Nebraska Department of Agriculture
Memorandum
Date:October 14, 2016
To:Bob Storant, Katie Harders, Robert Thompson, Michelle Thompson
From:Tim Creger, Pesticide Program Manager, Nebraska Department of Agriculture
RE:Review and Recommendation for Pesticide Laboratory RFP
I have reviewed the two bids submitted to the Department of Administrative Services for the Request for Proposal 5412Z1, Pesticide Laboratory Services. While not requested, I did check the financial data of the two bids and find that they are quite close in total sum; only $410 apart for a contract estimated annual cost of approximately $80,000.
In looking at the Terms and Conditions portion of each bid, it was apparent that SGS North America had four proposed revisions to the contract while South Dakota Ag Labs had only one. Both laboratories indicated they have current quality control and assurance plans, but not an EPA-approved Quality Assurance Project Plan (QAPP) on file with EPA Region VII. Both labs indicated that they could submit a QAPP to EPA within 30 days of the contract award, and given the outline of quality control and quality assurance procedures currently in place for both labs, I believe this is likely true. SGS North America is ISO 17025 accredited and ISO900 certified, which means they likely have all of the quality assurance and quality control practices in place that would satisfy an EPA QAPP. South Dakota Ag Labs has been conducting pesticide sample analysis for the South Dakota Department of Agriculture since 2012, and likely has an EPA-approved QAPP on file with the Region VIII U.S. EPA office for South Dakota’s state pesticide program (the Nebraska RFP asked if there was one on file with the Region VII EPA office, not Region VIII). This would mean it would be very easy for the South Dakota Ag Labs to copy their current QAPP for South Dakota to EPA Region VII.
At this point in my review I felt the bids were equally qualified and priced. It was during the remainder of the review of the Terms and Conditions and attachments that I began to see a distinct difference between the two bids.
SGS North America had four other changes requested; one under Section B, Award, one under Section E, Ownership of Information and Data, one under Section NN, Confidentiality, and one under Section UU, Indemnification. The change identified in Section B, Award, would add language regarding visiting the contractor’s other clients and protection of their confidentiality. I have no concerns about this stipulation, as I have never had the need to visit any other client of our conract laboratory to audit or visit about pesticide analysis. The change identified in Section E, Ownership of Information and Data, further defines what proprietary information and knowledge the contractor has developed or possesses, and that SGS North America would retain ownership of that material and knowledge. This is not a concern to me, as the primary reason we no longer support an in-house lab is because of the difficulty developing and maintaining such knowledge and processes. The changes identified in Section NN, Confidentiality, are confusing. In fact, I asked our staff attorney, Patricia Moock, what the proposed language meant, and she had to consult a legal dictionary to interpret and understand the meaning of the term mutatis mutandis as it was used in the sentence. In her opinion, she believes SGS North America is trying to say that any future changes in confidential information are also included in the contract agreement. Both of us believe this addition is unnecessary. Finally, the change identified in Section UU, Indemnification, is troublesome to me. In it, SGS North American is requesting they not be held accountable or responsible for “errors or omissions” caused by their laboratory. In effect, if SGS North America were to report an incorrect pesticide detection to the NDA, and the NDA were to take regulatory enforcement action based on that erroneous report, the NDA, not SGS North America, would bear the liability of the mistake should the penalized entity be successful in challenging the erroneous report, and any financial loss incurred because of the enforcement action. This is unacceptable, and is an important protection for the State of Nebraska under the contract.
In reviewing the South Dakota Ag Labs bid, I noted that there were a few instances where the attachment references the “SD Department of Agriculture”, which should have been either Nebraska Department of Agriculture, or State Agency. I am aware that South Dakota Ag Labs provides pesticide analytical services for the South Dakota Department of Agriculture, and my guess is that they attached the Quality Services Manual for that agency in whole as a reference to show what they would develop for our contract. There were no other discrepancies or proposed changes for the South Dakota Ag Labs bid. I did note South Dakota Ag Labs provided considerably more evidence of what they currently do and could do for our pesticide program. It is very similar to what we currently have in place with the University of Iowa State Hygienics Laboratory, and would take very little effort to convert to their procedures. It is evident to me that many of the Standard Operating Procedures in place in the South Dakota Ag Labs was developed using U.S. EPA Good Lab Practices, which is important for a regulatory program such as ours.
In conclusion, I believe the cost factors of the two competing bids are virtually equal. It appears that the primary concern with the SGS North America bid is their desire to avoid responsibility for errors and omissions, and their request to add unneeded language in the contract. South Dakota Ag Labs appears to have a better process already in place for pesticide regulatory samples, and would likely have a better understanding of our needs from the outset of the contract period. For this reason I would recommend we accept the bid by South Dakota Ag Labs.
10/26/20061