A02 7N23C0013 BON 1 Lamprey Redacted JA for Out of Scope Mod-NWP-24-004.pdf

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Agency: U.S. Army Corps of Engineers (USACE) – Portland

District (NWP), A-E/Construction Branch (CECT- NWP-C), located at 333 SW 1st Avenue, Portland, OR 97204.

Description of Action: This is a Justification & Approval (J&A) for an out-of-scope modification to an existing firm-fixed-price contract action with Northbank Civil and Marine.

The U.S. Army Corps of Engineers (USACE), Portland District intends to modify Contract No. W9127N23C0013, BON1 Fish Accords Lamprey, using non-competitive procedures to add new scope. This firm-fixed-price construction contract was awarded under a small business set-aside using competitive best-value solicitation procedures to Northbank Civil & Marine, Inc. 4180 NW Fruit Valley Road Vancouver, WA 98660. The purpose of this modification is for the Contractor to install the entire lamprey passage system, including trap box, in lieu of Government installation as originally identified in the Contract Specification Section.

The estimated construction cost for this new work is approximately $[redacted]. The work will begin in December. The original contract was awarded in the amount of $1,469,000.00. The estimated value of this contract modification represents a [redacted]% increase in the contract value.

2. Description of the Supplies/Service: Northbank Civil and Marine is currently under contract to fabricate and install several upgrades to the Bonneville Dam B-Branch fish ladder entrance, which will improve lamprey passage and collection. This contract includes the fabrication of a lamprey flume system and trap box along with the supply and installation of related equipment at the same site. During the design phase, the Bonneville Dam Project determined it would be advantageous for the government to install the flume and trap box and committed to providing that scope of work while the contractor modified the site and installed the remainder of the equipment. Therefore, in in the current contract, the contractor is responsible for delivering a complete flume and trap box but not installing it.

Due to government employee turnover and internal miscommunication prior to the time the contract was awarded, the flume and trap box installation were not captured in the Bonneville Dam’s winter maintenance schedule (the planning schedule for the government’s workforce).

The Bonneville Dam maintenance staff no longer has the capacity to install the equipment.

Therefore, the most advantageous method for the installation is to have the on-site contractor, Northbank, complete this scope.

3. Authority Cited: The statutory authority permitting sole sourcing for this acquisition is 10

U.S.C 3204(a)(1) as implemented by FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements. In accordance with 10 U.S.C.

3204(b)(B) and FAR 6.302-1(A)(2)(iii), 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 source would result in (A) Substantial duplication of cost to the Government that is not expected to be recovered through competition; or (B) Unacceptable delays in fulfilling the agency’s requirements.

4. Reason for Authority Cited:

(a) Background: The B-branch fish ladder entrance is currently under modifications through the construction contract W9127N23C0013. The overall scope of the project provides modifications to improve lamprey passage in the B-branch fish ladder. The new flume and trap box will provide collection for our Tribal Partners to implement translocation programs. The flume and trap box need to be installed while the fish ladder is de-watered, which occurs every other year. Bonneville Dam Project had committed to installing the flume and trap box, but after award determined they did not have the capacity. If the flume and trap box are not installed this year, they would have to wait until December 2025 to be installed, and there would be no lamprey collection and translocation at the B-branch fish ladder until 2026.

This project is part of the Columbia Basin Fish Accords, signed in 2008, which guaranteed Northwest states and tribes more than $900 million for salmon and steelhead restoration projects and $50 million for Pacific lamprey passage improvements in the Columbia and Snake River basins for 10 years. BPA, the US Army Corps of Engineers, the Bureau of Reclamation, and a number of regional interests, including six tribes; an inter-tribal association; and the states of Washington, Montana and Idaho, signed seven separate agreements to assure long-term funding to address the federal government’s requirements to mitigate for the effects of the federal hydrosystem on fish and wildlife.

The agreements have helped protect, mitigate, and enhance fish populations and fish habitat in the Columbia River basin and address the Federal government’s responsibilities for fish listed under the Endangered Species Act. Consequently, since the original 2008 Accords were signed, there have been multiple extensions and amendments including this one that this project falls under.

(b) Justification: Utilizing Northbank is the only option to install the flume and trap box during the 2023-24 dewatering period for the following reasons:

1) The dewatering period is planned to occur during the second week of December, and there isn’t time to get a separate contract in place.

2) The dewatering period is pre-planned short window of opportunity that only occurs every other year and cannot be rescheduled without severely impacting operations at the Dam and incurring costs that far exceed this price of this contract.

3) Northbank has the technical capabilities to install the flume and trap box and is already performing this same scope at The Dalles Dam (see W9127N23C0014).

4) Northbank is already mobilized on-site and paying a contractor to perform a second mobilization and de-mobilization is a duplication of costs.

5) Northbank is already on-site installing the other features of work in this contract and there is no safe way to have another contractor on-site in a limited space during the limited dewatering period.

6) Bonneville Dam Project has confirmed they cannot install the flume at this time and would need to move the work to Winter of 2025.

(c) Impact: If the J&A is not approved, the lamprey flume and trap box will not be installed until December 2025 at the earliest, and the Government will fail to meet obligations under the Lamprey Accords program. This will negatively impact relationships with our Tribal Partners and place USACE in jeopardy of not meeting the terms of a legally binding agreement as well as the Endangered Species Act.

