A.02._J&A - FAR Part 6_ANC Env Response_APPROVED_25NOV2024.pdf

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All individuals handling this information are required to protect it from unauthorized disclosure.

Handling, storage, reproduction, and disposition of the attached document(s) must be in accordance with 32 CFR Part 2002 and applicable agency policy.

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Standard Form 901 (11-18) Prescribed by GSA/ISOO | 32 CFR 2002

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Control Number: NAB-24-005592

(Source Selection information - See FAR 2.101 and 3.104-4)

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After-the-Fact Justification Review Document for Other than Full and Open Competition - FAR Part 6

Program/Equipment: Environmental Services for Investigation, Remediation, and Site Restoration at Section 78, Arlington National Cemetery, Virginia

Authority: 10 United States Code 3204(a)(2) as implemented in Federal Acquisition Regulation 6.302-2, Unusual and Compelling Urgency.

Amount: $930,225.72

Prepared by:

Evan Cyran Contract Specialist E-mail: evan.m.cyran@usace.army.mil

Contracting Officer:

Leigha M. Arnold Contracting Officer E-Mail: leigha.m.arnold@usace.army.mil

Technical / Requirements Representative:

Nicole Walworth Project Manager E-Mail: nicole.u.walworth@usace.army.mil

(Source Selection Information - See FAR 2.101 and 3.104-4)

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Reviews

I have reviewed this justification and find it adequate to support other than full and open competition.

Program Manager

Emily Schiffmacher Chief, EMDC Email: emily.d.schiffmacher@usace.army.mil

District Legal Counsel

Michael Shields Assistant District Counsel E-Mail: michael.t.shields@usace.army.mil

District Chief of Contracting

Paula M. Beck Chief, Contracting Office Email: paula.m.beck@usace.army.mil

SCO Legal Counsel

Alexandria Tramel Office of Counsel Senior Contracting Official – Atlanta Email: alexandria.p.tramel@usace.army.mil

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Justification and Approval for Other than Full and Open Competition – FAR Part 6

1. Contracting Activity: U.S. Army Corps of Engineers (USACE), Baltimore District, Contracting Division, Baltimore, MD.

2. Description of Action: In response to the emergent request for corrective action from the Virginia Department of Environmental Quality (VADEQ) and the Arlington National Cemetery (ANC), the Baltimore District had a requirement to immediately procure environmental remediation services for Section 78 of ANC. Due to the urgency of the requirement, NAB obtained Senior Contracting Official (SCO-ATL) approval on 28 July 2024 to issue an Un-definitized Contract Action (UCA) so that remediation efforts could begin immediately. The after-the-fact approval is requested for a Justification and Approval (J&A) for a Firm-Fixed-Price (FFP) Letter Contract awarded to FPM-AECOM JV2, on an other than full and open sole-source basis under circumstances of Unusual and Compelling Urgency. The action was awarded as a UCA and was definitized as a FFP contract. The type of funds utilized are 2024 Army Cemeterial Expenses, 21 2024 1805, provided by ANC via Interagency Agreement. There were no options identified for the contract.

3. Description of Supplies/Services: The purpose of this contract was to provide environmental remediation services for a portion of Section 78 of ANC. While performing gravesite excavation, ANC employees uncovered fifteen buried containers of a hazardous material, Silvex. Silvex is an agricultural herbicide banned in the United States since 1985. The material was found in Section 78 on land previously used as ANC’s service complex and motorpool until the 1980s. The land is now a section within the Millennium Expansion of ANC, which opened for internments in 2018. Upon discovery of the Silvex, ANC Engineers notified the National Response Center and is working with the Army Environmental Command and the Office of the Army General Counsel to properly categorize this event and ensure the correct steps for site cleanup are taken. The VADEQ conducted a site visit on 24 July 2024 to view the site and make recommendations on cleanup. VADEQ issued its Request for Corrective Action (RCA) on 24 July 2024, requiring cleanup by 24 August 2024 so the hazardous waste no longer presents a hazard to human health or the environment.

