SUPERFUND
DESIGN
and
CONSTRUCTION
From: Hazardous Site Control Division
To: EPA Regional Offices
Update
September 1989
INDEMNIFICATION OF REMEDIAL ACTION CONTRACTORS:
OSWER Directive 9835.5, "EPA Interim
Guidance on Indemnification of Super-
fund Response Action Contractors
Under Section 119 of SARA." requires
OSWER approval before EPA indemnifi-
cation may be granted to Superfund
contractors. The authority for this
approval has been delegated to the
Director of the Office of Emergency and
Remedial Response. The approach
taken to implement indemnification of
the REM and ARCS contractors has
been to write one memorandum for the
director's signature approving EPA in-
demnification for all REM and ARCS
prime contractors. Once approval is
received, the contracting officers will be
able to modify the contracts by adding
the model indemnification clause
attached to the directive. This clause
permits the prime contractors to pass
the EPA indemnification on to their
subcontractors with the prior written
permission of the EPA contracting
officer.
Any contractors that receive EPA
indemnification are required to show
the Agency that they have made, and
will continue to make, a diligent effort to
purchase insurance from the private
sector. The guidance explains in detail
what the Agency expects to see as
proof of the contractor's diligent effort
and how often the contractor must
provide the proof. If the contractor does
receive price quotes from insurance
companies, the quotes should be sent
to Harold Snyder. Chief, Design and
Construction Management Branch OS-
220, in Headquarters for review. The
quotes will be reviewed by the Hazard-
ous Site Control Division, with input
from the indemnification task force, and
if a determination is reached that the
price is fair and reasonable, the insur-
ance will be purchased.
The process for indemnification of U.S.
Army Corps of Engineers and Bureau
of Reclamation contractors working at
NPL sites is the same as outlined
above. Again, all price quotes should
be sent to Harold Snyder. The process
may change after the Agency estab-
lishes final guidance for indemnifica-
tion. Proposed guidance is expected to
be published in the Federal Registenn
the near future for public review and
comment."
STATE SUPERFUND CONTRACTS:
In January of this year, the interim final
rule for Cooperative Agreements and
Superfund State Contracts for Super-
fund Response Actions (40 CFR Part
35) was promulgated by EPA. This rule
codifies the CERCLA Section 104
requirements for Superfund State
Contracts (SSCs) for CERCLA Reme-
dial Responses. 40 CFR 35.6800
details the contents, assurances, and
administrative requirements of SSCs.
Two specific sections of this rule may
have a significant impact on the opera-
tion and scheduling of remedial actions.
Section 35.6800(a) requires that an
SSC be in place before EPA initiates a
remedial action for any fund-lead
response. This means that an SSC with
the appropriate state must be in place
before any remedial action monies are
obligated. This includes signing an RA
Interagency Agreement (IAG) with the
U.S. Corps of Engineers or Bureau of
Reclamation or issuing a work assign-
ment with an ARCS or REM firm. To
ease this burden, bidding documents
and pre-solicrtation activities may be
performed as part of an RD IAG or work
assignment. For additional information
on this subject, contact John Smith,
Design and Construction Management
Branch, at FTS 382-7996.
The second major impact of this rule is
that no SSC may be executed after
October 17.1989, without adequate
assurances that hazardous waste
treatment or disposal facilities have
sufficient capacity to handle hazardous
wastes expected to be generated by
the State during the 20 years following
the signature of the SSC. Specific
questions on the capacity issue should
be addressed to Jan Baker, Chief,
State Involvement Section, at FTS 382-
2443. Regional project managers
should initiate contact with States to
secure SSCs as early as possible in
the remedial process to ensure that
RAs are not delayed or stopped due to
funding or capacity issues.*
Reaching the '173' RA Start Goal
Deadline; October 16.1989
r ITS
.StOtUIMOf
September 1989
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REAL ESTATE ACQUISITION:
Because it is frequently overlooked or
relegated to the last minute, securing
or acquiring needed site access has
become a major stumbling block to the
- timely initiation of remedial activities at
many Superfund sites. Obtaining the
requisite access, either for remedial
design or remedial construction
activities, has become a critical
element on the project time line for
fund-lead projects. Problems with site
access have delayed more than
20 projects during the past year.
Site access or real estate actions may
be classified as either short term
(temporary) or long term (permanent).
Short-term access generally involves
gaining entrance to the site for survey-
ing, design data collection, or other
relatively brief design activities. It may
also include securing authorization to
enter the site for construction activities
of limited duratron. Long-term interests
involve either multi-year or permanent
authorization to enter sites. This type of
agreement is usually necessary for ex-
tended or multi-year construction
periods, long-term response actions,
such as ground-water pump and treat
systems, and performance of operation
and maintenance (O&M) activities
following completion of the remedial
action.
A subgroup of long-term interests is the
cases that require the Agency to obtain
permanent interests in uncontaminated
property adjacent to the site in order to
implement the selected remedy.
Recently, an increasing number of sites
have required na! estate actions that fit
this category. In these cases, the
Agency has had two options for
obtaining the necessary real estate
interests: appropriating the needed.
interest under the authority of Section
104(e) of SARA or purchasing the
necessary interest under Section 104(j)
of SARA. The final decision to appropri-
ate or purchase the interest in the
property should be made jointly
between the Regional counsel and the
Regional program staff, with consulta-
tion from the Headquarters Office of
General Counsel and the Hazardous
Site Control Division (HSCD).
After the decision to appropriate or
purchase is reached, different proce.
dures govern the actions taken by the
Agency. If appropriation is the selected
method, Regional counsel will file the
compliance order in court. When the
decision specifies purchasing the
interest, the Region must request
approval from the Director of the Office
of Emergency and Remedial Response
(OERR) to acquire the property. Upon
approval of the request by OERR and
concurrence by the Office of General
Counsel, OERR will request that the
Real Estate and Space Management
Branch (RESMB), which is the dele-
gated authority to accept title for the
Agency, assist the Region in securing
title to the property. Regional personnel
are advised that before any interest in
real property is aquired, the SSC, with
State assurances of cost share and ac-
ceptance of title, must be in place.
It is evident from the preceding
discussion that site access issues can
be complicated and time consuming.
The best way to avoid delays due to
access issues is to identify all needs
early in the design process and to
actively pursue their resolution. To help
ease this burden, HSCD has instructed
the U.S. Army Corps of Engineers
(COE) to prepare a real estate planning
report, which will identify all real estate!
site access needed for all new COE
design assignments. This report will be
furnished to the Region before the
conceptual design stage of each
project. In addition, HSCD is now
developing guidance for real estate/site
access. The guidance will be issued in
phases with the first phase—.COE
projects—issued in the fall. This first
phase will be followed by guidance for
ARCS projects, then State-lead
projects, and finally PRP-lead sites.
Questions about real estate issues
should be addressed to JoAnn Griffith
of the Design and Construction
Management Branch at FTS 474-
9840.
CORPS OF ENGINEERS INTERFACES WITH CERCLIS
The U.S. Army Corps of Engineers
(COE) is responsible for detailed
project management of a portion of the
Superfund federal-lead design and
remedial action projects. With more
sites reaching the design and construc-
tion phases, COE’s responsibilities
have increased dramatically, and it is
expected that COE involvement will
increase in the future. Currently, COE
manages 134 sites and, as a result,
has extensive data management and
reporting requirements. COE’s current
information management system is not
compatible with EPA’s systems.
To correct this problem, EPA proposed
that COE become a user of CERCLIS
(Comprehensive Environmental Re-
sponse, Compensation and Liability
Information System). This option was
pursued because it satisfied COE’s
management needs and improved data
communication between EPA and COE.
COE will interface with CERCLIS
through a local area network (Waste-
LAN), which directly connects into CER-
CLIS. Currently, CERCLIS and Waste-
LAN are being modified to meet the
reporting and data input needs of COE.
The modifications include developing
new file structures, revising system
menus and data entry screens to
accommodate additional data, design-
ing supplementary output reports, and
interfacing several of COE’s subsys-
tems with CERCLIS.
The new system will allow both EPA
and COE access to data on the sites
assigned to COE, although COE will not
have access to enforcement-sensitive
information. Only users with an author-
ized COE ID number will be able to
update COE data and, likewise, only
those with an authorized EPA user ID
will be able to update EPA data.
EPA funded COE through an Inter-
agency Agreement to purchase the
equipment necessary for the interface.
EPA also is assisting COE in the
planning and implementation of the
modified system. Implementation will
involve four tasks: developing a
detailed system design, programming
and testing the system, converting
data, and training users. Curraritly,
COE is in the process of procuring
equipment
Startup and implementation of the
modified system began in August.
