Exception_to_Fair_Opportunity_EP-W-17-001_0001_APPROVED_03_30_2023_1.pdf

JUSTIFICATION FOR EXCEPTION TO FAIR OPPORTUNITY

in accordance with FAR 16.505(b)(2)(i)(C)

This document is being prepared pursuant to the content requirements prescribed in Federal Acquisition Regulation (FAR) Subpart 16.505(b)(2)(ii)(B).

1. FAR 16.505(b)(2)(ii)(B)(1), Identification of the agency and the contracting activity, and

Opportunity:

Agency: Environmental Protection Agency Contracting Activity: Office of Mission Support (OMS)

Office of Acquisition Solutions (OAS) Headquarters Acquisition Division (HQAD)

Program Office: Office of Land and Emergency Management (OLEM) Office of Emergency Management (OEM)

Program POC: Michael Beuthe, OLEM/OEM

Project Identification: OEM Regulation, Evaluation & Technical Support: National Contingency Plan Subpart J Regulatory Development and Implementation Support

Proposed Source(s): EP-W-17-001; ABT Associates Inc.

2. FAR 16.505(b)(2)(ii)(B)(2), Nature and/or description of the action being approved:

OLEM/OEM is requesting an extension of EPA Contract No. EP-W-17-001, Task Order no.

0001, awarded April 7, 2017 under the active OEM Regulation, Evaluation & Technical Support indefinite-delivery/indefinite quantity (IDIQ) contract with ABT Associates Inc. ( ABT

). The extension is requested for a maximum of 90 days, as permitted pursuant to FAR 52.216-22 Indefinite Quantity, paragraph (d), of the IDIQ contract through a maximum of June 29, 2023.

This extension is inclusive of a three (3) month Base extension to allow development and implementation of regulatory actions and supporting activities under 40 CFR Part 300 Subpart J of the NCP, and directly associated provisions, to continue in support of OEM as the Agency recompetes the follow-on Task Order requirement under a competitive solicitation. This justification also includes an Optional extension of not-to-exceed 3 months (90 days) and associated ceiling for transition to the successor contractor pursuant to FAR 52.237-3 Continuity of Services, upon finalization of the new task order award. If exercised, the extension pursuant to FAR 52.237-3 would be exercised no later than June 29, 2023 for a maximum potential extension period of 90 days through September 27, 2023.

3. FAR 16.505(b)(2)(ii)(B)(3), A description of the supplies or services required to meet the

(i) Required

EP-W-17-001 / 0001 provides analytical and technical support in the development and analysis of regulations, policies, rulemaking, and other guidance associated with Subpart J of the National

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

1300 Pennsylvania Ave, NW

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Oil and Hazardous Substances Pollution Contingency Plan ( National Contingency Plan or NCP ); specifically including support of activities to finalize the 2015 Subpart J proposed rule amendments.

The Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 (OPA), directs the President to prepare and publish the NCP. The NCP is the federal government's blueprint for responding to both oil spills and hazardous substance releases. Specifically, it requires the r chemicals, and other spill other provisions. The authority of the President to implement this portion of the CWA is currently delegated to EPA.

In response to the passage of the OPA, EPA promulgated the current NCP regulatory requirements in 1994, which are codified in 40 CFR part 300. Within the NCP, Subpart J governs the use of dispersants, other chemicals, and other spill mitigating substances that may be authorized for use when responding to oil discharges in accordance with the NCP. Subpart J establishes the technical data and information requirements and process for adding such products to the NCP Product Schedule. It also establishes regulatory requirements for the authorization of the use of products on the Schedule and specifies authorization of use conditions for dispersants, other chemicals, and other spill mitigating substances. OEM is delegated the responsibility for regulations and guidance under Subpart J of the NCP.

