J__A_-_Refuse_Redacted.pdf

Justification and Approval (J&A) for Other Than Full and Open Competition

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FOR OFFICIAL USE ONLY14 Nov 2017

NOTE: If a Justification and Approval was approved for the preceding acquisition, a copy of the approved J&A for the predecessor action must be included in the staff package for approval of the instant J&A. This applies to J&A staff packages that are submitted for review and approval at a level above the contracting officer. The predecessor J&A will be used as a reference document by the approving official.

Is this a new or amended J&A Document? New Amended ( Prior to Award Only! )

Funding level for this acquisition: < $700K > $700K and < $13.5M > $13.5M and < $93M > $93M

Contracting Activity: Department of the Air Force, 92d Contracting Squadron, 110 W. Ent Street, Fairchild AFB, WA 99011

Purchase Request / Local ID Number: F1X3017354AQ02 (Planning)

Program / Project (and PE, if applicable): Refuse Collection Service

Program Type (PEO or Other Contracting): Other Contracting

Authority: 6.302-1 – 10 USC 2304(c)(1), Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements

Estimated Contract Cost (including options): J&A Type: Class Individual

COORDINATION (AFFARS 5306.304(a) )

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FOR OFFICIAL USE ONLY14 Nov 2017

I. Contracting Activity.

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

II. Nature and/or description of the action being processed.

A new contract for refuse collection and disposal services will be awarded on a sole source basis to Torre Refuse and Recycling d.b.a. Sunshine Disposal, 2405 N. University Road, Spokane Valley, WA 99206. This will be a re-compete of the current contract, FA462013DA002, with the same contractor. The current contract is a D-type, firm fixed price requirements contract, and the new acquisition will be the same.

III. Description of supplies/services required to meet agency needs.

The contractor shall perform refuse collection and disposal for approximately 137 industrial collection points on Fairchild AFB and associated units.

The new contract will consist of one (1) 12-month base year from 1 October 2018 through 30 September 2019 and four

(4) 12-month option years. The annual estimated prices are:

Base Year: 1 Oct 18 - 30 Sep 19:

Option 1: 1 Oct 19 - 30 Sep 20:

Option 2: 1 Oct 20 - 30 Sep 21:

Option 3: 1 Oct 21 - 30 Sep 22:

Option 4: 1 Oct 22 - 30 Sep 23:

Total:

The contract will have three CLINs: one for each of the funding centers using the service. There will be one CLIN for the Main Base, one for the Medical Group (MDG), and one for the Joint Personnel and Recovery Academy (JPRA). The contract will use 3400 funds.

Sections IV, V, and VI below explain that only one provider will be available for this service in the out-years as well as in the base year. State law requires that only one refuse collection provider will be authorized for the region that included Fairchild AFB.

IV. Statutory authority permitting other than full and open competition.

FAR 6.302-1: "Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements"

10 U.S.C. 2304 (C) (1): "The head of 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 or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;"

42 U.S.C. ss 6961: "Application of Federal, State, and local law to Federal facilities"

V. Demonstration that the contractor's unique qualifications or nature of the acquisition requires the use of the authority cited above (applicability of authority).

The Resource Conservation and Recovery Act (RCRA) is the statutory authority for how refuse services will be accomplished. This act requires that the 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

FOR OFFICIAL USE ONLY

FOR OFFICIAL USE ONLY14 Nov 2017 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.

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 3 October 2014 for the area surrounding and including Fairchild AFB and has been satisfactorily performing this service at Fairchild. Based on the above information, the new solicitation for refuse services at Fairchild AFB is exempt from considering pre-existing contracts, including Category Management declared Best-In-Class contracts as addressed in SAF/AQC Memorandum dated 3 January 2018. 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.

VI. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable.

In accordance with the 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. A sources sought was published on www.fbo.gov to comply with DFARS PGI 206.302-1. Only two responses were received, both after the cutoff time/date and neither could provide the service Fairchild requires. This acquisition will be synopsized but is a valid sole source under FAR 6.302-1.

VII. 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 certified Tariff Agreement #3, Updated 1 October 2014;

updating the former 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). Fairchild will use historical prices paid for this requirement to determine fair and reasonable prices IAW FAR 13.106-2. In addition, the prices are "set by law or regulation" which is the exception to cost or pricing data in this acquisition and is also the used for determining price reasonableness. The costs of refuse services per the Tariff Agreement #3 are illustrated in the following tables:

TLF Containers Every Other Week Pickups 32 Gallon $ 5.48 64 Gallon $ 9.13 96 Gallon $11.86

Bulk Containers 1cyd 2 cyd 3cyd 4cyd 6 cyd 8cyd Monthly Rent $11.10 $13.62 $14.82 $17.53 $22.23 $27.36 Each Container Pickup $21.23 $36.39 $49.60 $62.26 $81.51 $97.47 Each Special Pickup $53.05 $68.99 $82.49 $97.66 $116.20 $134.32

Disposal Feed Incinerator (Waste to Energy) $108.41 per ton Landfill (All Others) $ 40.32 per ton

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FOR OFFICIAL USE ONLY14 Nov 2017

VIII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

Market research was conducted by reviewing performance under the current contract with the same contractor, and by reviewing other sources. The non-military sector agencies contacted for this market research were the City Of Spokane, WA and the County of Spokane, WA. Other Department of Defense contracts were reviewed from Ellsworth AFB, Minot AFB, Offutt AFB, Grand Forks AFB, Hill AFB, Joint Base San Antonio, and MacDill AFB.

When the current market research is compared to the current solid waste contract, there have been no significant changes in market conditions. Market research found that refuse service is commercial in nature in accordance with the definitions in FAR 2.101. Industry standards and rules are imposed and enforced by the Washington Utilities and Transportation Commission (WUTC). There are unlikely to be any technological changes to the refuse pickup procedures in the near future. Torre Refuse and Recycling is registered in the System for Award Management (SAM) as a small business. Terms and conditions for supplying refuse service to Fairchild AFB are the same as those offered to other government or commercial customers and rates are approved through the WUTC. The government (with the exception of the WUTC) does not have a special presence or leverage in this market.

IX. Any other facts supporting the use of Other Than Full and Open Competition.

None

X. List of any sources that expressed, in writing, an interest in the acquisition.

Two contractors responded to the FBO post; however, neither vendor was capable of providing the service at Fairchild.

XI. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before making subsequent acquisitions 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. Currently, the WUTC is not willing to allow for competing interests within any geographic sector.

XII. Certification by the Contracting Officer.

As evidenced by my signature above, I have determined this document to be both accurate and complete to the best of my knowledge and belief.

XIII. Certification by the technical/requirements personnel.

As evidenced by my (our) signature(s) above, I (we) certify that any supporting data contained herein, which is my (our) responsibility, is both accurate and complete.

FOR OFFICIAL USE ONLY

FOR OFFICIAL USE ONLY14 Nov 2017