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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     OFFICE OF THE INSPECTOR GENERAL

                           NORTHERN DIVISION              905R94027
                       77 WEST JACKSON BOULEVARD
                         CHICAGO, IL 60604-3590


                         August  15,  1994
MEMORANDUM

SUBJECT:  Audit  Report  No.  E5FGF4-05-0138-4100488
          Minnesota  Superfund Cooperative- Agreement
          Ritari Post and Pole  ^.   / /
                              X"   /
FROM:     Anthony C. Carrollo ^^ /
          Divisional Inspector general for Audits
          Northern Division //

TO:       Valdas V.  Adamkus
          Regional Administrator
          Region 5

     This report contains findings  and recommendations from our
interim audit of Minnesota Pollution Control Agency's internal
controls over costs  at  the Ritari  Post and Pole site.

     This audit  report  contains findings that describe problems
the Office of Inspector General (OIG)  has identified and
recommendations  for  corrective action.   This audit report
represents the opinion  of the OIG.   Final determinations on
matters in the audit report will be made by EPA managers in
accordance with  established EPA audit  resolution procedures.
Accordingly, the findings described in the audit report do not
necessarily represent the final EPA position.

Action Required

     In accordance with EPA Order  2750,  you,  as the action
official, are required  to provide  this office a written response
to the audit report within 90 days  of  the final report date.  For
corrective actions planned but  not  completed by your response
date, please include specific milestones for when corrective
action will be completed.

     We have no  objections  to further  release of this report to
the public.

     Should you  or your staff have  any questions or need
additional information,  please  contact  Audit Manager Charles
Allberry at 353-4222.

cc:  Howard Levin  (MF-10J)
     James Warner, Division Manager
       MPCA Ground Water and Solid  Waste Division
                                                          Printed on Recycled Paper

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                                         Ritari Post and Pole
                    Minnesota Superfund Cooperative Agreement

                      EXECUTIVE SUMMARY
PURPOSE

The Office of Inspector General  (DIG) has performed an
interim audit of the internal controls over costs for the
Ritari Post and Pole site  (Ritari), under Multi-Site
Cooperative Agreement  (MSCA) No. V005794-01.  The objectives
of our review were to determine whether the state:

  •  exercised adequate controls over costs through its
     financial management, accounting, procurement, contract
     administration, and property management systems; and

  •  complied with Federal regulations and cooperative
     agreement requirements.
BACKGROUND

The Superfund program was established by the Comprehensive
Environmental Response, Compensation, and Liability Act
 (CERCLA) of 1980.  The program was revised and expanded in
1986 by the Superfund Amendments and Reauthorization Act.
Under Superfund, the Environmental Protection Agency  (EPA) is
responsible for managing the cleanup of hazardous waste sites
that threaten human health and the environment.

CERCLA authorizes EPA to delegate remedial response
activities at hazardous waste sites to individual states.
When a state elects to manage the remedial response at a
site,  it enters into a cooperative agreement with EPA.  The
cooperative agreement  (1)  documents the division of
responsibilities between the state and EPA, and  (2) defines
the Federal funding available to the state and its costshare.

The Minnesota Pollution Control Agency (MPCA) is responsible
for administering the State of Minnesota's environmental
protection programs.   This includes managing remedial
activities at selected Superfund sites under EPA's CERCLA
authority.  MPCA was awarded MSCA No. V005794-01 on September
29, 1984.   The total funds awarded as of April 30, 1994,
under the cooperative agreement and its amendments were
$20,286,037 for 13 sites,  of which $942,959 was for Ritari.
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RESULTS OF AUDIT

We found significant weaknesses in MPCA's internal controls
and compliance with laws and regulations.  These weaknesses
affected MPCA's ability to ensure that all costs claimed
under the cooperative agreement were allowable, and resulted
in $227,584 in questioned costs.  MPCA needs to improve its
internal controls to ensure that all future costs are claimed
in accordance with laws and regulations.

Report on Internal Controls

MPCA had weaknesses in internal controls that affected its
ability to ensure that all costs claimed were allowable,
allocable, and reasonable.  Our review noted weaknesses in
internal controls in the following areas:

  •  allocation of employee leave costs,

  •  approval of contractor rate increases,

  •  review of contractor indirect cost rates,

  •  submission of documentation supporting contractor
     invoices, and

  •  review of contractor employee timesheets.

Report on Compliance

MPCA did not comply with applicable Federal regulations and
cooperative agreement conditions in its  (1) procurement of
contracts, and (2) management of site activities.
Specifically, MPCA awarded a contract for full scope RI/FS
work to a company that did not submit a proposal for that
type of contract.  MPCA also did not receive approval from
EPA prior to performing work outside the scope of the
cooperative agreement.  In our opinion, MPCA's performance of
work outside the scope of the cooperative agreement was
significant enough for us to question $227,584 as ineligible
costs.
MPCA COMMENTS AND ACTIONS

MPCA agreed to take corrective action for all weaknesses in
internal controls we identified.  However, MPCA did not agree
with the report on compliance and costs questioned.  A
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summary of MPCA's comments, and our evaluation of the
comments,  is included in Chapters 2 and 3.
RECOMMENDATIONS

We recommend that Region 5:

1.   ensure MPCA implements  its planned corrective actions to
     improve internal controls,

2.   clarify with MPCA that  all workplans and reports are to
     be submitted to the EPA project officer,  and

3.   recover the ineligible  costs of $227,584  associated with
     the work outside the scope of the contract.
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[This page was  intentionally  left blank.]
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                      TABLE OF CONTENTS

EXECUTIVE SUMMARY   	  i

CHAPTERS

  1  INTRODUCTION   	  1

     PURPOSE  	  1

     BACKGROUND 	  1

     SCOPE AND METHODOLOGY	2

  2  REPORT ON INTERNAL CONTROLS  	  5

     EMPLOYEE LEAVE COSTS WERE NOT ALLOCATE
       EQUITABLY  	  5

     DIRECT LABOR RATE INCREASES EXCEEDED
       CONTRACT LIMITS  	  6

     MPCA NEEDS TO MORE THOROUGHLY REVIEW
       DELTA'S INDIRECT COST RATES  	  7

     SUPPORTING DOCUMENTATION FOR CONTRACTOR
       INVOICES WAS NOT SUBMITTED CONSISTENTLY  ...  9

     MPCA SHOULD REVIEW CONTRACTOR EMPLOYEE
       TIMESHEETS 	  9

     MPCA COMMENTS AND ACTIONS	10

     DIG EVALUATION/RECOMMENDATION  	 10

  3  REPORT ON COMPLIANCE 	 11

     PROCUREMENT REGULATIONS NOT MET  	 11

     WORK OUTSIDE APPROVED SCOPE  	 13

     MPCA COMMENTS AND ACTIONS	15

     OIG EVALUATION	15

     RECOMMENDATION   	 17
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                      TABLE OF CONTENTS
APPENDICES

  1  MPCA RESPONSE TO DRAFT REPORT	19

  2  ABBREVIATIONS  	 39

  3  DISTRIBUTION 	 40
                             VI

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                                         Ritari Post and Pole
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                          CHAPTER 1

                         INTRODUCTION
PURPOSE

The Office of Inspector General  (OIG) has performed an
interim audit of the internal controls and costs claimed for
the Ritari Post and Pole site (Ritari),  under Multi-Site
Cooperative Agreement  (MSCA) No. V005794-01.  The objectives
of our review were to determine whether the state:

  •  exercised adequate controls over costs through its
     financial management, accounting, procurement, contract
     administration, and property management systems; and

  •  complied with Federal regulations and cooperative
     agreement requirements.
BACKGROUND

The Superfund program was established by the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) of 1980.  The program was revised and expanded in
1986 by the Superfund Amendments and Reauthorization Act.
Under Superfund, EPA is responsible for managing the cleanup
of hazardous waste sites that threaten human health and the
environment.

CERCLA authorizes EPA to delegate remedial response
activities at hazardous waste sites to individual states.
When a state elects to manage the remedial response at a
site,  it enters into a cooperative agreement with EPA.  The
cooperative agreement  (1)  documents the division of
responsibilities between the state and EPA, and  (2) defines
the Federal funding available to the state and its cost-
share.

The MPCA is responsible for administering the State of
Minnesota's environmental protection programs.  This includes
managing remedial activities at selected Superfund sites
under EPA's CERCLA authority.  MPCA was awarded MSCA No.
V005794-01 on September 29, 1984.  The total funds awarded as
of April 30,  1994,  under the cooperative agreement and its
amendments were $20,286,037 for 13 sites.
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For our detailed review, we judgmentally selected Ritari,
because of concerns about the site expressed by Region 5
officials.  Region 5 amended the MSCA on June 30, 1987, to
provide funding of $234,005 for Ritari.  The cooperative
agreement provided for a RI/FS to be 100 percent EPA funded.
The original budget and project periods for the award were
July 1987 to July 1989.  There were six additional amendments
to the cooperative agreement which increased the total award
amount to $942,963 and extended the project and budget
periods to September 30, 1995.  As of December 31, 1994, MPCA
had claimed costs for Ritari of $942,959.

      Cost Category                  Costs

     Contractual                   $ 817,243
     Salaries                         77,284
     Fringe benefits                  15,505
     Indirect costs                   28,952
     Travel                            3,705
     Supplies                             18
     Other expenses                	249

       Total costs                 $ 942.959

As of the completion of our fieldwork,  EPA had approved the
RI/FS and proposed plan, and MPCA was preparing the Record of
Decision.
SCOPE AND METHODOLOGY

We performed our audit in accordance with the Government
Auditing Standards issued by the Comptroller General of the
United States (1988 revision),  and included tests of the
accounting records and other auditing procedures as we
considered necessary.  Our fieldwork was conducted between
February 7 and May 12, 1994.

In planning and performing our audit, we considered relevant
aspects of the internal control structure in order to
determine our auditing procedures.  Our purpose was to
determine whether the costs claimed complied with the
applicable Federal laws and regulations and conditions of the
cooperative agreement, and not to provide assurance on the
internal control structure.

For purposes of this report, we have classified the
significant internal control structure policies and
procedures in the following categories:


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  •  accounting
  •  contract procurement
  •  contract management

For these internal control structure categories, we obtained
an understanding of the relevant policies and procedures and
whether they had been placed into operation.  We also relied
upon the single audit report, prepared by the Minnesota
Legislative Auditor,  for the State of Minnesota, for the year
ending June 30, 1992, to the extent that it was applicable to
MPCA.

We tested MPCA's internal controls by reviewing the selected
costs claimed for Ritari from the date of the first award,
June 30, 1987, to December 31,  1993.   To review selected
categories of costs,  we audited samples of those costs.  We
randomly selected a payroll sample of 51 employee payroll
payments out of a universe of 504.  The sample represented
10.4 percent of the total dollar amount of claimed salaries
and fringes.  We judgmentally selected a sample of the five
largest contractor invoices that represented 38 percent of
the total dollar amount of contract costs.  We did not sample
the other cost categories, as the amounts claimed for those
categories were not material to the total amount claimed.
Since we did not select a statistical sample, our results
were not projectable to the universe.

For all sampled items, we examined the source documents and
performed other audit procedures that we considered necessary
to determine the allowability of the costs.  As criteria, we
used the Code of Federal Regulations (CFR) Title 40,  Parts
30,  31, 33,  and 35; Office of Management and Budget (OMB)
Circular A-87; and the general and special conditions
contained in the cooperative agreement.

