United States
                     Environmental Protection
                     Agency
Office of Solid
Waste and
Emergency Response
EPA542/F-92/012
April 1992
 &EPA       Procuring  Innovative
                      Technologies  at  Remedial  Sites:
                      Q's and  A's and  Case  Studies
 Technology innovation Office
Background - An innovative technology is a treatment technology for which cost or performance information is incomplete, thus
hindering routine use at hazardous waste sites. The Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), and the National
Contingency Plan (NCP) encourage the use of innovative treatment technology remedies if such remedies can be used: (1) at less
cost; (2) with less adverse impact; or, (3) to treat a site more effectively than other methods. Contracting for such innovative
treatment technologies can be difficult due to the government and industry's lack of experience. These technologies are relatively
new and have often not been applied to large clean-up projects. Therefore, special considerations are needed in scoping the
procurement of innovative technologies.

Purpose - This fact sheet is designed to assist EPA Remedial Project Managers (RPMs) and Contracting Officers (COs) with the
procurement of innovative treatment technologies.  RPMs, COs, and U.S. Army Corps of Engineers (COE) personnel were
interviewed to obtain information on their experiences in procuring innovative technologies. EPA's Technology Innovation
Office (TIO) has documented case histories of experiences with acquiring innovative technologies in the Superfund program.
Remedial sites chosen for inclusion  in this review were Fund-lead sites that had started or completed the procurement of an
innovative technology, including bioremediation, thermal desorption, vacuum extraction, chemical treatment, chemical extraction,
and in situ soil flushing. The results of these interviews are presented in a question and answer format. In addition, specific detailed
information on each site is presented in tabular form.
 Q1.  Why Do Innovative Technologies Need
      Special Consideration During Procurement?

 Al. Innovative technologies are new treatment methods
 that have not been applied full scale under a variety of
 site conditions.  Even though innovative technologies
 may be well designed and carefully planned, they may
 not meet contract specifications on initial attempts and
 may  require some modification  and  reengineering.
 Equipment failures and waste processing problems are
 not unusual for first time use. The Superfund Start-Up
 Initiative (OSWER Directive 9380.0-17)  encourages
 regions to allow contract flexibility for selected remedial
 and removal actions to assist vendors in establishing a
 pattern of reliable operation that satisfies performance
 standards.

 Q2.  What Types Of Contracts Have Been Used To
      Procure Innovative Technologies?

 A2.   Fixed price contracts have been used most often to
 procure innovative technologies. Fixed price contracts can
 include lump  sums and/or fixed unit prices. A lump sum
 contract sets out the total price for completing the work, while
 fixed unit prices determine the price paid for individual items
 procured under the same fixed price contracting vehicle. In
 order to incorporate flexibility into the fixed priced contracts
   used to procure innovative technologies,  performance
   specifications and/or a combination of lump sums and fixed
   unit prices for work that was still undetermined were written
   into the contracts. Unit prices were used for such items as
   excavation, cleaning, backfilling, well installation  and
   treatment. Excavation and treatment were most often based on
   cubic yards and not on weight due to problems in weighing soil.
   As noted in the sidebar on pages 2 and 3, there are other types
   of contracts thatcan be used to procure an innovative technology.

   Q3.  Do Construction Contracts Have To Be Used
        To Procure Innovative Technologies?

   A3. Although construction contracts have been used to procure
   innovative technologies, much of the remedial action treatment
   work done using innovative technologies is service oriented
   and a service contract could be considered. The Davis-Bacon
   Act and the Service Contract  Act require that all work be
   analyzed  to determine which elements are construction and
   which are service. The contract is then awarded based on the
   preponderance of the work.  A service contract procures the
   time and  effort of a contractor whose primary purpose is to
   perform an  identifiable task.  A construction contract  is a
   contract for the construction, alteration, or repair (including
   dredging, excavation and painting) of buildings, structures, or
   other real property.
                                                                                 Printed on Recycled Paper

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Q4.  How Do Bonding Requirements Differ
      Between Service And Construction
      Contracts?

A4.  Bonds are written instruments  that  ensure  that the
contractor'sobligationsaremctorihatcompensationisawarded
if the obligations are not met.  There are different  types of
bonds and related documents. The most commonly used bonds
for construction work are bid, performance and payment
bonds. A bid bond assures that the bidder will not withdraw a
bid within the period specified for acceptance, and will furnish
required bonds within the time  specified in the  bid.  A
performance bond secures the work that the contractor has
agreed to execute.  A payment bond assures payment to all
persons supplying labor or material in the performance of the
work provided by  the contract.   It is important to discuss
bonding requirements with the Contracting Officer before the
contract award so that bonding issues will not delay remedial
construction.  For example, if the contractor pledges private
assets in lieu of obtaining a bond from a bonding company,
each  asset must be evaluated, which  will lengthen the
procurementprocess. However, contractors cannot be required
to obtain bonds from bonding companies, and are allowed to
pledgeprivate assets to meetcontractualbondingrequirements.
Although the contractor is notrequired to pledge bonds through
a surety, the actual amount and means of pledging the bond
must be acceptable to the CO prior to the award of the contract

For service contracts, or any contracts other than construction
contracts, performance and payment bonds are generally not
required. However, if it is determined by the CO that a service
contract contains elements of construction activity  that are
substantial enough to be segregated from the overall contract,
two separate contracts must be awarded -- one for the service
work and one for the construction work.  If the construction
activity exceeds $25,000,  the Miller Act applies to the
construction contract, and the CO must make a determination
as to the required level of bonding. For further information,
please refer to "Superfund Guidance on the Applicability and
Incorporation of the Davis Bacon Act/Service Contract Act
and Related Bonding."
            Contracting and Solicitation Options/
            Considerations

            Solicitation Options: Contracts may be procured by
            soliciting from more than one contractor (competitive)
            or from a sole source.  A sole source solicitation may
            be used if the property or services needed by EPA are
            available from only ope responsible source and no
            other type of property or service will satisfy the needs
            of the Agency.  If the procurement is under $25,000,
            a small purchase procurement may be used.  If the
            procurement is over $25,000, a Justification for Other
            than Full and Open Competition and a price or cost
            analysis must be completed.

            If the procurement is competitive, there are  three
            solicitation options:

            1)  Request for Proposals (RFP) if the procurement
                can be negotiated

            2)  Invitation for Bid (IFB) if sealed bids are accepted
                (procurement cannot be negotiated)

            3)  Two Step IFB if bidders are prequalified with an
                invitation  for  a sealed bid following the
                prequaliiication.

            Types of Contracts: The different types of contracts
            that can be used for remedial actions are:

            1)  Firm Fixed Price Contracts- the government pays
                a fixed price for a specified product  which is
                established before the award.  Fixed  price
                contracts are usually used when the design or
                performance specifications  are reasonably
                definite.

