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.
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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.
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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.
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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
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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?
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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.
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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
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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).
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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.
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?a*e No.
10/27/89
HEADQUARTERS SUPPORT CONTRACTORS WHO ALSO
HAVE RESPONSE ACTION CONTRACTS
:C'N'7?ACT NO.
DESCRIPTION
AWARDED EXPIRED
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08/13/88
07/27/88
02/01/88
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10/01
06
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** 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
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