JA Document (Maui Wildfires) 29 Jul 24_SPE Signed.pdf

Control Number: POH-24-004

CUI//SP-PROCURE

Justification Review Document for Other than Full and Open Competition – FAR Part 6

Program/Equipment: Sole-source follow-on contract for Only One Responsible Source, including operating, maintaining, and closing out a Temporary Disposal Storage (TDS) site and residential debris removal in Lahaina due to the wildfires that swept across Maui, Hawaii, on August 8, 2023.

Authority: 10 U.S.C. 3204(a)(1) or 41 U.S.C. 3304(a)(1), as implemented by Federal Acquisition Regulation (FAR) 6.302-1 Only One Responsible Source

Amount: $145,000,000.00

Prepared by:

Typed Name: David W. Neal DSN: 808-835-4121 Title: Contracting Officer Date:

E-mail: david.w.neal@usace.army.mil

Contracting Officer:

Typed Name: David W. Neal DSN: 808-835-4121 Date Reviewed: 7 Feb 2024 E-Mail: david.w.neal@usace.army.mil

Technical Representative:

Typed Name: Kayla M. Stull DSN: 504-605-8167 Title: National Debris Program Manager Date Reviewed:

Requirements Representative:

Typed Name: Kimberly Woolf DSN: 916-335-3255 Title: Debris Mission Manager Date Reviewed:

Controlled by: Dept of the Army Controlled by: USACE, Honolulu District CUI Category: SP-PROCURE Distribution/Dissemination Controls: FED ONLY

POC: CEPOH-CT

mailto:david.w.neal@usace.army.mil mailto:david.w.neal@usace.army.mil

02-Jul-2024

03-Jul-2024

3 July 2024

CARRIZALES.R.COLETTE.1134865

Digitally signed by

CARRIZALES.R.COLETTE.1134865349

Date: 2024.07.03 11:23:21 -07'00'

Digitally signed by

EICHHORN.LAURA.J.1026254783

Date: 2024.07.03 15:26:08 -04'00'

BROWN.TRIST

AN.S.1394813

Digitally signed by

BROWN.TRISTAN.S.1394

813717 Date: 2024.07.03 16:13:55 -04'00'

2024.07.05 08:57:10 -05'00'

Justification and Approval (J&A) for Other than Full and Open Competition – FAR Part 6

1. Contracting Activity: U.S. Army Corps of Engineers (USACE), Pacific Ocean Division (POD), Honolulu District (POH), Contracting Division, Building 252, Fort Shafter, HI, 96858.

2. Description of Action: USACE requests approval of a J&A to award a sole-source, follow-on service contract to ECC Constructors LLC (ECC), 1240 Bayshore HWY STE 301, Burlingame, CA, 94010. ECC will be required to operate, maintain, and close out a Temporary Disposal Storage (TDS) site; perform Private Property Debris Removal (PPDR); and transfer debris from the TDS to a final disposal site. The contract will support continued post-wildfire response efforts in Maui County, Hawaii. The estimated contract value is $145M. The contract type is Firm-Fixed-Price and the planned period of performance is 12-months. Federal Emergency Management (FEMA) Disaster Relief funds will be utilized for the follow-on contract award.

POH issued several task orders to ECC under Advanced Contract Initiative (ACI) Single Award Task Order Contract (SATOC) W912EK22D0004.

3. Description of Supplies/Services: The services include operating and maintaining the TDS facility at the old Olowalu Landfill, Lahaina, Maui, HI 96761. USACE expects the removal of all residential and commercial debris to the TDS facility to be complete before Maui County is ready to receive waste at its permanent site. Accordingly, USACE expects to delay moving the debris from the TDS facility. Therefore, the services include the installation of an interim geosynthetic TDS cap, as well as minor operation and maintenance of the TDS until Maui County is ready for debris at the final disposal location. The services also include transferring all debris from the TDS (approximately 400,000 CY) to the final disposal site and closing out the TDS.

PPDR services include removing fire-related debris in designated work zones for approximately 84 single-unit properties and eight multi-unit properties. PPDR services also include performing demolition, ingress/egress route evaluation, Hazardous Site Assessments (HSAs), hazardous tree assessments, sampling and monitoring for hazardous materials, and removal of fire-related Household Hazardous Material (HHM) and Bulk Asbestos Material (BAM) on approximately two properties. The PPDR work also contains post-debris removal services, including confirmation sampling, rescrapes, backfill, and final BMPs on each single and multi-unit property.