            2)  Indefinite Delivery/ Indefinite Quantity Contracts-
                the government places orders for supplies and/or
                services  against the contract  after the award.
                These types of contracts are used when the exact
                time or place of delivery, or quantity required, is
                not known at the time of contract award.
                                      (continued on page 3)
                                            index to Case Studies
    Site

    Old Inger Oil Refinery
    Lipari Landfill (O.U.Ill)
    Verona Well Field
    Commencement Bay
    Wide Beach Development
    United Creosoting
    Pinette's Salvage Yard
    United Chrome Products
    Lipari Landfill (O.U.II)
Technology

Bioremediation
Thermal Desorption
Vacuum Extraction
Vacuum Extraction
Chemical Treatment
Critical Fluid Extraction
Chemical Extraction
In Situ Soil Flushing
In Situ Soil Flushing
Page Numbers

  A-1, A-2
  A-3, A-4
  A-5, A-6
  A-7, A-8
  A-9, A-10
  A-11, A-12
  A-13, A-14
  A-15, A-16
  A-17, A-18

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SITE INFORMATION
Site:
Old IngerOil Refinery
Louisiana
Region 6

Contact:
Mr. Paul Sieminski
RPM
(214)655-6710
(FTS) 655-6710

Ms. Sandra Greenwich
State of Louisiana
(504) 765-0487

Technology:
Bioremediation
(Land Treatment)
                                CONTRACT INFORMATION
Procurement Lead: State of Louisiana under EPA cooperative agreement
Contractor(s): Westinghouse ~ HAZTECH
Procurement Started/Completed: Construction of land treatment unit: 9/88-1/89 (5 months)
Operation of land treatment unit: Planned start December 1991
Number of Bids: 5
Phase of Procurement:  Procurement for construction phase is completed; procurement for operation of land
treatment unit is in presolicitation phase
Method of Solicitation: Sealed bid for construction; undecided for operation
Type of Contract:  Combination of fixed price and lump sum. Lump sums used for mobilization, demobilization,
and construction. Unit prices were used per cubic yard for excavation.
Protests/Claims: None
Change Orders: Differing site conditions raised the contractor's prices from the initial estimate.
Special Clauses Used in RFP/IFB/Contract: None
Bonding Requirements: Bonding required for construction
Patent Issues:  None
Prequalified Bidders:  No
Type of Specifications:  Design specifications for construction; performance specifications for operation
Sole Source Issues: Not applicable, competitive procurement
Treatability Studies: Completed as part of the design
    EXPERIENCES ENCOUNTERED
                    RESOLUTION/
                      OUTCOME
         WHAT WORKED WELL/ADVICE
 1 Amount of time it took the contractor to provide
  cost documentation was problematic.
 • Old Inger was one of the first sites at which
  land treatment was attempted.  It was not
  realized that a no migration petition needed to
  be completed until after the design was
  completed.
                  • Waiting for the cost
                   documentation slowed
                   down the
                   procurement.

                  • Completing the no
                   migration petition also
                   slowed down the
                   procurement.
•Where there are uncertainties in the extent of contamination,
 it works well to use unit prices per cubic yard.

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                                          Case Studies
                                   Old Inger Oil Refinery


   A bioremediation (land treatment) technology is being procured at the Old Inger Oil Refinery remedial
site (EPA Region 6) under an EPA cooperative agreement with the State of Louisiana.  The procurement for
construction of the land treatment unit began in November  1988 and was completed five months later in
January 1989. The procurement for the operation of the land treatment unit was planned to begin in
December 1991.

   Westinghouse — HAZTECH is the contractor constructing the land treatment unit.  The contract for the
land treatment unit was procured  through sealed bids. A fixed price contract was used, which included both
lump sums for mobilization, demobilization, and construction; and, fixed unit prices (per cubic yard) for
excavation.  Design specifications were used in the construction contract, and performance specifications
will be used in the contract for operation of the land treatment unit.

   Differing site conditions raised the contractor's price from the initial estimate. Initially, it took the
contractor an unanticipated amount of time to provide cost documentation, which slowed the procurement.
Using unit prices per cubic yard worked well at this site, since there was uncertainty as to the extent of the
contamination, and unit prices could be applied to the new volumes.

   In addition, Old Inger was one of the first sites at which  land treatment was attempted. It was not
realized that a no migration petition needed to rje completed until after the design was completed. A no
migration variance allows land disposal of restricted wastes not meeting the land disposal restrictions
treatment standards in a specific unit. Completing the no migration petition also slowed down the
procurement, because to obtain a  no migration variance, site managers must demonstrate to a reasonable
degree of certainty that there will be no migration of hazardous constituents from the disposal unit or
injection zone for as long as the waste remains hazardous.
                                                 A-2

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SITE INFORMATION
Site:
Lipari Landfill
(Operable Unit 3)
New Jersey
Region 2

Contact:
Mr. Thomas Graff (COE)
Project Manager
(816)426-5832

Ms. Joanne Chapman
(COE)
Contract Specialist
(816)426-5832

Technology:
Thermal Desorption
(Low Temperature)
                                 CONTRACT INFORMATION
Procurement Lead:  U.S. Army Corps of Engineers
Contractor(s):  Contractor(s) not yet selected
Procurement Started/Completed: A six month procurement time frame is anticipated
Number of Bids: Not applicable, in presolicitation phase
Phase of Procurement: Presolicitation
Method of Solicitation: Competitive 2-step invitation for bid is anticipated
Type of Contract: Fixed unit price and lump sum; construction and service
Protests/Claims: Not applicable, in presolicitation phase
Change Orders:  Not applicable, in presolicitation phase
Technical Requirements in RFP/IFB/Contract:  Anticipate requiring: (1) minimum daily production rate; (2)
temperature constraints to maintain "low temperature"; (3) type of treatment and equipment to be used; (4)
length of availability of equipment; (5) due to limited space on site, will specify equipment size.
Bonding Requirements: Will require bonding on portion of work that is under a construction contract. Service
contract work will not  need full bonding.
Patent Issues:  While some thermal desorption technologies are patented, no patent issues are anticipated
Prequalified Bidders:  Not applicable, in presolicitation phase
Type of Specifications: Performance
Sole Source Issues: Not applicable, competitive procurement
    EXPERIENCES ENCOUNTERED
                    RESOLUTION/
                      OUTCOME
         WHAT WORKED WELL/ADVICE
 • Potential problem with not allowing bidders to
  conduct bench scale studies.

 • When ROD was written, it specified that rotary
  kiln thermal treatment should be used and
  indicated the temperature constraints
  associated with the rotary kiln technology.
  Since the ROD was written, the thermal
  treatment technology has further developed,
  and the ROD is constraining the potential
  number of bidders.
                  1 COE is doing a bench
                   scale study through a
                   research company, and
                   will release the results
                   to potential bidders.
                  ' EPA is writing an
                   Explanation of
                   Significant Differences
                   to allow bids on any
                   type of thermal
                   treatment, and to
                   expand the
                   temperature range.
 For thermal desorption, state in the ROD the generic term for
 the technology. Do not be specific in order to encourage as
 many vendors as possible to bid on the contract.

