JA for W9123820C0037 Redacted.pdf

Control Number: SPK-FY20-33-1

JUSTIFICATION REVIEW DOCUMENT – JUSTIFICATION AND APPROVAL (J&A)

Project/Equipment Englebright/Yuba Biological Assessment Authority: FAR 6.302-1(a)(2) AMOUNT: $194,000

Prepared by:

Name: Steven Warren

Telephone: 916-557-7277

Title: Contract Specialist Date: 8/30/2021 Email:

Contracting Officer

(see certification section below)

Name: Aldone R. Graham

Telephone: 916-557-7090

Title: Contracting Officer Date: see signature Email: l

Technical

Name: Randy Olsen

Telephone: 916-557-5275

Title: Chief, Operations Date: see signature Requirements

Name: Randy Olsen

Telephone: 916-557-5275 Title: Chief, Operations Date: see signature

SIGNATURES ARE REQUIRED BELOW:

I have reviewed this Justification and find it adequate to support other than full and open competition.

Deputy for Small Business

MORALES.MICHELLE.D.1 Digitally signed by

231918856

MORALES.MICHELLE.D.1231918856

Signature: Date: 2021.09.17 09:57:22 -07'00'

NAME: Michelle Morales Telephone: 916-557-7641

Project Manager OLSEN.RANDY.PAUL.123 Digitally signed by

1851263

OLSEN.RANDY.PAUL.1231851263

Signature Date: 2021.09.17 08:13:32 -07'00'

NAME: Randy Olsen Telephone: 916-557-5275

Office of Counsel Digitally signed by

CLAY.LISA.H.1232130446 CLAY.LISA.H.1232130446

Signature: Date: 2021.09.17 08:38:31 -07'00'

NAME: Lisa Clay Telephone: 916-557-5295

JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

Action: Justification for Review of Englebright and Daguerre Point Dam Biological Assessments

Authority: 10 U.S.C. 2304(c)(1) as implemented by FAR Part 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements

Amount: $194,000.00

Prepared by:

Steven Warren Contract Specialist E-Mail: l

Contracting Officer:

Name: Aldone R. Graham E-Mail:

Technical Representative:

Name: Randy P. Olsen Title: Chief, Operations Division, CESPK-OD

Requirements Representative:

Title: Chief, Operations Division, CESPK-OD

I have reviewed this justification and find it adequate to support other than full and open competition.

Program Manager:

OLSEN.RANDY.P

OLSEN.RANDY.PAUL.123185126

Signature:

Date: 2021.09.17 08:15:42 -07'00'

Small Business Specialist:

Name:

AUL.1231851263

SPK Deputy District Counsel (Operations and Regulatory Divisions):

Name: Lisa H. Clay

Digitally signed by

CLAY.LISA.H.1232130446

Signature: 32130446 Date: 2021.09.17 08:39:12 -07'00'

CLAY.LISA.H.12

Justification for Other than Full and Open Competition US Army Corps of Engineers (USACE), Sacramento District (SPK)

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

Federal Acquisition Regulation (FAR) Part 6 Justification & Approval (J&A), Supporting Procurements under FAR Part 12, and FAR Part 13

Purchase Request Number: W62N6M11810017 Contract Number: W9123820C0037 Task/Delivery Order Number: N/A Procurement Title: Technical Assistance and Fisheries Support for the potential effects of the U.S. Army Corps of Engineers’ (USACE) ongoing activities on the lower Yuba River, California.

Estimated Value: $194,000 Statutory Authority: FAR 6.302-1, Only One Responsible Source, 10 U.S.C. 2304(c)(1)

Upon the basis of the following justification, I, as the Contracting Officer, hereby approve the use of other than full and open competition of the proposed contractual action pursuant to the authority of FAR 6.302-1, Only One Responsible Source, 10 U.S.C. 2304(c)(1).

1. CONTRACTING ACTIVITY:

Requesting Agency:

U.S. Army Corps of Engineers, Sacramento District Operations Division 1325 J Street Sacramento, CA 95814-2922

Contracting Activity:

U.S. Army Corps of Engineers, Sacramento District Services & Supply Section, Contracting Division 1325 J Street, Room 878 Sacramento, California 95814-2928

2. DESCRIPTION OF ACTION:

This contract modification is a one-time contracting action for technical assistance and fisheries support to the USACE for ongoing technical meetings and coordination with the NMFS related to preparation of the technical memoranda and to add preparation of the Fish Ladder Operation and Debris Monitoring and Management Plan to capture the scope of the USACE discretionary activities to be assessed in the Technical Memorandum for Daguerre Point Dam.

On 30 October 2020 the United States District Court for the Eastern District of California granted plaintiff’s motion for an order of remand. The District Court’s order implemented an October 2019 decision by the Ninth Circuit Court of Appeals directing a remand of a 2014 NMFS Biological Opinion for Daguerre Point Dam and a 2014 Letter of Concurrence for Englebright Dam to the National Marine Fisheries Service (NMFS) “for further explanation” and for NMFS to “reassess” its decisions. Friends of the River v. NMFS, et al., 786 Fed. App’x 666, 668 (9th Cir. 2019). The District Court’s remand order stated the court’s expectation that NMFS would coordinate with the USACE to comply with the Ninth Circuit’s 2019 order and that compliance with the District Court’s remand order would be monitored “by requiring the parties to file periodic joint status reports that include specific details regarding the work completed and actions taken by NMFS as well as best estimates as to when its work will be completed.” Friends of the River v. NMFS, et al., 2020 WL 6391314 (E.D. Cal. Oct. 30, 2020). To ensure compliance with the District Court’s order, USACE and NMFS have increased the number of coordination meetings and technical discussions about the USACE’s discretionary activities associated with operation and maintenance of fish passage facilities at Daguerre Point Dam, the 2013 Daguerre Point Dam Biological Assessment (BA) prepared by HDR Engineering, Inc. (HDR) and compliance with the terms and conditions of the 2014 Biological Opinion for operation of fish passage facilities at Daguerre Point Dam. The level of interaction and coordination was not anticipated at the time of contract award on September 23, 2020. USACE requires additional technical support by HDR for technical information and attend additional coordination meetings with NMFS. The cost estimate for the additional effort is $194,000.00.

3. DESCRIPTION OF SUPPLIES/SERVICES:

The purpose of this contract modification is to provide technical project fisheries information to the USACE responding to NMFS issues and questions prior to each technical meeting. The contractor will also attend additional technical meetings to facilitate communication and coordination with project team participants to support technical coordination and collaboration with the NMFS. The contractor will prepare the Fish Ladder Operation and Debris Monitoring and Management Plan that will outline the scope of operations activity within the USACE’ discretion and control to support fish passage through the fish ladders as well as the maintenance activity, within the USACE’ discretion and control, necessary to minimize fish passage delays due to debris, mechanical failure and other phenomenon that may affect fish passage. The plan will include operational guidance for the control gates and ladders, maintenance guidance for debris removal and facility care, communication protocols, and security.

This action will increase the period of performance 200 days. The estimated overall value is $194,000.

4. AUTHORITY CITED:

The statutory authority permitting other than full and open competition for the proposed action is 10 U.S.C. 2304(c)(1), as implemented by FAR 6.302-1 -- Only one responsible source and no other supplies or services will satisfy agency requirements. 10 U.SC.2304(d)(1)(A)(i), as implemented by FAR 6.302-1(a)(2)(i)(A), provides that full and open competition need not be provided in instances when services may be a unique and innovative concept.

5. REASON FOR AUTHORITY CITED:

USACE need not engage in full and open competition for this requirement because the criteria in FAR 6.302-1(a)(2)(iii) 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- (A) Substantial duplication of cost to the Government that is not expected to be recovered through competition; or (B) Unacceptable delays in fulfilling the agency’s requirements. (See 10 U.S.C.2304(d)(1)(B).) are met, as indicated below.

HDR Engineering, Inc. (HDR) prepared the Corps’ 2013 Biological Assessment for the U. S.

Army Corps of Engineers Authorized Operations and Maintenance of Existing Fish Passage Facilities at Daguerre Point Dam on the Lower Yuba River under contract W91238-07-D-0015, TO 0005, which was completed by the contractor on 12/31/2014 and provided critical information used in the in-house preparation of the 2013 Biological Assessment for the U.S.