In addition, the PPDR services include ingress/egress route improvements and maintenance on approximately 13 properties, hazard tree removal for approximately 402 trees, and final parcel clearance data for approximately 92 properties (84 single unit and 8 multi-unit). Additional services include historical human remains excavation and reburial (one each) and geospatial data for approximately 92 properties. The services include a quarterly summary report and a final cultural resource report per FEMA's Archeological Treatment Plan (ATP).

The estimated performance period for the services associated with the TDS operations is 12 months, beginning by 1 August 2024. The estimate includes the performance period for the separate contractor performing commercial and public debris removal that ends on 26 February 2025, since they must also take the debris to the TDS site. The estimated performance period to transfer the debris from the TDS facility is three to six months upon completion of the final disposal site. If Maui County delays completing the final disposal site, the TDS operations and debris transfer performance period may increase. The estimated performance period for PPDR on single and multi-unit properties for a separate contractor is 90 calendar days (30 days to mobilize and 60 days to complete the work) from the award date.

4. Authority Cited: 10 U.S.C. 3204(a)(1) or 41 U.S.C. 3304(a)(1), as implemented by Federal Acquisition Regulation (FAR) 6.302-1(a)(2)(iii)(A) Only One Responsible Source. For DoD, NASA, and the Coast Guard, services may be deemed to be available only from the original source in the case of follow-on contracts for the continued provision of highly specialized services when it is likely that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition.

5. Reason for Authority Cited: ECC is currently operating the TDS and performing PPDR in Lahaina. ECC expects to complete most of the PPDR services under the existing task order by August 2024. Debris removal of this nature requires highly specialized knowledge of the local area, regulatory and cultural requirements, and chemical nature of the debris material in the disaster area. If USACE were to now award a follow-on contract to another contractor to perform the remaining residential debris services, it would result in approximately $6.5M in duplication of costs to mobilize another contractor to perform the services.

In addition, ECC has a licensing agreement with the County of Maui for construction, operation, maintenance, closure, and restoration of the TDS site. If POH were to award a contract to another contractor for the TDS operations, Maui County would need to terminate the license agreement and takeover any potential environmental liabilities and costs associated with the future of the site. Once POH awards the contract to another contractor, they must enter into a new licensing agreement with Maui County.

Negotiations between the contractor, Maui County, the Department of Health, USACE, and FEMA must occur immediately to transfer liability and agree on cost between the parties. Given the potential long-term liability and risks associated with operating and closing landfills, specifically those containing ash and debris, it may be difficult to get another contractor to accept these risks. The original licensing agreement took approximately 30 days to settle and would have a similar timeline to end the current licensing agreement and create a new agreement with the new contractor. If it were even possible to transfer operations of the facility to a new contractor, it would result in approximately $2.2M (table 2) in duplication of costs and would prevent the contractor from mobilizing for 60 days, creating a delay to the TDS operations. The delay would also affect the ability to perform the associated debris removal on commercial and public properties currently under a separate contract, who must take the debris to the TDS site.

Justification: On 8 August 2023, wildfires swept across Maui, Hawaii (HI). On 10 August 2023, the areas impacted by the fires were declared a Federal Disaster Area (FEMA-4724-DR-HI) and eligible for assistance through the Federal Emergency Management Agency (FEMA). On 25 August 2023, the Department of Homeland Security (DHS), FEMA Region 9 tasked USACE, POD with Mission Assignment (MA) 4724DR-HI-COE-POD-09 to deploy the Debris Planning and Response Team (PRT) to coordinate and execute all necessary actions associated with debris clearance, removal, and disposal site management from public and private property debris removal. There has never been a fire event like Maui on a Pacific island.

Because of the scale and complexity of the event, Maui lacked the capacity for a temporary or permanent location to accept fire-related ash material, HHM, BAM, or asbestos concrete into existing disposal facilities. There was inadequate local capacity to receive debris at the existing Central Maui Landfill. Therefore, on 4 October 2023, POH issued Task Order W9128A24F0001 ($1M) to ECC to develop a design for a TDS site. POH issued several modifications to the task order for construction and operating and maintaining the TDS Site through 31 July 2024, increasing the amount to $49.5M.

