05 14 21 JA W9123819C0044 Hamilton City Phase 2B Project-_Redacted.pdf

CONTROL NUMBER:

SPK Deputy District Counsel

SPK District Contracting Chief

Justification for Other than Full and Open Competition

US Army Corps of Engineers (USACE), Sacramento District (SPK) FAR 6.302-1 Only One Responsible Source and No Other Supplies or Services

Will Satisfy Agency Requirements

Contract No. W9123819C0044

1. CONTRACTING ACTIVITY: U.S. Army Corps of Engineers (USACE), Sacramento District (SPK), Construction Branch, Contracting Division, Sacramento, CA 95814.

2. DESCRIPTION OF ACTION: In accordance with FAR Part 6.302-1, Only One Responsible Source and no Other Supplies or Services Will Satisfy Agency Requirements, approval is being requested to award a follow-on modification to James Fisher Jr. Excavating (JFJE) 1990 County Road 303 Willows, CA 95988, for work considered to be out-of-scope of existing contract W9123819C0044 for the Hamilton City Phase 2B Project awarded on 30 September 2019.

Background Information. The US Army Corps of Engineers (USACE) and the Non-Federal Sponsor (NFS), Reclamation District 2140, are the cost-sharing partners for project implementation. The Hamilton City Flood Risk Reduction and Ecosystem Restoration Project is a multipurpose project authorized by Section 1001(8) of the Water Resources Development Act of 2007 (Pub. L. No. 110-114, § 1001(8), 121 Stat. 1041, 1050 (2007)). The Hamilton City Project, located in Glenn County, California and consists of the degradation of the existing J levee, construction of 6.8 miles of new levee, and 1,500 acres of native riparian habitat restoration. The project is divided into three (3) phases of levee construction.

Phase 1 was completed in 2017, Phase 2A was completed in 2018, and a portion of the Phase 2B levee was completed in November 2020. The remaining portion of the Phase 2B levee is the subject of this J&A.

The existing J levee that protects the town of Hamilton City was constructed prior to 1910 by a private entity without independent engineering standards for design and was constructed of materials considered unsuitable for levee construction by today’s standards. Over the course of the last century, the J levee has been the subject of repeated flood fighting events and local rodent populations have significantly degraded the embankment’s quality as animal burrows are littered through the entirety of the levee. At time of the feasibility study (Hamilton City Flood Damage Reduction and Ecosystem Restoration, California Final Feasibility Report and Environmental Impact Statement/Environmental Impact Report, July 2004), it was estimated that Annual Chance of Exceedance (ACE) for the existing levee was

0.1. The remaining J levee segment, which runs along the perimeter of Dunning Island (see Figure 1 below), is due to be replaced under the remaining Phase 2B levee construction., This segment of the levee has been breached numerous times in the last 30 years and is the segment closest to the Hamilton City limits. A breach in this levee segment would result in flooding to Hamilton City.

Construction of the remaining levee segment entails; 1.25 miles of levee embankment construction, including two separate seepage berm segments, one segment is 1,300 feet long by 25 feet wide and the other is 1,600 feet long by 70 feet wide, degrade of the existing J levee landward of the new levee segment, relocation of an interior drainage pump structure and pump, extension of an existing interior drainage ditch waterward toward the new levee segment, construction of a 48-inch diameter interior drainage culvert through the new levee embankment, and construction of various access ramps onto the new levee embankment. Construction will also require clearing of several acres of prune and walnut orchard and riparian habitat to permit construction of the new levee embankment.

4. AUTHORITY CITED: The statutory authority permitting other than full and open competition for the proposed follow-on modification is 10 U.S.C. 2304(c)(1), as implemented by FAR 6.302-1 -- Only one responsible source and no other supplies or services will satisfy agency requirements. 10 U.SC.2304(d)(1)(B), as implemented by FAR 6.302-1(a)(2)(iii)(A), provides that full and open competition need not be provided in instances when services may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision of highly specialized services when it is likely that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition.

5. REASON FOR AUTHORITY CITED: Issuance of a follow-on contract action (i.e. out-of-scope modification) of the existing contract W9123819C0044 is the most expedient and cost-effective alternative to meeting the agency’s immediate need for the construction of the remaining levee. USACE need not engage in full and open competition for this requirement because the criteria in FAR 6.302-1(a)(2)(iii) are met, as indicated below.

A. Original Source. JFJE is the original source of the work described in paragraph 3, which was initially included in awarded contract W9123819C0044 for the Hamilton City Phase 2B Project. This project was initially solicited on a competitive basis as a Hubzone 100% small business set aside and was awarded with FAR Part 14 Invitation for Bids where JFJE was determined to be the lowest priced qualified offeror.

B. Follow-On Contract. Adding the work described in paragraph 3 as a follow-on contract action (i.e. modification to contract W9123819C0044) is the most expedient and cost-effective means to meet the project requirements. The SPK office examined several alternatives for fulfilling this requirement: 1) use of full and open competitive procedures, 2) use of the existing IDIQ Contract Capacity from Other Districts Construction Multiple Award Task Order Contract (MATOC) and 3) a follow-on contract action (i.e. out-of-scope modification) in accordance with FAR

6.302. The first and second alternative would take up to nine months and could not be awarded by spring of 2021 and would not allow for performance to begin immediately. This would leave the area unprotected during another flood season and would also result in a substantial duplication of cost to the Government. The only viable alternative is to select a single responsible contractor with a comprehensive knowledge and firsthand experience of the work required. The responsible contractor, JFJE, has already successfully constructed a significant portion (32%) the Phase 2B levee (W9123819C0044). The completed scope includes two miles of earthen levee embankment construction which includes 3000 feet of seepage berm, 2.5 miles of existing levee degrade, drainage ditch excavation, gravity culvert installation through the new levee, aggregate surface course placement, closure of gaps in the existing Phase 2A levee, and stone bank protection installation.