1 Use performance specifications in contracts for innovative
 technologies in order to give contractors flexibility.

1 Use unit prices for cost per ton of treating soil and for cost per
 cubic yard of excavation and restoration.

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                                          Case Studies
                                        Lipari Landfill


   Remediation services for Operable Unit 3 (OU3) of the Lipari Landfill cleanup in New Jersey (EPA
Region 2) will be competitively procured by the U.S. Army Corps of Engineers (COE).  OU3, which is in
remedial design, will involve the use of low temperature thermal desorption to process soil that will be
excavated from a contaminated marsh. The COE is developing a contract acquisition plan that will outline
the appropriate contracting mechanism and justification. The COE anticipates issuing a Two-Step
Invitation for Bid (IFB) in February 1992. The procurement is scheduled to be completed within six
months or by July 1992.

   When the ROD was written in July 1988, it specified that a specific type of thermal treatment known as
rotary kiln would be used and noted the corresponding temperature constraints. However, since the ROD
was written, thermal desorption technology has developed further and the original temperature constraints
and limitation to a specific type of thermal treatment are no longer applicable. To correct this situation,
EPA is writing an Explanation of Significant Differences to permit bids on any type of thermal treatment,
and to expand temperature constraints.                                     :

   COE is anticipating problems with the procurement of the thermal desorption technology.  The cleanup
criteria allow the contractor to specify the specific type of thermal desorption treatment to be used on the
site.  However, logistical, legal, and timing concerns will prevent samples from being released for bench
scale testing.  Bench scale tests are being conducted through a research company who will release the
results of this test to potential bidders. The bidders will not be able to conduct their own treatability
studies.

   In an effort to avoid additional potential problems,  COE intends to use performance specifications,
which will give the contractor the flexibility to make equipment  adjustments to meet cleanup goals. COE
plans to use unit prices for the cost per ton of treating the soil through thermal desorption, and cost per
cubic yard for the cost of excavation and restoration and analytical services. The remainder of the work
will be paid for on a lump sum basis.
                                              A-4

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   SITE INFORMATION
    Site:
    Verona Well Field
    Michigan
    Region 5

    Contact:
    Ms. Margaret Guerriero
    RPM
    (312)886-0399
    (FTS) 886-0399

    Technology:
    Vacuum Extraction
    (Soil Vapor Extraction)
                                 CONTRACT INFORMATION
Procurement Lead: Subcontract through REM contract
Contractor(s):  ARCS: CH2M HILL; Subcontract: Terra Vac
Procurement Started/Completed: 3/87-9/87 (7 months)
Number of Bids:  4 bids received on initial procurement; sole source justification when REM switched to ARCS
Phase of Procurement: Contract Administration
Method of Solicitation: Competitive, 2-Step IFB; sole source when REM IV switched to ARCS
Type of Contract: Fixed unit price and lump sum
Protests/Claims:  None
Change Orders:  (Information unavailable)
Special Clauses Used in RFP/IFB/Contract: None
Bonding Requirements: Performance bond
Patent  Issues:  Terra Vac holds patent on vacuum extraction
Prequalified Bidders: Yes (informally)
Type of Specifications: Both performance and design
Sole Source Issues: Not applicable, competitive procurement
en
        EXPERIENCES ENCOUNTERED
                        RESOLUTION/
                          OUTCOME
     WHAT WORKED WELL/ADVICE
    1 After the contract was awarded and work had
     begun, the contracting vehicle for site
     remediation changed from REM IV to ARCS.
     This required the subcontract to be renegotiated.

    • Terra Vac did not have the necessary insurance
     to perform soil vapor extraction on the site.

    • After the IFB was released, the community and
     the State became concerned that soil vapor
     extraction would not be effective. This concern
     delayed the procurement for three months.
                     When the subcontract was
                     rebid, the prime contractor
                     wrote a sole source
                     justification for Terra Vac to
                     continue  work.

                    ' EPA gave Terra Vac a
                     special case
                     indemnification.

                    • EPA performed extra
                     sampling to ensure
                     effectiveness of technology.
Use a unit price contract with extra year options. This
will eliminate the need for future procurements if the
clean-up takes longer than anticipated.

In the IFB, require that bidders demonstrate that the
technology will be effective at the site.

Use design specifications for construction and
excavation, and use performance specifications for the
vacuum extraction treatment.  Performance
specifications are especially good to use when a
technology or components of a technology are
considered proprietary by a contractor.

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                                          •Case Studies
                                      Verona Well Field


   Procurement of vacuum extraction (soil vapor extraction) at the Verona Well Field site in Michigan
(EPA Region 5) began in March of 1987 and ended seven months later in September.  CH2M Hill was the
ARCS prime contractor who subcontracted with Terra Vac for the vacuum extraction technology. This
technology was competitively procured through a Two-Step BFB.

   The contract took three months longer to be awarded than originally anticipated because the State of
Michigan and the community were hesitant about using soil vapor extraction on the site. The community
preferred incineration; however, due to the high levels of contamination on the site, incineration was not a
feasible option. Although the community initially supported using soil vapor extraction, after the IFB was
released, the community pulled back its support for the use of this technology and EPA had to negotiate for
several months. Once EPA agreed to perform extensive sampling to ensure that the technology would
work, the community was persuaded to allow the use of soil vapor extraction on the site. It was learned
that it is important to identify a contingent remedy in the ROD when an innovative technology is selected
as the remedy in the ROD so that the community will know the option available if the selected remedy is
unsuccessful.

  _ The IFB required a demonstration that the technology would be effective at the site. In order to meet
this requirement, Terra Vac did a pilot study after the contract was awarded. This avoided future problems
because the technology was proven to work on a 'small scale before it was implemented on a large scale.

   Both performance and design specifications were used in the contract.  Design specifications were used
for construction, excavation, and tank removal. Performance specifications were used for the cleanup goals
which Terra Vac had to reach in using the soil vapor extraction technology-design specifications could not
be used for the innovative technology since a lot bf Terra Vac's design work is proprietary. It was learned
that performance specifications are especially good to use when a technology or components of a
technology are considered proprietary by a contractor.

   Another problem encountered in the procurement process involved indemnification. Terra Vac did not
have the insurance that it needed to perform the soil vapor extraction technology on the site. Eventually,
EPA gave Terra Vac a special case indemnification which-allowed them to do the work.

   Terra Vac had difficulty acquiring a performance bond which they were required to submit. After a
lengthy period of time they were able to obtain a letter of credit from a bank.