Weaknesses in internal controls and compliance with laws and
regulations are discussed in Chapters 2 and 3, respectively.
Nothing else came to our attention in connection with our
review which caused us to believe that MPCA was not in
compliance with any of the terms and conditions of the
cooperative agreement, laws,  and regulations for those
transactions not tested.

The draft report was issued to MPCA on May 26, 1994.   MPCA
responded to the draft report on June 28, 1994.  After
reviewing the response and discussing it with Region 5, the
report was reformatted to emphasize internal control issues.
However, we did not change the nature of our findings.
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MPCA's response was incorporated into the report and is
included as Appendix A.
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                          CHAPTER 2

                 REPORT ON INTERNAL CONTROLS

MPCA had weaknesses in internal controls that affected its
ability to ensure that all costs claimed were allowable,
allocable, and reasonable.  Our review noted weaknesses in
internal controls in the following areas:

  •  allocation of employee leave costs,

  •  approval of contractor rate increases,

  •  review of contractor indirect cost rates,

  •  submission of documentation supporting contractor
     invoices, and

  •  review of contractor employee timesheets.

MPCA management is responsible for establishing and
maintaining an internal control structure.  The objective of
an internal control structure is to provide management with
reasonable, but not absolute, assurance that Federal
financial assistance programs are managed in compliance with
applicable laws and regulations.


EMPLOYEE LEAVE COSTS WERE NOT ALLOCATED EQUITABLY

MPCA's procedures for allocating the costs of employee leave
(vacation, holiday,  and sick time)  to project sites did not
provide an equitable distribution to Federal and state
projects.  In addition, MPCA was not following its own
procedures for allocating leave time to Federal projects.
OMB Circular A-87 states that leave costs are allowable if
they are  (1)  provided pursuant to an approved leave system;
and (2) equitably allocated to all related activities,
including grant programs.

MPCA's procedures were to charge leave time directly to
Federal or state projects based upon the percentage of time
spent  on Federal projects.  If at least 50 percent of an
employee's time during a pay period was spent on Federal
projects, a portion of the leave time taken during the pay
period was to be allocated to Federal projects.   The
allocation of leave hours was based on the percentage of
quarterly budgeted time for Federal and state projects.  If
less than 50  percent of an employee's time during a pay


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period was spent on Federal projects, all leave time was
charged to state projects.

The leave allocation procedures do not provide an equitable
distribution of leave time.  Leave time was not charged to
projects in the same proportion as the direct time was
charged.  Also, the quarterly budgeted time may not
accurately reflect the actual time spent on Federal and state
projects.

We also found that MPCA employees were not consistently
following the leave allocation procedures, and leave time was
not always properly allocated to Federal projects.  For
example, during one pay period, an employee charged 40 hours
of leave time to Ritari and 40 hours to another Federal
project.  This did not conform to the MPCA leave policy
because  (1)  no time was spent on Federal projects that pay
period, since the individual was on leave the entire pay
period, and (2) the leave was not charged in the proportion
of budgeted hours, as the employee also worked on state
projects, and leave was not charged to any state projects.

At our request, MPCA computed the amount of actual leave time
that was charged to Ritari from its inception on June 30,
1987,  to December 31, 1993.  Of the 4,452 labor hours charged
to Ritari, only 138 hours, or 3.1 percent, were for leave
time.   In comparison, for fiscal year 1993, MPCA's total
leave time was 14 percent of its total regular hours.  MPCA's
computation indicated that the charges to Ritari were not
excessive, and may have been less than the proper amount that
should have been charged.  However, we have no assurance that
MPCA charges for leave costs were not excessive at other
Federal sites.  MPCA's Chief Financial Officer agreed to work
with EPA to establish an equitable leave allocation system.
DIRECT LABOR RATE INCREASES EXCEEDED CONTRACT LIMITS

MPCA approved direct labor rate increases for 1990 that were
in excess of the limits allowed in the contract.  MPCA
approved the rate increases without obtaining supporting cost
documentation or performing a thorough cost analysis.  With a
cost reimbursement type contract, the recipient should ensure
that sufficient supporting documentation is obtained before
rate increases are approved.

The contract provisions allowed an increase of 10.8 percent,
which included an increase of 6 percent plus the increase in
the Consumer Price Index of 4.8 percent.  Delta Environmental


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Consultants, Inc.  (Delta), the contractor on the Ritari site,
explained to MPCA that its direct labor increases were 12.15
percent and its equipment and material costs did not
increase.  Delta stated that these rate changes represented
an average increase of 9.72 percent in its direct labor and
materials costs, which was within the 10.8 percent allowed in
the contract.  The contract did not allow the use of an
average percentage increase in direct labor and material
costs.  The rates for each separate direct labor category and
each  item of material were subject to a maximum escalation
factor of 10.8 percent.

MPCA  approved the rate increase without obtaining supporting
cost  documentation or performing a thorough cost analysis.
As a  result, MPCA approved rate increases for several
individual labor categories that were in excess of the
allowed increase of 10.8 percent.  Most of the Delta's billed
labor hours were in categories that increased from 8.9
percent to 42 percent.  We were unable to determine how Delta
arrived at its calculation of a 12.15 percent increase; our
calculation of the average labor rate increase was 15.1
percent.   The direct labor rate increases resulted in
additional direct labor costs, as well as related charges for
indirect costs and profit.
MPCA NEEDS TO MORE THOROUGHLY REVIEW
DELTA'S INDIRECT COST RATES

MPCA approved indirect rate increases based on accountant's
and auditor's reports which Delta provided.  While it is a
good practice to require such reports, MPCA did not have a
person, knowledgeable about Federal cost principles, review
the reports submitted.  We have some concerns over the
appropriateness of Delta's indirect rates based on  (1) our
limited review of these reports and (2) problems found during
an audit of a cost proposal from another Delta office.  Due
to our concerns,  we do not believe that MPCA has adequate
assurance that Delta's indirect rates include only costs
allowable under Federal cost principles.  Thus, EPA may have
been overcharged if Delta's indirect rates include
unallowable costs.

The contract allowed Delta to request a rate increase each
year.   Along with each proposed change, Delta was required to
submit documentation to support its request.  The
documentation could be either (1)  an audit report and
projected budget adjustments or (2) a letter from a reputable
accounting/auditing firm certifying that the audit upon which


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the change is based was performed in accordance with Federal
Acquisition Regulations (FAR) cost principles.

Delta submitted an independent accountant's report which
supported an indirect rate of 240 percent for 1989.  However,
MPCA negotiated an indirect rate of 140 percent for 1989.  In
1990, Delta requested an increase to 160 percent,  which MPCA
approved.  MPCA did not provide us with an additional report
to support this rate increase, but stated that the increase
was not very large and seemed reasonable.

In 1991, Delta requested an increase to 240 percent.  Delta
submitted to MPCA an independent auditor's report for the
year ended December 31, 1990, which supported an indirect
rate of 240 percent.  MPCA approved the rate increase based
on this report and on the fact that it believed that Delta's
actual indirect rate had been higher than what it had been
charging MPCA for the previous two years.   Delta's indirect
rate remained at 240 percent for the remainder of the
contract.

We have some concerns whether the indirect rates Delta
charged were accurate and whether they included unallowable
costs.  The first of the reports Delta provided to MPCA was
not an audit report.  From reading the report, it appears
that the scope of the review was not sufficient to determine
if the indirect cost rate was calculated in accordance with
the FAR cost principles.  The second report was an audit of
Delta's 1990 indirect cost rate, which was reported as 240
percent.  The auditor expressed an opinion that the
computation fairly represented the overhead rate.   The
Minnesota Department of Transportation, with also has a
contract with Delta, did review the auditor's report and
accepted the 1990 indirect cost rate.  However, the
Department of Transportation did not review any of Delta's
records to verify the information in the auditor's report.
There was not sufficient information in the auditor's report
for us to make complete determination whether unallowable
costs were included in Delta's indirect cost rate.

Our concern about Delta's indirect cost rate is also based on
a U.S. Postal Inspector's report on the audit of a price
proposal submitted by Delta's Sacramento office.  The
indirect cost rate in the proposal was based on the audited
financial statements, and the allowability of costs was
determined by the same Certified Public Accounting firm which
prepared the reports submitted to MPCA.  The Postal
Inspector's audit determined that the proposed indirect cost
rate was higher than should have been allowed.  When we


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compared the rates proposed for the Sacramento office to the
amounts in the reports presented to MPCA, we found some
similarities.  Thus, we are concerned that some of the items
questioned by the Postal Inspector could also be included  in
the rate charged to MPCA.

With a cost reimbursement type contract, MPCA needs to have
strong internal controls to ensure that indirect cost rates
are accurate and allowable, and that requested rate increases
are justified.  While MPCA did take steps to ensure the
reasonableness of Delta's rates, by requiring Delta's
submission of audit reports, we believe that further steps
are necessary.  MPCA should arrange an independent audit of
Delta's rates if possible.
SUPPORTING DOCUMENTATION FOR CONTRACTOR INVOICES
WAS NOT SUBMITTED CONSISTENTLY

Delta generally included supporting documents with its
invoices, but did not submit them on a consistent basis.  In
some cases Delta did not provide the backup documents for the
cost of meals, lodging, mileage, and supplies.  The contract
between MPCA and Delta required that supporting documents be
submitted for reimbursable expenses in excess of $25.  Since
Delta had a cost reimbursement type contract, it was
important that MPCA only reimburse Delta for its actual
costs.  To ensure this, MPCA should have required Delta to
submit all supporting documents required by the contract.
For future cost reimbursement type contracts, MPCA should
require all contractors to adhere to the contract terms and
submit supporting documentation as proof that expenses billed
were actually incurred.
MPCA SHOULD REVIEW CONTRACTOR EMPLOYEE TIMESHEETS

Although Delta's contract was a cost reimbursable type
contract, MPCA never examined Delta's timesheets supporting
its direct labor charges.  MPCA's contract with Delta did not
require Delta to provide employee timesheets in support of
direct labor charges, and MPCA never requested timesheets.
MPCA also never audited Delta.  We believe that this was an
internal control weakness, as MPCA had no way of knowing
whether the hours Delta billed truly represented hours worked
on MPCA projects.  Requesting and reviewing timesheets from
Delta, even on a periodic basis, would have provided some
level of assurance that the labor charges were appropriate.
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MPCA has entered into additional cost reimbursement type
contracts with Delta as well as other contractors.  Labor
hours are generally a significant portion of costs for RI/FS
work, so it is important that the contractors' billings
accurately reflect their costs.  MPCA should require its
contractors to provide additional support for labor charges,
and ideally should try to conduct some type of audit or spot
check periodically.
MPCA COMMENTS AND ACTIONS

MPCA agreed to take action to address each of the weaknesses
in internal controls.  In regards to the allocation of leave
costs, MPCA received additional guidance from EPA on how to
allocate leave.  MPCA is waiting for an example of an
equitable leave distribution method.  Upon receiving the
example, MPCA will apply the leave allocation plan to one
Federally funded site and send the information to EPA and OIG
for approval.  After approval is received, MPCA staff will be
trained to follow the new system.

Concerning contractor rate increases, MPCA obtained
information from Delta subsequent to our fieldwork to support
the 1990 labor rate increases.  MPCA agreed to require
contractors to submit documentation of personnel rate
increases in the future, and for any increases approved since
January 1, 1994.

MPCA intends to either hire an auditor or contract with an
independent auditor for indirect cost determinations.  This
will ensure that audit reports contractor submit are complete
and indirect cost rates do not contain any unallowable costs.

