SUPERFUND
DESIGN
and
CONSTRUCTION
From: Hazardous Site Control Division
To: EPA Regional Offices
Update
December 1988
Vol. 2, No. 5
ISSUES:
ALTERNATE WATER SUPPLY
GUIDANCE
'Guidance Document for Providing
Alternative Water Supplies" (OSWER No
9355 3-03) has been finalized and is avail-
able for use by Superfund contractors and
Federal, State, and local officials to assist
with the planning and implementation of al-
ternate water supplies at uncontrolled
hazardous waste sites
The document provides guidance for those
sites that require provision of an alternate
water supply as either a non-time-cntical
removal action or a remedial action before
implementation of a final remedy can be
achieved This guidance does not provide
direction for situations requiring an emer-
gency or tome-critical response Such
activities should be performed in accor-
dance with Superfund Removal Procedures
(EPA 1987) guidance
DELEGATION OF AUTHORITY
TO SIGN FINAL DELETION
NOTICES
On October 6, 1988. Lee Thomas signed a
revision to the Delegation of Authority 14-
17-A, allowing Regional Administrators to
sign both proposed and final Federal
Register notices for deletion of sites from
the National Priorities List (NPL) The
previous delegation language, signed Sep-
tember 13. 1987, required the concurrence
of the Assistant Administrator for Solid
Waste and Emergency Response (AA/
OSWER) on the Intent to Delete and the
Final Notice of Deletion Under the revision,
the AA/OSWER still retains his/her authority
to add sites to the NPL
The guidance document, "Procedures for
Completion and Deletion of National
Priorities List Site' (OSWER No
9320 2-3A), has been finalized and
distnbuted to each RA The guidance
reflects the revision to EPA Delegation
14-17-A For copies or information call
Doug Samo at 202-475-6704
SUPERFUND
TREAT ABILITY TESTS
The "Treatability Studies Sample Exemp-
tion" final rule, which amended 40 CFR
Parts 260 and 261, was published in the
Federal Register on July 19, 1988. The
intended impact of this final rule was to
promote the development of alternative
studies The rule conditionally exempts
small quantities of hazardous waste which
are utilized in small-scale treatability studies
from the RCRA hazardous waste regula-
tions including the collection, transport,
storage, and testing of such samples By
exempting such studies from the normal
permitting requirements, it is expected that
a greater number of off-site studies will be
undertaken involving a wider variety of
waste streams and innovative technologies.
(Note. The treatability study exemption" is
different from the "treatability variance" from
BDAT standards contained in 40 CFR
26844)
The new rule became effective immediately
in the 12 states and temtones lacking base
RCRA authorization All states with RCRA
authorization must incorporate this rule into
their state program before the exemption
can take effect Various coping strategies
have emerged while the states move
forward with their rule adoption activities
States may authonze treatability studies in
the interim, based upon the existence of the
federal rule, or they may issue permit
waivers where their existing rules have such
a provision Where approvals cannot be
obtained, project managers may design on-
site treatability tests (which may be more
limited in scope) or they may forego such
tests all together and resort to proven
technologies which may be more costly In
order to prevent the necessity of the latter,
EPA is calling upon both its Regional staff
and its state partners to work diligently
toward a timely state adoption of the
equivalent of the new exemption rule.
POST ROD SIGNIFICANT
CHANGES
During the past several months, there have
been a number of inquiries on how to
address significant changes that anse after
the ROD is signed The Regions and States
should refer to Chapter 8 of the "Guidance
on Preparing Superfund Decision Docu-
ments The Proposed Plan and Record of
Decision" (OSWER No 9355 3-02), for the
(continued on page 4)
Reaching the '175* RA Start Goal
rl75
-100
Status as of
December 1988
Deadline: October 16,1989
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RESPONSIVENESS AND
RESPONSIBILITY IN SEALED BIDDING
By Jack Taylor
Design and Construction
Management Branch
Hazardous Site Control Division
Two concepts that are the source ot some
confusion in sealed bidding procurement
are responsiveness and responsibility
Some of this confusion, no doubt, results
from the similarity of the woids They both
come from the same root, response,
which means an answer Both concepts
do involve answers
The first concept, responsiveness, refers to
the bid itself as an answer or a response to
an Invitation for Bids (IFB) A sealed bid,
which is an offer to do the work, is
considered responsive if it is a complete,
unqualified bid (not modified by restrictions)
that conforms with all the conditions of the
solicitation Basically, this means that all the
blanks are filled in, all conditions are
complied with, all signature lines are
signed, all requested information is pro-
vided, and no qualifications to performance
are added by the bidder A bid that
conforms exactly with all the literal
requirements of the IFB would bs. a
responsive bid
Not all nonconforming bids are considered
nonresponsive, however Nonconforrnities
can be either material or immaterial An
example of a material noncnnformity that
could render a bid nonresponsive would be
the failure of the bidder to give requested
prices for all items in the bid schedule By
not providing these prices, the bidder has
failed to offer to do this work The informa-
tion cannot be added after the bid opening.
