24-008_P00001_JOTFOC_Site_Remediation_1.pdf

Contract No. 140R6024C0008 Modification No. P00001 Page 1 of 6

WBR 1406.303-1 Template 1 eFile - B02

(04/2021)

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION

In accordance with FAR 6.302 or FAR 13.501(a), the proposed contractual action is pursuant to the statutory authority identified in paragraph 4. This template is required for actions over the Simplified Acquisition Threshold (unless the procurement is acquired as a limited source IAW FAR 8.405-6 or is an Exception to Fair Opportunity IAW FAR 16.505(b)(2)).

1. Agency and Contracting Activity (FAR 6.303-2(b)(1)).

U.S. Department of the Interior, Bureau of Reclamation, Missouri Basin Regional Office, Acquisition Services Group (MB-5000)

2. Nature/Description of Action (FAR 6.303-2(b)(2)).

The contractual action will be Modification No. P00001 to Contract No. 140R6024C0008 with NW Construction to add the work described under paragraph 3 below. The Contracting Officer will, per the authority of 41 U.S.C. 3304(a)(2) and FAR 6.302-2 – Unusual and Compelling Urgency, will issue a bilateral modification to NW Construction to perform the work.

3. Description of Supplies/Services (FAR 6.303-2(b)(3)).

The St. Mary Canal (“the Canal”) is a water conveyance canal located in northwest Montana near Babb, Montana and is part of the Milk River Project (“the Project”). The Project is often referred to as the lifeline of the Montana Hi-Line. Without diverted waters from the St. Mary and Milk Rivers to the area, many farmers and towns would never have been able to flourish here. The Project is the primary water source for eight irrigation districts (approximately 700 farms), Tribes, about 110 individual contract pumpers, and several municipalities beginning at Havre, Montana and continuing downstream serving approximately 18,000 users in communities, 110,000 acres of Milk River Project lands, and about 30,000 acres in Tribal and other lands. The Bureau of Reclamation (“the Bureau”) owns and operates the Canal as part of the St. Mary Unit. The Canal infrastructure, including the large siphon pipes, conveys water supply from the Hudson Bay drainage to the Missouri River drainage. One siphon location is called the St. Mary River Siphon, which includes two 90” diameter steel pipes.

Due to a recent failure of these pipes and the resulting impacts across northern Montana, as described in detail under paragraph 5 below, the Bureau has a requirement for site remediation to be performed at the failure site to restore the Canal. As such, it is necessary for the Bureau to have a contractor demolish and remove the old siphon pipes and remediate the entire site (including the river) in preparation for the installation of new pipes, the construction of which the Milk River Joint Board of Control (MRJBOC) will subsequently procure and manage.

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Due to the urgent and compelling circumstances, the most expeditious means to have the siphon demolition, removal and site remediation work included in the recently awarded Contract No. 140R6024C0008 to NW Construction through a contract modification. This contract was awarded for $88.3M on June 3, 2024, and involves a new-build construction of the St. Mary Diversion Dam and Headworks approximately nine miles upstream of the St.

Mary Siphon failure location. It is anticipated that the site remediation work will require approximately 55-calendar days to complete, beginning work on or around July 22, 2024.

The estimated cost for the site remediation work is approximately $5,850,000.

4. Statutory Authority Permitting Other than Full and Open Competition (FAR 6.303-

2(b)(4)). (Check one)

Authority FAR Coverage Application ☐ 41 U.S.C. 1901 FAR 13.501 Only one responsible source using Simplified

Acquisition Procedures (above SAT but at or below $7.5M)

☐ 41 U.S.C. 1903 FAR 13.501 Special emergency procurement authority

☐ 41 U.S.C. 3304(a)(1) FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements

☐ 41 U.S.C. 3304(a)(1) FAR 6.302-1(c) Application for brand-name descriptions

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

☐ 41 U.S.C. 3304(a)(3) FAR 6.302-3 Industrial mobilization; engineering, developmental or research capability; or expert services

☐ 41 U.S.C. 3304(a)(4) FAR 6.302-4 International Agreement ☐ 41 U.S.C. 3304(a)(5) FAR 6.302-5 Authorized or required by statute ☐ 41 U.S.C. 3304(a)(6) FAR 6.302-6 National Security ☐ 41 U.S.C. 3304(a)(7) FAR 6.302-7 Public Interest

5. Demonstration of Contractor’s Unique Qualifications (FAR 6.303-2(b)(5)).

On Monday June 17, 2024, both St. Mary River siphon barrel pipes experienced catastrophic structural failure outside Babb, Montana. Initially, the north pipe failure resulted in substantial water discharge, which led to severe erosion and washout areas at the breach site compromising the integrity of the hill and concrete footings holding the pipes, ultimately resulting in failure of the south barrel later the same day. As a result of this failure, the Canal can no longer supply water to the aforementioned recipients. This will result in adverse financial impacts to local irrigators with an estimated economic loss of $10.6M per annum.

Municipal and industrial users will need to ration limited water supplies that are being temporarily provided via upstream reservoirs, and possibly haul additional water supplies until the Canal is functioning again.

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In addition, the conveyance of this water provides benefits to approximately 8,200 acres of land irrigated in Southern Alberta as well as municipalities within Canada. Without St. Mary River diversions, Canadian Milk River irrigators are limited in their irrigation based on river stage historically supported by St. Mary River diversions and municipalities will have to rely on storage conservation efforts until the Canal is restored.