MPCA's corrective action concerning review of contractor
invoices and timesheets is to have the procurement specialist
conduct periodic reviews of invoices.  These reviews will
include examination of contractor timesheets.  Also,
mandatory training is scheduled for all project officers on
proper invoice submittal and review.


OIG EVALUATION/RECOMMENDATION

MPCA's proposed corrective actions, when implemented, should
address the internal control weaknesses.

We recommend that Region 5 ensure MPCA implements the
corrective actions.


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                          CHAPTER 3

                     REPORT  ON COMPLIANCE

MPCA did not comply with applicable Federal regulations and
cooperative agreement conditions in its (1) procurement of
contracts, and  (2) management of site activities.
Specifically, MPCA awarded a contract for full scope RI/FS
work to a company that did not submit a proposal for that
type of contract.  MPCA also did not receive approval from
EPA prior to performing work outside the scope of the
cooperative agreement.  In our opinion, MPCA's performance of
work outside the scope of the cooperative agreement was
significant enough for us to question $227,584 as ineligible
costs.
PROCUREMENT REGULATIONS NOT MET

EPA procurement regulations for cooperative agreements
require that recipients determine qualified offerers solely
on the basis of the evaluation criteria in the request for
proposals (RFP).   The RFP for the Multi-Site II contracts
stated that those contractors submitting a limited scope
proposal would only be evaluated for a contract for limited
scope work.   However, MPCA awarded a full scope contract to a
company which submitted only a limited scope proposal.  As a
result, MPCA did not comply with the RFP or EPA procurement
regulations.

MPCA issued the RFP in May 1988 for contractors to conduct
both full and limited scope work at hazardous waste sites
located in Minnesota.  According to the RFP, full scope work
would meet all EPA requirements,  and would be conducted at
Federally funded sites.  Full scope work included RI/FS.  The
purpose of an RI was to identify the type and sources of
contamination,  and the effects of the contamination on public
health, welfare,  and the environment.  An FS was to identify,
investigate,  and recommend alternative response actions for
sites.  In contrast, the limited scope work would be
conducted only at state funded sites.  Limited scope work
included limited remedial investigations and focused
feasibility studies  (LRI/FFS).   The purpose of the LRI was to
generate data only to the extent it was necessary to identify
and design an interim or early response action, including a
limited source removal.  Similarly, the FFS was to identify,
investigate,  and recommend alternative permanent water supply
systems and/or limited source removal methods.
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The RFP requested the proposers to submit one of two types of
proposals:  either limited scope or full scope.  The RFP
clearly stated that those contractors submitting a limited
scope proposal would only be evaluated for a contract for
limited scope work.  The RFP requirements for the limited
scope option were less stringent and less information was
required than for the full scope option.  The RFP included
two different sets of assumptions.  Those contractors
submitting proposals for full scope work were required to
address both sets of assumptions,  and prepare cost estimates
for each.  Those submitting proposals for limited scope work
only had to address one set of assumptions and prepare one
cost estimate.  Thus, much more work was required of a
contractor to prepare a proposal for full scope work than
limited scope work.

MPCA received eight proposals in response to the RFP.  Seven
proposals were full scope and only one,  submitted by Delta,
was a limited scope proposal.  MPCA awarded Delta a full
scope contract in April 1989, even though it had only
proposed to do limited scope work.  The MPCA selection team
did not disqualify Delta from consideration for a full scope
contract even though it had submitted only a limited scope
proposal.  Delta was subsequently assigned to do full scope
work on Ritari,  a Federally-funded site.

MPCA did not comply with the terms of the RFP when it awarded
Delta a contract to perform full scope work.  The
regulations, 40 CFR 33.510, require the recipient to
publicize RFPs and evaluation factors and to identify their
relative importance.  The RFP indicated that proposers of the
limited scope proposal option would be evaluated only for a
limited scope contract.  Title 40 CFR 33.515 states that
recipients must base their determination of qualified
offerers solely on the evaluation criteria in the request for
proposal.  MPCA, in awarding a full scope contract to Delta,
did not comply with the evaluation criteria in the RFP.

MPCA's award of a full scope contract to Delta did not
conform to 40 CFR 33.230, which requires the recipient to
conduct all procurement transactions in a manner that
provides open and free competition.  Any arbitrary action in
the procurement process would be an inappropriate restriction
on competition.   Awarding a full scope contract to Delta, who
submitted a limited scope proposal, was an arbitrary action
that restricted open and free competition.
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  A state is required by 40 CFR Part 35, Subpart O1,  to either
   (1) certify that its procurement system meets the intent of
  the requirements in Subpart O or (2) allow EPA preaward
  review of proposed procurement actions.  MPCA has not
  complied with either of these options.  The last MPCA
  certification was in 1988.  It was the understanding of MPCA
  officials that they were not required to certify the
  procurement system after 1988.  We informed Region 5
  officials of this situation in a flash report (Report No.
  4400061) on May 13,  1994.  We recommended that Region 5
  require MPCA to certify its procurement system meets the
  requirements of 40 CFR Part 35, Subpart O.  MPCA submitted a
  certification for its procurement system on July 27, 1994.
  WORK OUTSIDE APPROVED SCOPE

  MPCA did not request a change in the scope of the cooperative
  agreement when additional tasks were added at Ritari.  States
  are required to request an amendment to the cooperative
  agreement when there are changes to the scope of the project.
  Since MPCA did not request an amendment, the tasks were
  outside the scope of the cooperative agreement.

  EPA must approve changes to the scope of work before costs
  can be incurred for the changes.  Changes to the scope of
  work are generally outlined in workplans.  One of the
  assurances in the cooperative agreement between EPA and MPCA
  is that MPCA agreed to submit all plans and reports,
  including workplans, to the EPA project officer for review
  and concurrence prior to implementation.  The Superfund
  Memorandum of Agreement also states that the project officer
  will coordinate reviews of all work products.

  Delta's original workplan, approved by EPA, included tasks 1-
  13.   Tasks 14 and 15 were for activities that EPA had
  separately approved and added to the scope of the cooperative
  agreement, but were not formally added to the workplan.
  During the remedial investigation,  MPCA instructed Delta to
  submit a workplan amendment because new developments at the
  site required revision of the work schedule and tasks.   Delta
  submitted a workplan amendment,  which revised the budgets for
  several existing tasks, and added tasks 16-19, which were for
     1  While  40  CFR Part  33  was  the  regulation in place at  the
time MPCA procured the MSII contract, the current regulations on
procurement for Superfund cooperative agreements are found in 40
CFR Part 35,  Subpart 0.

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new activities.  However, MPCA did not request an amendment
to the cooperative agreement for the additional tasks.
Therefore, these new tasks were outside the original
cooperative agreement scope.

 Task                                          Task
Number    Task Description	            Amount

  16      PGP matrix study                   $   2,436
  17      Phase II well drilling                91,151
  18      Groundwater sampling,
          4th & 5th rounds                      98,482
  19      Dioxin exposure survey             	6,054
                                             S 198.123

The cooperative agreement requires that all workplans be
submitted to the EPA project officer for review and
concurrence prior to implementation.  MPCA completed these
tasks with the apparent knowledge of the EPA remedial project
manager, but without the knowledge or approval of the EPA
project officer.  While the remedial project manager was
MPCA's contact for technical changes to the work at the site,
project officer approval is needed before costs are incurred
for the changes to the scope of work.

MPCA's performance of activities outside the scope of the
contract resulted in costs being incurred which were contrary
to the regulations and cooperative agreement conditions.  As
a result,  we have questioned as ineligible the $198,123 MPCA
paid to Delta for tasks 16 through 19.  We have also
questioned as ineligible MPCA's labor, fringe benefits, and
indirect costs that were related to the unapproved tasks.
MPCA's accounting system does not track project costs by
tasks, so we were not able to directly match the MPCA's costs
with the project tasks.  Therefore, we used a ratio to
calculate the portion of the MPCA's costs allocable to the
work completed outside the scope of the cooperative
agreement.  The ratio of questioned contractual costs
($198,123) to total contractual costs ($817,243)  was 24.2
percent.  We applied that percent to MPCA's costs:
                              14

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                                         Ritari Post and Pole
                    Minnesota Superfund Cooperative Agreement
  Cost Category

Salaries
Fringe benefits
Indirect costs

Contractual costs
Total questioned costs
  Costs
 Claimed

$ 77,284
  15,505
  28.952
$121.741
 Percent
Ineligible

   24.2%
   24 .2%
   24.2%
                                                    Costs
                                                  Questioned
Ineligible
$
$
$
18,
3,
7,
29,
198,
227,
703
752
006
461
123
584
MPCA COMMENTS AND ACTIONS

MPCA disagreed with our conclusions.  MPCA's position was
that it did follow the state contractual procurement
requirements in obtaining the contract with Delta.  The
request for proposal did not contain any language precluding
MPCA from exercising its discretion and extending full scope
contracts to an otherwise qualified proposer that submitted
only a limited scope proposal.  All interested companies had
the same opportunity to submit proposals for either limited
or full scope contracts and to be subsequently evaluated by
MPCA.  MPCA also stated that the audit did not contain any
allegations that the services Delta provided were deficient
in any way.

In regards to the work outside the scope of the cooperative
agreement, MPCA's position was that cooperative agreement
amendment no. 35, dated March 6, 1991, with a value of
$149,489, was for additional soil and ground water samples
for the presence of dioxin.  Also, copies of all documents
relating to the tasks were submitted to the remedial project
manager, and the Superfund Memorandum of Agreement (SMOA)
requires the project manager is to coordinate with the
project officer in reviewing and approving tasks.
PIG EVALUATION

The OIG continues to believe the procurement of the contract
with Delta was not in compliance with Federal procurement
regulations.  We did not cite violations of state procurement
regulations because MPCA is to follow Federal regulations
when procuring contracts to be used in conjunction with
Federal monies.  Federal regulations, 40 CFR Part 33.515,
require that states base their determinations of qualified
offerers solely on the evaluation criteria in the RFP.  The
RFP stated that contractors submitting limited scope
                              15
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                                         Ritari Post and Pole
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proposals would only be evaluated for a contract for limited
scope work.  In exercising its discretion, MPCA deviated from
the evaluation criteria in the RFP.  While all companies were
given the opportunity to submit proposals, all companies were
not given an opportunity to submit a limited scope proposal
and be considered for a full scope contract.

In its response, MPCA stated that the report did not contain
any allegations that the services Delta provide were
deficient.  The purpose of the audit was to review MPCA's
internal controls over costs and not the technical quality of
the work performed.  Notwithstanding, it should be noted that
MPCA removed Delta from further working on the project
because of Delta's difficulty in producing the remedial
investigation report.

In regards to the work outside the scope of the cooperative
agreement, amendment no. 35 was for more tasks than dioxin
sampling:  additional soil and ground water sampling and a
remedial action.  The contractual costs associated with each
of  he tasks were $64,500 for the sampling and $69,500 for
the remedial action.  MPCA later determined that the remedial
action was not needed, but did not have approval from EPA to
use the $69,500 on other site activities.

The $64,500 of contractual costs EPA awarded to MPCA in
amendment no. 35 was for task 14, a dioxin survey, and not
tasks 16 through 19.  MPCA files indicated that MPCA and
Delta had estimated the cost of task 14 to be $64,500, the
same amount MPCA included in its application for additional
funds.  As a result, tasks 16 through 19 were not what was
intended by amendment no. 35, or any subsequent cooperative
agreement amendment.  We continue to believe that tasks 16
through 19 were outside the scope of the cooperative
agreement.