In April 2010, the Deepwater Horizon underwater oil well blowout released significant quantities of oil into the Gulf of Mexico (Gulf). Dispersants were deployed over thousands of square miles of the Gulf, both applied on surface slicks and directly injected into the oil gushing from the well riser, totaling close to two million gallons. This use of dispersants raised many questions about efficacy, toxicity, environmental trade-offs, and monitoring challenges. On January 22, 2015, the Agency proposed amendments to Subpart J requirements for the use of dispersants, and other chemical and biological agents to respond to oil spills in waters of the U.S. [80 FR 3380, January 22, 2015, https://www.epa.gov/emergency-response/revisions-national-oil-and-hazardous-substances-pollution-contingency-plan]. The proposed rule considers the concerns that arose during the Deepwater Horizon response regarding toxicity, efficacy, long-term environmental impacts, endangered species protection, and human health. Additionally, revisions to area planning requirements for dispersant use authorization, to toxicity and efficacy testing methodologies, listing thresholds, as well as comprehensive monitoring for certain discharge situations are proposed. OEM has been reviewing over 81,000, working to categorize, and summarizing the public comments by issue areas.

The scope of this Task Order is to provide support for development and implementation of regulatory actions and supporting activities under 40 CFR Part 300 Subpart J of the NCP, and directly associated provisions. This SOW specifically includes analytical and technical support in the development and analysis of regulations, policies, rulemaking, and other guidance associated with Subpart J of the NCP; specifically including support of activities to finalize the 2015 Subpart J proposed rule amendments via the following four (4) primary tasks:

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Task 1: Public Comment Summary and Response: Under this task, the contractor provides technical assistance and analytical and logistical support in synthesizing and assisting the Agency in responding to public comments regarding OEM regulatory actions under Subpart J of the NCP, including rulemaking to finalize the 2015 Subpart J proposal.

Task 2: Research, Analysis, and Development of Options: Under this task, the contractor provides technical assistance and analytical and logistical support for OEM regulatory actions under Subpart J of the NCP by conducting research related to the development of regulatory actions, analyzing data and information to assist OEM in the development of regulatory options, and developing technical support documents reflecting such options that are made publicly available in the eRulemaking docket.

Task 3: Economic Analysis: Under this task, the contractor provides technical assistance and analytical and logistical support for OEM regulatory actions under Subpart J of the NCP by preparing the economic impact analysis and the information collection requests supporting Agency actions.

Task 4: Support Rulemaking Activities: Under this task, the contractor provides briefing, outreach, guidance, communications materials, and other documents and technical assistance to support OEM regulatory actions under Subpart J of the NCP.

(ii) Estimated Value

The estimated value of the extension is $113,655.01, inclusive of and delineated as follows:

ESTIMATE FOR EXTENSION OF CURRENT SERVICES

Type Duration Period Estimate

Base Extension (of current services)

3 months April 1 June 29, 2023 $56,827.51

Continuity of Services / Transition

3 months Anticipated to be exercised on or before June 29, 2023, for a period not to extend beyond September 27, 2023 $56,827.51

Total Estimate for Bridge Extension $113,655.01

Reference Section 6, paragraph (ii) Cost, for additional details.

4. FAR 16.505(b)(2)(ii)(B)(4), Identification of the exception to fair opportunity (see 16.505(b)(2)) and the supporting rationale, including a demonstration that the proposed s unique qualifications or the nature of the acquisition requires use of the exception cited. If the contracting officer uses the logical follow-on exception, the rationale shall describe why the relationship between the initial order and the follow-on is logical (e.g., in terms of scope, period of performance, or value):

(i) Exception to Fair Opportunity

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FAR 16.505(b)(2)(i)(C): A modification to extend Task Order 0001 under EP-W-17-001 on a sole-source basis to ABT for a continuation of existing services is permitted under the authority of FAR 16.505(b)(2)(i)(C) in the interest of economy and efficiency because it is a logical follow-on to the Task Order already issued under the multiple-award IDIQ contracts in which all contract holders were given a fair opportunity to be considered for the original order.

(ii) Rationale

This logical follow-on is intended for ABT to provide a continuation of the same scope of work at the current level of support through the maximum period of performance extension through June 29, 2023. On February 23, 2017, in accordance with FAR 16.505(b)(1), the Contracting Officer provided all IDIQ contract holders ABT Associates Inc., Booz Allen Hamilton Inc., and General Dynamics Information Technology, Inc. - a fair opportunity to be considered for this task order requirement as the Request for Task Order Proposal (RFTOP), 0001, was solicited to all three (3) IDIQ contractors on an unrestricted basis.

