A.02 JA Prosser Hatchery_Final_Redacted.pdf

OJL-23-0063

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

FALL CHINOOK REARING, ACCLIMATION AND RELEASE AT PROSSER HATCHERY

1. CONTRACTING AGENCY:

The contracting agency is the U.S. Army Corps of Engineers (USACE), Portland District (NWP), 333 SW First Avenue, Portland, OR 97204-3495.

2. DESCRIPTION OF ACTION:

USACE NWP intends to award a new sole source firm-fixed-price non-commercial service contract to the Confederated Tribes and Bands of the Yakama Nation, to acclimate and release fish in support of USACE mitigation objectives for The Dalles and John Day Dams.

Period of Performance will be 3 years. The contract will be awarded for a period of performance not to exceed three (3) years and will be funded in the fiscal year they are awarded. Fiscal Year 2024 will be funded using Civil Works O&M appropriations for the base period.

3. DESCRIPTION OF SERVICES:

Under the contract to be awarded, Yakama Nation will provide all items and services necessary for the acclimation and release of up to 1. 7 million subyearling upriver bright (URB) fall Chinook juveniles at Prosser Hatchery. Yakama Nation will collect 600k eggs from Priest Rapids Dam in early November and an additional 1.1M juveniles from the United State Fish and Wildlife Service (USFWS) in April. The Yakama Nation will also provide all items and services necessary for the acclimation and release of up to 210,000 yearling URB fall Chinook juveniles at Prosser Hatchery. These juveniles will be received from Bonneville Hatchery. Regardless of where juveniles originate, upon receipt of juvenile fish, Yakama Nation will assume responsibility for their livelihood. All juveniles will be released from Prosser Hatchery into the Yakima River.

Under a separate agreement, the USFWS collects eggs, incubates, and rears up to 1. 7 million subyearlings. In April, the USFWS will transfer these juveniles to the Yakama Nation at Prosser Hatchery. Likewise, the Oregon Department of Fish and Wildlife (ODFW) rears up to 210,000 yearlings. ODFW would transfer these juveniles to the Yakama Nation at Prosser Hatchery in February. Transfer of the juvenile fish in either situation is not the responsibility of Yakama Nation. Yakama Nation will assume responsibility after the transfer of fish is complete and fish are within the facility waters of Prosser Hatchery.

Table 1. Fish Acclamation and Release Summary

Type Not-To-Exceed Quantity

Arrival at Prosser Hatchery

Release from Prosser Hatchery

Subyearling URB fall Chinook

1,700,000 April June

Yearling URB fall Chinook

210,000 February April

The estimated total value of the contract is $610,287, as shown in Table 2.

Table 2. Estimated Total Value Life Stage FY24 FY25 FY26 Total All Years

Subyearling URB fall Chinook

Yearling URB fall Chinook

Total

4. AUTHORITY CITED:

10 U.S.C. § 2304(c)(1), as implemented by Federal Acquisition Regulation (FAR) 6.302-1 and DFARS 206.302-1, only one (1) responsible source and no other type of services will satisfy agency requirements.

5. REASON FOR AUTHORITY CITED:

5.1. Background

In the Flood Control Act of 1950, Congress authorized the construction of The Dalles and John Day Dams. The accompanying 1949 Report of the Chief of Engineers, House Document No. 531 (H.D. 531), describes facilities, including hatcheries, to be provided in connection with the project. Appendix L of H.D. 531 further elaborates on hatchery facilities, specifying construction of hatcheries in the lower Deschutes River. However, due to adverse water quality issues in the lower Deschutes, USACE did not pursue construction in this location, instead exploring existing hatcheries elsewhere in the basin. Since that time, USACE has relied on a variety of federal, state, and electric utility owned and operated hatcheries and fish facilities to meet mitigation objectives.

The 1969 U.S. District Court for the District of Oregon's decision in Sohappy v. Smith and subsequent orders, popularly known as United States v. Oregon resulted in, among other things, the formation of a basin-wide Columbia River Fish Management Plan (CRFMP) which was proposed by the parties and later adopted by the court in 1988. The CRFMP laid out an artificial and natural production and management scheme designed to conserve, rebuild, and enhance the fish of the upper Columbia River Basin. Components of the CRFMP, including the latest court-approved Columbia River Fish Management Agreement, include artificial production facilities that USACE funds to provide mitigation for The Dalles and John Day Dams.

In 2008, National Marine Fisheries Service (NMFS) issued a revised Biological Opinion (BiOp) that concluded the Federal Columbia River Power System jeopardizes the continued existence of various Endangered Species Act-listed anadromous fish in the Columbia River Basin, but that jeopardy and adverse modification may be avoided by implementing a reasonable and prudent alternative (RPA) composed of discrete actions covering, among other things, hatchery operations. RPA action no. 40 called for a review of the hatchery program associated with the mitigation for The Dalles and John Day Dams. After reviewing the program, USACE, among others, ultimately arrived at a plan to move hatchery operations into or above the exclusive Zone 6 Indian fishery to better meet mitigation objectives.

