JOFOC_to_complete_CERCLA_removal_action_1.pdf

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN COMPETITION

Over $250,000 (FAR 6.303-2)

Contract #140P2124C0011

1. Identification of the Agency and the Contracting Activity:

Department of Interior, National Park Service, Contracting Operations - National

2. Nature and/or Description of the Action Being Approved:

Negotiate and award a sole source contract for collection, transport, and disposal of hazardous waste.

3. A Description of the Supplies or Services Required to Meet the Agency’s Needs, Including the Estimated Value:

The contractor will remove asbestos-containing materials (ACM) (generally building materials with ACM affixed, otherwise known as asbestos-containing waste (ACW)) that are scattered across the Caneel Bay Resort, part of Virgin Islands National Park (VIIS), on St.

John, U.S. Virgin Islands. The ACW is generally around buildings with moderate to major hurricane damage and in miscellaneous debris piles. The contractor will implement a previously-developed Comprehensive Environmental Response, Conservation and Liability Act (CERCLA, 42 U.S.C. §§9601 et seq.) NTCRA work plan (WP) to collect, package, remove, transport, and dispose of the ACW at appropriate disposal facilities in the continental United States. The ACW is within the Hawksnest Beach and Turtle Bay areas of the resort and is estimated to be 120 cubic yards (CY).

The estimated contract value is $350,000.00.

4. Identification of the Statutory Authority Permitting Other Than Full and Open Competition:

FAR 6.302-2, Unusual and compelling urgency (41 U.S.C.3304(a)(2)).

5. A Demonstration That the Proposed Contractor’s Unique Qualifications or the Nature of the Acquisition Requires Use of the Authority Cited:

The National Park Service (NPS) has the responsibility under CERCLA to determine if potential hazardous substances exist within each NPS unit. Through an Engineering Evaluation/Cost Analysis (EE/CA) (NPS, 2021a) and addendum (NPS, 2022), NPS determined that asbestos-containing debris, from structures damaged by hurricanes Irma and Maria, is present on or above ground at multiple locations within Caneel Bay Resort (the Site), namely Scott Beach, Hawksnest Beach, and Turtle Bay. NPS concluded that a removal action was needed to meet removal action objectives related to risks to human health and the environment, future constraints on VIIS resources, and compliance with cleanup regulations.

The Site’s removal action objectives (RAOs) were stated in the EE/CA and addendum and were defined to address risk to human health and the environment, constraints on park resources, and federal and territorial regulations and guidance. Once the RAOs and cleanup goals are met, the ground surface where ACM debris has come to be located will be available for unrestricted use.

Building materials with asbestos mineral concentrations greater than one percent (>1%) by weight are considered asbestos-containing materials (ACM). During the EE/CA Addendum Investigation in November 2021, NPS identified debris and piping containing non-friable asbestos, meaning that it could not be crushed by hand and did not present an immediate risk to human health or the environment. However, the Asbestos-Containing Waste is exposed to wind, rain, and sunlight, which will weather or deteriorate the materials with time, increasing the potential for asbestos fibers to migrate or be released to the environment (See 40 C.F.R. § 300.415(b)(2)(v)). Additionally, destruction, disturbance, or improper handling of the structures or debris piles by untrained or unknowing personnel, visitors, or trespassers may cause a release of asbestos fibers to the air and expose those personnel and others (See 40 C.F.R. § 300.415(b)(2)(i)).

The Site is located within the authorized boundary of Virgin Islands NP and encompasses the approximately 150-acre area that was granted to the United States pursuant to an Indenture Agreement dated September 30, 1983. The Indenture Agreement established the Retained Use Estate (RUE), which authorizes the RUE-holder to exclusively use and occupy the Site for purposes of operating a resort for 40 years. The RUE was most recently held by EHI Acquisitions, LLC, whose sister entity CBI Acquisitions, LLC is the current report operator.

The RUE expired on 9/30/23 and there is active litigation between CBIA/EHI and NPS over the future ownership and operation of the resort. The parties have a shared interest in removing the hazardous asbestos-containing waste from the site expeditiously. The litigation and status of the cleanup are of keen interest to the local population; both have a high public profile and are often in the local press.

During the spring and summer of 2023, NPS solicited and awarded a contract for removal of all ACW at the Site that included one lump-sum contract line item (CLIN) for approximately 160 CY; this quantity estimate was based on surveys performed in November 2021. During contract performance in January 2024, NPS discovered that a significantly larger quantity of ACW needed to be removed to meet the Site’s RAOs. The NPS Contracting Officer’s Representative (COR) and Project Monitor (PM), who participated in the 2021 surveys, noted that the additional quantity of ACW is due primarily to previously-affixed building materials becoming detached in post-survey wind events. Although NPS recognized that some quantity increase was probable due to the length of time between the 2021 survey and the 2023 removal action, NPS was unable to re-enter the resort to resurvey the debris because of the active litigation over NPS’ role at the site with the resort operator.

Initial cursory surveys conducted by the contractor and Project Monitor at the site after mobilization identified additional debris piles containing building materials similar to those identified in the EE/CA addendum survey that are presumed ACW and per the WP are to be abated (removed). They promptly notified the Contracting Officer (CO) and CO Representative (COR), then performed a more thorough survey to arrive at an estimate of an additional 120 CY (total of 280 CY). The parties discussed modifying the contract to add abatement of the additional ~120 CY of ACW to meet the overall goal of the removal action:

remove all ACW, meet the Site’s established RAOs, and thereby allow unrestricted future use of the site. Upon completion of collecting, packaging, and loading 160 CY of ACW from Scott Beach into shipping containers, the contractor and PM left the Site to allow time to negotiate the price and terms of the proposed modification and for the CO to complete mandatory reviews by the Solicitor and NPS.