   In September of 1990, the contract was switched from a Remedial  Planning (REM) JTV contract to an
Alternative Remedial Contracting Strategy (ARCS) contract. Since there are different requirements under
ARCS, CH2M Hill rebid the subcontract. When the subcontract was rebid under ARCS, CH2M Hill wrote
a sole source justification for Terra Vac to continue the work.  This transition from a REM IV to an ARCS
contract proceeded smoothly since CH2M had anticipated the change.         ;

   The contract pays on the basis of the amount of work performed through unit prices, and the contract
also provides for optional years to anticipate the need for further procurements in the future. This has
enabled EPA to easily negotiate additional work, and has afforded protection from price escalation.
                                             A-6

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SITE INFORMATION
 Site:
 Commencement Bay,
 South Tacoma Channel,
 Well 12-A
 Washington
 Region 10

 Contact:
 Mr. Kevin Rohlin
 RPM
 (206)553-2106
 (FTS) 553-2106

 Technology:
 Vacuum Extraction
                                CONTRACT INFORMATION
Procurement Lead: U.S. Army Corps of Engineers (COE) preplaced contract
Contractor(s): COE Preplaced Contractor: Hunter ES&E; Subcontract: AWD
Procurement Started/Completed: 11/88-12/88(1 month)
Number of Bids: 3
Phase of Procurement: Contract Administration
Method of Solicitation: Competitive -- sealed bid to preplaced COE contractors
Type of Contract: Fixed unit price and lump sum
Protests/Claims:  None so far
Change Orders: (Information unavailable)
Special Clauses Used in RFP/IFB/Contract: A patent infringement clause was included in the IFB stating that the
Federal government would bear the liability for patent infringement
Bonding Requirements: Contractor had to obtain a $1 million bond, and show proof of effectiveness
Patent Issues: Terra Vac's patent requires 15% of all site-related payments. COE patent attorney is currently
negotiating nationwide patent rights with Terra Vac on behalf of EPA.
Prequalified Bidders: Bids were solicited from a pool of prequalified contractors under a COE preplaced contract
Type of Specifications: Design
Sole Source Issues:  Not applicable, competitive procurement
    EXPERIENCES ENCOUNTERED
                    RESOLUTION/
                      OUTCOME
          WHAT WORKED WELL/ADVICE
 • A fixed price, lump sum contract does not work
  well because of changes involved in
  implementing the remedial action.

 • The design took longer than anticipated to
  complete because the first design that was
  solicitated was inadequate to clean up the site.

 • Although the procurement took only one month,
  several month elapsed between EPA's
  procurement request and the release of the
  solicitation.
                  • Using fixed unit prices
                   in the contract (since
                   the total amount of
                   material  to be treated
                   was unknown) helped
                   alleviate some of the
                   uncertainties.

                  • Second design relied
                   on a pilot study.
•COE preplaced contracts facilitate procurement of innovative
 technologies and keep non-qualified bidders out of the
 competition; however, bids are more costly.

• Unit prices are useful when the total amount of material to be
 treated is unknown.

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                                          Case Studies
                                   Commencement Bay, Well  12-A
   At the Commencement Bay, South Tacoma Channel, Well 12-A, Operable Unit One site in Oregon
(EPA Region 10), a vacuum extraction technology was procured through the U.S. Army Corps of
Engineers (COE). The COE used a preplaced contract to acquire this technology, and the procurement
began in November 1988 and ended one month later in December 1988 (see Chapter II for a discussion of
preplaced contracts).  For this procurement, three sealed bids were received from the pool of prequalified
contractors who only needed to submit a one page bid which indicated their price for the work to be done at
the site. The COE preplaced contractor who won the contract was Hunter-ES&E (Gainesville), and the
subcontractor was AWD. Preplaced contracts worked well for procuring vacuum extraction; however, they
are more labor intensive than contracts which are not procured through the preplaced prequalification
process. The labor intensive nature of these contacts raises COE's contract administration costs.
Prequalification reduces the probability of receiving bids from nonqualified bidders.  Although the
procurement took only one month, several months elapsed between EPA's procurement request and the
release of the solicitation.

   The most significant difficulty encountered in acquiring the vacuum extraction technology at this site
related to patent rights. The patent is held by the President of Terra Vac. Terra Vac is fully licensed under
the patent to use and market vacuum extraction;  most other companies using the technology, including
AWD, are not licensed.  The company holding the patent on vacuum extraction (Terra Vac) claimed that it
is entitled to 15 percent of all site-related payments.  However, the site costs which are most directly related
to the vacuum extraction technology are those associated with the remedial action construction payments.
Moreover, the cost effectiveness of using vacuurh extraction is quickly lost if 15 percent of all site-related
payments are paid to the patent holder.                    ,                 ,

   In order to avoid limiting the competition as a result of the patent claim, the IFB included a patent
infringement clause which informed the bidders  that the Government would bear the liability for patent
infringement at this site. This prompted an effort by EPA to negotiate patent rights to Terra Vac's process,
since this issue affects all sites interested in procuring a vacuum extraction technology. A COE attorney is
negotiating with Terra Vac on behalf of EPA. EPA is currently in the process of compiling a proposal to
send to Terra Vac which would give Terra Vac 15 percent of all remedial action construction payments as
opposed to 15 percent of all site-related payments.
                                                 A-8

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 SITE INFORMATION
 Site:
 Wide Beach
 Development
 New York
 Region 2

 Contact:
 Mr. Herb King
 RPM
 (212)264-1129
 (FTS) 264-1129

 Technology:
 Chemical Treatment
 (APEG Dechlorination)
                              CONTRACT INFORMATION
Procurement Lead: U.S. Army Corps of Engineers
Contractor(s):  Kimmins; Subcontract: Soil Tech
Procurement Started/Completed: 5/89-10/89 (6 months)
Number of Bids: Two bids, one of which was unresponsive
Phase of Procurement: Contract administration
Method of Solicitation:  Initially procured as a sealed bid, then negotiated cost with sole responsive
bidder
Type of Contract: Fixed price/lump sum
Protests/Claims: None
Change Orders:  Approximately 25
Special Clauses Used in RFP/IFB/Contract: KPEG as the technology to be used at this site
Bonding Requirements: Kimmins pledged private assets
Patent Issues: Many different dechlorination processes are patented technologies
Prequalified Bidders: No
Type of Specifications: Design
Sole Source Issues: Not applicable,  competitive procurement
EXPERIENCES ENCOUNTERED
           RESOLUTION/OUTCOME
      WHAT WORKED WELL/ADVICE
 •After the award of the contract,
  Kimmins could not reach an
  agreement with subcontractor
  (Galson) specified in their
  proposal for the KPEG
  treatment. Kimmins submitted
  a value engineering study to
  have another contractor (Soil
  Tech) use APEG treatment
  instead.

 •When private assets are used
  for bonding, each asset has to
  be evaluated by the awarding
  Agency.
       •Since the contract award was based on
       original contractor's success with
       KPEG, EPA required that a successful
       demonstration be run before accepting
       Kimmins1 value engineering
       submission. EPA paid for a successful
       demonstration. However, after
       full-scale implementation, unanticipated
       changes occurred in the soil structure
       due to the high heat involved in the
       substituted process. The soil was not
       able to be used as backfill on-site.

       •The COE had to spend considerable
       time completing this process for the
       contract award.
•The original design was based around a patented
 technology. When the contractor could not obtain
 the services of the subcontractor in the proposal,
 an alternate decholorination process had to be
 substituted and the original design was not used.
 If performance specifications had been used in
 the contract, it would have been easier to make
 this substitution.