Army Corps of Engineers Ongoing Operation and Maintenance of Englebright Dam and Reservoir on the Yuba River. The 2013 biological assessment for Daguerre Point Dam was prepared as part of a formal consultation with National Marine Fisheries Service in compliance with the Endangered Species Act. The 2013 Biological Assessment for Daguerre Point Dam, along with the Corps’ 2013 Biological Assessment for the U.S. Army Corps of Engineers Ongoing Operation and Maintenance of Englebright Dam and Reservoir on the Yuba River and the associated National Marine Fisheries Service 2014 Biological Opinion (BiOp) and 2014 Letter of Concurrence (LOC), became the subject of litigation filed by the Friends of the River in April 2016. The Friends of the River lawsuit ultimately made its way to the Ninth Circuit Court of Appeals. In October 2019, the Ninth Circuit directed the District Court to remand the 2014 BiOp and LOC to NMFS to for further explanation and description regarding the scope and extent of the Corps’ action as described in the BiOp and LOC, among other things. The BiOp and LOC necessarily rely on the 2013 Biological Assessments as the basis for determining the scope and extent of the Corps’ agency action. In a motion filed on August 18, 2018, Friends of the River is requesting that the District Court establish mandatory timelines for NMFS to complete the additional explanation required by the Ninth Circuit. Friends of the River has asked the District Court to set a timeline of 90 days – 31 months depending on the extent of the work required by NMFS to address the deficiencies identified in the Ninth Circuit’s opinion. Before NMFS can complete its work, the Corps will provide some updated/supplemental information to NMFS’ related to the 2013 biological assessments. NMFS has indicated that it could require up to 18 months to complete its work which leaves only 13 months for the Corps to prepare and complete any necessary biological assessments, if the District Court accepts the maximum timeline proposed by Friends of the River. The District Court has not yet issued an order establishing a timeline for response to the Ninth Circuit’s opinion, but the Corps must be ready to begin work as soon as the District Court issues an order.

HDR is the only source reasonably available to meet the Government’s requirement for the technical assistance and support for the work that was previously completed by HDR. Selection of HDR can be substantiated for the two reasons as specified under this citation; services may be deemed to be available only from the original source in the case of continued provision of highly specialized services when it is likely that an award to any other source would result in 1) Substantial duplication of cost to the Government that is not expected to be recovered through competition, and 2) unacceptable delays in fulfilling the agency’s requirements. Per the citation, the following is offered as evidence to substantiate the government’s claim.

(a) HDR prepared the original 2013 biological assessment for Daguerre Point Dam that is one of the documents at issue in ongoing litigation with Friends of the River and provided critical information used in the preparation of the 2013 biological assessment for Englebright Dam and

Reservoir. In that capacity, HDR developed the approach for Deconstruction of the Proposed Action, definition of the Environmental Baseline, and identification of USACE discretionary and non-discretionary actions which forms the basis for determining the scope/extent of the Corps’ agency action, which is one of the key issues in the ongoing litigation. HDR has been working on lower Yuba River fishery issues for the past 30 years and has extensive experience working on studies for other Yuba River stakeholders such as California Department of Fish and Wildlife (CDFW) and Yuba County Water Agency (now referred to as Yuba Water Agency – YWA).

HDR also worked on the CALFED-sponsored 2005 Implementation Plan for Lower Yuba River Anadromous Fish Habitat Restoration on the lower Yuba River. HDR was the lead fishery expert on the development of the Lower Yuba River Accord (Yuba Accord), which involved a coalition of over 18 agricultural, environmental, and fisheries interests, including state and federal agencies. The Yuba Accord is a collaborative settlement initiative, which resolved nearly 26 years of controversy and litigation over in-stream flow requirements for the lower Yuba River.

HDR continues to provide fishery science expertise for YWA’s Federal Energy Regulatory Commission (FERC) relicensing effort covering the Yuba River Development Project (YRDP) that includes New Bullards Bar Dam and the Narrows II powerhouse and bypass at Englebright Dam. That support included preparation of the Applicant-prepared Biological Assessment for operation of the YRDP in 2017. Over the past five years, HDR has provided, and continues to provide, fisheries-related expertise to YWA (the non-federal sponsor) in support of the USACE’s Yuba River Ecosystem Restoration Feasibility Study, which received Congressional approval in 2019 to proceed with pre-construction engineering and design for about 179 acres of habitat enhancement to support fry and juvenile rearing in the lower Yuba River. HDR continues to serve on the Lower Yuba River Management Team (RMT) and is actively engaged in the development and implementation of the lower Yuba River long-term Monitoring and Evaluation Program.