The proposed modification was disapproved by the NPS Bureau Competition Advocate.

This justification supports the decision to award a non-competitive contract to complete the CERCLA removal action of ACW.

The nature of the acquisition (a removal action under CERCLA) lends urgency to successfully completing the work and meeting the site’s removal action objectives. The contractor who abated the first 160 CY of ACW is uniquely qualified to complete the removal action as the incumbent and having them complete the removal action is the fastest way to meet the RAOs. Efficiencies include the work plan previously approved by the USVI Department of Planning and Natural Resources and high production rates based on their on-site experience.

6. A Description of Efforts Made to Ensure That Offers Are Solicited From as Many Potential Sources as is Practicable, Including Whether a Notice Was or Will Be Publicized as Required by FAR Subpart 5.2 and, If Not, Which Exception Under FAR

5.202 Applies:

An offer will be solicited only from the contractor who was awarded the original contract for the reasons noted above. A notice including this justification will be published within 30 days of contract award per FAR 6.305(b).

7. A Determination By the Contracting Officer That the Anticipated Cost to the Government Will Be Fair and Reasonable:

The contractor and NPS had several rounds of negotiations in preparation for the proposed modification to the original contract; the agreed-upon price structure and prices are used in the sole source contract. The price is fair and reasonable based on current market conditions, labor wage requirements, lodging and per diem during the planned work period, and other factors. It is somewhat higher than the original contract lump sum price due to seasonality of performance periods, 5-day workweeks (as opposed to 6-day), and steep discounting of the original contract’s offered price. The new contract will utilize a firm fixed unit-priced item for the ACW; a firm fixed price lump sum (FFP LS) item for crew mobilization, shipping, and trucking of three 20-ft (40 CY) containers; and a FFP LS option for shipping and trucking additional container(s) if the volume of remaining ACW exceeds 120 CY. By establishing a lump sum item that includes fixed costs associated with crew mobilization and transportation of three containers; a separate unit-priced item for removal and proper disposal of ACW; and an option for transporting additional container(s), the parties will appropriately apportion the risk of having an imprecise quantity estimate for the remaining ACW.

8. A Description of the Market Research Conducted (see FAR Part 10) and the Results or a Statement of the Reason Market Research Was Not Conducted:

Market research was conducted prior to the original solicitation in spring 2023. DIAR 1406.303-70 requires the CO to conduct a market survey by publishing a sources-sought synopsis at the Government-wide Point of Entry or preparing a justification detailing why publication was precluded. Additional market research, including publishing a sources-sought notice, was not conducted in conjunction with this acquisition due to the justifying circumstances enumerated above.

9. Any Other Facts Supporting the Use of Other Than Full and Open Competition, including FAR 6.303-2(b)(9)(iii). When 6.302-2 is cited, data, estimated cost, or other rationale as to the extent and nature of the harm to the Government.

FAR 6.302(b)(1) An unusual and compelling urgency precludes full and open competition.

Removal of all ACW from the Site is required to meet the Site’s RAOs; the removal action is only 57% complete (160 of approximately 280 CY of ACW); and the friability of the ACW increases the longer it is exposed to wind, sun, and rain, which leads to an increased risk of human exposure. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which is required by CERCLA Section 105 and is the government blueprint for cleanup of hazardous substance releases, states that once removal actions are identified as appropriate, they shall be implemented as soon as possible. The ACW is a hazardous substance that is released to the environment, therefore NPS is charged with removing the asbestos promptly and properly.

Contract #140P2124C0011

FAR 6.302(b)(2) Delay in award of a contract would result in serious injury, financial or other, to the Government.

The ongoing litigation regarding NPS’ role at the resort, the potential public perception that NPS is “walking away” from its cleanup responsibilities, and the administrative cost to competitively solicit, evaluate, and award a second contract for removal of the remaining ACW would result in serious reputational and financial injury to the Government. [Note that the original contract was competitively awarded and the prices in the original and new contracts are lower than the other firms’ offered prices submitted in response to the original solicitation. There is no reasonable expectation that competing a second contract would yield lower prices.]

Some contracting professionals and solicitors consulted during this negotiation consider completion of the removal action within the scope of the original contract since the overall objective and methods to perform the work are unchanged.

10. A Listing of the Sources, If Any, That Expressed in Writing, an Interest in the Acquisition:

None. [NPS received four proposals in response to the first solicitation.]

11. A Statement of the Actions, If Any, the Agency May Take to Remove or Overcome Any Barriers to Competition Before Any Subsequent Acquisition for the Supplies or Services Required:

NPS typically competes CERCLA removal actions in the open market using a variety of set-asides and intends to continue this practice; use of a sole source justification is exceedingly rare. Future removal action solicitations and contracts will use unit-priced items for estimated quantities and reference the inherent uncertainty in the estimates, particularly if the contaminants are mobile or if much time has elapsed since the estimate was developed.

These practices will render future contract modifications, even if for large quantity increases, clearly within scope.

12. Certification The Contracting Officer certifies that the justification is accurate and complete to the best of my knowledge and belief.

The Chief of the Contracting Office approves this justification.