The services to be provided by ABT under the requested extension period are purely an extension of the services ABT currently performs and the program will continue to require after

31, 2023, and until the follow-on Task Order is competitively awarded under the multiple-award OLEM Large Consolidated Mission Support suite of IDIQ contracts.

The Agency is in the process of evaluating proposals to issue new multiple-award OLEM Large Consolidated Mission Support IDIQ contracts, which are currently anticipated to be awarded by April 30, 2023. The new IDIQ contracts will allow for task orders to be competed amongst the multiple IDIQ contract holders, with solicitations for follow-on task order recompetes planned to be issued as early as June 1, 2023. It is anticipated to take no less than 135 days to place the follow-on for each competitively awarded task order. Therefore, it is anticipated that task orders under the new IDIQ vehicle will not be awarded before October 2023. While the Task Order requirements are anticipated to be transitioned to the new IDIQ vehicles, and competed thereunder, the vehicles will not be awarded and the competition of the follow-on task order requirements among the multiple awardees will not be finalized before the Task Order expires on March 31, 2023. This puts the work under the Task Order in critical jeopardy of a performance lapse if the Task Order period of performance is not extended until the follow-on task order can be competitively awarded.

Should these mission support services lapse or disruption in such services occur, OEM would be unable to meet its federally-mandated responsibility to develop and implement regulatory actions and supporting activities under 40 CFR Part 300 Subpart J of the NCP, and directly associated provisions. A lapse or disruption in the services would place the Agency at significant risk of failing to meet EPA's NCP responsibilities and failing to support the core mission of OLEM, OEM, and NCP programs as it would result in the Agency having none of these mission services and incapable of providing the necessary mission support. Therefore, the extension to ABT existing task order is essential to ensure these mission support services continue while the Agency recompetes the Task Order requirements under the new multiple-award OLEM Large

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Consolidated Mission Support suite of IDIQ contracts that are anticipated to be awarded in April 2023. Existing work that needs to be continued under EP-W-17-001 / 0001 will be extended up to but not later than June 29, 2023 under the three (3) month Base extension, and not later than September 27, 2023 under the Optional extension for Transition/Continuity of Services, if exercised pursuant to FAR 52.237-3, in accordance with FAR 16.505(b)(2)(i)(C).

Reference Section 6, paragraph (i) Rationale, for additional details supporting the basis for the logical follow-on.

5. FAR 16.505(b)(2)(ii)(B)(5), A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable:

The estimated amount for the requested extension, which is based upon the actual costs incurred during the last 12 months of performance under the existing Task Order that was awarded competitively under the multiple-award IDIQ contracts, is consistent with previously approved and historical pricing paid for the same or similar services as documented by more than five (5) years of expenditures under EP-W-17-001, escalated appropriately and reasonably over the time passed. The Contracting Officer hereby determines that the anticipated cost of this extension will be fair and reasonable based on the previously proposed costs/prices during the competition for the placement of EP-W-17-001 and 0001, which were already determined to be fair and reasonable, and the current approved cost amounts and ceilings in the current performance period of the Task Order. The anticipated labor rates for the extension period are in line with the rates the Government has historically paid the contractor over the life of the contract.

In evaluating the extension proposal, the Contracting Officer will consider, if proposed by ABT, an escalation factor applied to the labor for which an escalation factor consistent with the annual escalation applied historically under the contract and/or industry-based escalation rates will be considered reasonable. ABT will also be instructed to propose pricing for the Base extension period of 3 months, based on maintaining a level of effort and other direct costs that are consistent with the current levels provided for these services.

6. FAR 16.505(b)(2)(ii)(B)(6), Any other facts supporting the justification:

(i) Rationale

The services provided by ABT under EP-W-17-001 / 0001 are not available on any other active EPA vehicle except for the IDIQ multiple-award suite of contracts (EP-W-17-001/002/003). At this time, using these IDIQs is the only option to obtain contractor support for the Agency to be adequately prepared for, and able to respond to, nationally significant incidents that must continue in support of OEM without disruption until the new Task Order award is competitively issued.