Following the discovery of the Silvex and issuance of the RCA by the VADEQ, the Arlington National Cemetery requested immediate action by the Baltimore District in cleanup efforts. All internment services scheduled for Section 78 were relocated to other sections of ANC, but with the number of daily burials conducted (approximately 25), removal of Section 78 from ANC operations placed severe strain on the ability of ANC to respectfully conduct burials at its normal pace. ANC represents the American people for past, present and future generations by laying to rest those few who have served our nation with dignity and honor, while immersing guests in the cemetery's living history.

The Government contacted multiple contractors to determine who could provide the service within the time allowed and at a fair and reasonable price. Speed of operation was the most important factor in this requirement. Utilizing a UCA allowed the Baltimore

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District to immediately authorize contractor performance for the urgently required services.

The not-to-exceed (NTE) ceiling price for the UCA was for $290,000. When the letter contract was awarded, half of the ceiling amount was obligated, which equates to $145,000. On 08 August 2024, the contact was definitized for a total Firm Fixed Price of $1,177,145.99 and the period of performance for the services was from 30 July 2024 to 29 October 2024. The primary difference in price between the IGE amount of $290,000 and the final firm-fixed price of $1,177,145.99 is related to the waste disposal method.

The Government Estimate included standard hazardous disposal; however, the classification of the waste requires incineration in a subtitle C landfill. This special characterization severely limited the landfill options for disposal of the waste. FPM- AECOM JV2 included this characterization in their definitization proposal based on preliminary quotes received from qualified landfills. Per the Performance Work Statement, “The project tasks in the base award of the contract shall be completed by 24 August 2024, but overall POP will be for three (3) months.” This was intended to account for any unexpected delays which would cause the project to extend beyond the RCA date. The intent was to request an RCA date extension from the VADEQ if needed.

After the definitization modification was executed, the Government was notified by the contractor that a disposal facility created challenges and that the timeline for excavation to begin would be delayed. In the meantime, ANC requested a 30-day extension to the RCA due to the delay in getting a disposal facility by FPM-AECOM JV2 under contract.

This RCA extension request was approved by VADEQ on 19 August 2024 extending the required completion date of cleanup to 24 September 2024.

FPM-AECOM JV2 formally notified the Government of a change to their contract on 27 August 2024 based on their disposal facility findings that would increase the price of the contract from $1,177,145.99 to $1,447,339.19, a difference of $270,193.20. The change accounted for the total tonnage and trucks necessary for storage and shipment and ultimately disposal of all the contaminated materials in the PWS requirements. This modification was awarded on 04 September 2024 with an estimated timeline for completion of fieldwork by 13 September 2024. The contractor’s proposed timeline would allow for project completion prior to the required completion date of cleanup by the VADEQ (24 September 2024) and POP end date of the contract (29 October 2024).

As the work progressed, ANC and USACE determined that the excavation area and volume of soil to be excavated was less than originally anticipated to achieve compliance. After completion of the work, FPM-AECOM JV2 submitted a revised proposal in the amount of -$517,113.47 which descoped the extra excavation effort. A descope modification was awarded on 25 September 2024 which resulted in a final contract price of $930,225.72.

4. Authority Cited: 10 U.S.C. § 3204(a)(2), as implemented by Federal Acquisition Regulation (FAR) 6.302-2, Unusual and Compelling Urgency.

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5. Reason for Authority Cited: Consistent with Defense Federal Acquisition Regulation Supplement (DFARS) Procedures, Guidance, and Information (PGI) 206.302-2(b), “use of this [unusual and compelling urgency] authority may be appropriate . . . [for] supplies, services, or construction needed at once because of fire, flood, explosion, or other disaster.” In support of the VADEQ and ANC, the agency’s need for these environmental services was of such an unusual and compelling urgency that the Government would not have been able to resume regular operations in Section 78 and fulfill their mission of respectfully burying our nation’s soldiers unless the agency was permitted to sole-source a contract to the single firm that was able to immediately mobilize and perform without delay.

Background/Selection of Sole Source Contractor: The Government determined FPM- AECOM JV2 to be the only firm that could immediately mobilize and deliver the necessary services for the environmental hazardous materials at ANC. FPM-AECOM JV2 was proposed by Baltimore District to perform the project based upon their ability to mobilize to the site quickly, local presence, experience working at ANC, and experience with similar hazmat work.