since at the time the prices given by the
other bidders would be public knowledge In
this case, the nonconforming bid would be
dismissed as nonresponsive This determi-
nation of nonresponsiveness is a relatively
objective process, minimal discretion is
exercised by the contracting officer
An immatenal nonconformity that does not
affect the fairness of the competitive
bidding, and will not affect the performance
of the work, will not render the bid nonre-
sponsive Failure to provide the requested
number of copies of specific certificates
would be considered an immaterial noncon-
formity Failure to sign the bid could be
considered immatenal if there is other
evidence of the intent of the bidder to be
bound, such as a signed letter from the
bidder attached to the bid package
The second concept, responsibility, refers
not to the bid but rather to the bidder
himself A determination of responsibility
answers the question, Can the bidder actu-
ally do the work 7 To determine whether a
bidder is responsible, the contracting officer
will look at such things as the bidder’s
financial resources, facilities and equipment,
management and technical capabilities,
licenses and permits, ability to comply with
the schedule, and record of performance
Deiermining responsibility is a more
subjective process than determining
responsiveness, and the contracting officer
exercises much discretion In the area of
financial resources, for example, the
contracting officer can look at working
capital, the ratio of assets to liabilities, and
the liquidity of assets to determine if the
bidder can meet the cash flow requirements
of the project In looking at the ability of the
bidder to meet the schedule, the contracting
officer can look at current commitments and
past performance Some projects will re-
quire special equipment and technical skills
For these projects, the ability of the bidder to
provide the special skills and equipment
becomes a matter of responsibility
Jennifer Haley
475-6705
Victona van Roden
475-9839
Caroline Roe
475-9754
Robin Anderson
382-2446
Lisa Carson
475-9758
Steve Golian
475-9757
Tish Zimmerman
382-2461
Eydie Pines
475-9759
Eydie Pines
475-9759
Unlike a determination of responsiveness, a
determination of responsibility is not a
closed subject after the bid opening A bid is
deemed responsive or nonresponsive on
the basis of the bid itself at the time of the
bid opening No fl6W information or addition
to the Did will be allowed after the opening
The responsibility of the bidder, however,
can be changed between the time of ti’e bid
opening and the time of award The bidder
has the opportunity to cure his deficiencies
For example, he can obtain financing to
remedy a cash flow problem or hire special
expertise to meet special IFB requirements
Regardless of the method of procurement,
the bidder or offeror must be determined
responsible before the contract is awarded
On the other hand, responsiveness is
un.que to sealed bidding The concept is
used to maintain the fairness of the
competitive bidding environment It ensures
that all bidders are bidding on exactly the
same specifications, and it requires each
bidder to put all of his cards on the table at
precisely the same time as everyone else
RD/RA
Ed Hanlon
475-6706
Jack Taylor
475-8246
Ken Ayers
382-2348
Ken Ayers
382-2348
Doug Sarrio
475-6704
Doug Sarno
475-6704
Doug Sarno
475-6704
Ben Hamm
382-7998
Karen Locke
382-7997
Karen Locke
382-7997
HAZARDOUS SITE CONTROL DIVISION
REGIONAL COORDINATORS
Rl/FS
Region I
Region II
Region It!
