U.S. ENVIRONMENTAL PROTECTION AGENCY
        OFFICE OF INSPECTOR GENERAL
                         Catalyst for Improving the Environment
Quick Reaction Report
      Hotline Allegations
      Unsubstantiated, but Region 7
      Contract Administration and
      Award Issues Identified
      Report No. 11-P-0217

      May 4, 2011

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Report Contributors:                          Michael Petscavage
                                             David Penman
                                             Brad Jones
                                             Doug LaTessa
Abbreviations

ASW        ASW Associates, Inc.
CO          Contracting Officer
D&F         Determination and Finding
DOE         U.S. Department of Energy
EPA         U.S. Environmental Protection Agency
FAR         Federal Acquisition Regulation
IDIQ         Indefinite Delivery/Indefinite Quantity
OIG         Office of Inspector General
T&M        Time and Materials
   Hotline
   To report fraud, waste, or abuse, contact us through one of the following methods:
   e-mail:    OIGJHotline@epa.gov                  write:   EPA Inspector General Hotline
   phone:    1-888-546-8740                               1200 Pennsylvania Avenue NW
   fax:       703-347-8330                                 Mailcode 8431P (Room N-4330)
   online:    http://www.epa.gov/oig/hotline.htm                 Washington, DC 20460

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                   U.S. Environmental Protection Agency
                   Office of Inspector General

                   At   a   Glance
                                                           11-P-0217
                                                         May 4, 2011
                                                                 Catalyst for Improving the Environment
Why We Did This Review

We received a Hotline complaint
regarding a U.S. Environmental
Protection Agency (EPA)
contract with ASW Associates,
Inc. (ASW). The allegations were
that EPA replaced Superfund
appropriations with American
Recovery and Reinvestment Act
of 2009 (Recovery Act) funds
and that EPA unfairly terminated
the ASW contract.
Background
EPA awarded ASW a Superfund
contract for environmental
remediation services in
September 2008. In January
2009, the U.S. Department of
Energy (DOE) suspended ASW
from contracting with
government agencies for
submitting to them invoices with
false certifications. EPA awarded
a second contract to a different
contractor to obtain the same
services, as EPA did not know
when DOE would lift the
suspension. The Federal
Acquisition Regulation prohibits
agencies from renewing with a
suspended  contractor unless the
agency head agrees.

For further  information,
contact our Office of
Congressional, Public Affairs and
Management at (202) 566-2391.

The full report is at:
www.epa.qov/oiq/reports/20117
20110504-11-P-0217.pdf
Hotline Allegations Unsubstantiated, but Region  7
Contract Administration and Award Issues Identified
 What We Found
The complainant's allegations were not substantiated. No funds were replaced
on the ASW contract. The contract was solely funded with Superfund
appropriations and no Recovery Act appropriations were obligated on the ASW
contract. Secondly, the ASW contract was not terminated for convenience as
alleged; EPA simply elected not to exercise the second option.

EPA could have awarded a less risky contract type. EPA awarded a time and
materials (T&M) contract to ASW, but could have awarded a lower-risk
fixed-price type contract. According to the contracting officer, Region 7
awarded a T&M contract because the program office was reluctant to use a
fixed-price type contract due to the environmental unknowns surrounding the
site to be cleaned up.

EPA did not perform some required contract administration functions. The
contracting officer did not conduct required annual invoice reviews even
though DOE suspended ASW during the base period of the contract for
submitting invoices with false certifications. Also, EPA did not conduct an
interim contractor performance evaluation despite several performance issues
that EPA staff identified. The contracting officer cited not having time to
perform the annual invoice reviews or the interim performance evaluations. As
a result, Region 7 does not have assurances that the contractor and EPA project
staff were fulfilling their roles, and other potential clients were not made aware
of ASW's performance on this contract.
 What We Recommend
We recommend that Region 7(1) revise the Region 7 peer review checklist to
require review of the pre-award file to ensure proper documentation and
support for the contract type selected, (2) provide clarification to contracting
officers on T&M contracts and annual invoice reviews, (3) implement a
process to ensure annual invoice reviews are completed by contracting officers,
and (4) prepare and submit a contractor performance evaluation for the ASW
contract in the Contractor Performance Assessment Reporting System as
required. EPA Region 7 generally agreed with the recommendations in the
draft report and provided corrective actions or acceptable alternatives. The
completed and planned actions address the intent of the recommendations in
the report.