Justification: On 24 July 2024, VADEQ issued an RCA at Section 78 of ANC. The nature of this work was of such an unusual and compelling urgency that work had to commence immediately. USACE had been requested to execute this immediately as USACE has the capacity and capability to execute these missions in the timeframe needed to support response to this emergency but could only do so if a sole source contract were utilized. Utilizing a letter contract to allow the contractor to begin performance immediately and definitize at a later date, was necessary to avoid delays in the requirements of the hazardous material cleanup at ANC. Failure to do so would have adverse impacts on the safety and wellbeing personnel. In addition to not having time to obtain competition for this requirement, time did not permit for negotiation of a firm fixed price as performance had to begin immediately to meet the required deadline for cleanup.

Alternatives: There were no other viable alternatives available that could meet an immediate need as urgently as FPM-AECOM JV2. As previously described under the preceding paragraphs, FPM-AECOM JV2 was the only firm that could immediately mobilize and deliver with knowledge and experience of delivering similar requirements to ANC.

Impact: Failure to provide services immediately would significantly jeopardize successful mission accomplishment and could have a cost impact to the Government. If the deadline of the RCA is not met, the VADEQ may impose fines, move to shut down Section 78 for visitation/future internments, and revoke ANC’s RCRA permit to handle hazardous waste.

6. Efforts to Obtain Competition: The Government contacted multiple contractors to determine who could provide the service within the time allowed and at a fair and

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reasonable price. Due to the urgent and compelling nature to immediately start the characterization of the contaminated area and removal, there was not sufficient time available to obtain competition. As discussed in Paragraph 5, “Alternatives,” no other alternative would have allowed performance to begin immediately. The notice required at FAR 5.201 will not be published based on the exception at FAR 5.202(a)(2), Unusual and Compelling Urgency.

7. Actions to Increase Competition: The Baltimore District issued and definitized a Letter Contract for the immediate removal action only. Once the immediate removal action is complete work will stop, and the Baltimore District will pursue future cleanup actions for the larger area using regular competitive procedures.

8. Market Research: The Government contacted multiple contractors to determine who could provide the service within the time allowed and at a fair and reasonable price.

Based upon the request for corrective action by the VADEQ, the immediate need for an environmental remediation service, and the urgent and compelling nature of the requirement; the Baltimore District was unable to identify any other sources that could immediately deliver the services as quickly as FPM-AECOM JV2. Baltimore District also researched internal and external contract vehicles and was unable to identify existing USACE contracts whose scope encompass the types of services required for this mission. FPM-AECOM JV2 has completed work and knowledge of ANC, had the requisite relationships with subcontractors, vetted for security, and could meet the immediate requirement to the environmental services. No other sources were identified that could meet the speed of the mission set and immediate understanding of the mission as FPM-AECOM JV2.

9. Interested Sources: In this instance, the need to immediately deliver and provide the integral services as soon as possible was of such an unusual and compelling urgency that no other source could be considered without the potential for the Government would not have been able to resume regular operations in Section 78 and fulfill their mission of respectfully burying our nation’s soldiers.

10. Other Facts: N/A

11. Technical Certification: I certify that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Nicole Walworth Project Manager

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12. Requirements Certification: I certify that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Emily Schiffmacher Chief, EMDC

13. Fair and Reasonable Cost Determination: I hereby determine that the anticipated price to the Government for this contract action will be fair and reasonable based on the price and technical analysis conducted of the proposal. In accordance with FAR 15.403, certified cost or pricing data is not required as the final price is below $2M.

Contracting Officer

14. Contracting Officer Certification: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Contracting Officer

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Approval

Based on the foregoing justification, I hereby approve the procurement of Environmental Services for Investigation, Remediation, and Site Restoration at Section 78, Arlington National Cemetery, Virginia in the amount of $930,225.72 on an other than full and open competition basis pursuant to the authority of 10 United States Code 3204(a)(2) as implemented in Federal Acquisition Regulation 6.302-2, Unusual and compelling urgency, subject to availability of funds, and provided that the services and property herein described have otherwise been authorized for this acquisition.

KIMBERLY A. MARSHALL

Alternate Advocate for Competition – Atlanta

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Controlled By: Army Controlled by: USACE-NAB-CT CUI Category: General Procurement and Acquisition Distribution/Limited Dissemination Control: Fed Only POC: Evan Cyran, 410-962-6037