Government Contract Clauses: Toxic, hazmat and compliance

[Kchnwtch]

Hello, Elsmar! So glad you're back.

We're doing metal work for a gov't agency and this is our first job of this type. The controller overlooked specific contract callouts on toxic substances/hazardous material exclusions when getting the contract, and now we're having to prove retroactively that our work doesn't contain a whole list of toxics: mercury, pcb's, MEK, lead, chromium, asbestos, etc.

The agency shipped us their own material. They have already gotten their parts back from us. Now they want us to prove that none of these substances exists in our shop or came in contact with the material they provided.

Granted, we messed up. Maybe we write this one off, but they still got their parts, it's their material and they're not planning on giving the parts back.

Sorry, I'll get to the point, questions: 1) Have you ever encountered this situation? How did you manage it? 2) Any thoughts on how to prepare in advance for these restrictions if we get a contract like this again (what can I say, work is slow) 3)Isn't this just a clever way for the agency to get the work for free???

Thanks in advance for all you do for us, Elsmar people!

 

[normzone]

Re: Gov't clauses: toxic, hazmat and compliance

This has the sound of a specific statutory or regulatory standard - Perhaps a DFAR or something. Is there a specific standard your customer referenced?

It may just come down to knowing what is in your shop and being able to legitimately attest that their material did not come in contact with any of the materials referenced.

Nobody expects to get work for free - but somebody in your organization has to review the fine print associated with a contract before you accept it. Sometimes the customer purchase order references other documents you must hunt down, and they're not always where the customer tells you they are. You still have to find them and determine how to deal with the requirements anyway, or push back prior to accepting the order.

Sometimes it can be challenging, other times amusing:

http://elsmar.com/Forums/showthread.php?t=65128

 

[Kchnwtch]

Re: Gov't clauses: toxic, hazmat and compliance

Yes,normzone, you're right about the DFAR. And thanks for the laugh! I guess what gets me most is that it's the customer's material in the first place, and we did all we were supposed to with traceability, parts-wise. Hopefully this will teach our financial folks to check before they quote.

 

[Ninja]

The controller overlooked specific contract callouts on toxic substances/hazardous material exclusions when getting the contract, and now we're having to prove retroactively that our work doesn't contain a whole list of toxics: ...

The difference between easy and hard is centered around that word "prove" that you used.

Do you need to "prove"?
...or do you need to "certify" or "attest"?

A Cert saying that the material provided by the buyer did not come in contact with any of the materials listed may be all that they are looking for.
It's DOD...they have paperwork to do, and they need you to do some (usually quite a lot).
See if this isn't simply a simple cert you need to provide...you can be done with it in ten minutes.
With OSHA GHS now in play, folks don't know where the line is anymore...and besides, you've already "attested" to what is in there by the SDS (or lack of) that you sent with the product.

Don't make the mistake of thinking that the person who ordered the stuff, the person who shipped you the material, and the person you shipped it to even know each other's names...

What EXACTLY do they need (not what are they asking for...what do they NEED)? Then give them that. In my experience, a phone call makes all the difference in the world...while it's DOD, the people inside tend to be pretty reasonable and hate the paperwork as much as you do.

 

[normzone]

Re: Gov't clauses: toxic, hazmat and compliance

Yes,normzone, you're right about the DFAR. And thanks for the laugh! I guess what gets me most is that it's the customer's material in the first place, and we did all we were supposed to with traceability, parts-wise. Hopefully this will teach our financial folks to check before they quote.

It may teach them, but usually the learning is proportionate to the pain. And often the terms and conditions are general and painless in the quoting stages, but when the order arrives it is accompanied by more stringent requirements. That's when the screening and negotiation become critical.

And some customers have Ts & Cs that the buyer doesn't even know about - but somebody who does know about it is expecting a specific deliverable and may come asking for it.

To add insult to injury, sometimes months after delivery the customer and their customer return with additional retroactive requirements.

In my position, I review the Ts & Cs that accompany the order, then research the company for other unrevealed expectations. Some customers are nice and boring, just the way we like them, others, not so much.

 

[Kchnwtch]

Hello, Good Elsmar folks, I need your help, again, please!

We sent a Certificate of Conformance, and it just wasn't enough. The materials belong to the customer--they ship them to us, we saw/turn/mill them, and send them back. No painting or coating happens in our facility.

He is claiming that we somehow have to prove that our facility has no PCBs, Mercury, or asbestos in it. We sent them SDSs/MSDSs on everything that we bought for the jobs--coolant and tooling.

They have the parts we have already made for them in their possession, although if we were to test them who knows what has blown on them at their facility by now?

Here's a quote from the reply we got to our CofC:
"You are definitely on the right track, however I don't think an MSDS or SDS would address this "(Materials known or suspected of containing or coming in contact with asbestos, polychlorinated biphenyls (PCBs), or mercury or mercury containing compounds)" especially where coming in contact is concerned...
"[The Contract] basically implies that a supplier should flow down these requirements & in-lieu of flowing down the requirements there are possible other options. By not flowing down the requirements then your sub-tier suppliers for example may not know that a hazardous item that is called out above should not come in contact with material for example and an MSDS or SDS probably would not tell you that. "

[We have no sub-tier suppliers except for tooling, and that is off the shelf, not custom...]

" So if you could please explain to me further how
your company ensures they are in compliance with these requirements."

So, any ideas? Has anyone dealt with this before? Thanks for your help!

 

[Ninja]

What did they say on the phone call you had to discuss this?

 

[Kchnwtch]

So far, all email. I discovered that the boss had sent everything EXCEPT the COC which I have now made him send.

From what I can glean from the email, I think the client wants 1) something equivalent to an RoHS statement to go to any suppliers and 2)lab testing for the three contaminants.

Lab testing will end the relationship, I think, because a)it will be cost prohibitive and b)the client isn't going to pre-test the material they send us to cut/turn/mill, so testing would be moot anyway.

I'm developing an RoHS statement for our suppliers, but if I'm buying supplies from, say, MSC, they are going to send me what I order, they are not going to pre-screen my orders for RoHS. Compliance is still up to us.

Sorry to and many thanks for continuing to read!

 

[Kchnwtch]

So we got a reply, and I think this is the end of our relationship. I'm just posting this here for any learning opportunities it might present:

"you have still not shown me how your tools for example (your saws, coolant, lathes, blades, milling stations special tools, jigs, fixtures, gages and measuring equipment) that you mentioned have not come in contact with any of the items that they are not supposed to come in contact with. Where has your company flowed this requirement down to your sub-tiers (the people who make those tools mentioned above that will be coming in contact with NNS material)? I would think that unless you flow that requirement down your suppliers of these items would not even know the requirement exist and therefore contact with these hazardous items could occur."

We're not AS9100, nor were we required to be to make the parts. Considering the paltry sums we're getting from this client, I think it's time to find a new client.
Thanks to everyone for your time and good advice! I do appreciate it.

 

[Kchnwtch]

So, turns out what they actually wanted was a RoHs statement on each purchase order (specifically for mercury, asbestos and PCBs). I understand the importance of it, but the methods sure get confusing! Thanks for helping me out, y'all.