J A_Only.pdf

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. CONTRACTING ACTIVITY. Department of the Air Force, 92d Contracting Squadron, 110 W. Ent Street, Fairchild AFB, WA 99011

2. NATURE AND/OR DESCRIPTION OF ACTION BEING PROCESSED. A new contract for refuse collection and disposal services will be awarded on a restrictive basis to Torre

Refuse and Recycling d.b.a. Sunshine Disposal, 2405 N University Road, Spokane Valley, WA

99206.

3. DESCRIPTION OF THE SUPPLIES/SERVICES REQUIRED TO MEET THE

AGENCY’S NEEDS.

(a) The Contractor shall perform refuse collection and disposal for approximately 137 industrial collection points.

(b) Contract History: The previous acquisition was awarded to Torre Refuse and

Recycling as a sole source for a base year of twelve (12) months and four (4) 12 month option years. Torre Refuse and Recycling hold the regions solid waste disposal certification and rights within the area surrounding Fairchild Air Force Base.

(c) The Resource Conservation and Recovery Act (RCRA) is the statutory authority for how refuse services will be accomplished. This act requires that federal facilities comply with state and local laws that regulate solid waste disposal. In the state of Washington, a statutory system was created that limits solid waste disposal to a single specified and certified operator for each of the State’s different geographic regions. Fairchild AFB is located in a region that has been certified to Torre Refuse and Recycling. In addition, in the matter of: Red River Service

Corporation, B-279250, 26 May 1998, 98-1 Comp. Gen. Proc. Dec. P142, at footnote 2, GAO specifically held that RCRA was an express requirement under 10 U.S.C. § 2304 (c)(5).

Furthermore, in Blue Dot Energy Company, Inc. v. United States and Waste Management of

Washington, Inc., No. 05-5058, 2 May 2006, the United States Court of Appeals for the Federal

Circuit ruled that RCRA takes precedence over CICA.

(d) The new contract with Torre Refuse & Recycling will consist of one (1) 12-month base year from 1 October 2013 to 30 September 2014 and four (4) 12-month option years. The estimated cumulative value of this contract is $1,820,955.63.

4. STATUTORY AUTHORITY PERMITTING OTHER THAN FULL AND OPEN

COMPETITION. 10 U.S.C. § 2304(c)(1), An agency may use procedures other than competitive procedures only when the property or services needed by the agency are available from only one responsible source.

5. DEMONSTRATION THAT THE CONTRACTOR’S UNIQUE QUALIFICATIONS

OR NATURE OF THE ACQUISITION REQUIRES THE USE OF ONLY ONE

RESPONSIBLE SOURCE AUTHORITY. Under Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6961 (Application of Federal, State, and local law to Federal facilities), federal agencies must comply with local solid waste management regulations. As such, exclusive franchise agreements, certificates, or authority granted by a state, county, or municipality to an entity prevents federal agencies from competing the contract requirements.

Washington Utilities and Transportation Commission (WUTC) has the authority to grant companies certificates of public convenience and necessity, which grant them authority to operate solid waste collection services within a prescribed geographic area. Torre Refuse &

Recycling holds Certificate No. G-260 dated 30 April 2007 for the area surrounding and including Fairchild AFB and has been satisfactorily performing this service at Fairchild.

Therefore, since Torre Refuse & Recycling is the only company who holds a certificate to perform refuse services in the region which includes Fairchild AFB, it is the only responsible source capable of performing this contract.

6. DESCRIPTION OF EFFORTS MADE TO ENSURE THAT OFFERS ARE

SOLICITED FROM AS MANY POTENTIAL SOURCES AS DEEMED PRACTIBLE. In accordance with current applicable laws, regulations, and the United States Court of Appeals for the Federal Circuit case No. 05-5058, in the matter of Blue Dot Energy Company, Inc, competition for solid waste collection and disposal is not possible at this time. Torre Refuse &

Recycling is the only contractor that holds an exclusive franchise agreement for the geographic region that includes Fairchild AFB. If other refuse haulers can obtain a certificate from the

WUTC for the geographic region and submit proposals, their proposals will be considered for award. All offerors must have a valid certificate prior to submission of their proposals for the proposal to be considered. However, this is unlikely as the state only issues one certificate per area. In order to obtain a certificate, a company would have to prove to the WUTC that the current holder is performing to an unsatisfactory standard or purchase the certificate from Torre.