C. Highly Specialized Services. The construction services provided for this project are highly specialized, per FAR 6.302-1(a)(2)(iii)(b), award to any other source would result in unacceptable delays in fulfilling the agency’s requirements.

It is critical to the Hamilton City Phase 2B Project that disruption be minimal.

Delaying construction by another year will impact the overall project schedule, most notably the Phase 2 Ecosystem Restoration (ER) effort. If levee construction is completed in 2021, there will not be an impact on the Phase 2 ER effort. However, if levee construction is delayed, then there is a high likelihood that the Phase 2 ER effort will also be delayed, as both activities need to occur on the same property.

The Phase 1 levee construction and Phase 1 ER effort occurred at the same time, affecting both contractor’s abilities to meet their critical milestones. This led to impactful contractor conflicts that ultimately resulted in a damage claim submitted to the Government. Completing the levee construction in 2021, would allow a similar situation to be avoided.

JFJE has extremely valuable and extensive experience on the Hamilton City Project. The required work includes tying into the existing 2B levee that was constructed in 2020 on both ends. JFJE constructed this levee and therefore has the expertise and direct knowledge of this levee, and how the work at the tie-in-points will need to occur without the need for additional efforts. JFJE has a comprehensive knowledge and familiarity with the project site, which led to successful completion of both Phase 2A and Phase 2B of the Hamilton City levee contracts. JFJE has also developed crucial relationships with local entities and has done extensive testing on both borrow materials and other existing materials located at the J levee.

D. Substantial Duplication of Costs. FAR 6.302-1(a)(2)(iii)(a) provides that full and open competition need not be provided in instances when services may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision of highly specialized services when it is likely that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition or unacceptable delays in fulfilling the agency’s requirements. In this case, award to any other source would result in substantial duplication of costs that are not expected to be recovered through competition (see table 1).

existing IDIQ Contract Capacity from Other Districts’ Construction Multiple Award Task Order Contract (MATOC), and 3) a follow-on contract action (i.e. out-of-scope modification) in accordance with FAR Part 6. The first and second alternatives could not meet the required timelines of completing construction within the construction window of May 2021-October 2021and therefore could not satisfy the requirement.

Further, these alternatives would also result in a substantial duplication of costs through the added requirement of two additional service contracts for well abandonment and orchard removal. The only viable alternative is to select the single responsible contractor with an intimate knowledge of the work required, as specified in paragraph 3 above. The responsible contractor, JFJE, has constructed identical work on this site (W9123819C0044).

7. ACTIONS TO INCREASE COMPETITION: A Notice of Intent (NOI) to Award Sole Source was posted to the Government Point of Entry (GPE), beta.SAM.gov, on 24 February 2021 and closed on 09 March 2021, in accordance with FAR 5.203(a).

Interested parties were invited to submit their intent and capabilities to satisfy the Government’s requirement. The NOI closed on 09 March with no responses received.

8. MARKET RESEARCH: Market research was prepared for the initial awarded contract W9123819C0044 and other vehicles were considered to fulfill this requirement (see paragraph 6). It was determined that it is in the best interest of the Government to award this requirement as a follow-on contract action (i.e. out- of-scope modification) to existing contract W9123819C0044, IAW FAR 6.302-1(a)(2)(iii) due to Substantial duplication of cost to the Government that is not expected to be recovered through competition; and (B) Unacceptable delays in fulfilling the agency’s requirements. In addition, The close proximity to the remaining levee to be constructed in Phase 2B, approximately 1.25 miles, in which the contractor has already performed construction activities that will be required for the work described in paragraph 3, is a significant consideration to the government in making this determination. Full and open competition or fair opportunity requirements under the use of the existing IDIQ Contract Capacity from Other Districts’ Construction Multiple Award Task Order Contract (MATOC) or other vehicles would result in duplication of costs to the Government that is not expected to be recovered through competition.

9. INTERESTED SOURCES: A Notice of Intent (NOI) to Award Sole Source was posted to the Government Point of Entry (GPE), beta.SAM.gov, on 24 February 2021 and closed on 09 March 2021, in accordance with FAR 5.203(a). Interested parties were invited to submit their intent and capabilities to satisfy the Government’s requirement.

The NOI closed on 09 March with no responses received. Therefore, the Government was unable to find and evaluate any additional sources willing to meet this demanding construction schedule.

10. OTHER FACTS: N/A

APPROVAL

Based on the foregoing justification, I hereby approve this modification to provide Design-Bid-Build Construction in Support of the Hamilton City Phase 2B Project on an other than full and open competition basis pursuant to the statutory authority of 10 U.S.C.2304(c)(1), as implemented by FAR 6.302-1 -- Only one responsible source and no other supplies or services will satisfy agency requirements. This approval is subject to the availability of funds and provided that the work herein described has otherwise been authorized for acquisition. No authority exists, without prior proof of government ownership of the real property associated with this action and award will not be made until real property certification is received. Provided funds must also have otherwise been authorized for acquisition and in accordance with AFARS 5106.302-2(d)(1)(ii).

USACE Alternate Advocate for Competition