5.2. Justification

The United States v. Oregon parties and the USACE Portland District and Northwestern Division have agreed to release URB fall Chinook in the Columbia River, in or above Zone 6, in support of The Dalles and John Day Dams fish mitigation objectives. Both the CRFMP, the 2008 BiOp and subsequent biological opinions recommend dispersing the release of URB fall Chinook among several facilities to avoid the negative environmental impacts of large releases in a single location. Consequently, several locations that have appropriate water temperatures, adequate facility space, and are located above Zone 6 are currently being utilized.

Prosser Hatchery is situated just downstream of Prosser Dam at river kilometer 75 of the Yakima River. The Yakima River feeds into the Columbia River near Richland, Washington, above Zone 6. Prosser Hatchery possesses the appropriate water temperature, rearing pond space, and availability during the required months to acclimate and release the subject fall

Chinook juveniles into the Yakima River. No other acclimation and release facilities exist in, or near the lower Yakima River that are 1) capable of acclimating these fish, and 2) not already in use by the USAGE for similar purposes. The land that the hatchery is built on is owned by the Bureau of Reclamation. The hatchery facilities and equipment at Prosser Hatchery are under the ownership of the Yakama Nation. Therefore, Yakama Nation has sole control and use of the facilities at Prosser Hatchery and does not permit other contractors to utilize these facilities. Regional fisheries experts from NMFS, USFWS, and USACE agree that Prosser Hatchery is the only reasonable location to perform these specific rearing and release activities.

Consequently, by virtue of its ownership and operation of Prosser Hatchery, Yakama Nation is the only responsible contractor that is capable of satisfying the requirements of this contract to release URB fall Chinook juveniles above Zone 6, so that returning adults are able to return to the full length of areas affected by John Day and The Dalles projects.

5.3. Alternatives Considered and Negative Impact if this Requirement Is Not Fulfilled on a

Sole Source Basis.

Forgoing the use of Prosser Hatchery would entail more heavily relying on tule fall Chinook production in Zone 6, rather than URB fall Chinook production further upstream of Zone 6.

Further reliance on tule fall Chinook creates a disproportionate mix of tule and URB adult returns that do not reflect the historical abundance of both stocks prior to dam construction.

USACE needs to target a production ration of 75 percent URB and 25 percent tule fall Chinook for the John Day and The Dalles mitigation. Currently, USACE is below mitigation target of 80,250 URB’s. Discontinuing the use of Prosser Hatchery would produce fewer URB’s and would put us further from our mitigation responsibilities and result in considerable impact to tribal fisheries in Zone 6 compromising tribal trust responsibilities.

6. EFFORTS TO OBTAIN COMPETITION:

A Notice of Intent to Sole Source fall chinook acclimation and release at Prosser Hatchery was posted to beta.SAM.gov on 10 September 2020 for a period of 22 days. NWP received no responses to that notice.

7. ACTIONS TO INCREASE COMPETITION:

As detailed above, competition is not feasible due to the Yakama Nation's ownership and sole operation of the facility required for this contract at Prosser Hatchery, which is the only facility that is capable of satisfying NWP's requirements. The USAGE Contracting office will re-assess the market environment for competition possibilities each time this requirement is due for renewal.

The USAGE Contracting office will implement changes to ensure maximum competition of one or more parts of this requirement if such a situation arises where increased competition is a possibility.

8. MARKET RESEARCH:

A notice of intent to sole source was initially posted to beta.SAM.gov on 12 September 2023 for a period of 15 days. The notice indicated that all responsible sources could submit a capability statement. As noted above, NWP received no responses by the due date of the notice.

9. INTERESTED SOURCES:

To date, no other vendors have expressed an interest in this project or as a possible source in the near future. This sole source Justification and Approval will be posted and made public within 14 days after award in accordance with FAR 6.305(a).

10. OTHER FACTS:

Acclimation and release services for USACE-funded fish releases at Prosser Hatchery have been historically performed by Yakama Nation through funding provided by the USFWS. This program has been in place since 1990. NWP awarded a one-year sole source non-commercial services contract W9127N23P0049 to Yakama Nation to support the program in FY23. The forthcoming contract will allow for continuation of required services in FY24-26.

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.

NAME:

TITLE: Fishery Biologist SIGNATURE:

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.

TITLE: Fishery Biologist

SIGNATURE: _

13. FAIR AND REASONABLE COST DETERMINATION:

Price analysis will be conducted in accordance with FAR 15.404-1(b)(2)(ii) and (v) for fair and reasonable determination. I hereby determine the anticipated cost to the Government for this contract action will be fair and reasonable.

TITLE: Contracting Officer

SIGNATURE:

14. CONTRACTING OFFICER CERTIFICATION:

I certify that this justification is accurate and complete to the best of my knowledge and belief.

TITLE: Contracting Officer SIGNATURE: