Arizona v. United States, 575 F.2d 855, 863 (Ct.Cl.1978))).

Instead, construing “such communications” in the second sentence of Paragraph B.4 to refer to the first sentence’s text regarding communications “concerning equity redeter-mination-related matters,” would result in the second sentence reading as follows:

No [communication concerning equity re-determination-related matters] by the ASFE with either equity team shall be on an ex parte basis.

This interpretation is grammatically correct and comprehensible. Although the term “equity team” is not defined in the Equity Process Agreement, the DOE EFT’s outside counsel testified that the term “equity team” was synonymous with “equity finalization team,” that was defined in the Equity IPE Protocol — a document with which the parties were familiar and which was integrated into the Equity Process Agreement as to the Shallow Oil Zone. TR at 2711 (Thorpe) (“Q: Is it fair to say that, during your work on equity, the two sides’ equity teams were commonly referred to either as equity teams or EFTs? A: They were referred to as EFTs, equity teams, field equity teams.”); JE 3 ¶ C(2) (“Each owner has appointed an equity finalization team (EFT) to develop and present its equity positions for each of the three zones under consideration.” (emphasis added)).

For these reasons, the court has determined that the second sentence of paragraph B.4 of the Equity Process Agreement prohibited ex parte communications between members of either party’s EFT, defined as any party employee “developing] and presenting the party’s] equity position! ]” and the ASFE. JE 3 ¶ C(2).

Assuming, arguendo, that paragraph B.4 only prohibited ex parte communications between DOE’s “field equity technical team” and the ASFE, the ex parte prohibition still would extend to attorneys working with or for the “field equity technical team,” because the first sentence of Paragraph B.4 prohibits the ASFE from communicating “indirectly" 30 with DOE’s “field equity technical team” on “equity redetermination-related matters.” JE 6 ¶ B.4. As such, paragraph B.4 unambiguously prohibits communications between DOE’s “field equity technical team” and the ASFE through an intervening person (e.g., a lawyer).

Moreover, the Government’s argument that the parties’ addition of the phrase “directly or indirectly” in the first sentence of paragraph B.4 was of no import is contrary to two cardinal principles of contract interpretation, i.e., the court must give every phrase in a contract meaning; and the plain contract language governs. See Pac. Gas & Elec. Co. v. United States, 536 F.3d 1282, 1288 (Fed.Cir.2008) (“Generally, this court also construes contract terms in the context of the entire contract, avoiding any meaning that renders some part of the contract inoperative.”); S. Cal. Fed. Sav.& Loan Ass’n v. United States, 4 422 F.3d 1319, 1329 (Fed.Cir.2005) (holding that the “basic precept! ] of contract interpretation” is that courts must interpret contracts to “comport with the plain meaning of [contractual] elause[s]”).

*789 The purpose of the Equity Process Agreement was to protect both parties’ interest in having a neutral, fair, and unbiased procedure for determining equity in the four oil and gas zones at issue. TR at 913 (Stay) (“[W]hat we saw we were getting was added assurance of a fair, open, transparent pro-eess[.]”); TR at 1629 (ASFE Kripowicz) (agreeing that paragraph B.4 “was meant to help preserve the ASFE’s impartiality”); 5/18/09 Kauffman Dep. at 150 (stating his view that the ASFE was “supposed to be an impartial decision maker”); 5/19/09 Burzlaff Dep. at 160 (“The ASFE needed to be impartial.”). The reason that the Equity Process Agreement was so important is that prior attempts to achieve a neutral adjudication of the Shallow Oil Zone were unsuccessful. TR at 881 (Giumarra) (explaining the parties wanted to “do away with” prior adjudication and “stai’t over”). 31 Indeed, the Government does not contest that a central goal of the Equity Process Agreement was to protect Chevron from a biased adjudication: “The limitations upon the ASFE’s ability to deviate from the IPE’s equity recommendations ... were intended to address Chevron’s concerns about the ASFE’s ability to be an impartial decisionmaker.” 9/15/09 Gov’t PreTrial Br. at 37. As such, it would be coun-terintuitive for the court to interpret the Equity Process Agreement to allow lawyers to engage in ex parte communications to systematically undermine the purpose of the process. See Nw. Marine Iron Works v. United States, 493 F.2d 652, 657 (Ct.Cl.1974) (“Construction of the terms of a contract, like construction of a statute, should ‘avoid absurd and whimsical results.’ ” (quoting Anderson v. United States, 490 F.2d 921, 928 (Ct.Cl.1974))).