• Allowing for wider competition or substitution
 among dechlorination processes may not be
 suitable unless full-scale demonstrations are
 performed first.

•Fixed price, lump sum contracts lead to a lot of
 change orders if there are differing site conditions.

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                                         Case Studies
                                    Wide Beach Development

   At the Wide Beach Development remedial site in New York (EPA Region 2), an APEG dechlorination
technology was competitively procured through jsealed bids by the COE as a subcontract through a prime
contract. The procurement began in May 1989 and was completed six months later in October 1989.

   The ROD for this site specified that KPEG,  a form of the APEG dechlorination technology, would be
used to treat and process contaminated soil at the site. The remedy selected in the ROD was based on the
results of a treatability study performed by Galson Remediation, the company which holds a, patent on the
KPEG process, during the remedial design. The prime contractor who won the contract for the remedial
action (Kimmins) had indicated in their bid that jGalson would be the subcontractor for the KPEG treatment
However, after the award of the contract, Kimmins could not reach an agreement with Galson, and submitted
a value engineering proposal to have another subcontractor (Soil Tech) use the more generic chemical
treatment, APEG, on the site.

   Since both the remedial design and the award of the contract to Kimmins were based on Galson's success
in treating the soil using KPEG in the treatability study, EPA required Soil Tech to run a demonstration      I
before the value engineering proposal would be accepted. "EPA would pay for the demonstration only if the
demonstration was successful.  Soil Tech ran a successful demonstration on the site, and the proposal was
accepted. However, since the APEG technology uses a much higher temperature to treat the soil than the
KPEG treatment, the structural characteristics of the soil have been altered, and the soil can no longer be
used to support a road as originally planned.  It was learned that it is important to look not only at how the
contaminants are affected, but also at how the soil is affected by the treatment process. It was also learned
that it is important to do everything possible during the procurement process to determine whether the prime
contractor has reached agreement with the subcontractor(s) bid in their original proposal.

   Specifying KPEG in the IFB reduced the number of bidders.  Two bids were received in response to the
EFB; however, one was determined to be unresponsive, since the vendor did not have the necessary
experience with the KPEG technology.  Therefore, the COE wound up negotiating the price of the work with
the sole responsive bidder (Kimmins). These negotiations were difficult because limited data on the
technology existed which could be compared against the subcontractor's cost and pricing estimates. The
COE did complete their own estimates which were used as a basis for comparison with the subcontractor's
estimates. However, the COE's estimates and the subcontractor's estimates were substantially different, and
the subcontractor was required to provide data  to back up their estimates.

   The subcontract for the KPEG technology was a fixed price, lump sum contract. However, using this type
of contract has led to the submission of approximately 25 change orders since the subcontractor claims that
site conditions are different than assumed in the proposal.  If the change orders are approved, they would
double the cost of the work since the initial award of the contract.  EPA is evaluating these change orders.

   The subcontract used design specifications which were based on the Galson KPEG process; if
performance specifications had been used, it would have been easier to made the transition from the KPEG to
the APEG process, and time would not have been lost completing design specifications that were not used.

   Bonding issues were also problematic at this site, in that Kimmins had pledged private assets for the bond,
and the COE was required to go through the time consuming process of evaluating each asset after the
contract was awarded.  It was learned that bonding requirements should be discussed with the  contractor
before the award is made so that bonding issues 'will not hold up the remedial construction.
                                              A-10

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SITE INFORMATION
 Site:
 United Creosoting
 Texas
 Region 6

 Contact:
 Ms. Deborah Griswolc
 RPM
 (214)655-6715
 (FTS) 255-6715

 Technology:
 Critical Fluid
 Extraction
 (Solvent Extraction)
                              CONTRACT INFORMATION
Procurement Lead: State lead under EPA cooperative agreement  ^
Contractor(s):  CF Systems
Procurement Started/Completed: 4/91-present (sole source negotiations)
Number of Bids:  Not yet determined
Phase of Procurement:  Presolicitation
Method of Solicitation:  Innovative technology procured through sole source arrangement while rest
of project will be procured competitively (planned)
Type of Contract: Anticipate using fixed unit prices
Protests/Claims:  None foreseen at this time
Change Orders:  Not yet determined
Special Clauses Used in RFP/IFB/Contract: Not yet determined
Bonding Requirements: Not yet determined
Patent issues:  CF Systems holds a patent on their chemical extraction technology
Prequalified Bidders:  No
Type of Specifications:  Design
Sole Source Issues: ROD specified both the vendor and the technology
    EXPERIENCES ENCOUNTERED
                  RESOLUTION/
                    OUTCOME
         WHAT WORKED WELUADVICE
  •State-lead procurements appear to take
  more time due to a number of factors,
  including State administration.

  •State commissioners have to authorize
  funds for the contract.
                •State-lead
                 procurements are
                 advantageous in
                 that States do not
                 have to follow the
                 FAR.
• Pilot study was done at the site using CF Systems'
 solvent extraction and therefore it was specified by
 name in the ROD. Being specific when a technology is
 known to work at a site makes it easier to perform a sole
 source procurement.

•Sole source procurements must go through a price
 analysis to ensure that the government is not
 overcharged.

• It is anticipated that total work at site will be done
 through two separate procurements. One will be sole
 source to CF Systems, and the other will be a
 competitive bid for construction work to be done at the
 site.

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                                          Case Studies
                                         United Creosoting


   A solvent extraction technology is currently being procured at the United Creosoting site in Texas (EPA
Region 6) through an EPA cooperative agreement with the State of Texas.  The State began the
procurement negotiations in April  1991, and is proceeding with a sole source procurement for the
innovative technology. Two separate procurements are being used ~ one for the innovative technology,
and one for the remainder of the site work.  The non-innovative technology portion of the work on the site
will be competitively bid.

   The ROD at this site specified the vendor (CF Systems) for the innovative technology portion of the
work as well as the technology (critical fluid extraction).  This facilitated the procurement since it was
previously demonstrated through a pilot study that this technology would work on the site, and that CF
Systems was the only vendor who  could provide the technology.  The ROD specificity avoided opening up
the procurement to other vendors when it was knpwn that other vendors may not be able to successfully
perform the work.  However, the RPM at this site stated that it is important to make the remedy in the ROD
general if a treatability study has not been completed, if a patent is under question, or if there is uncertainty
as to whether the technology will work on the site.

   In general, State-lead procurements take longer to complete. The State does not have to follow the
Federal Acquisition Regulations (FAR), and there is less  paperwork and approvals that are required.
Instead, States must follow 40 Code of Federal Regulations Part 35 for procurements under EPA
cooperative agreements and their own State procurement requirements.  Since at this site, there is only one
vendor who can provide the needed service, the State is not required to write a sole source justification.