Awarding a new short-term contract vehicle this close to ABT order expiring and while the competitive follow-on is near award would result in duplicative costs that would not be

Washington, DC 20460 recovered through any savings that might be netted through competition. Accordingly, these IDIQs are the only vehicle currently available within EPA.

Over the life of the current Task Order, ABT has developed a strong knowledge base, and acquired expertise relative to the program and processes that are critical to carrying out the

-mandated eRulemaking responsibilities to develop and implement regulatory actions and supporting activities under 40 CFR Part 300 Subpart J of the NCP, and directly associated provisions, in support of OEM effectively and efficiently. ABT's expert knowledge revolves around being extremely familiar with the specific needs of the aforementioned programs. ABT also possesses staff that are already cross-trained in providing the necessary technical support for all tasks which promotes technical efficiencies and monetary savings due to not having to hire additional staff to accomplish contract requirements. For these reasons, ABT is currently in a unique position to be able to continue to provide uninterrupted support, including presenting logical experienced approaches that result in high-quality services to support effectively OEM This expertise enables ABT to provide seamless NCP and eRulemaking mission support services without having a need to ramp-up and expend the time and costs associated with training and developing personnel, which would be the case with a different contractor. Because of the specific knowledge and performance required for the execution of the programs within the current Task Order, the learning curve would be substantial and impractical for a new contractor within the less than 1 month remaining in the Task Order period of performance.

While there are other companies in the market who can perform eRulemaking support and technical support to the NCP, the introduction of a new company to provide these services during this limited temporary solution to meet its federally-mandated responsibility to develop and implement regulatory actions and supporting activities under 40 CFR Part 300 Subpart J of the NCP, and directly associated provisions. If the eRulemaking and NCP support efforts are delayed, EPA would not be able to continue its OEM mission work in these areas. Specifically, comply with its federally-mandated responsibilities under the NCP will be in jeopardy if the services performed under this Task Order lapse.

Bringing in a new firm in at this point, when a new competitively issued vehicle is anticipated to be awarded in less than 3 months, would not only require a full review and evaluation of their processes, expertise, and credentials, but the acquisition process to place a new competitive contract vehicle for this requirement alone is no less than 9 months. The time needed to issue a new competitively awarded contract vehicle is not available with less than 1 month remaining in the current Task Order period of performance and it would result in the Agency having no ability to provide adequate and timely NCP and eRulemaking support for no less than 9 months.

EPA intends to recompete the Task Order PWS in accordance with the competitive procedures at FAR 16.505(b)(1) under the OLEM Large Consolidated Mission Support suite of multiple-award IDIQ contracts anticipated to be awarded in April 2023 in response to solicitation no.

68HERH22R0050. The incumbent, ABT, and one (1) of the other IDIQ contractors did submit proposals along with several other companies in response to 68HERH22R0050. If awarded an

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OLEM Large Consolidated Mission Support IDIQ contract, the one (1) other IDIQ contractor and/or the other companies that proposed will be eligible to compete as prime offerors for the competitive Task Order recompete requirement. In the event the follow-on Task Order could be awarded to a company other than the incumbent, ABT will be required to transition to the new, successor awardee once the new award is made. The OEM mission support services under ABT 0001, are essential to the Government and must be continued without interruption. FAR 52.237-3 Continuity of Services, which is contained in EP-W-17-001, provides for transition and related activities (i.e. phase-in/phase-out for up to 90 days after ABT EP-W-17-001 / 0001, expires) including the requirement for ABT to allow as many personnel as practicable to remain on the job to help the successor maintain the continuity and consistency of the regulation, evaluation, and technical mission support services required. Even if the task order award resulting from the recompete was to be awarded now (i.e.

before the current task order with ABT expires), there is insufficient time remaining on ABT task order to allow the Contractor to adequately transition all critical information (i.e. all records, data, in progress activities, and institutional knowledge) and activities to the successor contractor. Transitioning the critical information and activities is anticipated to take no less than 3 months (90 days). During the transition period, the successor contractor would need time to ramp up activities under the new vehicle, which are also anticipated to take 3 months. Therefore, this justification includes sufficient ceiling ($56,827.51) to cover ABT ties and sustained levels of current support until such time (3 months into performance under the new award) the successor contractor is able to adequately sustain them.

