FAR 8 Limited Sources Justification NRE Template_05102021_RCP_BPA_20210922_signed.pdf

FAR 8 Limited Sources Justification

Limited Sources Justification United States Department of Agriculture

FAR 8.405 Federal Supply Schedules Multiple Award Schedule Program

1. Identification of the agency and the contracting activity.

USDA Forest Service, Coronado National Forest (CNF), Minerals and Geology Division Blank Purchase Agreement (BPA) for Rosemont Copper Project (RCP) Litigation Assistance by third-party contractor, SWCA.

2. The nature and/or description of the action being approved.

This is a new contract order. The existing Blanket Purchase Agreement will expire on December 31, 2021 and is attached for reference.

This request is for a new BPA to retain the existing contractor, SWCA, under the current BPA. This contractor is assisting the CNF with litigation duties on the Rosemont Copper Project.

Current BPA contract number is: AG-8197-B-17-001 Contractor Name: SWCA Performance Period: 5 years Delivery Date: December 15, 2021 Pricing is outlined in the IGCE and Schedule of Items -Funding amounts: not to exceed $750,000.00 over 5 years

3. A description of the supplies or services required to meet the agency’s needs (including the estimated value).

This statement of work outlines work necessary for continued support and litigation defense of the Rosemont Copper Project (RCP) Environmental Impact Statement (EIS) and all applicable reports and decision documents pertinent to the project. The project has been ongoing since July 7, 2010 and is currently under ongoing litigation. A decision is pending in the 9th Circuit Court of Appeals and it is highly likely that there will be subsequent work needed to comply with certain Court Orders pending a legal decision.

The purpose of this agreement is to continue working with our qualified third-party contactor, SWCA, who has:

1. A thorough knowledge of the RCP Project Selected Action and alternatives,

2. A thorough knowledge of the contents and organization of the National Environmental

Policy Act (NEPA) and Administrative Project Record, which contains over 50,000 documents, including the contents and analysis disclosed in the Final EIS, Supplemental Information Reports, and Record of Decision for the RCP,

3. Understanding of the organization and content that is expected in a Forest Service litigation report,

4. Knowledge of the roles of the Forest Service, the Office of the General Counsel, the

Department of Justice and the contractor in federal litigation involving the Forest Service,

5. Experience in preparing litigation reports and administrative records for federal litigation involving the Forest Service, and

6. The organizational capacity to simultaneously prepare separate litigation reports for multiple, separate legal complaints within a 30 day period.

2.1 Project Background

The Coronado National Forest issued a Final Environmental Impact Statement (FEIS) and Draft Record of Decision (ROD) for the Rosemont Copper Project in December 2013.

In 2014, 101 objections were received on the project. Regional Leadership reviewed the objections and found that the Rosemont project was in compliance with laws, regulations, policies and the Coronado Forest Plan, but instructed the Forest to complete consultation with the U.S. Fish and Wildlife Service (FWS) regarding species listed under the Endangered Species Act, and to address numerous clarifications and corrections.

During consultation with FWS, new information and changed conditions were identified regarding the project. This new information and changed conditions were addressed in two Supplemental Information Reports (SIR), dated May 22, 2015 and July 20, 2016. After reviewing the SIRs, the Forest found that a supplement or revision of the Rosemont Copper Project EIS was not warranted.

The Record of Decision (ROD) was issued on June 5, 2017.

On June 29, 2016 the Center for Biological Diversity (CBD) sent a 60 day notice of intent to sue for claims arising under the Endangered Species Act related to the proposed Rosemont Copper Mine.

This notice was renewed in June 2017 following the issuance of the ROD. In the notice sent to the U.S. Forest Service, U.S Fish and Wildlife Service. U.S. Army Corps of Engineers. U.S.

Environmental Protection Agency, and U.S. Secretary of the Interior, CBD alleges current and possible future violations under the Endangered Species Act (ESA) pertaining to multiple listed species.

Following the issuance of the ROD there were multiple legal actions filed in Federal court. Three

(3) complaints have been filed in the US District Court of Arizona. All 3 cases have been consolidated under the following case number: CV-17-00475-TUC-JAS.