(d) Alternatives:

Alternative A: Discussions were held with Bonneville Dam Project to see if they could modify their work plan to include the flume and trap box at a later time. The project confirmed that they lack the available resources to install this winter, which would force the project to move the install to the Winter of 2025 and this would lead to mission failure.

This alternative thus results in an unacceptable delay, as two years of mission failure, accompanied by two years of breach of the Columbia Basin Fish Accords, would jeopardize not only the trust of the signatories to the Accords but also represent two years of potential violation of a Federal statute (the Endangered Species Act).

Alternative B: Competition through another contract was considered. However, there is not physically enough space for another contractor to safely work alongside Northbank where the flume and trap box will be installed. The only way to safely perform this work would be for one contractor to perform their scope and demobilize to allow the second contractor on the site to perform their scope. There are three issues with this.

1) mobilization and the sitework has already been completed and paid for under the existing contract. A new contractor having to perform these same functions would cause a substantial duplication of both cost and effort. Since the work involved in the proposed modification is tied closely with the original contract work, it would be virtually impossible to separate this work into a separate contract without overlapping scope. Therefore, the project would need to pay for the same scope twice, which constitutes a substantial duplication of cost.

2) It would also be unreasonable to hold the second contractor responsible for installing, testing, and placing the primary contractor’s work into operation as this is a custom fabricated piece of equipment and not a COTS item. Requiring the second contractor to shoulder that liability would result in increased pricing by the second contractor, resulting in further duplication of cost as pricing for the liability is already being paid to Northbank under its current contract. Performing the work after the current contract work is not acceptable, as the dewatering period is not long enough to allow for it, and it would not meet the requirement to provide lamprey collection for the upcoming 2024 lamprey passage season. This would result in an unacceptable delay, as two years of mission failure, accompanied by two years of breach of the Columbia Basin Fish Accords, would jeopardize not only the trust of the signatories to the Accords but also represent two years of potential violation of a Federal statute (the Endangered Species Act).

Alternative C: Not performing the work at all is also not an option, as USACE is committed to providing these lamprey passage and collection improvements as part of the Lamprey Accords program. Failing to meet our commitments will negatively affect our relationships with Tribal Partners and other signatories to Columbia Basin Fish Accords, as well as potentially cause USACE to violate the Endangered Species Act.

5. Efforts to Obtain Competition: The initial construction contract was awarded using the competitive best value trade-off process, which included work identical to the work discussed in this J&A. Contract No. W9127N23C0013 was awarded to Northbank Civil and Marine as the best value contractor for the work by providing their qualifications and offering the best price.

A Notice of Intent (NOI) to Sole Source was posted to SAM.gov by the District on 07 November 2023, which stated the intent to modify Contract No. W9127N23C0013. The special announcement noted:

“The primary purpose of this NOI was to publicize this contract action prior to contract modification, as mandated in FAR Subpart 5.2, Synopses of Proposed Contract Actions, and FAR Subpart 6.3, Other Than Full and Open Competition, and also to meet the requirements of DFARS PGI 206.302-1(d). This synopsis will be used to support the development of a Justification & Approval (J&A) for an out-of-scope modification to an existing firm-fixed-price contract action.”

In addition to citing the authority used (see above) the announcement also noted:

“A SOLICITATION WILL NOT BE POSTED

The Government intends to proceed with this sole source action. The North American Industry Classification System (NAICS) code for this action is 237990; Other Heavy and Civil Engineering Construction with a small business size standard of $45M.

THIS NOTICE IS NOT A REQUEST FOR COM PETITIVE PROPOSALS OR QUOTATIONS

Interested concerns must show clear and convincing evidence that competition of this requirement would be advantageous to the Government by submitting a capability statement that they have ability to complete the above services in the required timeframe. If no affirmative written responses are received by 5:00 PM Pacific Time on 22 November 2023, by email to clinton.m.jacobsen@usace.army.mil, an award/modification will be made without further notice. Oral communications are not acceptable in response to this notice. A determination by the Government not to compete this proposed requirement is solely within the discretion of the Government. Electronic responses and questions shall be submitted via email to the contracting point of contact listed below. The U.S. Army Corps of Engineers is not responsible for any costs incurred by responding to this notice.”

The NOI was active for the required timeframe for 15 days until 22 November 2023, and there were no responses received from the contractor community objecting to the Government’s intended course of action.

6. Actions to Increase Competition: This is a one-time requirement. If future work is required regarding the lamprey passage at Bonneville Dam, a new competitive procurement will be conducted.

7. Market Research: See Paragraphs 5 and 6 above. No additional market research was conducted.

8. Interested Sources: On 07 November 2023, a Notice of Intent (NOI) was published on SAM.gov informing the public of the Government’s intent to issue this requirement on a sole source basis.

The NOI was active for the required timeframe, and there were no responses received from the contractor community. Given the lack of response from the contractor community, there are no other interested sources that the Government is aware of at this time.

9. Other Factors:

a. Procurement History: W9127N23C0013 was also awarded at nearly the same time as the related lamprey flume installation at The Dalles Dam under W9127N23C0014. This contract was nearly identical in scope but did include the installation of the lamprey flume and trap. The two solicitations at The Dalles Dam and at Bonneville Dam received the exact same offerors which demonstrates that, if this installation had been included in the Bonneville contract at award, it is very unlikely that it would have effected the pool of competition.

b. Acquisition Data Availability: N/A

c. Unusual and Compelling Urgency: N/A

d. Subcontracting Competition: N/A