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            z       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
   **^^^ •"                     WASHINGTON, D.C. 20460
 \
                                                                      THE INSPECTOR GENERAL
                                      May 4, 2011

MEMORANDUM

SUBJECT:  Hotline Allegations Unsubstantiated, but Region 7
             Contract Administration and Award Issues Identified
             Report No. ll-P-0217
                                                      X
                                    //^//   //  V///L
FROM:      Arthur A. Elkins, Jr.
             Inspector General

TO:         Karl Brooks
             Regional Administrator, Region 7


This is our report on the subject audit conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). This report contains findings that describe the
problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established audit resolution procedures.

The estimated direct labor and travel costs for this report are $85,533.

Action Required

In responding to the draft report, the Agency provided a corrective action plan for addressing the
recommendations. Therefore, a response to the final report is not required. The Agency should
track corrective actions not implemented in the Management Audit Tracking System. We have
no objections to the further release of this report to the public. The report will be available at
http://www.ega.gov/oig.

If you or your staff have any questions, please contact Melissa Heist, Assistant Inspector General
for Audit, at 202-566-0899 or heist.melissa@epa.gov: or Janet Kasper, Director, Contracts and
Assistance Agreement Audits, at 312-886-3059 or kasper.janet@epa.gov.

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Hotline Allegations Unsubstantiated, but Region 7                             11-P-0217
Contract Administration and Award Issues Identified
                     Table  of Contents
   Purpose	    1

   Background	    1

   Scope and Methodology	    2

   Results of Review	    3

       Complainant Allegations Not Valid	    3
       Region 7 Could Have Used a Less Risky Contract Type	    4
       Annual Invoice Review Not Conducted	    6
       Contractor Performance Evaluation Not Conducted  	    7

   Recommendations	    7

   Agency Response and OIG Comment	    8

   Status of Recommendations and Potential Monetary Benefits	    9
Appendices
   A   Agency Response to Draft Report	   10

   B   Distribution	   14

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Purpose
              The Office of Inspector General (OIG) of the U.S. Environmental Protection
              Agency (EPA) receives hotline complaints of fraud, waste, and abuse within EPA
              programs and operations. In June 2010, a complainant alleged that EPA Region 7
              possibly replaced appropriated funds for a contract with ASW Associates, Inc.,
              with American Recovery and Reinvestment Act of 2009 (Recovery Act) funds
              and used the appropriated funds for another project. The complainant also alleged
              that EPA terminated an ASW contract for the convenience of the government  and
              awarded a contract to another contractor that had higher rates. Based on the
              complainant's allegations, our objectives were to determine whether Region 7:
                 •  Replaced appropriated funds with Recovery Act funds
                 •  Terminated the ASW contract for the convenience of the government
Background
              Region 7 awarded EPA contract number EP-R7-08-15 on September 26, 2008, to
              ASW to perform a remedial action for lead-contaminated residential property
              surface soil at the Madison County Mines Superfund site. The contract included a
              1-year base period and two 1-year option periods. EPA had the choice to exercise
              the first option after the base period expired and could reassess again before
              exercising the second option.  The maximum value of the contract was
              $24,345,902. As of November 2010, EPA paid the contractor $5,471,001 for the
              base period and  the first option period. In January 2009, around the same time
              ASW began remediation work on the Superfund site, the U.S. Department of
              Energy (DOE) suspended ASW for submitting invoices containing false
              certifications to  the Argonne National Laboratory, a DOE contractor.

              In February 2009, Region 7 informed ASW that it would likely receive Recovery
              Act funding, and Region 7 was considering a variety of options to implement the
              Recovery Act, including exercising one or both of the options on the ASW
              contract. After becoming aware of the ASW suspension, Region 7 informed ASW
              that it would have to be removed from the excluded parties list1 before Region 7
              would decide to exercise the next option period. The Federal Acquisition
              Regulation (FAR) Subpart 9.405-l(b) prohibits federal agencies from exercising
              options with suspended contractors unless the agency head makes a compelling
              reason to justify the action.

