JOFOC Legal Expert - (SAM.gov).pdf

CUI//SP PROCURE

Department of Energy Savannah River Operations Office

Justification For Other than Full and Open Competition

1. Identification of the agency and the contracting activity.

The requiring activity is the United States Department of Energy, Savannah River Operations Office

(DOE-SR)

The contracting activity is the Office of Acquisition Management, DOE-SR

2. The nature and/or description of the action being approved.

This document sets forth the justification and approval of the use of one of the exceptions to full and open competition allowed under the Competition in Contracting Act of 1984 pursuant to FAR 6.302-3(b)(3)(i) and FAR 13.106-1(b)(1)(i). Office of Chief Counsel (OCC), DOE-SR plans to contract for an expert, Mr.

Michael Hillman, to provide expert services to assist the DOE in analysis, presentation, or defense for current and anticipated litigation by means of other than full and open competition.

3. A description of the supplies or services required to meet the agency’s needs (including the estimated value).

DOE-SR OCC is responsible for providing legal advice, counsel, and support to the Manager, DOE-SR and program offices to further the Department’s mission of the environmental cleanup of the Savannah River Site. DOE-SR OCC needs additional technical and expert support and advice for highly complex and technical pending litigation pertaining to nuclear readiness. The requested services would support the DOE-SR OCC legal team providing highly complex technical and scientific advice as part of a litigation team. DOE-SR OCC seeks assistance from experts possessing long-term institutional knowledge and experience to identify potential issues, collect information, and provide specific expert advice to government attorneys who will render the legal opinions and legal advice to decision makers and assist in developing positions related to the pending litigation. The DOE nuclear readiness process is extremely unique and complex. Mr. Hillman, who authored the documents governing the DOE nuclear readiness review process, has the unique experience and specialized and historical knowledge to provide support for pending litigation before the United States Civilian Board of Contract Appeals.

4. An identification of the statutory authority permitting other than full and open competition.

The authority for this proposed action is FAR 6.302-3(b)(3)(i) and FAR 13.106-1(b)(1)(i). FAR 6.302-3(b)(3) uses the authority in FAR 6.302-3(a)(2)(iii), which provides that full and open competition need not be provided when it is necessary to award the contract to a particular source to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.

Pursuant to FAR 13.106-1(b)(1)(i), under the Simplified Acquisition Threshold, a Contracting Officer may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available.

5. A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited.

Before his retirement, Mr. Hillman was detailed to the NNSA Office of Safety, Infrastructure and Operations to support the Conduct of Operation improvement efforts of both the Los Alamos Field Office and Los Alamos National Laboratory. As part of this detail, Mr. Hillman was tasked with mentoring Field Office personnel in both Conduct of Operations and the philosophy and conduct of performance assessment methodologies. He also served as the lead instructor for both the DOE nuclear Readiness Review Team Leader and Team Member training courses at the DOE National Training Center in Albuquerque, NM. He also provided mentoring and technical support to DOE Field Offices in establishing readiness programs.

Importantly, Mr. Hillman authored the current versions of DOE Order 425.1D, Startup and Restart of DOE Nuclear Facilities and DOE Standard 3006-2010, Planning and Conducting Readiness Reviews – the central documents which govern the DOE nuclear readiness review process. Further, Mr. Hillman was responsible for ensuring the consistency of program implementation across the DOE Complex. Mr. Hillman will provide expert evaluation and analysis of contractor readiness and performance in the commissioning the SWPF. This expert assessment goes directly to the central issue in this litigation: whether, as the contractor contends, it was ready to begin nuclear operations in the SWPF and proceed to the DOE Operational Readiness Review consistent with Deliverable 5.9B. This expert assistance includes providing technical review, expert opinion and advice and drafting documents as a member of the legal team in DOE-SR OCC conducting the litigation in pending litigation. Mr. Hillman is the foremost expert on the DOE nuclear readiness review process and is uniquely qualified to provide expert services in this litigation.

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 subpart 5.2 and, if not, which exception under 5.202 applies.

No other offers were solicited since the unique nature of Mr. Hillman’s expertise as applied to current and pending litigation cannot be replicated. Pursuant to FAR 5.202(a)(14), the contracting officer need not submit the notice required; the proposed contract action is made under conditions described in 6.302-3 with respect to the services of an expert.

7. A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.

The price reasonableness of the proposed price will be based on the methods contained in FAR 13.106- 3(a)(2). The fixed hourly rate of the expert will be determined to be fair and reasonable based on comparison to hourly rate of other Subject Matter Experts(SME). Other Direct Costs (travel) will be billed at the government rate. The period of performance will be one year, with consideration of adding one (1) option year. The estimated value of this acquisition including the possible use of option is not expected to exceed the Simplified Acquisition Threshold. A determination and findings, document is being prepared for a Time and Materials contract type.

8. A description of the market research conducted and the results or a statement of the reason market research was not conducted

In connection with defending the DOE in this litigation, DOE Attorneys have interviewed multiple witnesses with extensive and diverse experience in the DOE nuclear readiness review process and nuclear operations. Many of these experts have indicated that Mr. Hillman is the leading expert on the DOE nuclear readiness review process and nuclear operations. In addition, since Mr. Hillman is not a DOE employee, his expert opinions cannot be attacked as biased in favor of the DOE. Thus, based on his unique qualifications, his professional independence, and his being recognized as a leading expert, Mr. Hillman is the most qualified individual to assist the DOE in defending itself against multi-million-dollar claims concerning the DOE nuclear readiness review process and operations.

9. Any other facts supporting the use of other than full and open competition.

As the author of DOE O 425.1D and DOE Standard 3006-2010, the documents governing the DOE nuclear readiness review process as well as his being the lead instructor teaching the DOE nuclear readiness review process at the National Training Center, Mr. Hillman is the only individual that DOE-SR OCC has identified as having the unique ability to immediately perform the evaluation and analysis required in the pending litigation. Mr. Hillman would seamlessly provide the added expert support for the DOE-SR OCC without any ramp-up time or additional research needed to become familiar with the issues.

10. A listing of the sources, if any, that expressed a written interest in the acquisition.

Not Applicable. No sources expressed written interest.

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.

No subsequent acquisitions are anticipated for the unique skills provided by Mr. Hillman to support this requirement.

Certification:

i. In accordance with FAR 6.303-2(b)(12), the Contracting Officer certifies that this Justification for Other than Full and Open Competition is accurate and complete to the best of the Contracting Officer’s knowledge and belief.

ii. By the Acquisition Initiator’s signature below, it is hereby certified that the supporting data, which is the responsibility of the technical and requirements personnel, used to form a basis for the Justification for Other than Full and Open Competition is complete and accurate.

iii. In accordance with FAR 6.303-2(c), each justification shall include evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or schedule requirements or other rationale for other than full and open competition) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel.

Acquisition Initiator:

Lucy M. Knowles Date Chief Counsel, Office of Chief Counsel

DOE-SR

Review:

Team Lead: Chad Dando Date

Contracting Officer | Contracts Management Division

DOE-SR

Approval:

Contracting Officer: Lennie K. Mattis Date

Contracting Officer | Contracts Management Division

DOE-SR

LUCY

KNOWLES

Digitally signed by

LUCY KNOWLES

Date: 2024.04.01 13:10:08 -04'00'

Digitally signed by

CHAD DANDO

Date: 2024.04.01 14:00:35 -04'00'

Digitally signed by LENNIE MATTIS Date: 2024.04.01 14:34:40 -04'00'