The DOE EFT’s outside counsel testified at trial that DOE had “a very strong objection to this proposal” and that he “relayed the DOE ... reaction to the language” to Chevron. TR at 2713-14 (Thorpe). But, when pressed, he could not recall any of the details of this conversation. TR at 2714-16 (Thorpe) (failing to provide any detail, in response to multiple questions by Chevron’s counsel, as to the specific content of his conversations with Chevron’s Assistant General Counsel); TR at 2728 (Thorpe) (testifying that, although he negotiated paragraph B.4, he could not recall why the words “directly or indirectly” were added on May 19, 1997). Nor did Mr. Thorpe memorialize this conversation in writing, despite the fact that he committed other key issues about the scope of the ex parte clause into a written memorandum to Ms. Egger. TR at 2720-21 (Thorpe); JE 285 (5/19/97 Memorandum from Mr. Thorpe to Ms. Egger regarding whether the ex parte clause extended to Dr. Latham’s participation in a “dry run” presentation by DOE’s field equity technical team to the Equity IPE). Ms. Egger also testified that although she participated in a telephone call with Chevron’s Assistant General Counsel, like Mr. Thorpe, she too could not “remember specifics,” except that “we clearly conveyed to Chevron that this language and the concept of attorneys being within the ex parte discussion ... was unacceptable.” TR at 2156 (Egger).

On May 16, 1997, the DOE EFT outside counsel responded to Chevron’s Assistant General Counsel with a revised proposal that read, in relevant part:

The ASFE will not consult with the DOE field equity technical team concerning equity redetermination-related matters without also consulting with the Chevron equity team on any such matter. No such communications by the ASFE with either equity team shall be on an ex parte basis.

JE 274 at 3.

On May 19, 1997, the parties amended paragraph B.4 of the Equity Process Agree *790 ment, adding the words “directly or indirectly” to the first sentence of the paragraph and the parenthetical referencing DOE’s technical staff in Washington, D.C. at the end of the same sentence. JE 289 at COM006 00723 (redline version of the Equity Process Agreement incorporating these changes). At trial, the DOE EFT’s outside counsel remembered that he spoke with Chevron’s Assistant General Counsel about the language of paragraph B.4 on May 19, 1997, but again could not remember whether they discussed whether the final version prohibited communications by lawyers. TR at 2724, 2727-34 (Thorpe).

Chevron’s Assistant General Counsel, however, testified that she had multiple conversations with Mr. Thorpe during this period regarding paragraph B.4:

I do not have recollection that [Thorpe] told me that the attorneys for DOE would not be covered by this. And the reason that I say it this way is because had we been told that the lawyers who had been advocating DOE’s equity position were not going to be covered by this provision and would have free reign with the ASFE, that would have destroyed the neutrality of the pi’ocess that we thought we had bargained for.... We wouldn’t have moved forward with the agreement.

TR at 812 (Giumarra).

Chevron’s Assistant General Counsel explained that she did not press for the inclusion of the word “attorney” in paragraph B.4 of the Equity Process Agreement, because “it was not necessary. When we started talking about equity teams in that provision, that took care of the need to call out attorneys or technical people with regard to the equity teams, other than mentioning the technical team in Washington.” TR at 865 (Giumarra).