Region IV
Region V
Region VI
Region VII
Region VIII
Region IX
Region X
Eydie Pines/lish Zimmerman
475-9759
1L - 5
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NYANZA SITE BID TABULATION
The Nyanza Chemical Waste Site is a 63-
acre indusinal complex located in Ashland,
Massachusetts The major contaminants
are heavy metals, pnncipally mercury and
organ cs
This remedial action includes excavating alt
outlying sludge deposits and contaminated
soils and sediments to background levels,
capping, onsite, this matenal and other
sludge deposits, building a groundwater and
surface water diversion system, backfdling
excavated areas to onginat grade and
revegetating wetlands, and constructing a
groundwater monitonrig network to evaluate
the effectiveness of the cap
Bids were opened on March 23, 1988 by
the U S Army Corps of Engineers
(USACE), with an apparent low bid of $8 3
million, the Government estimate was $129
million Two pre-award protests were re-
ceived from a firm on April 1 and May 17
After receiving EPA’s Input regarding the
applicability of the land ban toward this
project, Omaha District’s Office of Counsel
contacted the firm and requested their
protest be withdrawn The firm dedined,
therefore, the protests were submitted to
USAGE Headquarters for resolution
USAGE Headquarters denied both protests
on August 3, 1988
A third pre-award protest based on
unacceptable bid guarantees was filed on
May 23 by the apparent low bidder through
the General Accounting Office (GAO) in
Washington, 0 C A July 7 preliminary
hearing was held at GAO’s office with
representatives from the firm and Omaha
Distnct’s Office of Counsel The firm
declined to dismiss their protest which GAO
decided against on August 16
On Auguct 18, the firm with protests
previously denied by USACE Headquarters
protested the Corps’ decision to GAO
Region I asked for an expedited GAO
decision, which normally requires 90 days
(an express option requires 45 days from
the protest filing date) On September 1,
word was received that the express option
was not granted On October 3 the firm
withdrew their protest from GAO
Four pro-award protests delayed the award
of the contract for 6 months Upon evalu-
ation, the contract was awarded on October
13, 1988, to Tncil Environmental Response,
Inc , Houston, as the lowest responsive and
responsible bidder
Table I shows the range of bid totals from
lowest to highest, for all bidders The
government estimate is included Table 2
shows a bid breakdown of the government
estimate and the three lowest responsive
and responsible bidders
Table 1
RANGE OF BID TOTALS, NYANZA SITE
(Apparent Low Bid)*
Tricil Environmental Response
Rollins Environmental Service
Sevenson Environmental Services
Site Preparation Contractors
Geo-Con
0 H Materials
Government Estimate
Ebasco Constructors
J H Reid, General Contractor
Metcalf & Eddy
Haztech
$ 8,282,893 60
$ 8,566,034 00
$ 10,332,724 65
$11,239,181 50
$12,146,408 00
$12,379,240 65
$12,481,290 00
$12,884,658 00
$13,112,411 92
$13,551,375 00
$13,998,156 00
$14,199,738 00
$14,478,253 84
Chemical Waste Management
*
Eiiminated as Nonresponsive
Table 2
BID BREAKDOWN: GOV’T ESTIMATE VS THREE BIDDERS
Mobilization, Permits
Health and Safety
Government TrIcIl,
Estimate Houston, TX
Temp/Perm Facilities
Excavation
$ 929,897
Rollins,
WilmIngton, DE
1,073,659
$1,775,000
Drai’tage Piping,Trenching, and Manholes
Sevenson,
Niagara Falls, NY
408,157
Fence and Erosion Control
654,000
$ 1,354,900
6,431,220
Solidification of Wet Soils
252,000
222,943
799,593
Cap and Capping Materials
$ 1,345,000
3,208,858
Site Restoration
124,295
339,585
353,230
870,000
Monitonng Wells
539,750
167,030
1,306,940
3,969,620
200,775
193,595
176,000
Miscellaneous Work and Close-out
1,321,667
920,000
2,940,108
314,400
312,600
1,153,343
Total
541,750
56,850
570,840
1,087,345
469,280
66,600
825,000
1,486,374
189,133
1,186,760
$12,884,658
99,600
2,202,914
259,588
$8,566,034
92,400
230,000
$10,332,725
$11,239,182
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(continued from page 1) Agency’s policy on
addressing post-ROD significant changes
The proposed revisions to the National
Contingency Plan (NCP), 40 CFR 300, pro-
vide guidance on this subject as well
After signature of the ROD, changes may be
made dunng the remedial action, enforce-
ment action, settlement, or consent decree
that differ significantly from the remedy
selected in the ROD The determination as
to whether the change constitutes a minor or
significant change is a discretionary call by
the lead agency The site-specific factors
relating to that decision and the documenta-
tion of the remedy in the ROD should be
utilized in making this determination
In general, there are three types of changes
that can occur dunng the RD/RA process
(1)nort-significant or minor changes, (2)
significant changes to a component of the