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BRIDGEPORT BID TABULATION:
Bridgeport Rental and Oil Services
(BROS), in Gloucester County, New
Jersey, consists of a waste oil and
wastewater lagoon, and an area
previously used for oil reprocessing and
storage. About 75 percent of the
lagoon's surface is covered with PCB-
contaminated oil and contains visible
and submerged drums and debris. The
lagoon has three layers: an oily upper
layer, an aqueous middle layer, and
bottom sludge/sediment deposits. In
addition to PCBs, the sediments
contain other organics. The work bid
involved:
• Excavation and offsite disposal of
some drums and large items of
debris
Design, construction, and operation
of a thermal destruction facility
Removal, temporary storage, and
thermal destruction of drums, drum
contents, floating and submerged
debris, lagoon surface oil, lagoon
sediments, and contaminated soils
Treatment of lagoon wastewater and
other aqueous wastes at a previously
constructed aqueous waste treatment
plant
Removal of a levee, blending of levee
material or fill with residual treatment
ash, and placement in the lagoon
Site restoration
The U.S. Army Corps of Engineers
(COE) opened sealed bids on February
2,1989, as the second step of a two-
step sealed bidding procurement
During step one, technical proposals
without prices were solicited. Step two,
which was limited to those firms that
submitted acceptable technical propos-
als, consisted of a price competition.
The five bids received ranged from
$52.456,690 to $84.984.000.•
Item
Unit
Quantities
BID TABULATION
Government Estimate
Unit Cost Hem Cost
Onsite Treatment Disposal Facility LS
Modifications to Aqueous Waste
Treatment System (AWTS) Plant
Unspecified LS
Backwash and Process Water LS
AWTS Wastewater Treatment
(1) First 12 months LS
(2) Through completion LS
Mobilization/Demobilization — LS
Health and Safety Plan LS
Chemical Quality Management/ LS
Sampling Plan
Site Preparation LS
Temporary Storage
Removal and Disposal of
Existing Drums and Debris
Removal and Thermal Destruction
(1) Existing Drums and Debris
(2) Lagoon Surface Oil
(3) Lagoon Sediments
(4) Contaminated Soils
Ash Fixation
(1) First 2.500 tons
(2) Over 2.500 tons
Levee Removal
Backfill
Site Restoration
Total Bid
LS
TON
TON
CY
CY
CY
TON
TON
CY
CY
LS
SO
50
5,000
80.000
1.500
2.500
2.500
9.000
230.000
$4.400
$1.110
$105
$190
$200
$185
$185
$6.50
$8.50
$6,900.000
$237.000
$193.000
$361.000
$812.000
$6.915.000
$52,000
$52.000
$812.000
$2.886.000
$222.000
$55.500
$525.000
$15.200.000
$300.000
$462.500.,
$462.500*
, $58.000
$1.955.000
$1.143.000
$39,603,500
Ebasco Contractors, Inc.
Unit Cost Hem Cost
$3.641
$3.977
$326.20
$357.23
$709.40
$65
$60
$3.41
$13.28
$ 6,528,000
$31.100
$144.000
•- $1.891.700
$1.210.100
. $5.940.400
$45.000
$22,500
$320.400
$453.900
$182.050
$198.850.
$1.631.000
$28,578,400;
$1.064.100
$162.500
$150.000
$30.690
$3,054,400
$817.600
$52,456,690
Foster Wheeler
Envlresponse, mo.
Untt Cost Item Cost
' $550
$135.90
$154.71
$19Z66
$34.40
$30.90
$8.67
$21.12
$16,815.400.
$477.000
$1.230.000
$2.017.000
$4.491.000
$7.537.800
$35.000
$42.000
$1.515,100
$2.498.200
$49.300
$27.500
$679.500
$12.376.800
$288.990
$86.000
$77.250
$78.030
$4.857.600
$1.616.400
$56,795,870
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NEGOTIATED PROCUREMENT:
This is a follow-on to the ”Solicitation of
Sealed Bids” aiticle, which appeared in
the April 1989 issue of the Update (Vol.
3 No. 2).
Negotiated procurement differs from
sealed bidding in each phase of the
solicitation. In the initial phase, the
Agency is not required to define the
work by developing detailed design
plans and specifications. Performance
specifications are more common to
negotiated procurement. The basis of
the evaluation is a combination of
technical merit and cost, rather than
cost alone. Also, some of the risk of
performance of the contract shifts back
to the Agency since the detailed plans
and specifications are approved as
technically acceptable by the owner or
the government before award. The
following is a description of some of the
high points of negotiated procurement.