              In March 2009,  Region 7 informed ASW that EPA had received Recovery Act
              funding for the Superfund program and that it was beginning the process to
1 Provided as a public service by the General Services Administration for the purpose of efficiently and conveniently
disseminating information on parties that are excluded from receiving federal contracts, certain subcontracts, and
certain federal financial and nonfinancial assistance and benefits, pursuant to the provisions of 31 U.S. Code 6101,
note, Executive Order 12549, E.O. 12689, 48 Code of Federal Regulations 9.404, and each agency's codification of
the Common Rule for Nonprocurement suspension and debarment.
11-P-0217

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             obligate the Recovery Act funding. The goal of the Recovery Act was to obligate
             all funding by September 30, 2009—near the time that the base period of the
             ASW contract would expire. Region 7 stated in the March letter that due to the
             human health risk at the Madison County Mines Superfund site and the need to
             obligate Recovery Act funds quickly, a decision would be made on April 1, 2009,
             whether to exercise the option in the ASW contract. Region 7 contracting staff
             informed the OIG that they contacted DOE to learn if DOE intended to terminate
             the ASW suspension. According to Region 7, DOE did not have plans at that time
             to terminate the suspension.

             In April 2009, Region 7 informed ASW that it would not exercise the first option
             on the ASW contract because FAR 9.405-1(3) does not allow, without compelling
             reasons, exercising options for contracts where the contractor has  been suspended.
             Region 7 then began the acquisition process to award a separate contract to a new
             contractor for the same services by executing a determination and finding (D&F)
             for a new contract.

             On August 25, 2009—approximately 1 month before the base period on the ASW
             contract was to expire—DOE terminated the ASW suspension after ASW:
             (1) acknowledged negligence relating to inaccurate billing procedures,
             (2) committed to pay a civil judgment and improve internal controls, and (3)
             agreed to obtain a satisfactory Defense Contract Audit Agency audit. Although
             Region 7 was ready to award the second contract to another contractor to obtain
             the required remediation services in Madison County, it exercised the first option
             period on the ASW contract. According to Region 7 officials, the  amount of work
             in Madison County justified two contracts operating simultaneously for 1 year.
             On September 9, 2009, EPA exercised the first option period on the ASW
             contract through a modification of the contract. In that modification, EPA stated
             that the ASW contract would end after the option period expired. EPA awarded a
             second contract to another contractor on September 29, 2009. That contract
             included a 2-year base period and a 1-year option.
Scope and Methodology
             We conducted our review from September to December 2010 in accordance with
             generally accepted government auditing standards. Those standards require that
             we plan and perform our review to obtain sufficient, appropriate evidence to
             provide a reasonable basis for our findings and conclusions based on our
             objectives. We believe that the evidence obtained provides a reasonable basis for
             our findings and conclusions based on our objectives.

             To accomplish our objectives, we reviewed documents provided by the
             complainant as well as ASW and Region 7. We conducted interviews with the
             complainant; ASW officials; and relevant EPA Region 7 staff in Kansas City,
             Kansas. We reviewed (1) the contracting officer's (CO's) pre-award and contract
             file for the ASW contract, (2) communications between Region 7 and ASW,
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             (3) the award and administration of the ASW contract, and (4) the FAR and
             Agency guidance pertaining to contract award and administration. This included,
             but was not limited to:

                •  FAR Subpart 9.4 - Debarment, Suspension, and Ineligibility
                •  FAR Part 16 - Types of Contracts
                •  FAR Subpart 17.2 - Options
                •  EPA Contracts Management Manual

             We reviewed a prior EPA OIG report regarding contractor performance
             evaluations, EPA OIG Report 10-R-0113, EPA Should Improve Its Contractor
             Performance Evaluation Process for Contractors Receiving Recovery Act Funds,
             issued April  26, 2010. In response to one of our recommendations, Office of
             Acquisition Management stated that it planned to begin using the U.S.
             Department of Defense Contractor Performance Assessment Reporting System on
             May 1, 2010, to replace the National Institutes  of Health Contractor Performance
             System. According to EPA, the Contractor Performance Assessment Reporting
             System provides an enhanced and more effective  capability to monitor the
             timeliness and quality of contractor evaluations. COs must also certify the
             accuracy and completeness of the information entered.