Chevron’s Assistant General Counsel’s specific account of the negotiations was straightforward and follows logically from the fact that the Equity Process Agreement was designed to provide the parties with a neutral process. 32 In contrast, Ms. Egger and DOE’s outside counsel’s testimony were inconsistent with each other and each was tentative and/or evasive. TR at 2160, 2165-68 (the court discussing Ms. Egger’s credibility); see also TR at 2240-41 (the court’s observation that DOE’s failure to document the purported conversation between DOE’s outside counsel and Chevron’s Assistant General Counsel implies “that perhaps that [conversation] never took place”).

For these reasons, the court also has determined that paragraph B.4 of the Equity Process Agreement prohibited direct or indirect ex parte communications by any DOE attorney who served on DOE’s “equity team,” ie., an attorney serving in an advocacy role before the Equity IPE or the ILA as to any “equity redetermination-related” communication with the ASFE.

C. Whether Ex Parte Communications Between Department Of Energy Staff Attorneys And The Assistant Secretary Of Fossil Energy, In Fact, Were A Breach Of The Equity Process Agreement.

1. The Plaintiffs Argument.

Next, Chevron argues that Ms. Egger was a member of DOE’s EFT. PI. PT Br. at 5-7. She “managed the team” in legal proceedings before the ILA. TR at 1276-77 (Gangle). She was involved in preparing letters and briefs to the Equity IPE and was consulted on all positions taken by the DOE EFT. TR at 1277, 1390 (Gangle). And, she shaped all aspects of the DOE EFT’s advocacy before the ASFE. TR at 2437-38 (Egger).

Ms. Egger also served as a legal advisor to the ASFE and the Washington, D.C.-based technical team that advised the ASFE. PL PT Br. at 7-8. Ms. Egger “advised [the ASFE] on almost every aspect of the sale of *791 Elk Hills, with respect to the equity process” (TR at 2673 (Godley)) and she “t[ook] the lead” in drafting the ASFE decisions (TR at 1708-09 (ASFE Kripowicz)). In sum, Ms. Egger was engaged in “countless ‘direet[ ] or indirect[ ]’ communications between the ASFE and the DOE equity team, thereby breaching paragraph [B.4] of the EPA.” PL PT Br. at 7-8.

Chevron provides numerous specific examples of how Ms. Egger’s conduct materially breached the Equity Process Agreement with respect to each of the four oil and gas zones at issue. Pl. PFOF at 91-94 (Dry Gas and Carneros Zones), 86-91 (Shallow Oil Zone), 49-85 (Stevens Zone); see also PL. PT Reply 68-73 (Dry Gas and Carneros Zones), 65-68 (Shallow Oil Zone), 36-65 (Stevens Zone). Chevron contends that each ex parte communication should not be analyzed in isolation, but in the context of the entire finalization process where the breach of the Equity Process Agreement “pervaded the process and rendered it fundamentally unfair.” PL PT Reply at 29; TR at 610-11 (Stone) (“the process was seriously flawed, and it wasn’t the process that we agreed to[.]”).

2. The Government’s Response.

The Government’s primary response is that Ms. Egger could not have breached the Equity Process Agreement, because paragraph B.4 did not prohibit ex parte communications by lawyers. Gov’t PT Resp. at 8. The Government also argues that Ms. Egger was not a member of DOE’s EFT, because she was not responsible for “developing, determining!,] and advocating DOE’s technical equity position to the [Equity] IPE.” Gov’t PT Resp. at 10. Moreover, she was not present at “two of the most important initial meeting [sic] of the two EFTs[.]” Gov’t PT Resp. at 11 (citing JE 66 (minutes of the June 17, 1996 Initial Meeting of Equity Finalization Teams); JE 70 (minutes of July 9-10, 1996 Equity IPE Orientation Meeting)).

The Government then devotes more than 150 pages analyzing individual communications by Ms. Egger and other members of the DOE EFT to show that no breach of the Equity Process Agreement occurred. Gov’t PT Resp. at 32-205. Based on this analysis, the Government urges the court to find: “that only communication[s] which contain substantial and significant technical information that could impact the determination of the equity percentage participation by advocating or promoting certain technical approaches and methodologies, utilization of selected data, as well as the unilateral choice of equations and algorithms, as well as communications attempting to influence the methodologies used or involving proprietary interpretive data[,] constitute[] a breach of the [Equity Process Agreement].” Gov’t PT Resp. at 31. The Government’s document-by-document analysis repeats the recurring objections that the documents cited in Chevron’s Post-Trial Brief, in isolation, do not evidence a breach of the Equity Process Agreement.