1. Center for Biological Diversity (CBD) vs. USFS & USFWS [Endangered Species Act (ESA)] filed on Monday, September 25, 2017,

2. Save the Scenic Santa Rita’s (SSSR) et al vs. USFS [Clean Water Act (CWA)] filed on Monday, November 27, 2017,

3. Tohono O'odham Nation (TO) et al vs. USFS filed on Thursday, April 12, 2018.

2.2 Project Location

The project is located on the Nogales Ranger District, Coronado National Forest. The EIS is being prepared at the Coronado Supervisors Office (Tucson, Arizona). The litigation defense effort will be led by the USFS Region 3 Regional Office (Albuquerque, NM), the USDA Office of the General

Counsel (Albuquerque, NM) and the Coronado Supervisors Office. The Forest Service will be represented in court by the Department of Justice (DOJ).

Face to face meetings with Forest Service personnel will be required on numerous occasions, primarily at the Coronado Supervisors Office. It is expected that much of the work necessary to prepare litigation reports can occur at the contractor’s office with communication occurring with the Coronado both verbally and electronically.

Litigation is ongoing and we anticipate litigation support in the next 5 years as the project jas been ongoing since 2007 and litigation has been ongoing since 2017. Previous work by our consultant, SWCA, billed at just over $250,000.00 We anticipate that subsequent NEPA work and possible defense of this work in Court over the next 5 years should not exceed $750,000.00

4. The authority and supporting rationale.

FAR 8.405-6(a)(1)(i)(C), “In the interest of economy and efficiency, the new work is a logical follow-on to an original Federal Supply Schedule order provided that the original order was placed in accordance with the applicable Federal Supply Schedule ordering procedures. The original order or BPA must not have been previously issued under sole-source or limited-sources procedures.”

Provide details on the previously competed order and explain how this order is a logical follow-on to that order. Explain fully the connection between the previous work/order and the current one.

The user/customer typically provides this supporting information. Provide all applicable supporting documentation. General statements are not acceptable.

JUSTIFICATION: under FAR 8.405-6(a)(1)(i)(C) The Coronado National Forest (CNF) is seeking to retain their current third-party litigation contactor, SWCA, for the purpose of litigation assistance in the defense of the Rosemont Copper Project (RCP) Final environmental Impact Statement (FEIS), Record of Decision (ROD) and all applicable project reports and decision documents. Set forth below is a summary of the project background.

Following the issuance of the ROD, there were multiple legal actions filed in Federal court. Three

(3) complaints have been filed in the US District Court of Arizona. All 3 cases have been consolidated under the following case number: CV-17-00475-TUC-JAS.

4. Center for Biological Diversity (CBD) vs. USFS & USFWS [Endangered Species Act (ESA)] filed on Monday, September 25, 2017,

5. Save the Scenic Santa Rita’s (SSSR) et al vs. USFS [Clean Water Act (CWA)] filed on Monday, November 27, 2017,

6. Tohono O'odham Nation (TO) et al vs. USFS filed on Thursday, April 12, 2018.

Further, in March 2020, the US government filed an Appeal to the 9th Circuit Court to resolve the issue regarding claim validity. Resolution of the Appellate case is still pending.

Additionally, on February 10, 2020, the D. Ariz. issued a decision on the CBD case involving ESA claims wherein the Court concluded the following issues be remanded:

A. “LIKELY” STANDARD USED WITHIN THE JAGUAR’S CRITICAL HABITAT

On remand, USFWS must reconsider whether the Rosemont Mine is “likely” to result in destruction or adverse modification of the jaguar’s critical habitat under the proper more likely than not standard.

B. NORTHERN MEXICAN GARTERSNAKE (NMGS) JEOPARDY ANALYSIS

In light of the foregoing, the USFWS was required to consider the tipping point for the NMGS, which it failed to do in this case. On remand, the USFWS must consider the tipping point for the

NMGS.

C. INCIDENTAL TAKE STATEMENT (ITS); TAKE SURROGATE

The ITS in this case is unlawful as it fails to set forth a clear trigger that, when reached, results in an unacceptable level of incidental take (as to all seven listed species), invalidating the safe harbor provision of the ESA, and requiring the parties to re-initiate consultation. On remand, the USFWS must consider and formulate a proper ITS.

