Exception_to_Fair_Opportunity_EP-W-17-003_0004_APPROVED_03_28_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 specific identification of the document as a “Justification for an Exception to Fair 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: William Noggle, OLEM/OEM

Project Identification: OEM Regulation, Evaluation & Technical Support: Support for

CAA Section 112 (r) (RMP), CERCLA and EPCRA Regulations, Lists of Chemicals and Guidance Documents

Proposed Source(s): EP-W-17-003; General Dynamics Information Technology, 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-17-003, Task Order no.

0004, awarded July 18, 2017 under the active OEM Regulation, Evaluation & Technical Support indefinite-delivery/indefinite quantity (IDIQ) contract with General Dynamics Information Technology, Inc. (“GDIT” or “Contractor”). 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 technical, analytical, communication, and outreach support for the development and modification of regulations and revisions to chemical and reporting threshold lists under CAA Section 112 (r), CERCLA, and EPCRA to continue in support of OEM’s mission 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, 2024.

3. FAR 16.505(b)(2)(ii)(B)(3), A description of the supplies or services required to meet the agency’s needs (including the estimated value):

(i) Required Services to Meet the Agency’s Needs

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

1300 Pennsylvania Ave, NW

Washington, DC 20460

EP-W-17-003 / 0004 provides technical, analytical, communication, and outreach support for the development and modification of regulations and revisions to chemical and reporting threshold lists under Clean Air Act (CAA) Section 112 (r), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Emergency Planning and Community Right to Know Act (EPCRA).

Section 112(r) of the CAA amendments of 1990 includes provisions for the development of accidental release prevention requirements for hazardous chemicals. Under these provisions, the U.S. Environmental Protection Agency (EPA) promulgated regulations (the “RMP” regulations) for the prevention and detection of accidental releases of listed regulated substances and for response to such releases by the owners and operators of the sources of such releases. These regulations require regulated facilities to implement a risk management program and to submit to EPA a summary of the program called a risk management plan. The RMP regulations are codified in 40 CFR part 68.

EPCRA was enacted in 1986 to encourage state and local planning and preparedness for spills or releases of extremely hazardous substances. EPCRA created requirements for State and local agencies to plan and prepare for chemical emergencies, and public access to information concerning potential chemical hazards. EPA published the implementing regulations as well as the list of chemicals and reporting thresholds for facilities to comply with the provisions of EPCRA. The regulations and the list of chemicals are codified in 40 CFR parts 355 and 370.

CERCLA, or “Superfund”, was enacted in 1980 establishes broad federal authority to deal with releases or threats of release of hazardous substances from vessels and facilities. EPA established the list of hazardous substances and their reportable quantities (RQs) as well as regulations to comply with the release reporting requirements. The law requires the persons in charge of vessels or facilities to notify the National Response Center (NRC) if there is a release of a hazardous substance equal to or greater than its RQ. The law authorizes EPA to revise the list of hazardous substances and their RQs or designate additional chemicals to the list. The regulations and the list of hazardous substances are codified in 40 CFR part 302.

EPA, state agencies, and local agencies conduct numerous compliance inspections at facilities regulated under the RMP rule and EPCRA. Compliance inspectors are required to complete certain training courses prior to leading inspections. New EPA, state, and local program officials also require general training on these programs in order to effectively administer them.

EPA/OEM provides the required programmatic and inspector training, as well as advanced inspector training in various areas. In addition to providing training courses, EPA supports compliance inspections by providing copies of industry codes and standards that regulations require facilities to comply with, and providing technical support to regional inspections for more complex inspections.

EPA/OEM develops regulations and guidance under CAA Section 112(r), CERCLA and EPCRA. Regulatory activities may include conducting analyses and preparing reports for studies related to chemical risk information, conducting any necessary analytical and acute toxicity studies of chemicals to support the regulatory decision process for adding or deleting chemicals under these statutes, developing information collection requests, developing regulatory options, performing cost/benefit analyses, providing support to develop draft regulatory text or preamble language, and providing support to develop summary and response to comments documents.