3. The Court’s Resolution.

a. Specific Government Defenses Are Denied.

The court’s resolution first addresses twelve defenses that the Government posited as to why DOE did not breach the Equity Process Agreement:

Government Argument 1. The communication at issue “predated the [Equity Process Agreement],” and therefore could not constitute a breach of the Equity Process Agreement. Gov’t PT Resp. at 33, 55, 57,190.

The court agrees that communications predating the Equity Process Agreement do not violate that agreement. Therefore, the court has not relied on pre-Equity Process Agreement documents to establish a breach of the Equity Process Agreement.

Government Argument 2. The communication at issue occurred after the ASFE issued a final decision with respect to the zone in question and paragraph B.4 provides that it “ ‘shall cease to apply with respect to a zone upon the ASFE’s issuance of her final equity decision for such zone.’” Gov’t PT Resp. at 41 (quoting JE 6 ¶ B.4).

The court agrees that communications occurring after the ASFE issues a final decision with respect to a particular zone may not breach paragraph B.4 of the Equity Pro *792 cess Agreement, but such communications, however, may provide relevant evidence of a breach to the extent they evidence DOE conduct prior to the issuance of a final decision. See, e.g., JE 1123 (5/28/03 email from Dr. Latham to Ms. Egger and Ms. Cadieux, cited by Chevron (PI. PFOF at 80 n.75) for the proposition that Ms. Egger continued to monitor developments in the Stevens Zone after the issuance of the ASFE’s June 18, 2002 Final Stevens Zone Decision). In addition, post-decision ex parte communications may well breach the Equity Process Agreement in the event of an OHA remand to the ASFE, as occurred in the Stevens Zone. 33

Government Argument 3. The communication at issue was “transmitted to both the DOE and Chevron EFTs,” and therefore was not ex parte. Gov’t PT Resp. at 40,44, 56,141.

The court agrees that written communications fi’om the ASFE to both parties do not breach paragraph B.4 of the Equity Process Agreement. Accordingly, the court has not relied on any such documents as evidence of a breach of the Equity Process Agreement. Nonetheless, such documents may provide relevant evidence of separate ex parte communications that did breach the Equity Process Agreement. PI. PFOF at 93 (citing the ASFE’s 11/24/97 Preliminary Carneros Zone Decision, copied to both parties, to demonstrate that it differed from earlier internal drafts and evidenced Ms. Egger’s influence in that process).

Government Argument 4. The communication at issue “was between [the] ASFE and a member of [the Washington, D.C.based] technical advisory team,” and thus permitted under paragraph B.4 of the Equity Process Agreement. Gov’t PT Resp. at 34, 60,192.

The court agrees that communications between the ASFE and members of the ASFE’s technical advisory team do not breach paragraph B.4 of the Equity Process Agreement. Accordingly, the court has not relied on any such documents as evidence of a breach of the Equity Process Agreement. Nonetheless, such documents may provide relevant evidence of prohibited ex parte communications that did breach the Equity Process Agreement, such as those involving Ms. Egger.

Government Argument 5. The communication at issue “dealt with a procedural, process, or administrative issue,” and was therefore not prohibited by the Equity Process Agreement. Gov’t PT Resp. at 33, 61,110,119.

The court is not aware of and the Government does not cite, any provision in the Equity Process Agreement permitting ex parte communications between the DOE EFT and the ASFE, if those communications dealt only with “procedural, process” related matters. To the contrary, paragraph B.4 of the Equity Process Agreement broadly prohibits all communications “concerning equity redetermination-related matters.” JE 6 ¶ B.4. In any event, the court has not relied on minor ex parte communications in determining whether DOE breached the Equity Process Agreement. The Government, however, has invoked this so-called “procedural” exception to justify ex parte communications that impart strategic, not technical advice. See, e.g., Gov’t PT Resp. at 119 (applying the “procedural” exception to JE 815, a 2/25/00 ex parte email from Ms. Egger to the ASFE stating, “Given that none of the Chevron lawyers have in the past exhibited (to me anyway) any great technical depth, we may want to give some thought as to what their presence portends [at an upcoming presentation], and try to anticipate a couple of scenarios to be ready for.”).