On 24 November 2023, ECC entered into a License Agreement with Maui County to develop and maintain, through the direction and approval of USACE, a TDS site for temporary storage until the completion of the permanent disposal facility by Maui County. The License Agreement also requires ECC, specifically, to move the debris from the TDS site to a final disposal site.

Because of the highly specialized expertise ECC has developed over the course of this mission, transitioning work from ECC to another contractor will cause both a duplication of costs already incurred and an unacceptable delay in completing the debris removal mission. It is not practical or in the Government’s best interest to solicit additional sources for the continuation of debris removal services, including the operation and maintenance of the TDS site. USACE would incur substantial duplication of costs and unacceptable delays in mobilizing another contractor to an island with limited and strained resources to provide services similar to ECC's. A delay would increase costs and also stop work for ECC and the commercial and public debris removal contractor. If work stops, then the rebuilding efforts stop, unnecessarily delaying property owners from returning to their homes and businesses. Any work stoppage under the mission will result in unacceptable delays from FEMA, Maui County, and the community.

Table 1 below highlights each item where USACE likely would incur substantial duplication of costs of $6.5M to mobilize another contractor to perform PPDR.

Table 1

Each item in Table 1 represents an estimated cost that another contractor would likely incur, where USACE could not recover the costs through competition. POH developed the estimated duplicative costs using certified cost or pricing data and data other than certified cost or pricing data and data from Independent Government Estimates (IGEs) under the Maui mission. If USACE obtains all Rights-of-Entry (ROE), ECC could complete the PPDR in 30 days. POH estimates that another contractor would need 90 calendar days (30 to mobilize and 60 to complete the work and demobilize) to complete PPDR, including mobilization and demobilization. Another contractor would result in duplicative mobilization costs, including per diem for personnel during the first 30 days and duplicative operational costs for the estimated additional 30 days to complete PPDR compared to having ECC complete the work. The sole-source contract's estimate for the PPDR services (including demobilization) is $37.5M. Another contractor would incur the duplicative costs in Table 1 for the following reasons:

• Various Plans. If POH were to bring on another contractor, they must prepare the required plans for approval, estimated at $29K. The sole source contract will require ECC to provide the plans. However, since ECC has already completed

Description Cost Various Plans (SWPPP, PMP, QCP, APP, Air Monitoring & Surveillance Plan) 29,000.00$ Mobilization (Prime Contractor Labor & Travel) 33,000.00$ 40 hr HAZWOPER training 63,000.00$ Field Costs (i.e., Trailers, Furniture, Portable Toilets, Hand Wash Stations) 27,200.00$ Debris Removal Personnel & Heavy Equipment Mobilization (Subcontractor Transportation, Labor & Travel)

162,500.00$

Transportation of Off-Island Trucks/Drivers from other Hawaii Islands to Maui 35,000.00$ Transportation of Off-Island Trucks/Drivers from Mainland to Maui 160,000.00$ Maui County Permit Fee and other Miscellaneous Permit fees 10,000.00$ Maui County Grading Bond 155,000.00$ Cultural Training 18,000.00$ Pioneer Mill Site Improvements 420,000.00$ Mobilization/Installation of Certified Truck Scale and Scale House (Pioneer Mill) 600,000.00$ Demobilization of Certified Truck Scale and Scale House (Pioneer Mill) 400,000.00$ Per Diem, Lodging, Hotel Parking Fees, etc. 1,130,000.00$ Utilities (laydown yard rental, warehouse rental, office space rental, internet, water, electrical, garbage, and telephone)

114,000.00$

Traffic Control 444,000.00$ Air Monitoring 650,000.00$ Dust Control - Water Truck 450,000.00$ Street Sweeping 125,000.00$ Mobilization of Metal Process Equipment/Team 250,000.00$ Recycling Operations (Scrap Metal, Non-ACM Concrete) 1,200,000.00$

TOTAL 6,475,700.00$

RESIDENTIAL DEBRIS REMOVAL DUPLICATIVE COSTS

the plans, they can re-submit each one for the specific work, saving time and money.