   Patent issues are not expected to arise since CF Systems holds the patent on the specific type of
chemical extraction to be used on this site.  Problems would arise only if other vendors wanted to use this
technology.  Furthermore, the Government does hot expect to pay royalties since the patent holder is the
contractor.
                                             A-12

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   SITE INFORMATION
    Site:
    Pinette's Salvage Yard
    Maine
    Region 1

    Contact:
    Mr. Ross Gilleland
    RPM
    (617)573-5766
    (FTS) 883-5766

    Technology:
    Chemical Extraction
    (Solvent Extraction)
                                CONTRACT INFORMATION
Procurement Lead: Subcontract through ARCS contract
Contractors): ARCS: EBASCO; Subcontractor: Sevenson Environmental Services; Subcontractor/vendor to Sevenson
for solvent extraction: initially GET Sanivan Group, now Terra Kleen
Procurement Started/Completed:  Sevenson (Sanivan): 4/90-10/90 (6 months); Sevenson (Terra Kleen): 1/92-5/92
 (4 months)
Number of Bids:  2
Phase of Procurement:  Contract Administration
Method of Solicitation:  Competitive, negotiated
Type of Contract: Fixed unit price and lump sum
Protests/Claims:  None
Change Orders:  Several due to changing site quantities and conditions
Special Clauses Used In RFP/IFB/Contract: TSCA identification number and treatability variance were required in RFP
Bonding Requirements: Yes
Patent Issues:  None, although Sanivan claims its solvents are proprietary and was reluctant to release necessary
information to EPA (some types of solvent extraction are patented)
Prequallfled Bidders: No
Type of Specifications:  Both performance and design
Sole Source Issues: Not applicable, competitive procurement
CO
       EXPERIENCES ENCOUNTERED
                      RESOLUTION/
                        OUTCOME
                                                                                      WHAT WORKED WELL/ADVICE
    • Bid package required bidders to produce at
     pre-bid conference a TSCA ID number and a
     treatability variance. Only two bidders were
     aware that they needed to provide a treatability
     variance at pre-bid conference.

    • EPA required release of proprietary information
     on the solvents used in the process in order to
     ensure that the treated waste did hot become a
     RCRA hazardous waste.

    • Sanivan was bought out and stopped work.
                   • Only two companies
                    came with letters and
                    were eligible to bid.
                   1 Contract award was
                    made dependent on the
                    release and Sanavan
                    provided the information.

                   • Terra Kleen emerged as
                    a new solvent extraction
                    technology vendor and a
                    new subcontract is being
                    negotiated.
• Contract for site layout work used design specifications. All other
 work was performance based.

• Use performance specifications in order to hold contractors to
 meeting the cleanup goals outlined in the ROD.

• Do not specify brand of technology in ROD if treatability studies
 have not been completed, but do not be so general that you do not
 obtain desired technology.

• As part of the proposal process, bidders to be considered
 responsive had to demonstrate that their technology could meet
 EPA cleanup levels at the site.  To meet this requirement, some
 bidders performed treatability tests on soil samples provided by
 EPA at their own expense.

1 Used unit prices on excavation.

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                                         Case Studies
                                      Pinette's Salvage Yard


   At the Pinette's Salvage Yard site in Maine (EpA Region 1), a solvent extraction technology was
competitively procured as a subcontract through jthe ARCS contractor (EBASCO). The initial procurement
began in April 1990 and was completed six months later in October 1990.  Sevenson Environmental Services
is the subcontractor and GET Sanivan Group was the vendor Sevenson initially contracted with to perform
the solvent extraction. The subcontract for the solvent extraction technology used a combination of fixed
unit prices and lump sums, and a combination of design and performance specifications. Fixed unit prices
worked well on the site, as more soil was excavated and incinerated than originally expected.

   The ROD for this site specified that solvent extraction would be used to treat and process soil at the site.
EBASCO wanted to broaden the technology to be procured in the RFP specifications, so that bids on soil
washing could also be received.  However, they were precluded from doing so due to the specificity of the
ROD language. While specificity in the  language of the ROD did limit the solicitation process, the goals of
the ROD were achieved.

   The major procurement problem at this site occurred because the solicitation package indicated that at the
pre-bid conference, bidders were required to provide EPA with their Toxic Substances Control Act (TSCA)
identification number and a treatability variance. Only two companies came to the pre-bid conference with
the necessary letter, making them the only two companies that were eligible to bid on the contract.

   As part of the proposal process, the bidders were required to demonstrate that their technology could meet
EPA clean-up levels at the site. In order to demonstrate that the technology would be effective at the site,
some bidders conducted treatability studies at their own expense with soil samples provided by EPA, and
provided the results of the studies to EPA. This demonstration enabled EPA to select a vendor that was
capable of doing solvent extraction, and  have confidence in the technology at the bench scale level.

   In procuring this technology, Sanivan claimed that the solvents they use are proprietary. Sanivan did not,
however, have a patent on these solvents. This claim hampered the contract negotiations because Sanivan
did not want to release information on these solvents, and EPA needed to ensure that the treated waste which
resulted from the solvent extraction procedure was not a RCRA hazardous waste. Sanivan provided the
necessary information only when the contract avvjard was dependent upon the release of this information.

   However, Sanivan was bought out by another company soon after starting work on the  site, and stopped
work on the site in October 1991. In January  1992, Terra Kleen emerged as a new vendor able to provide the
solvent extraction technology, and Sevenson is currently in the process of reviewing Terra Kleen's
subcontract proposal.  It is projected that Terra Kleeri's contract will be finalized by May 1992, and that
mobilization will begin in May.  Terra Kleen is a^so required to demonstrate that their technology can meet
EPA clean-up levels at the site.
                                             A-14

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    SITE INFORMATION
    Site:
    United Chrome
    Products
    Oregon
    Region 10

    Contact:
    Mr. Loren McPhillips
    RPM
    (206) 553-4903
    (FTS) 399-4903

    Technology:
    In Situ  Soil Flushing
                               CONTRACT INFORMATION
 Procurement Lead: Subcontract through ARCS contract
 Contractor(s): ARCS:  CH2M HILL; Subcontracts: Wastewater Treatment Systems (WTS) and Riedel;
 Operation and Maintenance:  Responsible Parties
 Procurement Started/Completed:  Riedel contract: 9/87-12/87 (4 months); WTS contract: 10/87-2/88
' (5 months)
 Number of Bids: 7
 Phase of Procurement: Contract Administration
 Method of Solicitation: Competitive, sealed bid
 Type of Contract: Fixed unit price and lump sum
 Protests/Claims: None
 Change Orders: 6
 Special Clauses Used in RFP/IFB/Contract: Required corporate health and safety program; required
 small business participation; required technical proposal for WTS
 Bonding Requirements: Performance and payment bonds
 Patent Issues:  None
 Prequalified Bidders:  No
Type of Specifications:  Riedel contract: design;  WTS contract: performance
Sole Source Issues: Not applicable, competitive procurement
en
    EXPERIENCES ENCOUNTERED
              RESOLUTION/
                OUTCOME
           WHAT WORKED WELL/ADVICE
    • With WTS contract, filter press
     could not handle amount of sludge
     needed to operate effectively.