PRESOLICITATION
Whereas in sealed bidding the Agency
will make a great initial effort to develop
detailed design plans and specifica-
tions, in negotiated procurement the
major effort is in the development of
.,performance specifications and a
source selection plan.
Performance specifications will state
the requirements of the project in terms
of what must be accomplished and to
what level or standard. The offerors
who wish to compete to do the work will
develop in their proposals the methods,
materials, plans, and specifications
required to meet the performance
specifications.
The source selection plan usually
contains two parts. One part deter-
mines the organization and member-
ship of the source selection team. The
membership will consist of at least the
contracting officer and appropriate
technical personnel to evaluate the
proposals. In the second part of the
plan, the evaluation criteria and the
procedures to be used in the evaluation
process are determined.
SOLICITATION AND RECEIPT
OF PROPOSALS
A Request for Proposals (RFP) is
advertised in the appropriate journals
and the CBD. The RFP contains the
performance specifications and a
description of the evaluation criteria.
The relative importance of the technical
criteria and cost will be stated, as will
the basis of award.
EVALUATION OF PROPOSALS
Theoretically, it is possible to award a
contract on the basis of the initial
proposals if technically acceptable
proposals are submitted. For large
projects, however, the evaluation is
usually an ongoing process that is just
starting upon the receipt of the initial
proposals. The evaluation will involve
an assessment of the cost, the techni-
cal acceptability of the proposal, and
the ability of the proposer (offeror) to
accomplish the work. The cost and
technical evaluations are done sepa-
rately and then combined to come up
with a total value score that reflects
both cost and technical merit.
Proposals are categorized as techni-
cally acceptable, susceptible to being
made acceptable, and unacceptable. A
competitive range is determined from
the scores that usually includes all pro-
posals that are acceptable or are rea-
sonably susceptible to being made
acceptable. Discussions are then held
with firms in the competitive range to
make sure there are enough acceptable
proposals to ensure maximum effective
competition.
BEST AND FINAL OFFERS
After the completion of all discussions,
the Agency is required to solicit best
and final offers (BAFOs) for acceptable
proposals in the competitive range.
These BAFOs are submitted in such a
manner that no further discussions will
be required. Technically, the discussion
could be reopened after BAFOs, but
this is highly undesirable. (The 1988
DOD procurement scandal is, in part, a
result of having numerous BAFOs,
which resulted in technical transfusion.)
Final scores are determined on the
basis of BAFOs.
SOURCE SELECTION AND
AWARD
Once the final scores are calculated,
the proposal with the greatest value
score in terms of cost and technical
merit as described in the RFP can be
selected for award of a contract. The
source selection official, however, is
not strictly bound by the point scores or
recommendations of the selection
board. It is possible to take into
consideration the significant difference
in the technical merit and the cost of
proposals of different scores. This type
of analysis is called a “technical
tradeoff analysis.” since technical merit
is traded off against differences in cost
and scores. Any such tradeoff analysis
must, of course, be supported by the
established evaluation criteria in the
RFP.
CONTRACT ADMINISTRATION
The proposal as evaluated and
selected becomes the basis of the
contract. Once again, as in the case of
sealed bidding, there will be a period of
performance and a project schedule
that must be adhered to. Any changes
to the work will have to be negotiated.
The proposal as selected and the
performance specifications constitute
the description of the required work
and the standards that must be met.
ADVANTAGES OF NEGOTIATED
PROCUREMENT
Negotiated procurement gives the
Agency the ability to tap the technical
expertise of the industry in developing
the technical approach to accomplish-
ing the work. It also allows the Agency
to consider alternative technologies
and allows a greater emphasis to be
placed on the technical aspects of the
projects. This approach will be useful in
the solicitation of treatment processes
and other construction and cleanup
activities that are still developing or
when there are a variety of acceptable
solutions to a particular problem.’
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ABOUT THE UPDATE
For comments, ideas, submissions, or questions about the Update, please contact Tracy Loy, Design and Construction Management
Branch, at FTS 8-382-7997 or commercially at (202) 382.7997. For copies, contact EPA ’s Public Information Center at FTS 8-382-
2080 or commerdally at (202) 382-2080 or write to U.S Environmental Protection Agency, 401 M St S W, Washington. D C 20460
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