UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. DC. 20460 uol OERR Directive Mo. 9242.6-04 MEMORANDUM SUBJECT: OERR Organizational Conflict of Interest Review and Approval Program (Super fund Management Review: Recommendation No. 46. C) FROM: Henry L. Longest II, Director ' Office of Emergency and Remedi, To: OERR Division Directors tponse Purpose; To transmit new procedures regarding the avoidance of organizational conflicts of interest for work assignments under the Superfund Headquarters support contracts. Background.; Superfund has been criticized for the appearance of actual or perceived conflicts of interest regarding contractors providing both response action activities and Headquarters support activities. The Federal Acquisition Regulations define organizational conflicts of interest (OCI) as existing "...when the nature of the work to be performed under a proposed Government contract may, without some restriction on future activities, (a) result in an unfair competitive advantage to the contractor or (b) impair the contractor's objectivity in performing the contract work.11 The Superfund Management Review contains several recommendations concerning the avoidance of real or perceived conflicts of interest relating to our Headquarters support contracts. These recommendations include 1) precluding Response Action Contractors (RACS) from competing on future Headquarters support work, 2) voluntary disclosure of potential conflicts of interest by contractors and 3) the exercise of appropriate care by the Superfund program in issuing work assignments. OERR has been tasked with implementation of the third recommendation. ------- - 2 - Three of the four management support contractors in OERR are currently RACS (ICF, CH2vM Hill and Roy F. Weston). Internal and external critics have expressed three major concerns related to potential conflicts of interest situations created in our use of these contractors: o Concern that information provided by these contractors as they assist us in compiling policy and guidance documents may be biased toward more work for the contractor, rather than streamlining the program; o Concern that the use of these contractors in support of the Agency's deliberative process may actually influence and help determine policy decisions; o Contractor involvement with PRP work while simultaneously working with the agency may lead to the contractor's either deliberately or inadvertently influencing agency policy, as well as allowing the contractor to provide advice to PRPs on Agency strategy. Internal Agency review of current work assignments suggests specific instances cited by critics are often matters of perception rather than reality, where sloppily written work assignments suggest that contractors play a heavier role in supporting agency decisions than in fact occurs. In addition, sensitivity to concerns of OCI may lead us to make different decisions as to which contractors receive what kind of work assignments, and may, as resources allow, ask us to make different decisions regarding which work is conducted in-house or by contractors. Objective: To eliminate actual organizational conflicts of interest in work assignments under Superfund Headquarters support contracts and to take appropriate steps to mitigate the perception of conflict wherever possible. Implementation t / Given tAt perception that Headquarters support work may provide icr, CB2M Hill or Weston with an unfair competitive advantage and/or affect the objectivity of their work, we need to improve our sensitivity to the conflict of interest issue and establish procedures to ensure adequate review of all new work assignments. ------- As of November 1, 1989, all new work assignments will require signature by Division Directors. In addition, the attached OCI Checklist will be required as part of each new work assignment package. This Checklist is designed to ask OERR managers to review work assignments and determine whether or not a real or perceived conflict of interest has been identified, and to take such steps as may be appropriate to mitigate this potential OCI. Mitigative steps are to be documented for the work assignment record. Admittedly, the determination of a conflict of interest or the potential for conflict is a very subjective area. There are no set rules and regulations that address OCI, other than the FAR definition. Therefore, to assist in the review and preparation of the Checklist, attached are guidelines and examples that attempt to further define OCI. These procedures will apply to all new work assignments and amendments to those work assignments that add or change the scope of work issued to any of the Headquarters support contracts that are also RACS. Amendments to work assignments issued prior to the effective date are not covered by this directive. However, you are expected to assure to the best of your ability that no conflicts exist regardless of when the assignments are issued. We will be revising the work assignment forms to accommodate these new requirements. I would also like to point out that we have met with ICF and CH2M Hill regarding steps that can be taken on their part to mitigate conflict of interest problems. We will be meeting with weston in the near future. With regard to ICF, work under the Headquarters support contract will not be performed by their engineering staff (ICF Technology, Inc.) who support the response action contracts. If they require technical review of documents, they are to notify the EPA work assignment manager to receive approval on who may perform this review (EPA staff, another contractor, or another outside source). Headquarters support work done by CH2M Hill will be limited to technical analysis and associated reports only. They will no longer prepare draft guidance documents, .draft EPA reports or other follow-on work resulting from the technical analysis. Work assignment managers should eitJier perform this work in-house or direct it to another support contractor. ------- - 4 - These procedures should be considered to be pilot procedures We will work with a team of Division managers and work: assignment managers to evaluate the process and develop improvements. Any questions regarding this directive or the attached procedures should be directed to Debbie Dietrich or John Comstock of the CORAS Staff at 475-9349. Attachments cc: Jon Cannon Thad Juszczak Bruce Diamond Dave O'Connor Jeff Byron Janet Grubbs Nancy Livingstone Fran Hanavan ------- Contract Number Work Assignment Number ATTACHMENT OCI CHECKLIST (See attached instruction sheet for example responses to these questions,) l. Contractor assigned ( v check) 2. What is subject area?. 3. what is type of work?. ICF Roy F. Weston CH2M Hill YES NO Will the work to be performed under this work assignment in any way impact, influence or impair the contractor's objectivity in performing the work under their response action contracts? If yes, provide an explanation. 