• Mobilization. Another contractor must mobilize personnel immediately upon contract award for a seamless transition to avoid delays in completing the work, estimated at $33K. ECC mobilized approximately 31 personnel upon issuance of the PPDR task order. POH estimates another contractor would bring on an initial 15 personnel for $33K ($12K in labor (8 hours x $100/hour average labor rate x

15) and $21K in airfare (15 x $1,400 average flight)).

• HAZWOPER Training. Each contract action under the Maui Mission requires all contractor personnel working within the burn zone of each property to have and maintain 40-hour Hazardous Waste Operations and Emergency Response (HAZWOPER) training and certification. POH estimates that a new contractor would require training for at least 15 personnel at $63K ($100/hour x 40 hours + $229 (online training cost) x 15).

• Field Costs. Another contractor would need office trailers, furniture, portable toilets, and hand wash stations, estimated at $27.2K for 60 of the 90-day performance period.

• Debris Removal Personnel & Heavy Equipment Mobilization (Subcontractor).

ECC mobilized ten debris removal crews and equipment from Honolulu due to the limited resources on Maui, ultimately getting up to 25 crews. POH estimates that another contractor would likely need to mobilize at least five subcontractor crews for $162.5K ($32.5K/crew – costs include transporting heavy equipment, labor, and airfare).

• Transportation of Off-Island Trucks/Drivers from Hawaii Islands to Maui. Due to the limited resources in Maui, ECC had to bring on additional trucks to haul debris and drivers from other Hawaiian Islands. Therefore, POH estimates that another contractor must bring in ten trucks for $35K ($3.5K/each for equipment and personnel).

• Transportation of Off-Island Trucks/Drivers from the Mainland to Maui. Due to the limited resources in Maui, ECC had to bring on additional trucks to haul debris and drivers from the mainland. Therefore, POH estimates that another contractor must bring in ten trucks for $160K ($16K/each for equipment and personnel).

• Maui County Permit Fee / Maui County Grading Bond. To perform the work, another contractor must obtain various permits and a grading bond from Maui County. Therefore, POH would incur duplicative costs of $10K for the permits and $155K for the grading bond with another contractor performing the work.

• Cultural Training. All personnel supporting the mission must participate in training on the local history, culture, and significance of the Maui wildfire provided by a separate contractor. ECC currently has 350 personnel working on the task order. POH estimates that another contractor will have at least 60 personnel for $18K (60 x $100/hour x 3 hours for the training).

• Pioneer Mill Site Improvements & Lease. Maui, specifically the town of Lahaina, has limited locations for a debris processing site. Each contractor must process the different types of debris (ash, concrete, metal, etc.) before hauling it to the TDS. Therefore, once ECC obtained an adequate site, they had to improve it, including creating access roads and prepping the site with specific materials to control the debris streams brought into the site. ECC’s site would be unavailable to another contractor since ECC will still occupy the site. There are very few large lots in the Lahaina footprint for another contractor to operate that would allow for sufficient processing of metals and concrete, leading to increased costs and delays. POH estimates that another contractor would incur approximately $420K to locate a site, negotiate the lease terms, make necessary improvements, and prepare the site to receive debris. It took ECC several months to find and prepare a suitable site for debris removal.

• Mobilization/Installation and Demobilization of Certified Truck Scales and Scale Houses. In addition to having to find and prepare a site to process the different debris types before hauling it to the TDS, another contractor would have to mobilize/install certified truck scales and scale houses. Additionally, another contractor would have to demobilize the equipment. Another contractor would incur duplicative costs estimated at $600K to mobilize/install the equipment and $400K to demobilize everything. Most of the price is due to shipping the equipment from the mainland, as it is not readily available in the Pacific Islands region.

• Per Diem, Parking Fees, etc. Another contractor would incur approximately $1.13M in meals and incidentals, lodging, parking fees, and rental car expenses for the prime contractor and subcontractor personnel. The estimate includes per diem for the initial 15 prime contractor personnel for 60 of the 90 days of performance ($850K; $945/day x 15 personnel). The estimate also includes per diem for approximately ten subcontractor personnel for 30 of the 90 days of performance ($283.5K; $945/day x 10 personnel).

• Monthly Utilities. Another contractor would incur approximately $114K ($1.9K/day for 60 of the 90-day performance period) in duplicative utility costs, including various site rentals, office and warehouse space, internet, water, electrical, garbage, and telephone service.

