2019_0812_signed_Justification_for_sole_source.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

The following document is prepared in accordance with FAR 6.301 and 41 U.S.C. 253 (c), only one responsible source and no other supplies or services will satisfy agency requirements.

(1) Identification of the agency and contracting activity. Boise National Forest, 1249 S. Vinnell Way, suite 200, Boise, Idaho 83709.

(2) Nature and/or description of the action being approved: Provide advice for NEPA, Agency Administrative Objection, and litigation support of a complex ongoing mineral exploration project.

Support includes providing expeftise and support needed to complete a supplemental NEPA analysis and decision responding to the 2016 project Court Order, as well as address changed conditions within the project area affected by 2014 and 2016 wildfires. Work to be completed must be done in a manner that is consistent with historical work completed on this project since 2008, including response to two prior Court Orders and nearly 100 GB of historical project records generated since 2008.

(3) A description of the supplies or services required to meet the agency's needs (including the estimated value): To be successful in completing project related work elements requires the contractor to have a clear understanding of the project, subject matter, and prior working relationships with Agency management, interdisciplinary resource teams (IDT), Office of General Counsel (OGC), and Department of Justice (DOJ). In addition, the contractor must have expertise in complex mineral NEPA project and a background in mining law. This includes the Organic Administration Act of 1897.

In addition, the contractor must be an expert in interpreting and applying basic Federal Legal Principles pertaining to mineral law, including:

o Laws have hierarchy: some laws supersede others if there is a conflict (e.g. Constitution, Statute

vs. Regulation);

¡ Federal Supremacy: Under the Supremacy Clause of the US Constitution, Article VI, Clause 2, if there is a conflict with State law, Federal law is supreme.

o Property Clause: Article IV, Section 3, clause 2 of the US Constitution "Cpngress shall have

Power to dispose of an make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"

. Limited Authority of Agencies: An agency only has the authority delegated to it by Congress.

To successfully provide project management advise to the BNF, it is imperative to have an expert knowledge of NEPA and legal related processes associated with the project, the contractor filling this position must not only be knowledgeable in mining law, but also be considered an expert in the application of relevant mineral case law, including ". . . the 1872 Act which reserves to the claimant "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. I26. This right was limited by the Surface Resources and Multiple Use Act of 1955, which reserved to the United States the right to manage and dispose of surface resources on unpatented mining claims; however, the 1955 Act provides that such use shall not "endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto." 30 U.S.C. Q 612ft)." U.S. v Doremus, 888 F2d 630,632 (9th Cir. 1989).

Estimated cost is $ 175,000 base and one option year

(a) An identification of the statutory authority permitting other than full and open compstition:

6.302-l - Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.

(a) Authority.

(l) Citations: l0 U.S.C. 230a(c)(l) or 41 U.S.C. 253(cXl).

(2) When the supplies or services required by the agency are available from only one responsible source, or, for DOD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisf agency requirements, full and open competition need not be provided for.

(i) Supplies or services may be considered to be available from only one source if the source has submitted an unsolicited research proposal that --

(A) Demonstrates a unique and innovative concept (see definition atZJll), or, demonstrates a unique capability ofthe source to provide the particular research services proposed;

(B) Ofiers a concept or services not otherwise available to the Government; and,

(C) Does not resemble the substance of a pending competitive acquisition. (See 10 U.S.C.

2304(dX1XA) and 4l u.s.c. 253(d)(1XA).)

(ii) Supplies may be deemed to be available only from the original source in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, '""'"0''?îí',io::#låi:ii,ffi:""''"ii:T,liil:-å'J,iåi#'ir:: rí":'$;:,:iti:'13;",'J.:iï;""rn competition, or

(B) Unacceptable delays in fulfilling the agency's requirements. (See 10 U.S.C. 2304(dXlXB) or 4l u.s.c.253 (dx1xB).)

(iii) For DOD, NASA, and the Coast Guaid, 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 sourcé would result in--

(A) Substantial duplication of cost to the Govemment that is not expected to be recovered through competition, or

(B) Unacceptable delays in fulfilling the agency's requirements. (See l0 U.S.C. 2304(dXlXB).)

(5) A demonstration that the proposed Contractor's unique specifications or the nature of the acquisition requires use of the authority cited. The identified contractor is a retired Forest Service employee from the Boise National Forest who worked as a Forest Planner, Litigation Coordinator and Tribal Liaison. The identified contractor worked with the Forest Service from 1983 through August 2017, working over 25 years in project NEPA and litigation support. The identified contractor was involved on this mineral project since 2008 as the NEPA and Litigation Coordinator, working with Agency management, OGC and DOJ throughout the NEPA, administrative appeal and the objection processes as well as on the two prior litigation cases. The identified contractor has an integral and in-depth knowledge of complex mineral projects, NEPA, mining law background requirements, interpreting and applying Federal Legal Principles pertaining to mineral law, and is considered an expert in application of relevant mineral case law. The identified contractor has a strong historical background in working with the Forest Service Washington Office, Regional Office, Forest Management, IDT members within the Boise National Forest, OGC, and DOJ. The identified contractor has an in-depth knowledge of the complete project record generated since 2008 as well as thq current documents, attomey-client privileged documents, public commentso and NEPA processes utilized by the Boise National Forest. The identified contractor has a proven reputation for detail and has demonstrated expertise in providing sound advice to Forest Service Management, OGC and DOJ, as well as has the Boise National Forest management, OGC and DOJ confidence needed to provide the expertise required during litigation.

(6) A description of efforts made to ensure that offers are solicited from as many sources as is practical, including whether a FEDBIZ notice was or will be publicized as required by Subpart 5.2 and, if not, which exception under 5.202 applies.

FEDBIZOPS

(7) A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable:

Hourly rate was compared to numerous GSA schedules for similar services and found to be in line with the going rate.

(8) A description of the market survey conducted (see Part 10) and the results, or statement of the reasons a market survey was not conducted: A market survey was not conducted as the mineral exploration project is so specific that the Boise National Forest has an in-depth knowledge of the limited number of people with the requested background, qualifications, and access to all of the historic records.

The identifred contractor is the sole person that has those skills and knowledge both internal and external to the Boise National Forest.

(9) Any other facts supporting the use of other than futl and open competition: The historical project record and attorney-client privileged record is extremely large and complex and the project is extremely time sensitive. The Boise National Forest needs in-depth historical knowledge of all aspects of the mineral exploration project as well as an in-depth proven knowledge of the NEPA process, current documents and past rationale utilized, and a proven ability to prepare and navigate through objections and anticipated litigation. As the need is highly time sensitive with effectively no time to review the estimated 100 GB of data (note: on average one gigabyte includes nearly 680,000 pages or up to nearly 15,000 images) the identified contractor is the sole source.

(10) A listing of the sources, if any, that expressed, in writing, an interest in the acquisition:

N/A

(l 1) A statement of the actions, if anyo the agency may take to remove or overcome any barriers to competition before any subsequent acquisitions for the supplies or services required:

This is a specialized situation requiring.

(12) Certification: To the best of my knowledge this justification is accurate and complete. See attached supporting data.

ï-tz-t Requestor Date

Contracting Officer Date

8/12/2019