This statement of work also includes support for revising existing guidance documents as well as developing new guidance documents under CAA Section 112(r), CERCLA and EPCRA.

The scope of this Task Order is to provide continued technical, analytical, communication, and outreach support for the development and modification of regulations and revisions to chemical and reporting threshold lists under CAA Section 112 (r) (“RMP”), CERCLA, and EPCRA via the following two (2) primary tasks:

Task 1: Support for Developing and Modifying Regulations and Chemical Lists: Under this task, the contractor provides on-going technical, analytical, government and public outreach, and communication support in developing and modifying regulations and revising the list of chemicals under RMP, CERCLA and EPCRA. In assisting OEM in developing and modifying regulations, continued contractor support includes, but is not limited to: conducting research and technical analyses; conducting data analysis and literature searches; preparing option papers;

facilitating workgroup meetings; drafting language for proposed and/or final rule and/or preamble for Agency consideration; assisting in finalizing proposed and final rule packages for OMB review; assisting in preparing proposed and final rule packages for federal register publication; performing other regulatory support process activities for the proposed and final rules (e.g., preparing analytical blueprints, preparing briefing packages for early guidance and options selection, preparing decision and action memoranda for proposed and final rules, etc.);

preparing communications plan and communications materials, including press release and questions/answers; coordinating public meetings, listening sessions, and/or webinars for outreach on proposed rule; preparing draft alerts, advisories, and fact sheets for proposed and final RMP rules; gather all public comments received and categorizing them by topic discussed in the proposed rule; preparing draft “Summary and Response to Comments” and/or raw comment text excerpt documents; conducting economic analysis and draft Regulatory Impacts Analysis (RIA) for proposed and final rules; and drafting the Information Collection Requests and/or supporting statements for Information Collection Requests (ICR) for OMB approval for proposed rules, final rules, and ICR updates for existing regulations. In revising the chemicals list, contractor support is required to conduct any necessary acute toxicity, chemical hazard, chemical use and production, or other analytical studies of chemicals, processes, and industries to support the regulatory decision process for adding or deleting chemicals listed in the regulations. Contractor support is also required in reviewing petitions for chemicals listed under the regulations.

Task 2: Support for Revising and/or Developing Guidance Documents: Under this task, the contractor provides on-going technical, analytical, outreach, and communication support in developing and modifying guidance documents under RMP, CERCLA and EPCRA. Continued contractor support is needed in: developing regulatory options papers; performing data analyses to support regulatory options; drafting ICRs and supporting statements for OMB approval;

reviewing and analyzing public comments; preparing draft “Summary and Response to Public Comments” documents; conducting economic analyses and preparing draft Regulatory Impact Analyses; drafting regulatory text and preamble language for Agency consideration; and preparing communication materials for proposed and final rules. Such support includes, but is not limited to: conducting research and technical analyses; conducting literature searches;

preparing options papers; reviewing existing guidance documents and recommending changes or updates to EPA based on regulatory changes; preparing draft and final versions of new regulatory guidance documents; preparing print-ready versions of documents and accessible PDF documents compliant with Section 508 of the Rehabilitation Act for publication on EPA’s website; preparing communications plan and materials, press releases, and Q&As; and facilitating meetings to obtain stakeholder input for guidance documents.

(ii) Estimated Value

The estimated value of the extension is $179,650.73, 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 $89,825.36

Continuity of Services / Transition 3 months

Anticipated to be exercised on or before March 13, 2024, for a period not to extend beyond June 11, 2024 $89,825.36

Total Estimate for Bridge Extension $179,650.73

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 contractor’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

FAR 16.505(b)(2)(i)(C): A modification to extend Task Order 0004 under EP-W-17-003 on a sole-source basis to GDIT 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 GDIT 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 22, 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), 0004, was solicited to all three (3) IDIQ contractors on an unrestricted basis.

