B-192453(2),L/M, JUN 18, 1980

B-192453(2),L/M: Jun 18, 1980

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ENVIRONMENTAL PROTECTION AGENCY: ENCLOSED IS A COPY OF OUR DECISION OF TODAY ON THE COMPLAINT OF PENTECH DIVISION. ALTHOUGH WE HAVE DENIED THE COMPLAINT. WE BELIEVE IT WOULD BE USEFUL TO COMMENT FURTHER ON THE EPA'S VIEW THAT PENTECH'S COMPLAINT WAS OUTSIDE THE EPA BID PROTEST PROCESS BECAUSE IT INVOLVED A BASIC PROJECT DESIGN DETERMINATION. WE ARE SYMPATHETIC TO EPA'S CONCERN THAT THE GOVERNMENT SHOULD EXEMPT FROM THE EPA PROTEST PROCESS A DECISION CONCERNING BASIC PROJECT DESIGN DETERMINATIONS SUCH AS THAT ILLUSTRATED IN THE EPA REGULATION CONCERNING THE SELECTION OF INCINERATION VERSUS OTHER METHODS OF DISPOSAL OF SLUDGE. THE ISSUE RAISED PERTAINS TO WHETHER A PARTICULAR METHOD OF SLUDGE DISPOSAL OFFERED IS IN FACT EQUIVALENT TO THOSE OF THE BRAND NAMES SPECIFIED.

B-192453(2),L/M, JUN 18, 1980

PRECIS-UNAVAILABLE

DOUGLAS M. COSTLE, ENVIRONMENTAL PROTECTION AGENCY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY ON THE COMPLAINT OF PENTECH DIVISION, HOUDAILLE INDUSTRIES, INC.

ALTHOUGH WE HAVE DENIED THE COMPLAINT, WE BELIEVE IT WOULD BE USEFUL TO COMMENT FURTHER ON THE EPA'S VIEW THAT PENTECH'S COMPLAINT WAS OUTSIDE THE EPA BID PROTEST PROCESS BECAUSE IT INVOLVED A BASIC PROJECT DESIGN DETERMINATION. WE ARE SYMPATHETIC TO EPA'S CONCERN THAT THE GOVERNMENT SHOULD EXEMPT FROM THE EPA PROTEST PROCESS A DECISION CONCERNING BASIC PROJECT DESIGN DETERMINATIONS SUCH AS THAT ILLUSTRATED IN THE EPA REGULATION CONCERNING THE SELECTION OF INCINERATION VERSUS OTHER METHODS OF DISPOSAL OF SLUDGE. HOWEVER, WE QUESTION THE APPLICATION OF THAT EXEMPTION WHERE, AS HERE, THE ISSUE RAISED PERTAINS TO WHETHER A PARTICULAR METHOD OF SLUDGE DISPOSAL OFFERED IS IN FACT EQUIVALENT TO THOSE OF THE BRAND NAMES SPECIFIED. IT SEEMS TO US THAT SUCH AN ISSUE IS SO CLOSELY RELATED TO THE QUESTION OF WHETHER OPEN COMPETITION IS OBTAINED THAT THE EPA PROCESS SHOULD DEAL WITH IT.

WE NOTE IN THIS REGARD THAT THE DEVELOPMENT OF CONSTRUCTION DRAWINGS AND SPECIFICATIONS SUITABLE FOR COMPETITIVE BIDDING IS A STEP 2 FUNCTION UNDER EPA'S GRANT REGULATIONS. 40 C.F.R. SEC. 35.920 3(C)(2). FACILITIES PLANNING DURING STEP 1 ACCORDING TO THE REGULATIONS IS TO BE CONDUCTED ONLY TO THE EXTENT NECESSARY TO ASSURE COST-EFFECTIVE AND ENVIRONMENTALLY SOUND USE OF GRANT FUNDS. EPA'S REGULATIONS PROVIDE POTENTIALLY INTERESTED CONTRACTORS WITH NO AVENUES DURING STEP 1 OR STEP 2 THROUGH WHICH THEY MAY PURSUE SPECIFIC GRIEVANCES, APART FROM THEIR LIMITED RIGHT TO ATTEND HEARINGS AND COMPLAIN AS MEMBERS OF THE PUBLIC. BY TAKING THE POSITION THAT STEP 3 PROCESSES, INCLUDING THE EPA PROTEST MECHANISM, ARE UNAVAILABLE TO CHALLENGE DECISIONS MADE DURING STEP 1, EPA MIGHT PRECLUDE OFFERORS FROM QUESTIONING A RESTRICTION IMPOSED ON PROJECT DESIGN DURING STEP 1 EVEN THOUGH COMPETITION IS UNDUELY RESTRICTED OR THE DECISION TAKEN DOES NOT REFLECT A LEGITIMATE STEP 1 FUNCTION.

BECAUSE WE BELIEVE THE OBJECTIVES OF EPA AS WELL AS GAO REVIEW WOULD BE BETTER SERVED WERE EPA TO CONSIDER PROTESTS SUCH AS PENTECH'S, WE RECOMMEND THAT YOU CONSIDER UTILIZING YOUR PROTEST PROCEDURES TO RESOLVE THE TYPE OF ISSUE INVOLVED HERE.