5. Will the work being performed under the contractor's response action contracts in any way impact, influence or impair the contractor's objectivity in performing the work under this work assignment? if yes, provide an explanation. 6. Does the contractor plan to subcontract all or part of the work required? if yes, who is the subcontractor and will they have any real or perceived conflicts? ------- - 2 - YES NO 7. will the work to be performed under this work assignment involve Confidential Business information? if yes, explain safeguards to avoid actual or perceived conflicts of interest. Are you aware of any other factors which could place the contractor in a position in which its judgment could be biased in relation to its work under this work assignment? If yes, provide an explanation. 9. Are any of the above questions answered in the affirmative or, are there other issues that create perception issues if the work assignment is issued? If yes, some of the options to mitigate the conflict or perception would be to: (a) Issue the work assignment to another contractor where the conflict can be avoided or lessened. (b) Bring the work in-house, if resource shortages prohibit accomplishment with la-House FTl, possibly other in-house •fforts would lend themselves better to contracting out and create less of a conflict issue. (c) Consider eliminating those portions of the work assignment that create the conflict. (d) Perform a technical review by EPA staff to ensure that potential biases in work products are identified and eliminated. ------- BASED UPON THg RESPONSES; I/We feel that the issuance of this work assignment ( ) will, ( ) will not create a real conflict of interest. I/We feel that the issuance of this work assignment ( ) will, ( ) will not cause a perception of a conflict of interest. If the issuance will cause a perception problem, the following steps have been taken to mitigate that perception: In consideration of the above findings, I recos«end approval: Work Assignment Manager Date I have reviewed the above findings and hereby determine that, in my opinion, all reasonable steps have been taken to •itigate any perceptions of conflict of interest and that the need for the work reflected in the work assignment is greater than any regaining perception issues: Division Director Date ------- PCI CHECKLIST INSTRUCTIONS 1. Self explanatory. Check the appropriate contractor. 2. Examples of "Subject Area" would be: o Emergency; Removal o Pre-remedial Site Studies/Investigations o NPL Listing o Remedial Investigation/Feasibility Study o Clean-up standards o Technical Specialization (eg., ground water, air, etc.) o Technology o PRP Searches o Other Enforcement o Remedial Design o Construction o Resource Planning o Other Appropriate Designation 3. Examples of "Type of Work1* would be o Data collection o Report compilation o Alternatives analysis o impact analysis o Case study development o Issue paper development o Data analysis o Option analysis o Option development o Model development o Record consolidation o Create data base o Any otner appropriate designation 4. Some examples would be: Example 1. Analysis of alternatives to streamline analytical data reviews (to be performed by an ESAT contractor). ------- Example 2. Create a data base of the ratio of travel dollars to labor hours on Superfund's response contracts (to be performed by a TAT contractor). 5. Some examples would be: Example l Example 2. 6. Development of an issue paper to determine alternatives to minimize construction claims in the RO/RA phase of clean up (to be performed by an ARCS contractor). Identify weaknesses in conducting public meetings regarding clean up strategies (to be performed by a response action contractor that supports public meetings). Self explanatory. Be aware of one support contractor subcontracting to another support contractor. There may be a more efficient method to obtain the services. 8, 9- "Confidential Business Information" means any information which pertains to the interests of any business, which was developed or acquired by that business, and (except where the context otherwise requires) which is possessed by the EPA in recorded form (CFR 40 Part 2). It is our responsibility to protect such information from disclosure. Therefore, safeguards must be in place to avoid such disclosure. Confidential Business Information, such as indirect cost rates, released to a competing firm could create a conflict of interest. Self explanatory. Self explanatory. ------- ?a*e No. 10/27/89 HEADQUARTERS SUPPORT CONTRACTORS WHO ALSO HAVE RESPONSE ACTION CONTRACTS :C'N'7?ACT NO. DESCRIPTION AWARDED EXPIRED * * •5 3 6 -. lf\ *< - „' 1 -#j - W9 63-WS 65 68 63 -WS -W8 -WS ::M H:L: -"251 - Ci 0 4 9 -0031 -0112 -0095 -0040 -0090 ?E,f AFCS ARCS ARCS TECH ARCS ARCS IV. REG REG REG RE 4 9 6 sapp REG REG 5 3 G 5-10 . 10 f CH2M ) -8 (HILL) (HILL (HILL (HILL TECH ) ) ) 11/19/35 05/25/39 03/24/89 08/13/88 07/27/88 02/01/88 06/03/88 05 05 03 / 3 0 /24 /31 10/01 06 /30 01/31 06 /9u /39 /98 /91 /98 /02/99 ** ICF TECHNOLOGY. INC. 68-01-7456 ESAT ZONE II, Rege 4 ,6-10 & HQ 6-S-W8-0124 ARCS REG 2 (ICF) 68-W9-0059 ARCS REG 9. 10 «* ICF. INC. 68-01-7389 68-01-7481 POLICY/ANALYTICAL SU PPORT (ICF) ANAL. TECH & MGMT SVCS FOR OSWEB ** ROY F. WESTCN. INC. 68-W9- 68-01- 68-01- 68-03- 68-03- 58-W9- 63-W9- 63-W9- 68-W9- 68-W8- •0015 •7367 7443 3450 3482 0018 0022 0046 0057 0089 2,3.45 ARCS REGS 6-8 (RFW) TAT ZONE I, REG 1-5 ESAT ZONE I. Rece 1 OHMSETT OPERATIONS RESPONSE ANALYTIC & ENGINEERING (REAC) ARCS REG 1 (WESTON) , 10 (WEST ON) ARCS REG 2 ARCS REG 9 ARCS REG 4 ARCS REG 5 09/30/87 09/29/91 09/30/88 09/29/98 06/28/89 06/30/99 fWESTON) 04/22/87 10/01/87 02/10/89 12/16/86 07/27/87 06/10/87 09/02/87 02/22/89 03/10/89 05/01/89 06/16/89 06/01/88 04/14/91 03/31/91 12/31/55 09/30/30 07/26/91 09/30/91 08/31/92 02/22/99 03/09/99 04/30/99 06/15/99 05/31/96 ------- |