Government Argument 6. The communication at issue was “between the ASFE and a DOE attorney and paragraph B.4 of the EPA did not apply to attorneys.” Gov’t PT Resp. at 52, 63,115, 203.

No part of the ex parte prohibition in paragraph B.4 of the Equity Process Agreement exempts communications by attorneys.

*793 Government Argument 7. The communication at issue was between an OGC attorney and the ASFE, and the Equity Process Agreement “could not have prohibited communications among and between attorneys in the OGC and the ASFEs.” Gov’t PT Resp. at 52, 63, 115, 203.

Paragraph 4 of the Equity Process Agreement does not exempt ex parte communications between the attorneys in the Office of General Counsel and the ASFE.

Government Argument 8. The communication at issue reflected that “DOE attorneys provided guidance to [the] ASFE ... on legal issues and assisted with revisions to the wording of the decision,” but “technical and legal guidance were explicitly permitted by Paragraph B.3 of the [Equity Process Agreement.]” Gov’t PT Resp. at 44, 56.

Paragraph B.3 of the Equity Process Agreement states:

After receipt of the [Equity IPE] recommendation for a zone, the ASFE shall issue a preliminary decision on such zone and shall provide the Chevron and DOE equity teams with copies of the documents relied upon in reaching the preliminary decision which are not already in the equity teams’ possession, including, without limitation, any geophysical, geological, or petrophysical data relied upon by the ASFE, but excluding draft documents, any legal or technical advice provided to the ASFE, or documents concerning the deliberative process of reaching the preliminary decision.

JE 6 ¶ B.3.

The Government is correct that the Equity Process Agreement contemplated that the ASFE would receive independent legal and technical advice that would not be disclosed to Chevron. Paragraph 13.3, however, in no way suggests that a DOE staff attorney who also served as an advocate for the DOE EFT before the IPE and/or ILA also was permitted to provide legal advice to the ASFE in making preliminary or final decisions on equity finalization.

Government Argument 9. The communication at issue pertained to a “legal issue” decided by the ILA, rather than the IPE, and “procedures pertaining to the ILA were set forth in [the Equity IPE] Protocol Supplement No. 1, which was an administrative order, not a contract.” Gov’t PT Resp. at 33, 64, 70, 114, 200.

The Government is correct that the Equity IPE Protocol and Supplements governed the rules for ex parte communications between the ASFE and the IPE. Nothing in paragraph B.4 of the Equity Process Agreement, however, permits ex parte communications between the DOE EFT and the ASFE. To the contrary, paragraph B.4 of the Equity Process Agreement prohibits any ex parte communication between the DOE EFT and the ASFE “concerning equity redetermination-related matters.” JE 6 ¶ B.4. Legal matters referred to the ILA were “equity redetermination-related matters,” and therefore ex parte communications between the DOE EFT and the ASFE “concerning” such matters violated paragraph B.4 of the Equity Process Agreement.

Moreover, many of the ex parte communications that the Government claims concerned a “legal issue,” in fact, concerned mixed questions of law and fact. See, e.g., JE 387 (5/6/98 fax from Mr. Kauffman (DOE EFT) to Mr. Burzlaff (DOE EFT), with copies to Ms. Egger and Dr. Latham (ASFE’s technical advisor) discussing whether Chevron correctly characterized the IPE’s Final Recommendation on the Stevens Zone as adopting a “capture methodology” and providing tables of technical data in support of DOE EFT’s position). But see Gov’t PT Resp. at 66 (arguing that JE 3

This text is long and has been trimmed here. Open the source document for the complete record.