             Internal Control Structure

             In planning and performing our audit, we reviewed management controls related
             to our objectives. We reviewed the Region 7 Contracting Quality Assurance Plan
             along with the EPA's Contracts Management Manual. There were no previous
             audits of EPA's administration of the ASW contract.

Results of Review

             Complainant Allegations Not Valid

             The complainant alleged that EPA Region 7 possibly replaced a portion of
             appropriated funds with Recovery Act funds, and used the original funds on
             another project. We found  that no funds were replaced on this contract. The
             contract was solely funded with Superfund appropriations and no Recovery Act
             appropriations were obligated on the ASW contract. Secondly, the complainant
             alleged that EPA terminated the contract for the convenience of the government
             and gave it to another contractor that had higher rates. The ASW contract was not
             terminated for convenience; instead,  option 2 of the contract was not exercised.
             Further, EPA only procured another contractor because ASW was suspended and
             it was unclear when the suspension would be lifted. Under the circumstances,
             EPA Region 7 acted prudently to ensure that EPA had another contractor in place
             to perform the work. The second contract was awarded with adequate price
             competition to the lowest responsive bidder. ASW submitted a proposal for that
             contract. However, its bid was 59 percent higher than the winning bid.
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             Region 7 Could Have Used a Less Risky Contract Type

             Region 7 awarded a time and materials (T&M) contract to ASW in September
             2008 for environmental remediation services although a less risky contract type
             would have been a better option. The FAR states that a fixed-type contract is
             suitable, for example, when there is adequate price competition and reasonable
             price comparisons with prior purchases of similar services can be made.
             According to the contracting officer, Region 7 awarded a T&M contract because
             the program office was reluctant to use a fixed-price type contract because there
             were too many environmental unknowns surrounding the site to be cleaned up.
             There also was confusion throughout the acquisition process regarding the type of
             contract to award. Fixed-price type contracts are generally less risky for
             government contracts.

             The FAR identifies circumstances when a fixed-price type contract is feasible.
             FAR Subpart 16.202 states that a firm-fixed price contract is suitable for
             acquiring services when the CO can establish fair and reasonable prices, such as
             when:

                 •  There is adequate price competition.
                 •  There are reasonable price comparisons with prior purchases of the same
                    or similar  supplies or services when made on a competitive basis or
                    supported  by valid certified cost or pricing data.
                 •  Available  cost or pricing information permits realistic estimates of the
                    probable costs of performance.
                 •  Performance uncertainties can be identified and reasonable estimates of
                    their cost impact can be made, and the contractor is willing to accept a
                    firm-fixed price representing assumption of the risks involved.

             FAR Subpart 16.104 discusses factors the government should consider when
             selecting contract types. Those factors include price competition. Per the FAR,
             effective price competition normally results in realistic pricing, and a fixed-price
             contract is ordinarily in the government's interest. The FAR states that when
             using a T&M contract, the CO must execute a D&F stating that no other contract
             type is suitable.

             Region 7 could have awarded a less risky contract type. Region 7 obtained this
             type of work before under a previous contract, and as a result, had historical data
             from 2003-2006 on the cost to remediate properties in the same location where
             EPA awarded the  T&M contract to ASW. Region 7 had data on the average cubic
             yards per property for work done at the site. In its individual acquisition plan for
             this contract, EPA noted that the risk on the acquisition was somewhat minimized
             by the number of  similar projects already completed across the Agency.

             Region 7 expected reasonable price competition when it planned the acquisition.
             In its individual acquisition plan, Region 7 noted that there were a significant
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             number of small businesses that were eligible to respond. Region 7 stated that
             numerous small businesses existed in the affected area, the region, and across the
             country that were qualified to pursue the work. Finally, Region 7 noted that it
             anticipated adequate competition in the marketplace to ensure an adequate
             number of interested parties.  Ten contractors responded to the solicitation, with
             eight providing complete pricing data.