The Bureau’s site remediation requirement did not emerge until the end of June 2024 due to the unexpected catastrophic failure of the siphons on June 17th, which is why this is an unusual and compelling situation. The proposed contractor, NW Construction, will be mobilizing to Babb, Montana to begin construction work on the new St. Mary Diversion Dam on July 15th, 2024, as required by Contract No. 140R6024C0008. This Dam will divert water into the Canal. The Bureau and the MRJBOC have recently agreed that the Bureau will handle the procurement of site remediation services and the MRJBOC will handle the procurement to construct the new pipes.

The Bureau believes that using NW Construction as the contractor for the remediation work is the most expeditious way to accomplish the work because it is already mobilizing to work on a massive construction project close to this remote location. NW Construction is uniquely pre-positioned both geographically and logistically to perform the required site remediation services that are urgently needed to enable the MRJBOC to follow up with their own construction procurement for new siphon pipes.

With respect to competition, NW Construction was the only offeror that responded to the solicitation for the St. Mary Diversion Dam project. This may be due to the extreme remoteness of the area. Further, this work will take place within the Blackfeet Indian Reservation and be subject to Tribal Employment Rights Office (TERO) and Revenue fees.

These fees are required for all contractors working on the Blackfeet Tribal lands. NW Construction has a positive relationship with the Tribe and will be performing the St. Mary Diversion Dam project on Tribal land. NW Construction has already begun working with the Blackfeet TERO to work on Tribal land.

By using NW Construction, a contractor that is already mobilizing to the site, the time to identify a contractor and mobilize them to a very remote location on Tribal land is greatly shortened. NW Construction’s pre-existing relationship with the Blackfeet Tribe as well as excellent past performance by NW Construction on current and past Bureau contracts, also expedites the ability of the Bureau to address this urgent site remediation requirement with confidence in a proven contractor.

Delays in completing the site remediation also directly delays the ability of the MRJBOC to procure construction services for the new pipes and bridge. Such delays, in turn would directly prolong the lack of water supply to the aforementioned recipients.

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6. Description of efforts made to maximize competition (FAR 6.303-2(b)(6)).

Due to the unusual and compelling nature of the emergent site remediation requirement, no effort will be made to maximize competition per exception FAR 5.202(a)(2) – “The proposed contract action is made under the conditions described in 6.302-2 (or, for purchases conducted using simplified acquisition procedures, if unusual and compelling urgency precludes competition to the maximum extent practicable) and the Government would be seriously injured if the agency complies with the time periods specified in 5.203.” As noted above, the St. Mary Diversion Dam project was recently competed, and NW Construction submitted the only offer in response to the solicitation.

7. Determination of Fair and Reasonable Cost (FAR 6.303-2(b)(7)).

The Bureau’s contract with NW Construction will be modified to include separate line items for the site remediation requirement. The contract contains clauses that require the contractor to document its labor costs through payroll. In addition, the Government will require the contractor to submit a request for equitable adjustment within 30 days of the date of the change order being issued per the established definitization schedule within the anticipated change order modification. The contractor will be required to submit all subcontract invoices and supporting cost information with their proposal. A thorough technical evaluation will be performed by Bureau engineers. The contract clauses include MB-12 – Unilateral Modifications-Forward Pricing Rate Agreement, where the contractor’s equipment, labor, home office, field office, and bond rates will be reviewed to determine if they are allocable, allowable, and reasonable. This forward pricing rate agreement will streamline the negotiations of future modifications. Since the site remediation requirement will likely exceed the Certification of Cost or Pricing Data threshold of $2M, the contractor will be required to submit a certificate of cost or pricing data to the Contracting Officer after completion of definitization negotiations.

NW Construction is known for providing excellent cost and price support in their proposals on other Bureau projects. NW Construction has a history of having completed other Bureau construction projects on time and under budget with excellent construction management.

They have proven to be an excellent and highly responsive contractor partner and the Government has no reason to believe NW Construction will be any different in responding to this emergent requirement in terms of providing quality performance, effective cost control, and meeting challenging schedules.

8. Description of Market Research Conducted (FAR 6.303-2(b)(8)).

Due to the unusual and compelling emergent nature of this requirement, no formal market research was conducted. However, it should be noted that since there was only one proposal received for the St. Mary Diversion Dam project due to the extremely remote location, there is significant concern that attempting to compete this requirement will result in substantial delays in obtaining the urgent services, which, in turn, would adversely impact vital water supplies to a large number of recipients.

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9. Any Other Supporting Facts (FAR 6.303-2(b)(9)).

Not Applicable.

10. Listing of Interested Sources (FAR 6.303-2(b)(10)).

Due to the unusual and compelling nature of the emergent site remediation requirement, no effort will be made to obtain a list of interested sources.

11. Actions Taken to Remove Barriers to Competition (FAR 6.303-2(b)(11)).

Due to the unusual and compelling nature of the emergent site remediation requirement as well as the short duration of the required work, it is not anticipated that there will be any future requirements for site remediation after this one is completed. Therefore, no action will be needed to remove barriers to future competition.

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SIGNATURES

PREPARED BY:

Name: Charlene Maurer

CONTRACTING OFFICER (CO) (FAR 6.304(a)(1) or FAR 13.501(a)(2)(i)): (All Values)

Name: Ryan Cope

CHIEF of the CONTRACTING OFFICE (CCO) (DOI-AAAP-0024): (> $250K)

Name: James Durrant

BUREAU COMPETITION ADVOCATE (FAR 6.304(a)(2) or FAR 13.501(a)(2)(ii)):

(>$750K)

Name: Meagan Fyffe

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