MPCA has always been required to submit plans and report to
the project officer, and not the remedial project manager,
for review and approval.  The SMOA does state that the EPA
project officer and remedial project manager are to
coordinate their reviews of plans and reports, but the
ultimate responsibility is with the project officer.  While
the SMOA mentions that EPA is to coordinate its review, the
cooperative agreement specifically states that the plans and
reports are to be submitted to the project officer.
                              16

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                                         Ritari Post and Pole
	Minnesota Superfund Cooperative Agreement

RE COMMENDATION

We recommend that Region 5:

  •  clarify the requirement that MPCA submit all workplans
     and reports to the EPA project officer,  and

  •  recover the questioned costs of $227,584.
                             17

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                               Ritari  Post  and Pole
          Minnesota  Superfund Cooperative Agreement
[This  page was  intentionally  left blank.]
                   18

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                                                        Ritari  Post  and  Pol*
                       Minnesota  Superfund  Cooperative  Agreement

                                                                    APPENDIX  1
                                                                    Page 1  of  19
                Minnesota  Pollution  Control Agency
 June 28, 1994
 Mr  Anthony C  Carrollo
 Divisional Inspector General for  Audits
 O S  Environmental Protection Agency
 Office of Inspector General
 Northern Division
 77 West Jackson Boulevard
 Chicago,  Illinois  £0604

 Dear Mr  Carrollo

 Enclosed please find the Minnesota Pollution Control Agency  (MPCA)  response to
 the draft Audit Report E5BGL4-05-0138 .  In accordance  with a telephone
 conversation on June 27, 1994, between Juline Holleran of my staff  and
 Janet Kasper of the Office of  Inspector General,  this  response is provided
 within 30 days  of MPCA receipt of the draft Audit Report  (Hay 31, 1994).  The
 MPCA staff has  reviewed the draft report and has  provided comments  which
 reflect MPCA's  position on the audit findings,  as you  requested  The comments
 to follow are organized in order of the issues raised  in the draft  report.

 In addition to  the MPCA staff's comments,  documentation is provided from the
 MPCA files which supports MPCA's position on the  audit.  Most of the
 supporting documentation has had the relevant passages highlighted  to focus
 attention on those issues as referenced

 MPCA appreciates the opportunity to review and comment on the draft report   I
 hope you  will find the information provided in this response clearly
 demonstrates MPCA's competent performance as the  lead  agency on the Ritari
 Post I Pole Site (Site)  Remedial Investigation/Feasibility Study (RI/FS),  and
 that the  expenditure of  federal funds has been in accordance with all
 applicable federal  and state policies, regulations and procedures.   In the
 absence of any  allegation that services rendered  were  inadequately  performed,
 MPCA anticipates full  resolution of this audit  with no questioned costs.

 This response begins by  addressing the issue of procurement requirements not
 being net   State of Minnesota Attorney General's staff has cited state and
 federal statutes and laws which support the argument that the MPCA  did in fact
 follow all applicable  contract law,  policy,  and regulation in hiring the
Multi-Site contractors.

The next  section of the  response covers the question of the appropriate
 expenditure of  funds for tasks completed during the Remedial Investigation.
The MPCA  staff  has  supplied numerous documents  to show continual  involvement
by the  D  S.  Environmental  Protection Agency (EPA)  through >.t the  process and
documents appropriate  EPA approval of funds and revision of scope

       520 Ufaystte Rd N.; St Paul, MN 55155-4194. (612) 296-6300 (voice). (612) 282-5332  (TTY)
              Regional Officst  Dulutfi • Brainert • Detroit Lakes • Marshall • Rochester
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                                     19

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                       Minnesota  Buparfund Cooperative Agreement

                                                                    APPENDIX  1
                                                                    Page  2  of  19
Mr  Anthony C  Carrollo
Page 2
June 28.  1994
The last section of the response addresses the issues  raised  regarding MPCA
compliance and internal controls   This section demonstrates  internal
improvements and represents HPCA's commitment to resolve  any  problems which
may have occurred in the past and corrective action being implemented to
prevent future problems.

COMPLIANCE KITH PROCUREMENT REQUIREMENTS

In the Office of the Inspector General's (DIG)  draft Audit Report regarding
Multi-Site Cooperative Agreement No  V005794,  you state  that in the course of
conducting their review,  significant weaknesses in the internal controls in
the area of contract procurement were found,  which resulted in the questioned
costs   As a consequence of these findings,  DIG recommends that Region 5
recover costs in the amount of $785,121.00 from MPCA as ineligible costs.  Of
that amount,  OIG has identified 5755,660.00  of contractual costs paid by MPCA
to Delta Environmental Consultants,  Inc. (Delta)  as ineligible because the
MPCA did not properly follow contract procurement requirements.  It IB the
position of MPCA that it indeed did properly follow state of Minnesota's
(State)  contractual procurement requirements, and that the reportedly
ineligible costs have improperly been determined to be ineligible   The basis
for MPCA's position is explained and discussed below and  is supported by
Attachment A to this letter   Further, MPCA  notes that the OIG audit contains
no allegations that the services provided by Delta were inadequately
performed,  substandard,  or otherwise deficient in any  way.  In the absence of
any such allegations,  a request for reimbursement of $755,660 00 paid to Delta
is unconscionable and contrary to established principles  of contract law.

The Multi-Site II (MSII)  procurement process started in January of 1988,  and
culminated in April 1989 with Che execution  of four (4) MSII contracts,
including the MSII contract with Delta.  On  February 8, 1988, MPCA initiated
the process whereby requests for proposals for the Multi-Site contract would
be solicited with the intention of procuring two to four  contractors.   The
procurement planning process started with the establishment of the MSII
procurement team (MSII Team).  The MSII Team was composed of Barb Jackson,
Barb Gnabasik,  Dave Douglas, Mike Convery, Orbbie Webber, and team leader,
Mike Vennewitz from MPCA.  The MSII Team also included two EPA staff,
Fred Bartman,  remedial project manager, and  Dr.  Cheng-Hen Tsai, a laboratory
quality assurance/quality control specialist.  Debra McGovern and Doug Day of
MPCA were the State's Authorised Agents, and assisted  Mr. Vennewitz in
contract negotiations.  Drafting of the MSII request for  proposal/request for
qualifications (RFP)  began in February of 1988.   On March 25, 1988, the draft
RFP was sent to EPA Region 5 office for review.   On April 15, 1988, MPCA sent
a request for authority to negotiate to the  State Department of Administration
(MDA)  which was subsequently granted.  Later that month,  April 26,  1988,  EPA's
comments on the draft RFP were received and  incorporated.  RFP notification
was published in the State Register on May 30,  1988, in the June 8, 1988,
edition of Business Commercial Daily, and in the Hazardous Haste News and
Superfund Report.  Further, notice was sent  to all parties on the consultant's
list and on the Minority Business Enterprise/Women's Business Enterprise
(MBE/WBE)  consultant's list.  The deadline for receipt of proposals was
June 27, 1988.   A pre-proposal meeting vas held on June 8, 1988, and was
attended by more than 50 people.
                                      20

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                        Minnesota Superfund  Cooperative  Agreement

                                                                     APPENDIX 1
                                                                     Page  3  of  19
 Mr  Anthony C  Carrollo
 Page  3
 June  28. 1994
 While the RFP was on notice,  the MSII Team drafted two proposal review forms
 from criteria listed in the  RFP   The cost review form was designed to assure
 that cost data submitted with each proposal was  in sufficient detail and
 proper format to allow the review team to perform a cost and price analysis
 The second form was the technical review form which contained the following
 criteria,  personnel,  qualifications, staffing capabilities, past appropriate
 experience,  management capability, financial capability, and quality of a
 technical analysis of  a theoretical problem present in the RFP

 From the pool of more  than 50 attendees at the pre-proposal meeting came a
 total of eight proposals received on June 2~>.  1988  Proposals were received
 from Malcolm Pirnie,  Inc  IMP),  Barr Engineering Company (Barr),  Ecology and
 Environment  (E&E),  Woodward-Clyde (WCi,  weston,  Camp Dresser & McKee,  Inc.
 (CDM),  Delta and Lee Wan and  Associates.   The  proposal from
 Lee Wan and Associates was considered completely inadequate.  It did not pass
 the 'Pass Fail*  requirements  outlined in the RFP upon receipt,  and,  therefore,
 was not reviewed by the MSII Team.  Six of the qualified proposals received
 were full scope  proposals and one qualified proposal, from Delta,  was a
 limited scope proposal.

 Proposal review  was conducted in July of 1988, utilising the formal  criteria
 as advertised in the RFP and  the proposal review forms   Two team members,
 Orbbie Webber and Dr.  Tsai, reviewed only the  Quality Assurance  Project Plan
 portions of  each proposal.  The MSII Team scored and ranked the  proposals
 based on the technical,  business,  and cost/price analyses.   Using the scoring
 method established during the RFP planning process, proposals were scored as
 follows

         Company              Pull  Scope          Limited Scope

         Barr                   386                370
         EtE                    344                334
         Delta                  H/A                340
         HP                      336                326
         CDM                    331                331
         Weston                  287                288
         WC                    Not Scored         Not Scored

The proposal submitted by WC was not scored because xts proposal  was  deemed
 inadequate and its  experience insufficient.  EtE, CDM,  HP,  and Barr were
determined to be qualified for full  scope contracts.  These four proposers and
Delta were determined  to be qualified for limited scope contracts.  Weston and
WC were determined  to  be less qualified or unqualified,  and were not  invited
to the  next  phase of proposal review,  interviews with the MSII Team.

Interviews were  held on  July 19-21,  1988.   Based upon the interview score
sheets  and interview answers, a  short  list  of  finalists was selected  to
advance on to the negotiation phase  for the MSII contracts.   BtE was
eliminated from  further  consideration at  this  stage based upon poor
performance  in the  interview process, lack  of  State experience, weak
subcontractors,  limited  RI/FS work and a  technically weak hydrologist.  This
resulted in  a determination that IU was  not technically competent for  either
                                      21

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                      Minnesota 8up»rfund  Cooperative Agreement

                                                                    APPENDIX  1
                                                                    Page  4  of  19
Mr  Anthony C  Carrollo
Page 4
June 28,  1994
full scope or  limited scope work   CDM,  MP,  Barr,  and Delta were determined to
be the most technically competent and price  competitive and,  therefore,  more
suitable to enter  into contract negotiations

The contract negotiation process began in August  of  198B,  when the four
finalists were  introduced to the negotiation team of Debra McGovern,  Doug Day.
Mike Vennewitz, and Robert Einweck   On  January 10,  1989,  draft contracts
based on language  outlined in the RFP were sent to the four firms for comment.
Their comments  were received in February and incorporated as  appropriate
Contract negotiations were then held on  February  24  and 25, 1989.   As a  result
of negotiation  sessions, certain changes were made to the contracts for  each
of the four firms   Best and final offers were received from  the four firms
and final contracts drafted between February 16 and March 20,  1988   Final
contracts were  signed and executed by the contractors and the State Department
of Finance in April of 1989.