The services to be provided by GDIT under the requested extension period are purely an extension of the services GDIT currently performs and the program will continue to require after the Task Order’s current expiration date of March 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 may be unable to meet its federally mandated responsibility to develop and modify regulations and revisions to chemical and reporting threshold lists under CAA Section 112 (r) (“RMP”), CERCLA, and EPCRA. A lapse or disruption in the services would place the Agency at significant risk of failing to meet EPA's CAA 112(r) (“RMP”), CERCLA, and EPCRA responsibilities and failing to support the core mission of OEM 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 GDIT’s 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 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-17-003 / 0004 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-17-003, 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-17-003 and 0004, 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 GDIT, 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. GDIT 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 GDIT under EP-W-17-003 / 0004 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’s mission without disruption until the new Task Order award is competitively issued.

Awarding a new short-term contract vehicle this close to GDIT’s current task order expiring and while the competitive follow-on is near award would result in duplicative costs that would not be 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, GDIT has developed a strong knowledge base, and acquired expertise relative to the program and processes that are critical to carrying out the Agency’s federally mandated responsibility to develop and modify regulations and revisions to chemical and reporting threshold lists under CAA Section 112 (r) (“RMP”), CERCLA, and EPCRA in support of OEM’s mission effectively and efficiently. GDIT's expert knowledge revolves around being extremely familiar with the specific needs of the aforementioned programs. GDIT 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, GDIT 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’s mission. This expertise enables GDIT to provide seamless CAA 112(r) (“RMP”), CERCLA, and EPCRA regulatory and chemical list 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 technical, analytical, communication, and outreach support for the development and modification of regulations and revisions to chemical and reporting threshold lists under CAA Section 112 (r), CERCLA, and EPCRA, the introduction of a new company to provide these services during this limited temporary solution would be destructive to the Agency’s ability to meet its federally-mandated regulatory and chemical list responsibilities under CAA Section 112 (r), CERCLA, and EPCRA.

If the CAA Section 112 (r), CERCLA, and EPCRA support efforts are delayed or not permitted to continue, EPA would not be able to continue its OEM mission work in these areas.

Specifically, the Agency’s ability to comply with its federally mandated regulatory and chemical list responsibilities under CAA Section 112 (r), CERCLA, and EPCRA 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 CAA Section 112 (r), CERCLA, and EPCRA regulation and chemical list 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, GDIT, and one (1) of the other IDIQ contractors did submit proposals along with several other companies in response to 68HERH22R0050. If awarded an 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, GDIT will be required to transition to the new, successor awardee once the new award is made. The OEM mission support services under GDIT’s Task Order, 0004, are essential to the Government and must be continued without interruption. FAR 52.237-3 Continuity of Services, which is contained in EP-W-17-003, provides for transition and related activities (i.e. phase-in/phase-out for up to 90 days after GDIT’s task order, EP-W-17-003 / 0004, expires) including the requirement for GDIT to allow as many personnel as practicable to remain on the job to help the successor maintain the continuity and consistency of the Agency’s 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 GDIT expires), there is insufficient time remaining on GDIT’s 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 ($89,825.36) to cover GDIT’s transition activities 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 $666,140.01. To date, $449,656.19 has been obligated and expended under the existing task order period ceiling, leaving $216,483.82 in unused period ceiling to perform the Task Order requirements that are being requested to continue.

• Current estimated extension cost of performance is $179,650.73 (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

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-17-003, covering and including the prior extension of Task

Washington, DC 20460

Order 0004 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 GDIT under EP- W-17-003 / 0004 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 GDIT for the continuation of services and support currently provided under EP-W-17-003 / 0004 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 EPA’s market research for the future 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.

8. FAR 16.505(b)(2)(ii)(B)(8), The contracting officer’s certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief:

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

Tia Gatling Date Contracting Officer

March 28, 2023

Washington, DC 20460

9. FAR 16.505(b)(2)(ii)(B)(9), Evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or 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 Government’s minimum needs or requirements or other rationale for limited sources) and which form a basis for this justification is complete and accurate:

William Noggle Date Task Order Contracting Officer Representative (COR)

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 28, 2023