    • Lowest bidder on treatment plant
     was not considered because of
     poor record of equipment which
     would have led to excessive
     operation and maintenance costs
          • Since contract had
           performance
           specifications, CH2M
           HILL was able to withhold
           payment until
           subcontractor provided
           equipment capable of
           handling necessary
           amount of sludge.

          • Prime contractor had to
           write formal justification
           explaining why this bidder
           was not responsive.
•Unit prices were used for excavation and well installation.
 When additional wells were needed due to differing site
 conditions, unit prices on wells easily allowed the changes.

•The technology in the ROD was generic and allowed flexibility
 to accomodate a design tailored to site conditions.

•Use of performance specifications required subcontractor to
 provide correct equipment (instead of what was specified in the
 subcontractor's design) to perform job at their cost.

•Two separate bids were let - one to construct the soil flushing
 system (e.g., infiltration galleries and wells) and another to
 build a wastewater treatment system to treat the elutriate.

•Soil flushing is standard construction type work.	

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                                         Case Studies
                                     United Chrome Products
   An in situ soil flushing technology was used on the United Chrome Products site in Oregon (EPA
Region 10). This technology was originally procured as a subcontract through a REMIV contract which
was later converted to an ARCS contract  The ARCS contractor is CH2M Hill. There are two
subcontracts:  Wastewater Treatment Systems (WTS) provided hardware and is constructing the treatment
plant, and Riedel built the containment unit and infiltration galleries, and is installing the wells.  In addition
the potentially responsible party (PRP) is the city pf Corvalis, who is operating and maintaining the
treatment plant. The procurement for the treatment plant began in October 1987 and ended five months
later in February 1988. The procurement for the well installation began in September 1987 and ended four
months later in December 1987.

   The two subcontracts were competitively procured through sealed bids. The bidders were required to
submit a technical proposal, cost proposal, their corporate health and safety program, their equipment, and
their subcontractors. Seven bids were received for the treatment plant contract, and the second lowest
bidder won the contract The lowest bid was considered too low to include operation and maintenance
costs, and CH2M Hill wrote a formal justification for why this bidder was excluded from further
consideration. Both contracts used a combination of firm fixed prices (lump sums) and unit prices.

   The RPM at the site noted that the Riedel contract has been flexible enough to allow for change orders,
which were critical to accomplish the work.  For example, since the remedial investigation underestimated
the amount of contamination in the plume, more wells were added through change orders. This was
possible because the wells were unit priced in the Contract.  In addition, die contract had originally
anticipated that only a section of the building on the site would be demolished; when the plans changed, it
was possible through change orders to have Riedel demolish the entire building. The RPM stated that he
was able to save several hundreds of thousands of dollars by using change orders.

   Problems were avoided by using performance based specifications for the WTS contract. For instance,
the first treatment unit which WTS provided contained a filter press that was inadequate for the amount of
sludge it was  expected to handle. Since the contract with WTS utilized performance specifications, CH2M
Hill was able to withhold payment until WTS provided more expansive equipment which was capable of
handling the necessary amount of sludge.

   The ROD  for this site was one of the first RODs ever written in EPA Region 10. The description of the
remedy in the ROD was general, and only stated  that a pump and treat technology would be used.
Therefore, the ROD did not limit the remedy to one specific type of technology.  The flexibility of a
nondetailed, nonspecific ROD enabled the contracts with CH2M Hill, Riedel, and WTS  also to be flexible.

   Riedel was required to have performance, bid, and payment bonds.  Riedel went to a bonding company
to obtain these bonds. They did not encounter any bonding difficulties since they had previously
performed work at Superfund sites.
                                              A-16

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 SITE INFORMATION
 Site:
 Lipari Landfill
 (Operable Unit 2)
 New Jersey
 Region 2

 Contact:
 Mr. Thomas Graff (COE)
 Project Manager
 (816)426-5832

 Ms. Joanne Chapman
 (COE)
 Contract Specialist
 (816)426-5832

 Technology:
 In Situ Soil Flushing
                             CONTRACT INFORMATION
Procurement Lead:  U.S. Army Corps of Engineers
Contractor(s): BECHTEL Environmental; Subcontract: COM
Procurement Started/Completed: 4/89-7/89 (4 months)
Number of Bids: 8
Phase of Procurement: Contract Administration
Method of Solicitation:  Competitive, sealed bid
Type of Contract: Fixed unit price and lump sum
Protests/Claims: None
Change Orders:  Several
Special Clauses Used in RFP/IFB/Contract: None
Bonding Requirements: 100% bonding was required
Patent Issues: None
Prequalified Bidders: No
Type of Specifications:  Design
Sole Source Issues: Not applicable, competitive procurement
    EXPERIENCES ENCOUNTERED
                 RESOLUTION/
                   OUTCOME
        WHAT WORKED WELL/ADVICE
None
               (Not
              applicable)
•Unit prices were used for well installation, extraction and
 injection.

'Lump sums were used for construction and operation
 and maintenance.

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                                         Case Studies
                                       Lipari Landfill


   For the remediation of Operable Unit 2 (OU2J) at the Lipari Landfill site in New Jersey (EPA Region
2), an in situ soil flushing technology was competitively procured through sealed bids by the COE as a
subcontract through a prime contractor. The procurement began in April 1989 and was completed four
months later in July 1989.

   BECHTEL Environment, the prime contractor for this site, received eight bids, and awarded the
subcontract to CDM.  In procuring this technology, COE did not encounter any problems; there were no
patent issues and no protests or claims.  To minimize potential problems, COE used a complete design
package, which prescribed the total treatment system and hence, minimized the need for decisions on the
pan of the contractor.                        ',

   The subcontract for the in situ soil flushing technology was a fixed price contract, using a combination
of fixed unit prices and lump sums.  Unit prices >vere used for well installation, extraction, injection
wells, and discharging the water to a publicly owned treatment works because it was difficult to ascertain
the exact volume of material to be remediated at this  site, and even a small difference in the projected
volume (as opposed to actual volume) would result in a large cost difference. Both parties hedged their
risk by using a combination of lump sums and unit prices in that, the contractor is fairly compensated if
there is more soil to be treated than originally anticipated, and the Government does not lose money if
there is less soil to be treated than expected.
                                               A-18

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 Contracting and Solicitation Options/
 Considerations (continued from page 2)

 3)  Time and  Materials Contracts-the government
     pays a fixed rate for each  hour of direct labor
     worked by the contractor,  up to a negotiated
     ceiling on the total price. This type of contract is
     used for engineering and design services, repair,
     maintenance or overhaul work, or in emergency
     situations where there are generally unforeseen
     circumstances.

 4) , Cost Reimbursement Contracts-the government
     pays for reasonable,  allowable and  allocable
     costs of the remedial action plus a fixed fee or an
     award fee.  A fixed  fee  does not  vary  with
     performance while an  award fee is based upon
     a   government  evaluation of contractor
     performance. Cost-plus-fixed-fee contracts are
     used when the performance desired cannot be
     clearly specified, and  when accurate cost
     estimates are impossible.