Although the RFP solicited proposals for limited  scope work,  no limited  scope
work was forecast  at the time of contract negotiations.   Full scope work was
projected to be the MPCA's workload for  the  foreseeable future,  and MPCA
management determined that the workload  was  beyond the capability of  three
contractors  Given the strong interest  on the part of the MPCA to have  four
contractors available for the anticipated workload, Delta, having clearly
demonstrated to the RFF review team that it  was fully qualified for full scope
work,  was included in contract negotiations   Delta's broad range of
experience in performing full scope RI/FS's  was reviewed by the team of  MPCA
staff and supervisors during the interview stage  of  the procurement process

MPCA acknowledged  a concern that Delta did not have the same  breadth  of
organization possessed by the other three contractors   Consequently,  the
initial site assignments made to Delta were  of a  scope determined Co  be
commensurate with  their organization's capabilities.  The  Union Scrap Site  was
tasked to Delta on May 24,  1989, for development  of an RI/FS  support  document
work plan.   A work order to perform the  RI/FS was  issued to Delta on  July 28,
1989,  for the Union Scrap Site.  Delta performed  this project competently and
demonstrated its expertise in performing full scope RI/FS's.   Consequently,
the work assignment for the Ritari Post  and  Pole  Site (Site)  Project  was
issued to Delta on September 5, 1989.  The OIG Audit Report, contains  no
allegations or  findings contrary to performance.

OIG states in the  draft Audit Report that MPCA did not properly follow
procurement requirements;  but OIG has not identified any procurement
requirement in  State statute or rule with which MPCA failed to conply.

The State's statutory requirements for issuance of State contracts are found
in Minn. Stat.  ch. 16B.  Generally and specifically relevant  statutory
sections are Minn. Stat. $$ 16B.01 through 16B.102, and S  16B.17.  Aa  a general
rule,  all State contracts for construction or repairs and all purchases  of  and
all contracts for  supplies, materials, purchase or rental  of  equipment and
utility services are required to be based upon competitive bids (Minn. Stat.
S 16B.cn,  Subd. 1) .  However, this general rule does not apply if Minn.  Stat.
                                     22

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                      Minnesota  suparfund  Cooperative Agreement

                                                                    APPENDIX 1
                                                                    Page  5  of  19
Mr  Anthony C  Carrollo
Page 5
June 28, 1994
 ch  x£B otherwise  provides for alternative  procurement methods (Mann.  Scat
 5 i6B.cn,  Subd  l)   RequestB for proposal  are expressly provided  for  as an
 alternative to sealed competitive bids.

         Subd  3   Publication of Notice,   Expenditures Over
         SIS,000 00 and Requests for Proposals   If the amount of
         an expenditure or sale is estimated to exceed
         $15,000.00, sealed bids or requests for proposals
         provided  in Section 16B.08, Subd   4, clause (b1,  must be
         solicited by public notice  .    .  .

 Minn  Stat  5  16B  0"?, Subd  3   Subdivision 4 (b)  of Section  16B 08 provides

         In lieu of the requirement for  competitive bidding  in
         Section 16B 01. Subd  1.  purchases and contracts  may  be
         negotiated in those circumstances  determined by the
         Commissioner, and in any of those  circumstances the
         Commissioner shall advertise for a request for proposal
         as a  basis for negotiation.

 Chapter 16B contains only the two above-quoted references  with respect to
 requests for proposal, requiring publication of notice  and expressly
 authorizing contract negotiation by requests for proposal.

 As noted above in  the discussion of the  procurement process, authorization to
 negotiate  was  granted by the Commissioner of the MDA and the request for
 proposal was public noticed for more than seven days before  the final
 proposals  were due.  The requirements of the two above-cited statutory
 provisions were net.

 The State's regulatory requirements for  State contracts are  found in Minnesota
 Rules  Chapter  1230.  Generally relevant  sections of Chapter  1230 are sections
 1230 0100  through  1230.1300.   Minnesota  contract  procurement rules do not
 provide or contain any specific requirements relative to requests for
proposals  and  negotiation of contract

 In the absence of statutory or regulatory requirements  or  restrictions upon
 the request for proposal process,  a contracting agency  has considerable
 discretion in  the negotiation process.   That discretion, though not controlled
by,  may be guided by the general  principles of  openness and  fairness embodied
 in the State contracting laws and regulations.

The RFP procurement process was conducted consistent with  those general
principles,  and was open and fair.   The  RFP was public  noticed and a
pre-proposal meeting was held.   Fifty prospective proposers  attended,  of which
eight  submitted proposals.   Proposals meeting "Pass Fail*  requirements were
 reviewed,  scored and ranked by the MSII  Team.   Interviews were conducted
 leading to contract negotiations  and ultimately to execution of CODtracts with
qualified  contractors.
                                     23

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                                                      Ritari  Post and  Pol*
                     Minnesota  Suparfund  Cooperative  Agreamant

                                                                   APPENDIX  I
                                                                   Page  6  of  19
Mr  Anthony C  C»rrollo
Page 6
June 28. 1994
The RFP cransmittal letter did indicate that one of  two  types of proposals may
be submitted in response  to the RFP, a limited scope proposal or a full scope
proposal,  and indicates that at page 37 of the RFP a description of the two
types of proposals is provided   Ae noted in the draft Audit Report,  the RFP
stated that those contractors submitting a limited scope proposal would only
be evaluated for a contract for limited scope   The  request for proposal does
not contain any language  precluding MPCA from exercising its discretion and
extending full scope contracts to an otherwise qualified proposer that
submitted only a limited  scope proposal

The difference in the two types of proposals was only in the hypothetical
problem that a proposer must address   The purpose of the hypothetical and
other evaluation criteria is to identify the most qualified proposers
Evaluation criteria are identified at page 48 of the RFP.  The Evaluation of
Proposal section of the RFP specifically states,  "The number and scope of
contracts entered into will be a function of the proposer's qualifications and
capabilities."  Ultimately, it is the proposers' qualifications and
capabilities that determine the scope of contract for which they are  eligible.
Further, the RFP at page  51 expressly states-   "The  MPCA authorized agents
shall have authority to issue work orders or contract(8)  to the contractor
best meeting specifications and conditions "  The RFP contained only  one model
contract with no indication that two different contracts, one for limited
scope,  another for full scope, would be written or entered into.  The sane
contract was contemplated for all qualified proposers.

Although proposal review  vaa for both full and limited scope,  questions during
the interview process dealt with both limited and full scope work abilities
Delta answered questions  for both full scope and limited scope RI/FS  work.
Their answers indicated that they had considerable experience with RI/FS,
worked with EPA in Illinois and Wisconsin, and that  they had personnel on
staff with prior MPCA experience working on full scope RI/FS's.   Through the
course of the evaluation  process. Delta demonstrated that it had extensive
experience with full scope work and was qualified for such work.

OIG's entire position rests upon a single statement  in the RFP:   "Proposers
choosing this option will be evaluated on proposal development for the Limited
Scope Proposal Option only.*  This was a statement of intent and not  a
requirement imposed upon  any potential proposer.  The statement  did not
preclude the MPCA from considering a proposer that chose this option  for a
full scope contract if subsequently determined to be qualified through any
stage of the procurement  process.  Procurement by RFP if different than
procurement by competitive bid.  For the latter, there are statutory  and
regulatory requirements that prescribe the steps of  the process  and impose
specific requirements upon the contracting agency.   This is not  true  for
procurement by RFP which  is a procurement by negotiation.  The purpose of the
RFP is to identify qualified contractors.  This purpose was not  compromised
Rather, it was served by  including Delta in MSII contract negotiations.
                                     24

                                 Report HO.    E5FGF4-05-0138-4100488

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                                                         Ritari  Post  and  Pol*
                       Minnesota Suparfund  Cooperative  Agreement

                                                                     APPENDIX  1
                                                                     Page 7  of  19
 Mi   Anthony C  Carrollo
 Page 7
 June 26,  1994
 OIG  cites to 40 CFR 35 6555,  35 6565,  and 31-36 as further support  for its
 position   First,  it is important  to note chat 40 CFR Part 35,  subp 0 was not
 in place at the time the contract  with Delta was awarded and  contains no
 indication of retroactive application   It is the MPCA's position that the
 requirements of Sections 35  6555 and 35.6565 are, therefore,  improperly cited
 and  inapplicable   Further,  even though  inapplicable,  the actions of MPCA
 otherwise fully complied with the  provisions of these sections.

 With respect to 40 CFR 35.6565, OIG  states,  "The regulations,     .  , require
 the  recipient to publicize RFPs and  evaluation factors and to identify their
 relative importance "   The draft report  goes on to conclude without  support
 that the award to Delta did  not comply witn the terms of the  RFP    The RFP was
 public noticed and evaluation criteria were identified and relative  importance
 indicated   See RFP at pages  48-51    MPCA was alsc in compliance with Section
 35 6565, which states,  "The  recipient  must honor any response to publicized
 requests for proposals to the maximum extent practical,* as MPCA considered
 Delta for a full scope contract subsequent to Delta's demonstration of
 extensive experience and qualifications.

 Contrary to OIG's  characterization,  the  RFP process that resulted in an award
 of a full scope contract to Delta  did  provide full and open competition.
 Again,  with respect to Section 35.6555, OIG merely states  a conclusion without
 support   OIG has  not  identified any unfairness in the process or any company
 harmed or disadvantaged by the process   All interested companies had the sane
 opportunity to submit  proposals for  either limited or full  scope contracts and
 to be subsequently evaluated  by the  MSII Team.

 Citing to Section  31.36,  OIG  states  that, 'recipients  are  required to make
 awards only to responsible contractors who possess the ability to perform
 successfully under the terms  and conditions  of  a proposed procurement.'   MPCA
 did award a contract to a 'responsible contractor' as  the  term is generally
 understood.   (The  term is not  defined.  State rules do provide a definition of
 •responsible bidder.'   Minn.  Rules 1230.0150,  subp.  20.  Delta would have
 qualified under State  rules as  a responsible bidder.)    Contrary to OIG's
 assertion,  MPCA was able to and did  evaluate Delta's qualifications  and
 ability to perform successfully.  The extent of  the evaluation process and of
 Delta's qualifications  have been discussed above and  in  supporting documents
 in Attachment  A to this letter   Review of the  evaluation process and
 supporting documentation should clearly demonstrate MPCA's  compliance with
 this requirement.

 The MPCA's action  in awarding  a contract to  Delta was  reasonable and was  based
 upon full  and  complete  consideration of its  proposal and qualifications.
Those actions  cannot properly be characterized as 'arbitrary'  rather they
 represent  the  reasoned  decision of the MSII  Team.   As  such, they were fully
 consistent with the  OMB Circular A-87 and applicable state and federal
policies,  regulations and procedures.

MPCA submits that  there  was no weakness on its contract procurement  process.
MPCA complied  with State  requirements for issuance of  contracts by RFP.   Delta
was a responsible  contractor fully and duly  qualified  for rull scope work.
                                       25

                                   Report MO.   E5FGF4-05-0138-4100488

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                                                        Ritari  Post  and  Pol*
                       Minnesota Buperfund  Cooperative  Agreement

                                                                    APPENDIX  1
                                                                    Page 8 of 19
Mr  Anthony  C. Carrollo
Page 6
June 28,  19S«
Delta fulfilled  its contract responsibilities competently and professionally
In the absence of substantiated allegations to the contrary,  OIG's
recommendation is improper and should not  be followed

Attachment A to  this letter contains all additional supportive documentation
relative to procurement

EXPENDITURE OF FUNDS

The draft Audit  Report for the Site questions several practices used by the
MPCA staff in carrying out the Multi-Site  Cooperative Agreement IMSCA)
No  V005"794   In Exhibit A, Summary of Costs Claimed and Questioned, Note 2,
page B,  DIG questioned the eligibility of  "5198,123 of contractual  costs for
work that was outside the approved scope of the cooperative agreement."  The
report goes on to say,

         "During the remedial investigation, MPCA instructed
        Delta to submit a workplan amendment because new
        developments at the site required revision of the work
        schedule and tasks   Delta submitted a workplan
        amendment,  which revised the budgets for several
        existing tasks, and added tasks 16-19,  which were for
        new activities.  However,  BPA never approved the
        amendment."