remedy, and (3 significant changes that
fundamentally alter the overall remedy
Typically, significant changes will affect the
performance, scope, and/or cost of the
remedy These changes and the procedures
for documenting them are descnbed below
Non-Significant or Minor Changes
Non-significant changes fall within the
normal scope of changes occurnng dunng
the RD/RA engineenng process Changes to
the type of matenals, equipment, facilities,
services, and supplies that do not signifi-
cantly alter the scope, performance, or cost
of the remedy would generally be consid-
ered minor These changes should be
documented in the post-decision document
file (i e , case file for RD/RA) and not the ad-
ministrative record file
Significant Changes to a Component of
the Remedy
During RD/RA, new information may arise
that could cause the lead agency to
determine that a significant change should
be made to a component of the ROD These
changes could result from treatability testing
done dunng RD or negotiations conducted
with the PRPs The lead agency could
determine, for example, that 30 percent
more soil would need to be treated, raising
the cost of the remedy from $5 to $7 million
dollars
The lead agency is responsible for prepanng
a document, typically in the form of a fact
sheet, called an Explanation of Significant
Differences (ESD) (This is a statutory
requirement of Section 117(c) of CERCIA)
This document should identify the changes
and the reasons they are being made A
newspaper notice must be published in a
local newspaper notifying the public of the
availability of this document The ESDs
should be placed in the administrative
record file, along with the supporting
information, any comments received, and
the lead agency’s response to the com-
ments It should be noted that ESDs require
neither a formal public comment penod, a
public meeting, nor a response summary
Significant Changes that Fundamentally
Alter the Remedy
The lead agency may determine that the
significant change fundamentally alters the
overall remedy in the ROD, and thus
requires an amendment to the ROD This
type of alteration would represent a
complete change in the hazardous waste
management approach documented in the
ROD For example, the lead agency
decides, based on pilot-scale tests, that bio-
remediation is no longer a feasible
technology for this site Instead, the lead
agency determines that thermal destruction
and partial containment should be selected.
The lead agency will have to amend the
ROD by undertaking the public participation
and documentation procedures specified in
Section 117 of CERCLA. it should be noted
that pro-SARA RODs that are amended will
be subject to the statutory requirements of
Section 121 of CERCLA (i.e , the clean-up
standards).
Significant Changes in the Enforcement
Process
After signature of the ROD, the lead agency
may undertake negotiations with the PRPs
that could result in significant changes to
the ROD. Where the lead agency is
proposing to make a significant change to a
component of the ROD, an ESD should be
issued concurrently with the consent
decree In the event that the negotiations
result in a proposal to fundamentally alter
the overall remedy in the ROD (o g ,from
incineration to in situ vitnfication), the lead
agency should prepare an amendment to
the ROD prior to filing or lodging the
consent decree The public comment
periods for the ROD and consent decree
should be conducted concurrently
Hazardous Materials Treatment
Technologies
SCHEDULED TRAINING
January24 to January27
February 14 to February 17
March14 to March17
Environmental Risk Assessment
Region IV
Region VII
Region IX
January31 to February 3
March 7 to March 10
Hazardous Materla s Incident
Response Operations
(FTc 8-684-7537)
Region V
Region VIII
Sampling for Hazardous Materials
(FTS 8-255-2270)
January30 to February 3
January30 to February 3
February 6 to February 10
February 27 to March 3
February 2710 March 3
February 710 February 9
Cincinnati, OH
Edison, NJ
Edison. NJ
Cincinnati, OH
Edison, NJ
Region IX
Introduction to Ground-Water
investigation
Personal Protection and Safety
(FTS 8-684-7537)
February 28 to March 2
Region V
Air Surveillance for Hazardous
Materials
January 30 to February 3
February 610 February 10
February 13 to February 17
February 27 to March 3
March 6 to March 10
March 2010 March24
March2010 March24
Region IX
Region III
Region VIII
Region II
Region VII
Region VII
Region VII
If no FTS nunther s bsted for the couise you want,
contant your Regional SLpedund Training Coordinator
ABOUT THE UPDATE
For comments, ideas, submissions, or questions about Update, please contact Karen Locke at FIS 8-382-7997 or commercially at
(202) 382-7997 For copies, contact EPA’s Public Information Center at FTS 8-382-2080 or commercially at (202) 382-2080
4
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