             Region 7 awarded a T&M contract because the program office was reluctant to
             use a fixed-price type contract. According to the CO who awarded the contract,
             Region 7 program staff believed that there were too many unknowns surrounding
             the Madison County site to award a fixed-price contract. However, during the pre-
             bid conference, a prospective contractor asked why Region 7 was awarding a
             T&M contract rather than a fixed-price contract, as a fixed-price contract would
             save the government money.  Region 7 responded that there were too many
             unknowns, and paying by the hour would minimize contractors' risk and place
             some of the risk on EPA to ensure the contractor was efficient and economical.
             However, the claim that there were too many unknowns is not convincing given
             the existence of the historical data (including both the cost of dirt removed and
             average amount of dirt per property) and history with this type of work. Further,
             not long after ASW began work (approximately 4 months), Region 7 executed a
             D&F stating that a fixed-price type contract was the preferred contract type and
             later awarded a fixed rate contract for the same services.

             There also was confusion throughout the process regarding the type of contract to
             be procured. The contract type was not fully understood by regional staff even
             after the contract's period of  performance had expired. For example, during the
             OIG kickoff meeting with Region 7, the program staff thought the contract was an
             indefinite delivery/indefinite  quantity (IDIQ) type contract instead of a T&M.
             IDIQ contracts are used to acquire supplies  and/or services when the exact times
             and/or exact quantities of future deliveries are not known at the time of contract
             award. Adding to the confusion were the following:

                 •   EPA's active contracts list identified the ASW contract as firm-fixed
                    price.
                 •   The D&F was for the authority to use an IDIQ fixed-rate contract. The
                    D&F also should have stated that no other contract type was suitable but
                    did not.
                 •   Region 7 awarded the contract using the sealed-bidding process. The FAR
                    states that contracts resulting from sealed bidding shall  be firm-fixed price
                    or fixed-price contracts with economic price adjustment.
                 •   The performance work statement identified the contract as an IDIQ
                    contract.
                 •   The synopsis of the contract listed in Federal Business Opportunities
                    stated that the contract to be awarded was an IDIQ fixed-rate contract.
                 •   The solicitation for the contract stated that EPA was contemplating
                    awarding a fixed-rate T&M contract.
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             Clauses included in the contract were also confusing. According to the CO who
             signed the contract, Region 7 acquired non-commercial services for the contract.
             However, there were clauses in the contract dealing with commercial items,  as
             well as change clauses related to fixed-price contracts.  None of the contract
             inconsistencies were discovered because although the Region 7 Quality
             Assurance Plan requires a review of pre-award source selection documentation
             prior to award, only the solicitation document was reviewed. We confirmed  with
             the Region 7 acquisition branch chief that only the solicitation documentation was
             reviewed as part of the quality assurance plan for the ASW contract.

             Finally, the inexperience of the CO awarding and administering the contract may
             have been a contributing factor to some of the confusion. A senior CO signed the
             contract because the CO responsible for the contract did not have a Level III
             (unlimited) warrant until 18 months after the ASW contract was awarded, but the
             CO was responsible for preparing the D&F and other actions before contract
             award. According to the Region 7 acquisitions branch chief, this was the first site-
             specific contract that the CO had managed.

             The contract type  selected by EPA placed unnecessary risk on the government
             and provided little incentive for the contractor to ensure efficient and economical
             performance. In fact, the project staff reported that ASW's cost per cubic yard
             was double previous work at the site.