DIG points out "[tlhe EPA Project Officer  is the or.ly person  who has the
authority to approve a change in the scope of work "  OIG then concludes.
"MPCA completed  these tasks with the apparent knowledge of the EPA  Remedial
Project  Manager,  but without the knowledge or approval of the EPA  Project
Officer."

MPCA believes that OIG erred in these findings.   The following paragraphs
present  the factual  basis for MPCA's contention that the EPA  Project Officer
IPO)  did in fact provide advance written approval for the revision  of scope in
the form of an amendment to the MSCA.   Also, the subsequent technical
approvals of the revision in scope were properly obtained in  accordance with
the State Memorandum of Agreement (SMOA) between the MPCA and the BPA dated
September 20, 1989.

Enclosed please find documentation in Attachment B which shows that the PO
approved the additional work necessary at  the Site in Amendment #35 to the
MSCA.  On January 28,  1991, the Regional Administrator lent a letter to the
MPCA Commissioner acknowledging the submittal of the amendment application and
stating, "It is  the understanding of the Regional v Office of Superfund that
the August Application was replaced by the Minnesota Pollution Control
Agency's (MPCA's) December 7,  1990,  application for the same  amount ($149,859)
to be used for additional soils and ground water analyses to  evaluate dioxin
contamination at Ritari."  The Narrative Statement of the December  9,  1990,
application clearly states "It)he need to  shift focus at the  Ritari Post and
                                    26

                                Report NO.    E5FGF4-05-0138-4100488

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                                                        Ritari  Post and  Pol«
                       Minnesota  Superfund cooperative  Agreement

                                                                     APPENDIX  1
                                                                     Page  9  of  19
 Mr  Anthony C  Carrollo
 Page 9
 June 28, 1994
 Pole Site  iSite) is caused by  the discovery of dioxins in the  soils  "   "The
 5149,859 requested is needed to analyze additional soil and ground water
 samples for the presence of dioxins

 The approval letter dated March 6, 1991, from the Regional  Administrator
 approved MPCA's request  for additional funds by stating,  "[t]he enclosed
 Assistance Amendment confirms  my approval of your requests  to  increase and
 extend the Ritari Remedial  Investigation/Feasibility Study  "   Contrary to
 OIG's finding,  it is MPCA's understanding that the PO prepared this  approval
 letter

 However,  MPCA is concerned about OIG's finding which specifies that  the PO is
 the only person who has  the authority to approve a change in the scope of
 work, as 40 CFR 31 30 only specifies that the "grantee obtain  the prior
 written approval of the  awarding agency "  Such written approval was obtained
 in the form of  MSCft amendment  *35, which revised the scope  to  include
 investigation and analysis for dioxin

 Approval  of the MSCA amendment, and the language in the two documents cited
 above from the  Regional  Administrator clearly shows the Office of Superfund
 and the PO were aware of and in agreement with the need to  expand the scope of
 the RI/FS at the Site to evaluate the extend of dioxin contamination
 Subsequent to these approval actions, MPCA commenced revision of the technical
 work products to reflect the approved revision of scope.

 Regarding the subsequent Work Plan Amendment which added  tastes t!6-19 to the
 scope of  the RI/FS.  MPCA contends that the actions taken  to gain approval were
 in accordance with the SMQA dated September 20,  1989.   Copies of documents are
 enclosed in Attachment B which show that,  in accordance with Attachment 4 of
 the SMQA,  Draft RI/PS Work Plan amendments were submitted for Support Agency
 "review,  comment,  and conditional approval.*  Documents in  the file show EPA
 Remedial  Project Manager (RPM), Tom Barounis,  Kathy Warren's replacement,  was
 consulted throughout the planning process for revising the RI/FS Work Plan.
 In accordance with the SMQA, on April 4,  1991,  MPCA sent  the RPM a copy of the
 draft RI/FS Work Plan Amendments.   On April 11,  1991,  the contractor (Delta)
 sent to the MPCA and EPA revised pages to the first  draft RI/FS Work Plan
Amendments   During this tine EPA RPM provided comments to the MPCA Project
Manager via telephone, discussing the specific direction  of the amended Work
 Plan.   In accordance with the SMQA,  on April 15,  1991  the Final RI/FS Work
Plan Amendments for the  Site were mailed to EPA for  file  maintenance   At no
 time did  the RPM offer any opposition to the revision  of  scope to address
dioxin contamination at  the Site.

Again,  MPCA contends that OIG's finding that the PO must  approve the Work Plan
 in writing is in error,  as the  SMQA executed by EPA  specifies that the support
agency (EPA in  this case) is provided with drafts for  review and comment,
which was done,  and the  final Work Plan is submitted to EPA for file
maintenance.  Page  S of  the SMQA states that the EPA RPM  is 'the EPA point of
contact for all  technical and enforcement  issues.*   Further, the EPA RPM is
obliged under the  SMQA to *in coordination with the  IPA Project Officer,
review, comment,  and consult on technical  aspects of submittals according the
the event  schedule  in Attachment 4.*   MPCA complied  with  its obligation under
                                     27

                                 Report MO.   E5FGF4-05-0138-4100488

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                                                        Ritari  Po«t  and  Pol*
                       Minnesota  Suparfund  Cooperative Agreement

                                                                   APPENDIX  1
                                                                   Page  10  of  19
Mr  Anthony C  CarrolIc
Page 10
June 28, 1994
the SMOA in making  appropriate submittals   It appears that the RPM was  remiss
in fulfilling obligations ae required under the SMOA to coordinate with  the PO
on the technical  aspects of the revision of scope

The Site file has additional documentation which demonstrates that it  has also
been EPA's past practice to have the  RPM issue approvals of RI/FS  Work Plans
As Attachment B shows, RPM Kathleen Warrer. issued the approval letter  to the
MPCA on May 7,  19SO.  for the Ritari Post and Pole RI/FS Support Document (the
initial Work Plan)    The Support Document contained the original i3  tasks
which the contractor  was tc complete    However, as previously discussed  and in
accordance with the SMOA, this approval letter was unnecessary as  final  Work
Plans are submitted for file maintenance

EPA knew the original RI/FS Work Plan made assumptions about the limited
amount of contamination at the Site which we later discovered were not valid.
Eased on new data to  show the extent  and magnitude of dioxin contamination at
the Site, all parties involved with the administration of the Site understood
the need for expanding the scope of work in order to adequately address  the
remedial actions  necessary to be protective of public health and Che
environment.

In summary,  existing  documentation clearly shows the personnel in  the Office
of Superfund knew and concurred with  an expansion of the scope of  the RI/FS
Work Plan   Discussions with EPA began in October 1990 on the need to expand
the scope of  the  RI/FS.  The RPM attended a meeting at the MPCA office on
November 1,  1990, to  discuss specific issues relating to expanding the scope
of the RI/FS.  All drafts and the final Work Plan Amendments were  Bent to EPA
prior to EPA's final approval of an MSCA Amendment on March 6,  1991
Subsequently,  the work order to Delta to increase the scope of the RI/FS was
not issued until  June 3,  1991.

Additional documentation in Attachment B shows EPA's continual involvement in
the decisions made on issues related  to the RI/FS.   Included in Attachment B
are monthly reports submitted by Delta entitled,  'Project Status Report" and
other specific documents.  These documents show EPA's intimate involvement in
the whole process.  Relevant passages have been highlighted in yellow.

Successful completion of the RI/FS would not have been possible without
completing task*  16,  17,  18, and 19.   These tasks addressed issues which
needed to be answered before reasonable alternatives could be developed  in the
FS.

Each task was designed to accomplish  the following:

        Task 16 resolved the pentachlorophenol 1PCP)  matrix
        problem.  Data could have been under or over estimated by
        a factor  of three.  The problem of correcting the 30-40
        percent spike recovery was essential to having PCP data
        that could be used with some  reasonable assurance.
                                       28

                                   Report  NO.    E5FGF4-05-0138-4100488

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                                                        Ritari  Post and  Pol«
                       Minnesota  Suparfund  Cooperative  Agr»em«nt

                                                                   APPENDIX  1
                                                                   Page 11  of  19
MI  Anthony C  Carrollo
Page li
June 26,  1994
       Another important reason for resolving the  PCP matrix
       problem was tied directly to using PCP data as a
       surrogate parameter for  dioxin.  During the early stages
       of the RI, MPCA found dioxin never appeared in any
       meaningful concentrations when PCP was not  present   MPCA
       also found dioxin concentrations increased  as PCP
       concentrations increased  Since PCP 11 far more soluble
       than dioxin,  being able  to accurately identify the
       presence of PCP,  would provide KPCA with an excellent
       surrogate for the presence of dioxin at a fraction of the
       cost of doing dioxin analysis at all locations on a
       regular basis

       MPCA felt the resolution of the PCP matrix  problem was a
       critical issue which needed to be resolved  in order to
       establish a strong relationship between the presence of
       PCP and the likely presence of dioxin   Since PCP
       analysis costs less than ten percent of the cost of
       dioxin analysis,  this relationship could represent a
       significant cost  savings for all future analytical work
       at the Site.

       Therefore, MPCA used dioxin funding to pay  for the PCP
       matrix study  because MPCA viewed the matrix study,  when
       resolved,  could greatly  increase the number of analytical
       samples at the Site for  far less money  The cost of
       completing the PCP matrix study was less than the cost of
       analyzing two water samples for dioxin.  MPCA was able to
       collect and analyze ten  tines more water samples for the
       same amount of money once  the PCP matrix study was
       completed. This  allowed MPCA to cover more area in and
       surrounding the Site to  insure the PCP/dioxin
       contamination had not migrated beyond the Site
       boundaries.

       Task 17 added the ten additional  monitoring wells MPCA
       needed co determine whether the contamination had
       migrated into the lower  aquifer or migrated off  site into
       the adjacent  properties.   Had that been the case,  the
       local water supply would be supplying the local  residents
       with dioxin or PCP contaminated drinking water and/or  the
       surrounding property could pose a threat to neighbors  and
       the local  habitat.   The additional wells were monitored
       during task IB to determine whether the PCP and
       dioxin/furan  contamination had moved into the lower
       aquifer and/or off  site,  and if so,  where and at  what
       concentrations.
                                     29

                                 Report  MO.    E5FGF4-05-0138-4100488

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                                                        Ritmri  Post  and Pol«
                       Minnesota  Suparfund Cooperative Agreement

                                                                   APPENDIX 1
                                                                   Page  12  of  19
Mr  Anthony  C  Carrollo
Page 12
June 28,  1994
        Task  16  funded additional ground water sampling    During
        the fourth round of sampling.  15 of the original
        monitoring well* and the ten new monitoring wells  were
        sampled  for dioxin and PCP   During the fifth round  of
        sampling, 15 of the original monitoring wells and  the ten
        new monitoring wells were once again sampled,  but  MPCA
        was able to cut the number of dioxin samples to  five
        The approximate cost savings realized by using PCP data
        as a  surrogate for dioxin data was approximately $33,000

        This  additional data gave MPCA the assurance needed  that
        the public health and environment were not in danger from
        migration of these contaminants off site

        Task  19  was the Dioxin Exposure survey   This task was
        absolutely necessary to determine whether contaminants
        from  the Site had migrated off site and contaminated the
        surrounding lands and vegetation   Preliminary data
        indicated wind blown contaminants could have migrated off
        site  and contaminated soils and vegetation on the
        adjacent property where granng cows might have  ingested
        contaminated plants and produced milk contaminated with
        dioxin.