(ii) Cost

Current task order period ceiling is $666,729.51. To date, $424,630.77 has been obligated and expended under the existing task order period ceiling, leaving $242,098.74 in unused period ceiling to perform the Task Order requirements that are being requested to continue.

Current estimated extension cost of performance is $113,655.01 (including transition), as delineated in Section 3, paragraph (ii) herein, which if fully utilized as projected, would not require an increase in the current period ceiling of the Task Order.

(iii) Period of Performance

Existing task order period of performance expiration date: March 31, 2023 Extension period of performance: April 1 June 29, 2023 (Base extension of 3 months);

Option extension of 3 months for continuity of services/transition, anticipated to be exercised on or before March 31, 2023, for a period not to extend beyond September 27, 2023;

Previous approved extensions under exception to fair opportunity: August 1, 2022 - March 31, 2023

(iv) Follow-on

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As indicated in the attached milestone schedule, the Agency is in the process of evaluating proposals for the multiple-award OLEM Large Consolidated Mission Support suite of IDIQ contracts, which are currently anticipated to be awarded by April 30, 2023.

(v) Previous Exceptions to Fair Opportunity

A copy of the previously approved justification for other than full and open competition (JOFOC) executed against EP-W-17-001, covering and including the prior extension of Task Order 0001 for the period of August 1, 2022 - March 31, 2023 pursuant to FAR 16.505(b)(2)(i)(C), is attached hereto.

(vi) Market Research

Market research was conducted to determine if there were other existing EPA contract vehicles with sufficient scope and capacity to accommodate the services required beyond March 31, 2023. The results of the market research indicated that the services provided by ABT under EP- W-17-001 / 0001 are not available on any other active EPA vehicle except for the current multiple-award suite of contracts (EP-W-17-001/002/003).

7. FAR 16.505(b)(2)(ii)(B)(7), A statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made:

Since this exception to fair opportunity is for a logical follow-on in the interest of economy and efficiency, offers will not be solicited from any additional sources beyond ABT for the continuation of services and support currently provided under EP-W-17-001 / 0001 pursuant the authority in FAR 16.505(b)(2)(i)(C). However, in accordance with FAR 16.505(b)(2)(ii)(D), within 14 days after issuing the modification to extend the task order, a notice of this exception to fair opportunity will be published in accordance with FAR 5.301 and the justification will be posted at the Government Point of Entry (GPE) (https://www.sam.gov) and on FedConnect (https://www.fedconnect.net), which will provide access to the justification by linking to the GPE, for a minimum of 30 days. Any responses received to the notice or justification will be recorded and retained as a listing of interested and/or prospective sources to be included in

Task Order follow-on/recompete, which will be conducted as a competitive acquisition under the multiple-award OLEM Large Consolidated Mission Support suite of IDIQ contracts.

EPA has considered and determined there are no outstanding barriers to competition to remove or overcome in order to execute the requested extension of the current Task Order, or in the issuance of a new competitively awarded follow-on Task Order under the multiple-award OLEM Large Consolidated Mission Support suite of IDIQ contracts that are currently anticipated to be awarded by April 30, 2023.

accurate and

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

Tia Gatling Date Contracting Officer

9. FAR 16.505(b)(2)(ii)(B)(9), Evidence that any supporting data that is the responsibility of requirements or other rationale for an exception to fair opportunity) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel:

The undersigned hereby certifies that all supporting data that is the responsibility of technical or requirements personnel (e.g. verifying the Governme other rationale for limited sources) and which form a basis for this justification is complete and accurate:

Michael Beuthe Date Task Order Contracting Officer Representative (TCOR)

10. Approval

In accordance with EPAAG 1.6.1-A, Item 8b for actions within the thresholds set forth in FAR 6.304(a)(1):

Jessica White Date Branch Chief

March 30, 2023