             Annual Invoice Review Not Conducted

             The CO did not conduct an annual invoice review for the ASW contract in the
             base or the option period.  As noted above, shortly after EPA awarded the contract,
             DOE suspended ASW for submitting invoices containing false certifications.
             EPA's Contracts Management Manual requires the CO to conduct at least one
             detailed invoice review per year. COs perform these reviews to ensure that the
             contractor and project officers are fulfilling their roles properly and that all issues
             relevant to contract performance are being addressed. After DOE suspended
             ASW,  EPA's risk increased and made performing these reviews even more
             important. The CO cited not having time to review the  invoices due to challenges
             with the contract.  The CO did suspend costs on 17 of 34 invoices submitted  by the
             contractor, but this was based  on invoice reviews performed by the project officer,
             and not reviews done by the CO. Region 7 does not have a tracking system to
             ensure that COs conduct the necessary reviews. As a result, Region 7 did not have
             assurances that the contractor and EPA program staff were fulfilling their roles
             properly, nor did the region have assurances that all issues relevant to contract
             performance and funding were being addressed.
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             Contractor Performance Evaluation Not Conducted

             The CO did not perform an interim contractor performance evaluation after the
             base year. The contract required the CO to complete a contractor performance
             report within 90 days after the end of each 12 months of contract performance, or
             after the last 12 months of contract performance. Considering the concerns
             Region 7 had with the contractor's performance, an interim evaluation, while not
             required, would have been beneficial. The CO stated that she did not have time to
             perform the contractor performance evaluation after the base year due to the many
             challenges that the CO faced managing the contract. The Region 7 acquisitions
             branch chief stated that the region thought the contract was going to end after the
             base period expired, so an interim report was a lower priority due to resource
             constraints. Although Region 7 did not prepare an evaluation of the contractor's
             performance, the start of work on the contract was delayed for approximately
             3 months because the contractor could not obtain a payment and performance
             bond. Further,  ASW did not inform Region 7 that it had been suspended.
             Region 7 learned of the suspension from another contractor. Finally, the CO
             provided the contractor a three-page document citing examples of performance
             issues that needed to be addressed near the end of the base period. EPA should
             have reported these issues in the performance evaluation. Performance
             evaluations are available to other federal agencies to consider when ordering new
             contracts. Because EPA did  not submit a performance evaluation, other potential
             clients are not  aware of ASW s performance on this contract.
Recommendations
             We recommend that the Regional Administrator, Region 7, require the Region 7
             Acquisition and Contracts Management Branch to:

                 1.  Revise the Region 7 peer review checklist to include a review of the pre-
                    award contract file documentation in its entirety prior to award to support
                    the contract type selected.

                 2.  Review active contracts to ensure that proper D&Fs were executed and the
                    contracts contain the correct clauses.

                 3.  Provide clarification to COs, through a briefing, newsletter, etc., on when
                    to use T&M contracts.

                 4.  Provide clarification to COs, through a briefing, newsletter, etc., regarding
                    the requirements of annual invoice reviews.

                 5.  Implement a process to ensure COs conduct annual invoice reviews.

                 6.  Prepare a contractor performance evaluation for ASW and  input it into the
                    Contractor Performance Assessment Reporting System as required.
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Agency Response and  OIG Comment

             EPA Region 7 generally agreed with the recommendations in the draft report and
             provided corrective actions or acceptable alternatives, as well as milestone dates.
             The completed and planned actions address the intent of the recommendations in
             the report. Region 7 modified its peer review checklist, rather than the Quality
             Assurance Plan, to include all aspects of the pre-award phase and to ensure the
             entire contract file is reviewed prior to award. We modified  our final  report
             recommendation accordingly. The region is in the process of conducting a full
             review of all active contracts. This is anticipated to be completed by December
             31, 2011. Additionally, the Regional Acquisition Manager held discussions with
             the Acquisition and Contracts Management Section staff regarding the importance
             of identifying the correct contract type vehicle along with providing further
             training opportunities for identifying contract types, including T&M contracts, on
             April 13, 2011, and during the summer of 2011. Similarly, discussions and
             refresher training have been held on conducting invoice reviews. Region 7
             implemented a process to ensure COs conduct annual invoice reviews and
             modified the Quality Assurance Plan Checklist to include a review of the CO
             annual invoice review. Finally, in responding to the last recommendation,
             Region 7 is in  the process of conducting a contractor performance evaluation for
             ASW and expects it to be completed by September 30, 2011.
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                        Status  of Recommendations and
                             Potential Monetary Benefits
 Rec.    Page
 No.    No.
                             Subject
                                     RECOMMENDATIONS
                                                   Status1
                                                              Action Official
                          Actual/Planned
                            Completion
                               Date
                                            POTENTIAL MONETARY
                                             BENEFITS (in SOOOs)
Claimed    Agreed-To
Amount     Amount
         7   Require the Region? Acquisition and Contracts     C
             Management Branch to revise the Region 7 peer
             review checklist to include a review of the pre-
             award contract file documentation in its entirety
             prior to award to support the contract type
             selected.