        The risk to public health and the potential dangers  from
        dioxin contaminated milk getting into the public milk
        supply far outweighed any other information which  this RI
        study developed.  Data collection and analysis resolved
        this  issue   However, at the tine the EPA, Minnesota
        Department of Health (MDH), and MPCA all agreed  this task
        was of paramount importance

COMPLIANCE AND IHTERSA1, CONTROLS

Allocation Of Employee Leave Costa

It has been noted that the MPCA needs to establish an equitable allocation
system for employee leave costs.  The existing procedures  allow leave time to
be directly charged to federal or state projects based on  the percentage of
time spent on federal projects.  If at least 50 percent  of an employee's time
was spent on  federal projects during a two week pay period,  the employee was
able to allocate that leave time proportionately to the  budgeted time for
federal and state projects during that quarter.  It has  been determined that
the percentage of leave time charged to the Site was 3.1 percent which was not
considered excessive and actually was less than the allowable amount of leave
time that could  have been charged.

The MPCA discussed this issue with EPA and has requested guidance  in
determining an equitable allocation system for employee  leave costs.  It
appears that  other states in Region 5 are also experiencing  difficulty in
determining an equitable allocation system for employee  leave costs  (based on
Management Assistance Reviews in Illinois and Indiana!.  The MPCA  is willing
to change the current system to one that is siore equitable,  however, guidance
                                      30

                                  Report Mo.   E5FGP4-05-0138-4100488

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                                                          Ritari  Post and  Pol*
                         Minnesota  8up»rfund  Cooperative  Agreement

                                                                     APPENDIX  1
                                                                     Page 13  of  19
 Mr   Anthony C  Carrollo
 Page 13
 June 28,  1994
 from EPA and DIG is needed   Prior to establishing  a new system,  the MPCA must
 ensure that the system IB acceptable by both EPA and DIG   The following  is
 guidance recently received by EPA

         "OMB Circular A-87 requires distributing the cost of
         employee benefits equitably to all relevant programs,
         including grant programs.  However,  the Circular does
         not define what methods ensure such an  equitable
         distribution.  Each of the following three methods are
         acceptable to the Office of Superfund for meeting this
         objective

         l   Including leave in the indirect  cost rate

         2.  Including leave in the fringe benefits rate

         3   Distributing leave as part of a  leave cost allocation plan

         EPA recognizes that these methods may require a state to
         charge the leave initially to a state account before
         charging it to the appropriate CA account  If a state
         recovers leave costs through the application of a fringe
         benefits rate  or indirect cost rate,  it  would charge
         leave to a State fund as it is taken and recover these
         costs through  the appropriate rate   EPA would need to
         approve inclusion of leave costs in  the  indirect cost
         rate as part of the indirect cost proposal or inclusion
         in the fringe  benefits rate as part  of  the CA budget.
         The inclusion  of leave in the fringe benefits rate nay
         not be the best option if a state charges CAB for actual
         fringe benefits expenses and uses the fringe benefits
         rate for budgeting purposes only.  If a  state uses a
         cost allocation plan,  it should ensure  that it
         distributes leave costs equitable based  on tine worked
         on all the programs the employee supports.   For example,
         during the first quarter of a year,  the  State could use
         the previous fiscal year's percentages worked on various
         programs to allocate costs while a new historical  base
         is being established.   Any such allocation plan should
         be documented  by a State and available for EPA review.•

After receiving this information,  the MPCA still was unclear as to how to
equitably allocate  employee leave costs.   Since leave cannot be included in
the indirect cost rate or fringe benefit  rate, we sust  distribute leave a>
part of a leave cost allocation plan.   After  additional  phone conversations
and conference  calls with EPA,  it was agreed  that EPA would send us an actual
example of  a leave  cost allocation plan.   As  soon as we  receive this
information we  will  apply this  plan to one of  our federally funded Bites and
forward this information to EPA and OIG for their approval.   Once this
approval  is obtained, we will schedule  •  training session for MPCA staff and
                                       31

                                   Report MO.   E5FGF4-05-0138-4100488

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                                                          Ritari  Post  and  Pole
                        Minnesota 8up«rfund cooperative  Agreement

                                                                     APPENDIX  1
                                                                     Page  14 of 19
Mi  Anthony  C  Carrollo
Page 14
June 28,  1994
begin following the approved leave  cost  allocation plan   The MPCA wants  to
ensure that  leave allocation procedures  provide an equitab.e distribution of
leave time   Once that is determined,  the MPCA Accounting Office will  assist
us in assuring that the leave allocation procedures developed are consistently
followed

Approval Of  Contractor Rate Increases

It has oeen  noted that direct labor rate increases were in excess of the
limits allowed in the contract and  were  approved without obtaining supporting
cost documentation or providing a thorough  cost analysis

Delta submitted a request to increase  its direct costs and indirect rate  per
the MSII Contract  (April 1969)  on January 31, 199:   The contract allows  for
an escalation factor of six percent plus Che estimated annual percent  increase
in the Consumer Price Index (CPU .   The  new rates for labor,  equipment,
materials, supplies, and subcontractors  as  well as the new indirect rate  were
to be effective as of January 1, 1990, per  the contract upon approval  by  the
state which  is the MPCA.

When the four MSII contracts were routed to the MDA for execution,  a cover
memo was submitted for each of the  contracts and it was stated by the
Division's RFP/contract coordinator that, "These contracts are identical
except that  each contract contains  a different level of profit payable to the
contractor  (Part XXI) and each contract  contains a different suite of
subcontractors  (Attachment B-D."

After reviewing the contracts,  it was  determined that there were a few other
differences  in the contracts.  One  of  which was in Attachment B.I «.,
Escalation Factor were it states, "The following costs and rates are subject
to escalation.  These costs and rates  may be adjusted by up to 6% plus the
estimated annual percentage increase in  the CPI annually and changes are
effective on January 1-  a. Direct  labor costs, b. Equipment, materials,  and
supplies, and c. Subcontractors' costs (See Section 3.1 of this attachment) "
The contracts for Delta and Barr Engineering Company contained the above
language  The contracts for CDM, Inc. and  Malcolm Pirnie, Inc. contained
language that differed as follows,  "....  These costs and rates may be
adjusted by  up to 8%  (on the average)  annually and changes are effective

Since January 1990 was the first year  annual increases were allowed under
MSII, the Authorized Agents and the procurement specialist discussed how  these
increases would be approved equally and  within the limits of the contract.
Since the contracts were considered identical except for the profit payable
and subcontractors, it was decided  by  the Authorised Agents and the
procurement  specialist to allow the contractors to adjust their direct costs
on the average.  The procurement specialist recalls discussing the issue  of
allowing direct cost increases on an average for all MSII contractors, but
cannot remember if the decision was made by the MPCA's contract officer or
someone at  EPA.   In the future, written  documentation regarding information
such as this will be sent to the file.
                                       32

                                   Report No.   E5FGF4-05-0138-4100488

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                                                          Ritmri  Post  and  Pol*
                         Minnesota Suparfund  Cooperative  Agra•mant

                                                                     APPENDIX  1
                                                                     Page  15 of  19
 Mr   Anthony C  Carrollo
 Page 15
 June 28. 1994
 Barr  requested an annual adjustment  for 1990 direct costs and indirect  rate on
 January 4, 1990   At the time of  the  request, they were unaware  of  changes in
 equipment, material, supplies or  subcontractor' E costs   They reserved  the
 right to modify these costs in the near future if they were  informed  of any
 increases   Their direct labor costs  were within che allowable six  percent
 plus  the estimated annual percent increase in the CPI

 Delta requested an annual adjustment  for 1990 direct costs and indirect rate
 on January 31. 1990   As it was unclear by their request what the new 1990
 rates were for labor,  equipment, materials,  supplies,  and subcontractor's
 costs, it was discussed at the February 16,  1990,  quarterly  contractor
 evaluation meeting.  The Authorized Agent for Delta stated that  the MPCA had
 received Delta's request for an increase in direct rates  It was noted in the
 minutes of the meeting that,  "Specific numbers were received,  but we  need the
 percentage (average increase!  of the  increase.   The cap according to  the
 contract  (Attachment B,  page B-2i is  6% plus the estimated annual percentage
 increase in the CPI annually ' Delta also mentioned at that  time that they
 would contact their subcontractors to see if they had any cost increases and
 if so, would include this information in the direct rate follow-up  letter to
 the MPCA

 On February 26,  1990,  Delta submitted a follow-up letter to  the MPCA's request
 at the quarterly contractor evaluation meeting   Delta's direct labor costs
 had increased on the average 12 15 percent higher than the 1989 costs.
 Delta's equipment and material charges remained  unchanged.  Historical project
 billing information indicated  that approximately 80 percent of Delta's billed
 amounts was direct labor costs and approximately 20 percent of Delta's billed
 amounts was equipment  and material charges.   On  the average,   the labor,
 equipment, and materials price increases were therefore 9.72  percent  (12.15
 percent x 80  percent of  direct labor and 0 percent  x 20 percent of equipment
 and material  billings) .   Subcontractor costs also remained unchanged.

 The contract  states that these costs and rates may  be  adjusted by up to six
 percent plus  the estimated annual percentage increase  in  the  CPI  annually.
 The MPCA's interpretation of this contract language was that  direct cost
 (direct labor cost*,  equipment, materials, and supplies,  and  subcontractor's
 costs) increases on the  average may not exceed six  percent plus che annual
percentage increase in the CPI.  This rationale  was based  on  che  fact  that  two
 of the four contracts  explicitly stated that cost and  rate adjustments would
 be based on the  approved percentage on an  average annually.  The  MPCA
 considered all contracts identical except  for the profit payable  and suite  of
 subcontractors at  the  time of  execution.

During the review of Delta's 1990 direct labor rate adjustments,  the MPCA
 recognised that  a  few  of the direct labor  rate categories had substantial rate
 increases.  This was discussed with Delta  since  the MPCA's costs  for Superfund
clean-up activities would be considerably  higher.   Delta felt that the 1990
direct costs  were  fair and reasonable based  on the  external marketplace
 conditions   Delta also  explained that when  the  consulting firm was hired
under MSII, it was a smaller firm Chat was expanding rapidly.
                                      33

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                                                         Ritari  Poet  and  Pol*
                        Minnesota  8up«rfund  Cooperative  Agreeaent

                                                                     APPENDIX  1
                                                                     Page  16  of  19
Mr  Anthony C  Carrollo
Page 16
June 28, 1994
Additional staff at higher competitive pay rates was hired  and a number of
existing staff vas being promoted  (i.e  Project Professional II at $18 47 to
Senior Professional II  at $26.64)

As a part of the review process. Delta's proposed 1990 direct labor rates were
compared with the other three contractor's rates and Delta's rates were lower
in some labor categories   please refer to the enclosed document titled,  "MSII
Contracts Approved 199C Direct Labor Rates Comparison" in Attachment C.
Delta's direct labor races were substantially lower in the  upper ranges
iceilings)  of each labor category   Alsc taken into consideration was Delta's
1990 indirect rate.  An increase of 0 2C U 40 to I 60)  was requested and
approved   With General and Administrative expenses included, Delta's indirect
rate was actually calculated as 2.304.  Again.  Delta only requested an
indirect increase of 0.20 as it was their interpretation of a competitive rate
within the industry at  that time.