• Traffic Control. Another contractor would incur approximately $444K ($3.7K/crew day; four crews (two personnel each crew – a total of $14.8K/day x 30 of the 90-day performance period) in duplicative traffic control costs.

• Air Monitoring. Another contractor would incur approximately $650K

($21.4K/day; one crew (two air monitoring techs, one supervisor, and one sample coordinator) x 30 of the 90-day performance period) in duplicative air monitoring costs.

• Dust Control. Another contractor would incur approximately $450K ($5K/day for a truck/driver x 3 trucks/day x 30 of the 90-day performance period) in duplicative dust control costs.

• Street Sweeping. Another contractor would incur approximately $125K ($4K/day;

one truck x 30 of the 90-day performance period) in duplicative street sweeping costs.

• Mobilization of Metal Process Equipment/Team. Another contractor must mobilize equipment and personnel to support metal recycling operations (truck scales, generators, shears, etc.). POH estimates that another contractor would incur approximately $250K to mobilize and establish the metal processing team.

• Recycling Operations. Another contractor will incur approximately $1.2M for 30 of the 90-day performance period of recycling operations (truck scale, generator rental, personnel, etc.).

Table 2 below highlights each item where USACE likely would incur substantial duplication of costs of $2.2M to mobilize another contractor to take over the services involved in the operation and maintenance of the TDS.

Table 2

Each item in Table 2 represents an estimated cost that another contractor would likely incur, where USACE could not recover the costs through competition. POH developed the estimated duplicative costs using certified cost or pricing data and data other than certified cost or pricing data and data from IGEs under the Maui mission. The estimate for the sole-source contract's TDS site operation and maintenance (including demobilization) is $31.2M. The estimate for transferring debris from the TDS to the final

Description Cost TDS Documents Review, Legal Fees, and Liability Insurance 500,000.00$ Various Plans (SWPPP, Operations, QCP, APP, Environmental Test & Monitor Plan, Site Layout/Segregation Plan, HTW Materials Plan, Environmental Mitigation Plan, Contingency Plan)

380,000.00$

Procure/Install Certified Truck Scale and Scale House 752,000.00$ Mobilization of Personnel and Equipment 100,000.00$ Demobilize Certified Truck Scale and Scale House 500,000.00$

TOTAL 2,232,000.00$

TDS DUPLICATIVE COSTS

disposal site is $76.2M. Another contractor would incur the duplicative costs in Table 2 for the following reasons:

• TDS Document Review, Legal Fees, and Liability Insurance. Another contractor must review the TDS documentation, as Maui County would need to terminate the ECC License Agreement. The new contractor would need to take over any potential environmental liabilities and costs associated with the future of the TDS.

USACE would nominate a new contractor to enter into a new License Agreement with Maui County. Negotiations between the new contractor, Maui County, Department of Health (DOH), USACE, and FEMA must occur early to ensure the parties agree on the risk, liability, and cost transfer. POH estimates the cost for another contractor to review the documentation, incur legal fees, and procure liability insurance to be $500K.

• Various Plans. If POH were to bring on another contractor, they must prepare the required plans for approval, estimated at $380K.

• Mobilization/Installation & Demobilization of Personnel and Equipment. Another contractor must mobilize/install certified truck scales and scale houses.

Additionally, another contractor would have to demobilize the equipment.

Another contractor would incur duplicative costs estimated at $852K to mobilize/install the equipment and $500K to demobilize everything. Most of the price is due to having to ship the equipment from the mainland, as it is not readily available in the Pacific Islands region.

ECC has highly specialized experience with the specific requirements and the necessary logistical expertise to provide the required PPDR services for the Maui debris mission. ECC has the highly specialized knowledge of the Maui site conditions, and regulatory and environmental requirements associated with the hazardous materials.

This mission requires extensive cultural and archaeological expertise and consultation with other agencies, which ECC has gained by being in Maui since August to preposition itself to respond to the wildfire. ECC also has a robust planning cell that provides specific homeowner care and they have developed relationships with the County, State and local subcontractors which allows for a culturally sensitive handling of the cleanup.