These three issues will require reinitiation of Section 7 Consultation with US Fish and Wildlife Service (USFWS) in order to remedy these items per the Court Order. This will require additional work on behalf the USDA Forest Service and will require assistance from our third-party contractor. Additionally, since litigation is ongoing and the Appellate case has yet to be resolved, the CNF is seeking to retain our current contractor for an additional 5-year BPA. We feel it would be a detriment to the project and our successful compliance with any subsequent Court Orders if the CNF would be faced with retaining a new consultant under a new BPA.

5. A determination by the ordering activity Contracting Officer (CO) that the order represents the best value consistent with FAR 8.404(d). (Do not Change) Although GSA-FSS has already determined prices under its Multiple Award Schedule (MAS) contracts to be fair and reasonable, the Contracting Officer will ensure the proposed cost to the Government for the supplies or services covered by this justification are evaluated for price reasonableness and the contemplated order represents the best value to the Government. A best value determination will be based on a Government technical evaluation and price analysis of the contractor’s quote, which will include a comparison of the contractor’s quote to the Independent Government Cost Estimate, other quotations, or by comparison to established GSA or other published price lists.

6. A description of the market research conducted among schedule holders and the results or a statement of the reason market research was not conducted.

Market research was not conducted as we are seeking to use the current contractor under the current BPA and justify not seeking a “bid” for other possible contractors per the exemption outlined in FAR 8.405-6(a)(1)(i)(C). Moreover, it would be detrimental to the government to change consultants at this time. The current consultant has been the CNF’s sole NEPA contractor for the Rosemont Copper Project since 2010. To change consultants at this moment would be a loss of project knowledge and result in possible governmental loss in current litigation actions.

Current BPA contract number is: AG-8197-B-17-001 Contractor Name: SWCA Performance Period: 5 years Delivery Date: December 15, 2021

Note: FAR Part 10.001 requires agencies to conduct market research appropriate to the circumstances: (a) before developing new requirements documents for an acquisition by the agency; (b) before soliciting offers for acquisitions with an estimated value in excess of the Simplified Acquistion Threshold (SAT) ($250K); (c) before soliciting offers for acquisitions that could lead to a bundled contract; and (d) on an ongoing basis, take advantage of commercially available market research methods in order to effectively identify the capabilities of small businesses and new entrants into the market.

7. Any facts supporting the justification.

The CNF anticipates having to prepare subsequent Specialists Reports and other NEPA documents including but not limited to the possiblity of a Supplemental Information Report to remedy those items remanded in litigation up to and including the possibility of preparing a new Environemtnal Impact Statement (EIS) and associated decision documents in order to comply with any future court orders. A decision is pending in the 9th Circuit on the government’s Appelate case and we are uncertin when this decision may be issued. Therefore, there is an air of apparent urgency with ensuring that a new BPA is in-place in order for the CNF to respond to any additional actions per the pending court order.

8. A statement of actions the agency may take to remove or overcome any barriers to competition if subsequent acquisitions are anticipated.

*No additional supporting facts or information to include in this section.

Certifications & Approval

Supporting data which form the basis for and included in this justification are certified accurate and complete.

/s/ Sarah Elizabeth Martínez ________ Insert Name of Program or Technical Personnel Insert Title of Program/Technical Personnel

The information contained in this Limited Sources Justification is certified accurate and complete to the best of my knowledge and belief.

Stephanie LaRuffa Contracting Officer

Additional Reviews & Approvals

Signatures are required at each threshold below up to the total estimated dollar value of the acquisition

Advocate for competition for the procuring activity (if over $750,000, but not exceeding $15 million).

I have reviewed this justification and find it to be accurate and complete to the best of my knowledge and belief. Therefore, unless additional approvals are required as prescribed below, as advocate for competition for the procuring activity, I hereby approve this justification.

Insert Name of the Mission Area Competition Advocate Mission Area Advocate for Competition

Head of the Procuring Activity (if over $15 million, but not exceeding $75 million).

I have reviewed this justification and find it to be accurate and complete to the best of my knowledge and belief. Therefore, unless additional approvals are required as prescribed below, as Head of the Procuring Activity, I hereby approve this justification.

Insert Name of the Head of the Contracting Activity Head of the Contracting Activity

Senior Procurement Executive of the Agency (if over $75 million).

I have reviewed this justification and find it to be accurate and complete to the best of my knowledge and belief. Therefore, as the Senior Procurement Executive, I hereby approve this justification.

Insert Name of Senior Procurement Executive Senior Procurement Executive United States Department of Agriculture