When calculating direct labor rates. Delta taXes the average of all direct
rates of personnel within a labor category d e.  Project Professional II.
Averages were based on  direct labor rates   This was considered most cost
effective and reasonable at that time since the consulting  firm was expanding
rapidly and labor rates were constantly changing due to additional staff  being
hired at various labor  rates compared to market rates and the uncertainty of
what staff would be working on Superfund projects.   A comparison was Bade of
the direct rates versus the average rates charged by Delta on a Site invoice
and it was determined that the total average labor rates charged for that
invoice were less than  the total direct labor rates provided by Delta.   Please
see the enclosed documentation in Attachment C (August 1990 invoice and
direct versus average labor rate* for the three staff listed in the invoice).

The MPCA wanted to be fair and equitable in its approval of Multi-Site
Contract direct cost  and indirect rate escalations   It  was understood  and
made clear that these approvals must be within the guidelines of the contract.
All contractors were  reminded during quarterly evaluation meetings and
telephone conversations what the contract allows as an escalation factor
according to the MSII Contract.  He felt that our review of these cost  and
rate escalations were allowable based on reasonableness, allocability,  and
generally accepted accounting principles and procedures.

The MPCA felt that Delta's request for a 9.72 percent (average)  increase  in
1990 direct costs (approximately SO percent direct labor and 20 percent
equipment and materials) was reasonable and within the escalation factor
guidelines of the contract.  A direct labor rate comparison among the
contractors was made  at that time to ensure the rates were reasonable.
Discussions and additional information was also requested from Delta in order
to better understand the direct labor rate increases.   In addition,  review of
Delta's August 1990 invoice has proven that the MPCA actually paid less for
average direct labor rates than the direct labor rates.

To avoid confusion and  standardize contract compensation, the Multi-Site  III
(MSIII) contracts effective April 2, 1993,  list individual salaries for each
staff person.  The contract also allows the Contractor's Corporate Policy to
                                      34

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                                                          Ritari  Post and  Pol*
                         Minnesota  suparfund  Cooperative  Agreement

                                                                     APPENDIX  1
                                                                     Page 17  of  19
 Mr  Anthony  C  Carrollo
 Page l">
 June 28,  1994
 dictate  allowable increases based on promotion tc a higher class   This new
 contract  eliminates individual labor categories and average annual  increases
 for labor, equipment,  and subcontractor  costs

 To ensure that the appropriate supporting  cost documentation is submitted  for
 future direct labor rate increases,  MSIII  contractors were informed at  their
 March 1994 Quarterly Evaluation meetings with the MPCA of the need  to submit
 documentation of personnel rate increases  when revising contractual labor
 rates.   Documentation could be in the form of a pay or status form,  current
 company  salary listing or individual personnel raise authorization
 memorandums.  This documentation must be in order before the MPCA will  approve
 future labor rate increase requests  and  is also required to be submitted for
 January  l, 1994,  increases already received

 Review Of Contractor Indirect  Cost Rates

 It  was noted that there were concerns over approved indirect rate increases
 for Delta.  It was questioned  whether the MPCA has adequate assurance that
 Delta's indirect  rates include only  costs allowable under federal cost
 principles.   Per  the MSII contract,  MPCA approves indirect  rates based on
 either an audit report or a letter from  a reputable accounting/auditing firm
 certifying that the  audit was  performed  in conformance with the cost
 principles contained in Federal  Acquisition Principles regulations.  Concerns
 were  raised  regarding  the MPCA's limited review of these  reports and problems
 found during an audit  of a cost  proposal from another  Delta office

 Delta submitted an independent accountant's report supporting  an indirect rate
 of  240 percent  for 1989    Delta's  negotiated indirect  rate  for 19B9  (original
 contract I was 140 percent.   In 1990,   Delta requested an increase from 140
 percent to 160  percent which was approved by the  MPCA.  Delta's indirect rate
 was higher than 140  percent  for  1989  and 160 percent for  1990, according to
 independent  audit reports submitted by Delta.

 Delta submitted an independent accountant's report supporting an indirect rate
 of 240 percent  for 1991.   The report  indicated  that the computation fairly
 represented  Delta's  overhead rate.  It was  noted  in the MPCA's audit report
 that sone of  the  indirect  costs  listed were considered to be unallowable (i.e.
 overtime  premium).   Also,  there was concern over  a O.S. Postal Inspector's
 report on the audit  of a price proposal submitted by Delta's Sacramento
 office   Indirect cost  rates from  the Sacramento  office were similar to  those
 submitted to  the  MPCA.

The MPCA does not have an  auditor on staff    The Minnesota Department of
Transportation  (MnDOT) does a large amount  of highway work with federal  funds
and we contacted  them  to  see if they have contracted Delta in the past five
years and if  so,  did they  have an approved  (audited) indirect rate for Delta
Information we  received was that they had contracted Delta, however, they did
not have  an approved indirect rate for 1991  The  approved indirect  rate for
1990 was  239.62 percent  (document enclosed  in Attachment C), proposed indirect
rate for  1991 was 267.90 percent (but not approved), and the approved indirect
rate for  1992 was 259.00 percent.
                                       35

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                                                        Ritari  Post and  Pol*
                       Minnesota  Suparfund  Cooperative  Agreement

                                                                   APPENDIX  1
                                                                   Page 18  of  19
Mr  Anthony C  Carrollo
Page 18
June 28,  1994
In comparison.  MnDOT's approved indirect cost  rate  for Delta  (1990)  was the
same as MPCA's  approved indirect cost rate for Delta  (1991).  KnOOT requires
consulting firms to  submit an independent auditor's report and also has staff
that conduct desk audits of these indirect cost  rates

The MPCA will arrange to have an independent audit  of Delta's 1991 indirect
rate by an auditor if requested.  The MPCA intends  to either hire an auditor
or contract with an  independent auditor (to include the State Legislative
Auditor)  for specific needs such as indirect cost determinations   This will
ensure the audit reports are complete and indirect  rates do not contain any
unallowable costs

Submission Of Documentation Supporting Contractor Invoices And Review Of
Contractor Employee  Time Sheets

It was noted that Delta did not submit supporting documents with its invoices
on a consistent basis.  The MSII contract requires  supporting documents to be
submitted for reimbursable expenses in excess  of $25.00.  MPCA also needs to
examine Delta's tune sheets to ensure direct labor  charges are accurate. In
addition,  MPCA  must  ensure that hours billed by  Delta are actual hours worked
on MPCA projects.

The MPCA is currently addressing the concern over invoice reviews   To assure
proper documentation the procurement specialist  will be conducting periodic
audits of invoices received from the MSIII contractors.  Supporting documents
for reimbursable expenses in excess of $25.00  will be required to be submitted
with all invoices.   These audits will also include a detailed review of the
contractor's direct  labor charges in comparison  to personnel time sheets which
will be requested from the contractors prior to  the periodic audit.   Direct
labor and equipment  charges will also be compared to the approved rates in the
contract.

In order to improve  the internal controls of contract management,  a mandatory
project manager and  Authorized Agents training session is scheduled for July 21.
1994,  at the MPCA to address proper invoicing  subnittals and reviews (this
portion will be open to MSIII contractors to attend also).   The training session
will also focus on a policy for charging/allocating leave time to federally
funded sites and the need for documentation of all BPA decisions and approvals
in writing.   Please  see the enclosed project manager training session agenda for
details on topics to be discussed.

In addition to  the above training,  additional  training and/or guidance will soon
be available to MPCA staff regarding contractor  performance evaluations, code of
ethics/conflict of interest, statement of work models, cost and price analysis
of Independent  Government Cost Estimates,  and  overall contract management.  The
Office of Superfund  in Region 5 has formed a work group including states to look
at these contract management issues.  This work  group is currently developing
guidance in these contract management areas.   One of the main areas of concern
is the cost and price analysis requirement under federal procurement
regulations, 40 CFK  Part 35.  States need clarification a.)>J guidance on what the
requirements are for a thorough cost and price analysis.  The MPCA Superfund
                                      36

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                                                       Ritari  Post  and  Pol*
                        Minnesota  Buperfund  Cooperative  Agreeaent

                                                                  APPENDIX  1
                                                                  Page  19  of  19
 Mr  Anthony C  Carrollo
 Page 19
 June 28,  1994
 Cooperative Agreement/Contract Administrator  IB a member of  this work group and
 will be providing guidance to MPCA staff once the work group finalizes the
 guidance documents

 In closing, MPCA appreciates the opportunity  to review and comment on the draft
 Audit Report   MPCA has expended a very significant level of effort to represent
 in this letter to EPA that MPCA has in fact followed all applicable contract
 law, policy and regulations in hiring contractors and expenditure of funds
 awarded through cooperative agreements   Additionally,  enhancements to internal
 controls are being made to provide for continuous quality improvement in
 contract administration   MPCA expects EPA to incorporate its expressed interest
 in partnering with states by acknowledging the information presented in this
 letter and making a final determination that all costs claimed shall be
 allowable   Please contact me at (612) 296-7333 to discuss this matter as you
 see fit
/James L  Warner,  P.E.
 Division Manager
 Ground Water and  Solid Waste Division

 JLW pk

 Enclosures

 cc:  Howard Levin, Chief,  Financial Analysis Section, EPA, Region 5
     JoLynn Traub, Acting  Associate Division Director, Office of Superfund,
       EPA, Region 5
     Karen Yeates, Chief,  State Relations Section,  SPA, Region 5
                                      37

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          Minnesota Superfund Cooperative Agreement
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                   38

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                    Minnesota Superfund Cooperative Agreement

                                                  APPENDIX 2
                                                  Page 1 of 1

                        ABBREVIATIONS
CERCLA    Comprehensive Environmental Response, Compensation,
          and Liability Act

CFR       Code of Federal Regulations

EPA       Environmental Protection Agency

FAR       Federal Acquisition Regulations

LRI/FFS   Limited Remedial Investigation and Focused
          Feasibility Study

MPCA      Minnesota Pollution Control Agency

MSCA      Multi-Site Cooperative Agreement

RFP       Request for Proposal

RI        Remedial Investigation

RI/FS     Remedial Investigation and Feasibility Study

SMOA      Superfund Memorandum of Agreement
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                                         Ritari Post and Pole
                    Minnesota Superfund Cooperative Agreement

                                                 APPENDIX 3
                                                 Page 1 of 1

                         DISTRIBUTION

Inspector General  (A-109)

Regional Administrator Region 5

Region 5, Office of Superfund

Region 5 Followup Coordinator (Chief, FAS)  (MFA-10J)

Region 5 Public Affairs  (P-19J)

Region 5 Intergovernmental Relations Officer  (R-19J)

Region 5 Library

Agency Followup Coordinator  (PM-208);
     Attention:  Assistant Administrator for the Office of
     Administration and Resources Management

Agency Followup Coordinator  (H-3304);
     Attention:  Director, Resources Management

Associate Administrator for Regional Operations
  and State/Local Relations  (H-1501)

Headquarters Library  (PM-211A)
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                           Report No.  E5FGF4-05-0138-4100488

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