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Accident spotlights need for contract rule changes

Mar. 31, 2013 - 08:55AM   |  
By BETH ROSENBERG   |   Comments

On April 8, 2011, six workers employed under a federal contract were disposing of fireworks at a storage facility in Waipahu, Hawaii, when a large explosion occurred, killing five and injuring the sixth. These fireworks had been confiscated by U.S. customs agents because they were commercial grade but were mislabeled as less hazardous, consumer-grade fireworks.

As a member of the U.S. Chemical Safety Board, an independent federal agency charged with investigating chemical and industrial accidents, I am disturbed by the lack of regulatory oversight and industry standards covering the handling and disposal of hazardous materials, such as contraband fireworks.

It is even more concerning that federal contracting regulations do not specifically require contracting officers to consider safety-related criteria and qualifications when determining the specific “responsibility” of prospective contractors and subcontractors.

The lack of explicit responsibility and safety requirements in federal contracting leave both the people doing hazardous work and the public unprotected.

The Treasury Executive Office for Asset Forfeiture seizure and forfeiture program, part of the Treasury Department, is one of two federal programs responsible for managing a wide range of property seized by federal agents throughout the United States. To support its Seized and Forfeited Property Program, TEOAF has a contract with VSE Corp., a large federal contractor based in Alexandria, Va.

VSE awarded a subcontract to Donaldson Enterprises Inc. in 2010 to store and dispose of shipments of fireworks seized in Honolulu. VSE personnel had no training or experience in fireworks disposal — and the government’s Federal Acquisition Regulation did not require VSE to determine the safety responsibility of DEI. DEI, a Hawaii-based company specializing in locating and destroying unexploded military ordnance, had no experience disposing of fireworks.

Because there are no safety-related contractor “responsibility” requirements within the FAR, VSE’s procurement office conducted a review of DEI that did not address health, safety and environmental issues or DEI’s ability to perform this type of hazardous work.

VSE ultimately awarded the subcontract to DEI because it was a local company, and VSE determined that its proposal represented the best overall value for the government.

The Chemical Safety Board found that DEI’s use of an ad hoc disposal process gave rise to the mass explosion and that neither DEI nor VSE adequately reviewed the potential safety implications of their actions.

The Chemical Safety Board believes federal contracting regulations must be strengthened to improve contractor and subcontractor “responsibility” determinations, especially when the work involved is highly hazardous and poses a threat not only to workers, but also the public.

The FAR does not specifically require a contracting officer to consider safety performance measures and qualifications when determining the “responsibility” of a potential government contractor or subcontractor to handle, store and dispose of hazardous materials such as fireworks. From 2000 to 2001, the FAR did require such consideration, among others, before determining the “responsibility” of a contractor for award of a contract, but that particular provision in the FAR was rescinded at the end of 2001 after intense lobbying by contractors and the business community. The Chemical Safety Board urges the FAR Council to reinstate that rescinded provision.

Because government agencies often engage contractors to handle hazardous material, including fireworks, the Chemical Safety Board believes federal contracting rules need mandatory safety, health and environmental requirements as a part of the FAR’s general “responsibility” criteria. To that end, we have made a series of detailed recommendations to the FAR Council, which oversees changes to the Federal Acquisition Regulation; Treasury’s Office of the Procurement Executive; TEOAF; the Environmental Protection Agency; the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives; and others. The goal of these recommendations is to help agencies and contractors emphasize good safety system management.

The deaths and injuries in 2011 at the storage facility in Hawaii were tragic and avoidable. Such suffering can be prevented if these key federal agencies and organizations institute the Chemical Safety Board’s recommendations. Workers and the public deserve no less.

Beth Rosenberg is a member of the U.S. Chemical Safety Board.

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