Additional contractors removing residential debris would promote confusion, inconsistencies, and administrative burdens. For instance, another contractor currently performing debris removal services on commercial and public properties in the same disaster area is creating challenges with multiple staging and meeting areas and competing for limited on-island resources. In an environment of constrained resources, adding another prime contractor would pose a significant risk of contractors disrupting each other's operations, which will slow down production rates and prolong the recovery of the affected area.

Additionally, different, or multiple contractors responsible for similar work in the exact geographic location increase the risk of ineligible material ending up in the disposal location. It is also critical to avoid choke points at disposal sites, which occur when too many contractors use the exact disposal locations. If POH were to award the contract to another contract, ECC would still be onsite managing the HHM/BAM and vehicle staging and processing sites under separate task orders. Another contractor would have to coordinate with ECC for disposal of any vehicles and HHM/BAM found on the residential properties. The continued use of ECC eliminates choke points and ensures efficient resource use in the aftermath of a significant disaster. Multiple contractors would create scheduling problems that would impact all contractors and increase delays in the mission.

Another consideration is the time and mission impact for the new contractor to enter into the TDS agreement and begin operations. The timeline for ECC to shut down operations and a new contractor to take over would be approximately 45 days, resulting in significant delay costs and a delay in delivering the mission. ECC must shut down the TDS site and submit a closeout and turnover plan, estimated at $100K. Next, ECC and the contractor performing commercial and public debris removal would have to stop operations, which likely would result in a government caused delay and potential request for equitable adjustment. POH estimates that a 45-day delay could result in approximately $115K/day or $5.2M in total delay costs. The shutdown would also result in a loss of subcontractor resources. Many of the subcontractors delayed their own existing work to support this historic mission. However, if ECC has to send crews home, this would create a dangerous condition for Maui County and homeowners, as well as the ability for Lahaina to recover.

Alternatives: POH considered alternative options instead of a sole source follow-on contract with ECC. However, each option would require more or similar effort, result in unnecessary cost increases, and create unacceptable delays to the mission.

• Competitive Negotiated Acquisition. If POH were to issue a competitive solicitation, it would take 90 – 120 days, or more to award the contract. POH would use FAR Part 15 and the best value tradeoff process to award the contract, which would create a significant administrative burden. Awarding to another contractor other than ECC would still result in the substantial duplication of costs and unacceptable delays discussed in this justification, that USACE could not recover through competition.

• Native Hawaiian Organization (NHO) 8(a) Sole Source. As an SBA-approved Mentor-Protégé, ECC owns 49% of Aloha Aina LLC (a subsidiary of the Kina'ole Foundation). Aloha Aina is an eligible NHO 8(a) certified entity capable of receiving sole source awards. POH could pursue a sole source contract with Aloha Aina LLC, which would leverage ECC to continue performing debris removal services. POH could also award a contract to another eligible NHO 8(a) firm. While a sole source 8(a) contract with Aloha Aina would result in ECC performing parts of the work, POH did not pursue this option because it would likely result in higher costs with adding another contractor unfamiliar with the work and does not guarantee a smooth transition of work, as ECC would have to help manage an unfamiliar contractor to the mission. In addition, awarding to another firm would result in a similar increase in costs due to the likely incurrence of the duplicative costs discussed in this justification.

• Pilot Program to Incentivize Contracting with Employee-Owned Businesses. The Department of Defense (DoD) authorized the pilot program that allows government contractors owned 100% by an S-corporation ESOP to receive a non-competitive award for specific follow-on contracts. Section 872 of the National Defense Authorization Act for Fiscal Year 2024 provides a three-year extension (December 2029) of DoD's authority for the pilot program. ECC is 100% owned by an S-corporation Employee Stock Ownership Plan (ESOP). The program has limitations; qualified contractors can only apply through a contracting officer. However, POH could seek approval for a follow-on contract with ECC for debris removal services. If approved by Defense Pricing, Contracting, and Acquisition Policy, POH would prepare a J&A (FAR 6.302-5, Authorized or required by statute) and issue a sole-source contract to ECC. This is simply another way to sole-source to ECC and has no procedural or time benefit. POH would not gain any time or cost savings with this alternative. POH would still have to develop a J&A and there is no guarantee of approval to use this method. It is also unknown how long the process would take, which could cause unacceptable delays.