This acquisition will not be synopsized based on the exception in FAR 5.202(a)(5).

7. DETERMINATION BY THE CONTRACTING OFFICER THAT THE

ANTICIPATED COST TO THE GOVERNMENT WILL BE FAIR AND REASONABLE.

The Contracting Officer believes there will be adequate information available to make a determination the contract price is fair and reasonable. Torre Refuse and Recycling holds a certified Tariff Agreement #3, effective 1 October 2011 replacing Tariff Agreement #2. Tariff #3 specifies rates for the collection, transportation, and disposal of solid waste and yard waste that have been approved and issued by the Washington State Utilities and Transportation

Commission (WUTC). In other words, the prices are "set by law or regulation" which is the exception to cost or pricing data in this acquisition and is also the primary basis for determining price reasonableness. The costs of refuse services per the Tariff Agreement #3 are illustrated in the following tables:

Bulk containers 1cyd 2cyd 3cyd 4cyd 6cyd 8cyd

Monthly Rent $9.50 $11.65 $12.70 $15.00 $19.00 $23.25

Each Container Pickup $19.10 $32.87 $44.94 $56.50 $74.16 $89.62

Each Special Pickup $45.70 $59.62 $71.44 $84.30 $100.96 $117.12

TLF Containers Weekly Pickups Every Other Week Pickups

35 Gallon $19.82 $14.08

64 Gallon $26.98 N/A

96 Gallon $34.33 N/A

8. DESCRIPTION OF THE MARKET RESEARCH CONDUCTED AND THE

RESULTS, OR A STATEMENT OF THE REASONS MARKET RESEARCH WAS NOT

CONDUCTED. Market research was completed on 15 January 2013. The private sector agencies contacted for this market research were the city of Spokane, WA, the city of Seattle, WA, and Washington State University. When the current market research is compared to the current solid waste contract, there have been no significant changes in market conditions.

9. ANY OTHER FACTS SUPPORTING THE USE OF OTHER THAN FULL AND

OPEN COMPETITION. None.

10. A LISTING OF SOURCES, IF ANY, THAT EXPRESSED INTEREST IN THE

ACQUISITION. No offers other than the offer from Torre were received for the previous solicitation. Contractors that have provided offers for predecessor solicitations prior to the existing contract are not expected to show an interest in this procurement as they will not be eligible to compete as prime contractors without a certificate for the geographic area issued by the WUTC.

11. A STATEMENT OF THE ACTIONS, IF ANY, THE AGENCY MAY TAKE TO

REMOVE OR OVERCOME ANY BARRIERS TO COMPETITION BEFORE MAKING

ANY SUBSEQUENT ACQUISITION FOR THE SUPPLIES OR SERVICES REQUIRED.

Competition for this service will not be possible unless the WUTC grants multiple franchise agreements in geographic areas or federal agencies are exempted from following state, county, or municipal requirements.

12. CONTRACTING OFFICER’S CERTIFICATION.

The contracting officer’s signature on the Coordination and Approval Document evidences that he/she has determined this document to be both accurate and complete to the best of his/her knowledge and belief (FAR 6.303-2(a)(12)).

13. TECHNICAL AND REQUIREMENTS PERSONNEL CERTIFICATION.

As evidenced by their signatures on the Coordination and Approval Document, the technical and/or requirements personnel have certified that any supporting data contained herein, which is their responsibility, is both accurate and complete (FAR 6.303-2(b)).

Disposal Fees Fee for Disposal

Incinerator (Waste to Energy) $107.00 per Ton

Landfill (All others) $34.62 per Ton