 Superfund Remedial Contracting Options:  For
 contracts under $15 million, there are four choices:

 1)   Alternative Remedial Contracting  Strategy
     (ARCS) vehicle - ARCS prime contractors may
     be used to complete a remedial design and/or
     award remedial action subcontracts to execute
     the selected remedial action.

 2)   State Cooperative Agreement - EPA provides
     funds to states, political subdivisions, and Indian
     tribes to assume lead responsibility in awarding
     and managing contracts for remedial action.

 3)   Site Specific Contract - EPA procures the work
     directly from a  contractor instead of using an
     ARCS contracting vehicle.

 4)   U.S. Army Corps of Engineers (COE) or Bureau
     of Reclamation Interagency Agreement - The
     COE or Bureau of Reclamation manages the
    procurement of prime contracts and subcontracts
     after the Record of Decision is signed. The COE
    or Bureau of Reclamation can procure standard
    competitively bid contracts, Preplaced Remedial
    Action (PRA) contracts or Rapid Response (RR)
    contracts.  For PRA  and  RR contracts, the
    solicitation is only released to prequalified bidders,
    which expedites the procurement.

For  contracts over $15  million,  either a State
cooperative agreement may be used or the contract
must be managed by the  COE or the Bureau of
Reclamation.
 Q5.   What Types of Specifications Are Being
       Used In Bid Packages For Innovative
       Treatment Technologies?

 AS. Design specifications precisely state how the contract is
 to be performed. Performance specifications, as defined in this
 fact sheet, specify the technology to be used and set goals to
 attain, but allow  flexibility  in design.   Performance
 specifications work best in  the procurement of innovative
 technologies.  Since performance specifications specify the
 cleanup goals without specifying exactly how the site is to be
 cleaned up, EPA has to pay only for what is cleaned up to these
 performance standards.  Also, if problems arise during the
 remedial action, the con tractor's performance can be measured
 against these standards, which facilitates documentation of
 any problems. Performance specifications are especially good
 to use when deal ing with proprietary processes and/or materials,
 because corporations generally will not have to release their
 proprietary designs.  An exception might be when a region is
 concerned about the by-products of treatment with a technology
 (see Pinette's Salvage Yard).

 Q6.  What Issues Need To Be Addressed If The
      Technology Being Procured Is Patented?

 A6. Some innovative technologies may be patented.  It is
 important to involve the CO early in the process if the technology
 is patented. The RFP/IFB should point out that the technology
 is patented, and how this issue  will be handled  in the
 procurement. If a Waiver of Indemnity Clause is included in
 the contract, the government bears the liability if a patent is
 accidentally infringed upon.

 Q7.  What Special  Contract Clauses Or
      Requirements In the RFP/IFB Have Been
      Used To Facilitate The Procurement Of An
      Innovative Treatment Technology?

A7.  To facilitate the procurement of innovative technologies
the following contract clauses have been used:

 •   Contract clauses which indicate that the contract can be
    terminated for convenience if the contractor's pilot test
    fails;

 •   Contract clauses which include optional years and high
    enough ceilings in service contracts in order to clean-up
    all of the waste that could possibly be found at a site; and

 •   Payments clauses  which  allow contractors to receive
    payment as the work progresses based on the amount of
    work completed.

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Often, IFBs/RFPs include special requirements, such as
troatability variances. In addition, several RFPs/IFBs required,
a demonstration that the technology would be effective at the
site.  This has resulted in bidders performing treatability
studies at their own expense prior to bidding on the site.

All standards that the contractor must meet should be set out
in the contract. It is essential that the EPA CO and the RPM
both review the IFB/RFP and the contract to ensure that the
requirements are not ambiguous from either a contractual or a
technical perspective.

Pro-award surveyscanbeof usein determining theresponsibility
of the low bidder or selected offerer.  These survey? are
evaluations of a prospective contractor's capability to perform
a proposed contract. A pre-award survey is completed before
the award of the contract, and is used to determine the financial
capability as well as the physical and technical resources of the
low bidder or selected offerer.
Q8.   Are Subcontractors Prohibited From Being
      Awarded The Construction Contract At Sites
      Where They Have Performed A Treatability
      Study?

A8.  48 CFR Part 1536 of the EPA Acquisition Regulations
(EPA AR) clarifies the Federal Acquisition Regulations (FAR)
Part 36.209bysuu'ngthatsubcontrac tors perfomingtreatability
studies are not prohibited from being awarded the construction
contract for a project.   Other  subcontractors are  also not
prohibited from being awarded the construction contract for a
project unless their work substantially affected the course of
the design. Prime contractors of the design and subcontractors
whose work substantially affected the course of the design
must  receive prior approval by the responsible Associate
Director of the Procurement and Contracts  Management
Division under EPA's Office of Administration and Resources
Management before they can be awarded the contract.
   For further Information on procuring Innovative technologies, please refer to the following
   documents.  EPA employees may request documents with EPA directive numbers by writing to:
   Superfund Document Center, U.S. Environmental Protection Agency, (OS-245), 401 M Street, S.W.,
   Washington, D.C.  20460, Fax: (202) 260-259^.

     •    U.S. EPA/HSCD, "USAGE Preplaced and Rapid Response Contracts," EPA/9355.5-05/FS, December 1989.
     •    U.S. EPA/OERR, "Procurement Under Superfund Remedial Cooperative Agreements," EPA/9375.1-11,
         June 1988.
     .    U.S. EPA/PCMD, "Superfund Guidance on the Applicability and Incorporation of the Davis Bacon Act/
         Service Contract Act and Related Bonding,^' January 1992. (To obtain this document, please call Sue
         Anderson In PCMD at (202) 260-9170, or send a written request to EPA, Mail Code PM214-F.)
     •    U.S. EPA/OSWER, "Furthering the Use of Innovative Treatment Technologies in OSWER Programs,"
         EPA/9380.0-16, June 10,1991.
     •    U.S. EPA/OPM, "CORAS Bulletin," EPA/9200.5-4011, intermittent bulletin on different Issues related to
         procurement.
     *    U.S. EPA/OSWER/TIO, "Innovative Treatment Technologies:  Semi-Annual Status Report,"
         EPA/540/2-91/001, Semiannual Publication on the Status of Implementation of Innovative Technologies at
         Superfund Sites.
     *    U.S. EPA/OERR; OWPE, "Advancing the Use of Treatment Technologies for Superfund Remedies,"
         EPA/9355.0-26, February 21,1989.
         40 CFR 35, Final Rule, "Cooperative Agreements and Superfund State Contracts for Superfund Response
         Actions."
     •    48 CFR 1536, Final Rule, "EPAAR Clarification of Applicability to Subcontractors of the FAR Provisions on
         Construction Contracts with Architect/Engineering Firms."
 NoSce: This fact shoot Is intended solely as general guidance and information. It is not intended, nor can it be relied upon, to create any rights enforceable by any
 party to litigation with the United States. The Agency also reserves the right to change this guidance at any time without public notice.
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