Impact: ECC has highly specialized knowledge of the local area, regulatory requirements, cultural and archaeological expertise, and chemical nature of the debris material in Maui. All work must meet FEMA eligibility requirements to allow FEMA to reimburse USACE for debris management services. Different or multiple contractors responsible for similar work in the exact location increase the risk of duplicative costs and ineligible material ending up in the disposal location. Overall, POH estimates that another contractor would incur approximately $8.7M (see tables 1 & 2) in duplicative costs when compared to a follow-on sole-source contract with ECC.

6. Efforts to Obtain Competition: It is not practical or in the Government’s best interest to solicit additional sources. In addition, competing this requirement is not in the Government's best interest (per the information included in Section 5) as it would result in substantial duplication of cost to USACE and unacceptable delays in completing the mission. The administrative effort required to award new individual contract(s) would prove costly and time-consuming, impacting the Government's ability to meet essential mission requirements. In addition, the Rock Island District (MVR) solicited and awarded ACI Contract W912EK22D0004 under full and open competitive procedures.

a. Effective competition. Per FAR 5.203(a), on 22 May 2024, POH posted a synopsis notice of the intent to solicit and negotiate with ECC, requesting responses from interested firms by 5 June 2024.

b. Subcontracting competition. Given Maui’s limited resources, ECC is still using

64% of its workforce from the local area. Additionally, ECC’s costs under Task Order W9128A24F011 comprise 57% of the total obligated amount. The sole source contract will require ECC to submit a Subcontracting Plan and POH will work with the Small Business Professional to ensure ECC includes adequate subcontracting goals. POH will also review ECC’s subcontracting reports to ensure it complies with the elements of the Subcontracting Plan. ECC intends to use the same subcontractors currently performing under its task orders, which will continue to foster maximum subcontractor participation. POH also analyzed ECC’s certified cost or pricing data, which included adequate justification of subcontractor competition.

7. Actions to Increase Competition: POH posted a synopsis notice of intent to sole source with ECC, requesting all interested sources to submit a capability statement or proposal for consideration. The synopsis also stated that all interested concerns must show clear and convincing evidence that competition of the requirement would be advantageous to the Government. POH received only one response (See Section 9);

however, the interested party did not provide any evidence to issue a competitive acquisition for the requirement and requested that POH issue them a sole source contract instead. POH has explored all practicable alternatives, and no alternative contracting methods exist to meet the mission requirements in the available timeframe.

However, POH will leverage the acquisition flexibilities in FAR Part 18, Emergency Acquisitions, for future Maui mission requirements, as practicable.

8. Market Research: Due to the federal emergency and the unique nature of the event, POH first reviewed recent market research, conducted in September 2023, which focused on the intended use of the ACI Contract with ECC and leveraging Native Hawaiian Organization (NHO) 8(a) firms with experience in debris removal.

Next, the POH identified five 8(a) NHOs previously used for similar acquisitions. POH reviewed each firms’ responses to a questionnaire issued in September 2023, which asked specific capability questions regarding debris removal services. POH reviewed responses and capability statements from the following contractors:

• DAWSON Solutions, LLC (DAWSON)

• GSI Hawaii, Inc. (GSI)

• Hui Huliau Technology Services, LLC (HHTS)

• Global Pacific Design Builders (GPDB)

• Nakapuna Consulting (Nakapuna)

Three of the five firms listed above have received a contract award from POH to support the Maui Wildfire emergency (DAWSON, HHTS, & GPDB). In addition, Nakapuna provided support as a subcontractor during Phase 1 debris removal support. Each of these firms would be in the same position as another contractor, where they would have to enter into a license agreement with Maui County, which prevent a contractor from mobilizing for 60 calendar days, creating a delay to the TDS operations. In addition, all of the firms would have to mobilize equipment and personnel to complete the PPDR and maintain/operate the TDS, resulting in a duplication of costs.

Additionally, POH searched the System for Award Management (SAM) Disaster Response Registry per FAR 26.205 for Maui County, HI. The search returned zero results under NAICS 562211 Hazardous Waste Treatment and Disposal. Finally, POH also posted a synopsis and requested interested sources to submit information for consideration. POH received only one response, from HHTS, (See Section 9); however, they requested that POH issue it a sole source contract. A sole source to HHTS would still result in unacceptable duplicative costs and delays as mentioned in this section.