         7   Require the Region 7 Acquisition and Contracts     0
             Management Branch to review active contracts to
             ensure that proper D&Fs were executed and the
             contracts contain the correct clauses.
         7   Require the Region 7 Acquisition and Contracts
             Management Branch to provide clarification to
             CDs, through a briefing, newsletter, etc., on when
             to use T&M contracts.

         7   Require the Region 7 Acquisition and Contracts
             Management Branch to provide clarification to
             COs, through a briefing, newsletter, etc.,
             regarding the requirements of annual invoice
C
      Regional Administrator,
            Region 7
      Regional Administrator,
            Region 7
      Regional Administrator,
            Region 7
      Regional Administrator,
            Region 7
                             1/28/2011
                            12/31/2011
                            04/13/2011
                            03/09/2011
         7   Require the Region 7 Acquisition and Contracts
             Management Branch to implement a process to
             ensure COs conduct annual invoice reviews.

         7   Require the Region 7 Acquisition and Contracts
             Management Branch to prepare a contractor
             performance evaluation for ASW and input it into
             the Contractor Performance Assessment and
             Reporting System as required.
      Regional Administrator,
            Region 7
      Regional Administrator,
            Region 7
                            03/16/2011
                             9/30/2011
  0 = recommendation is open with agreed-to corrective actions pending
  C = recommendation is closed with all agreed-to actions completed
  U = recommendation is undecided with resolution efforts in progress
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                                                                        Appendix A

                Agency Response to Draft Report


                                     Apr 01 2011

MEMORANDUM

SUBJECT:   Hotline Allegations Unsubstantiated, but Region 7 Contract Administration and
             Award Issues Identified,
             Draft Report No. OA-FY10-0253, dated March 4, 2011

FROM:      Karl Brooks
             Regional Administrator

TO:         Arthur A. Elkins, Jr.
             Inspector General

       Thank you for the opportunity to review and respond to the Office of Inspector General
(OIG) subject draft report. As you will see below, Region 7 generally concurs with OIG
recommendations. Region 7 implemented, or is in the process of implementing all
recommendations, although with slight modifications to recommendations 1 and 2.  However,
there are some factual inaccuracies in the report we feel require clarification.

       The draft report states a Time and Materials (T&M) contract was awarded because
Region 7 Superfund program  staff was resistant to awarding a fixed price contract.  This stand
alone statement does not adequately portray the comprehensive decision process Region 7's
Superfund program staff and Region 7's Acquisition and Contracts Management Section
(ACMS) staff used to determine contract type. The statement that the program technical staff
was resistant should be expanded to say they were ultimately resistant because they did not have
a high degree of confidence and reliance on the available information and that there were too
many environmental unknowns to have a fixed price contract.

       Contracting Officers (COs) understand there are complexities and environmental
unknowns associated with each site specific location, and consideration is given to the technical
aspects of the requirement and the opinions of the program technical staff as to possible methods
for pricing when crafting a suitable contract. However, the final decision, utilizing all
procurement information, is that of the CO and it remains the opinion of the CO, the Senior CO
and the Regional Acquisition Manager, that the appropriate contract type was utilized.

       A second inaccuracy is that the draft report places much emphasis on a fixed price follow
on contract.  Although the Determination and Findings (D&F) for the follow on contract states
fixed price, the contract is  actually an indefinite quantity. The follow on contract contains fixed
unit prices for estimated quantities.  The D&F is being corrected.