9. Interested Sources: One contractor, HHTS, an NHO 8(a) firm, submitted a response to the synopsis. On 27 February 2024, POH awarded HHTS a sole source 8(a) contract for commercial and public property debris removal under the Maui Mission, totaling $159M. Accordingly, HHTS’s response to the synopsis highlights the ongoing work they have accomplished under the mission, recommending that POH issue HHTS another sole source 8(a) contract for the work described in the notice. However, since the estimate for the sole source work is $145M, POH would have to prepare a similar J&A for approval using the authority implemented at FAR 6.302-5, Authorized or Required by Statue, sole source awards under the 8(a) Program (15 U.S.C. 637). While the duplication of costs and delays would likely be less than with an entirely new contractor unfamiliar with the area, it would still result in delays and duplication of costs unacceptable to the government on this mission.

10. Other Facts:

a. Procurement history:

(1) Contract numbers and dates of all awarded contracts for these same requirements. To date, POH has obligated approximately $857M in contract actions for debris support services, where 45% ($388M) has gone to local small businesses, with a majority going to 8(a) business concerns.

Specifically, the sole source contract will include work that was part of Task Order W9128A24F0001 and W9128A24F0011, shown in Table 3 below.

Table 3 also highlights each contract action that USACE has awarded under the Maui mission.

Table 3

(2) The competitive status of these actions. POH issued Task Orders

W9128A24F0001 and W9128A24F0011 under the ACI SATOC. The SATOC was competed using full and open competition, at the time of contract award.

(3) Authority previously cited if less than full and open competition was used. N/A

(4) If a justification was prepared to support the procurement made before this one, a summary of the contents of paragraph 7 of the justification for that procurement and an explanation of the results. N/A.

(5) If any prior contract for this requirement was accomplished using full and open competition, include a detailed explanation of the changed circumstances causing this action to now limit the sources. N/A

(6) An explanation of any unusual patterns that may be revealed by the history, e.g., several consecutive, urgent buys. N/A

(7) If a justification was prepared to support the procurement made before this one, briefly describe the circumstances justifying the procurement and whether there have been any significant changes. N/A

b. Other facts. N/A.

Award No. Award Date Contractor Description Amount Small Business

W9128A23F0034 22-Sep-23 ECC Constructors LLC Emergency Planning Cell 1,400,000.00$ N

W9128A24F0001 4-Oct-23 ECC Constructors LLC Develop and Operate Temporary Debris Storage (TDS) Site

49,497,214.49$ N

W9128A24F0002 4-Oct-23 ECC Constructors LLC Establish and Manage HHM and BAM Site 3,900,025.10$ N

W9128A24C0001 16-Oct-23 Minatoishi Palumbo Architects, Inc.

(DBA AEPAC)

Phase 1 Cultural & Historical Services 28,098,139.04$ Y

W9128A24C0002 16-Oct-23 DAWSON Solutions, LLC Hazardous Site Assessments and HHM/BAM Removal

52,142,986.10$ Y - NHO 8(a)

W9128A24C0003 19-Oct-23 Pono Aina Management LLC West Maui Temporary School Facilities 54,274,489.70$ Y W9128A24F0004 26-Oct-23 ECC Constructors LLC Residential Debris Removal in Kula 8,028,653.27$ N W9128A24F0005 26-Oct-23 ECC Constructors LLC Vehicle Staging Site and Vehicle Disposal 8,332,896.42$ N W9128A24F0006 4-Nov-23 ECC Constructors LLC Vessel Staging Site and Vessel Disposal 2,175,671.97$ N W9128A24F0011 5-Jan-24 ECC Constructors LLC Residential Debris Removal in Lahaina 396,157,508.64$ N

W9128A24C0006 27-Feb-24 Hui Huliau Technology Services LLC Commercial and Public Debris Removal in Lahaina

158,669,512.83$ Y - NHO 8(a)

W9128A24C0007 11-Apr-24 Aktarius LLC Temporary Housing Site - Kilohana, Maui 93,494,520.00$ Y - NHO 8(a) W9128A24C0008 16-Apr-24 Honua Consulting Ethnographic Study 1,007,329.44$ Y

857,178,947.00$ 387,686,977.11$ 45%

TOTAL

TOTAL SMALL BUSINESS