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       Lastly, the draft report asserts the Region 7 Acquisitions Branch Chief stated Region 7
thought the contract was going to end so an interim report would not be necessary.  This
statement does not reflect the full discussion. The Regional Acquisition Manager is fully aware
of the importance and requirement to complete contractor evaluations at specific intervals and
within specific timeframes, and explained the performance evaluation for ASW had become a
lower priority due to workload constraints.

The following provides you with a status of corrective actions.

OIG Recommendation 1:

Revise the Region 7 Quality Assurance Plan to include a review of the pre-award contract file
documentation in its entirety prior to award to support the contract type selected.

Region 7 Corrective Action:

The recommendation is to revise the Region 7 Quality Assurance Plan (QAP) and though this
appears to be a plausible recommendation, the QAP is designed to evaluate the effectiveness of
contract actions which have occurred.

To ensure the entire contract file is reviewed  prior to award, Region 7 has modified the Peer
Review Checklist, to now include all aspects  of the pre-award phase.  Peer reviewers are
required to annotate that all documents are present and have been reviewed, prior to a contact
award.

OIG Recommendation 2:

Review active contracts to ensure that proper D&Fs were executed and the  contracts contain the
correct clauses.

Region 7 Corrective Action:

Region 7 has 46 active contracts. The Regional Acquisition Manager has implemented  a process
to ensure a full review of each contract. Seven contracts are currently being reviewed and the
remaining reviews are  anticipated to be completed by December 31,2011.  A record of findings
and corrective actions will be retained.

OIG Recommendation 3:

Provide clarification to COs, through a briefing, newsletter, etc., on when to use T&M contracts.

Region 7 Corrective Action:

As soon as the confusion between the contract documents was identified, the Regional
Acquisition Manager immediately began discussions with staff on contract  types and has
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continued to focus on the importance of identifying and supporting the appropriate contract type
vehicle.

On April 13, 2011, Region 7's ACMS staff will receive refresher training on T&M contracts.
This training will include instruction and review of Federal Acquisition Regulation Part 16, and
discussion of the various contract types.  Further, the Office of General Counsel is presenting a
training session in Region 7 on contract types; this training is tentatively scheduled for summer
2011.

OIG Recommendation 4:

Provide clarification to COs, through a briefing, newsletter, etc., regarding the requirements of
annual invoice reviews.

Region 7 Corrective Action:

The Regional Acquisition Manager held discussions with ACMS staff reminding them of the
requirement to conduct invoice reviews, immediately after discussions with OIG.  Also, as
mentioned to OIG, Region 7 acknowledges the annual invoice review was not performed for the
ASW contract; however, the annual invoice reviews are and were performed on other contracts.

On March 9, 2011, the Region 7 ACMS staff received refresher training on the Office of
Acquisition Management (OAM) guidance for conducting annual invoice reviews. All staff
members received a hardcopy of OAM's invoice review guidance.

OIG Recommendation 5:

Implement a process to ensure COs conduct annual invoice reviews.

Region 7 Corrective Action:

Region 7 has developed and implemented a process designed to ensure that COs conduct annual
invoice reviews. Region 7's Quality Assurance Plan Checklist was modified to include a review
of the CO annual invoice review.

OIG Recommendation 6:

Prepare a contractor performance evaluation for ASW and input it into the Contractor
Performance Assessment Reporting System as required.

Region 7 Corrective Action:

The contractor performance evaluation for ASW is underway. Input in the Contractor
Performance Assessment Reporting System is anticipated to be complete by September 30, 2011.
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       Should you have any questions concerning Region 7's corrective actions, please contact
Lee Thomas, Regional Acquisition Manager, at (913) 551-7739, or Kathy Finazzo, Regional
Audit Follow-Up Coordinator, at (913) 551-7833.
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                                                                       Appendix B

                                 Distribution
Office of the Administrator
Regional Administrator, Region 7
Agency Followup Official (the CFO)
Agency Followup Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for External Affairs and Environmental Education
Director, Office of Acquisition Management, Office of Administration and
       Resources Management
Regional Acquisition Manager, Region 7
Audit Followup Coordinator, Region 7
Audit Followup Coordinator, Office of Acquisition Management
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