(b) The work that HDR has conducted on the lower Yuba River gives them unparalleled knowledge and expertise regarding fisheries and aquatic habitat resources on the Yuba River which makes them uniquely qualified to provide services. The referenced tasks are follow-on work of contract W91238-07-D-0015-0004 and W9123820C0037 and will update previous work that HDR has completed for the Corps on the Yuba River.

(c) An award to any other source would result in a substantial duplication of cost to the Government because of increased costs associated with the expectations of a new source to familiarize themselves with the project, the legal, regulatory, and technical history of fisheries-related issues on the Yuba River, and the expected services to be provided. It is estimated, based on previous work on the Yuba River, that an award to a new source would cost an additional $1,500,000 and add an additional year or more to the schedule to understand and develop the knowledge and experience of the Corps’ proposed action, species account and environmental baseline, effects assessment approach and process, analytical findings related to the fisheries and aquatic species, as well as review the administrative record, including previous consultations and other related documents that HDR has prepared under W9123820C0037 and the previous task order (TO) and four (4) modifications to that TO. These costs cannot be expected to be recovered through fair and open competition.

(d) Schedule Delays: The use of fair and open competition in this case would result in unacceptable delays in fulfilling the USACE’s requirements, which include meeting anticipated court ordered milestones to respond to deficiencies identified in the Ninth Circuit’s decision. A competitive process would very likely make it difficult, if not impossible, to meet a Court-mandated timeline. As noted above, competing this requirement would require a new contractor to spend substantial time understanding and reviewing the 2013-2014 Endangered Species Act consultation process to competently perform the services under the new proposed contract. No other Contractor is performing this type of work on the Lower Yuba River.

(e) The District Court ultimately did not mandate a timeline for NMFS and USACE to complete the review but expected the work to be completed as “expeditiously as possible” and the agencies estimated that the work could take up to 31 months to complete if the agencies decided to reinitiate consultation under Section 7 of the ESA.

6. EFFORTS TO OBTAIN COMPETITION:

The decision to forego this effort was a result of the Government’s recognition that the services were a continuation of existing work on the Yuba River and was in the best interest of the Government to continue with HDR who worked on the 2013 biological assessments. The technical assistance and fisheries consultation support is part of, and a response to, ongoing litigation as described in paragraph 5 above. Based on these requirements, HDR is the only firm in a position to comply and deliver the supplemental/updated information within a reasonable timeline to address issues raised in the ongoing litigation. There is no competition anticipated for this procurement.

7. ACTIONS TO INCREASE COMPETITION:

The Government is in the process of identifying any future procurements on the Yuba River that could be competed.

8. MARKET RESEARCH:

As noted above, the decision to forego this effort was a result of the Government’s recognition that the services were a continuation of existing work on the Yuba River and was in the best interest of the Government to continue with HDR who worked on the 2013 biological assessments. The technical assistance and Yuba fisheries support are part of, and a response to, ongoing litigation as described in paragraph 5 above. Based on these requirements, HDR is the only firm in a position to comply and deliver the technical assistance and ESA support within a reasonable timeline to address issues raised in the ongoing litigation.

9. INTERESTED SOURCES:

To date, no other sources have been identified to comply and deliver the technical assistance and fisheries support within a reasonable timeline to address issues raised in the ongoing litigation.

10. OTHER FACTS:

Recap of litigation: On 30 October 2020 the United States District Court for the Eastern District of California granted plaintiff’s motion for an order of remand. The District Court’s order implemented an October 2019 decision by the Ninth Circuit Court of Appeals directing a remand

OLSEN.RANDY.PAU Digitally signed by

L.1231851263

OLSEN.RANDY.PAUL.1231851263

Date: 2021.09.17 08:16:41 -07'00'

OLSEN.RANDY.PAU Digitally signed by

L.1231851263

OLSEN.RANDY.PAUL.1231851263

Date: 2021.09.17 08:17:07 -07'00' of a 2014 NMFS Biological Opinion for Daguerre Point Dam and a 2014 Letter of Concurrence for Englebright Dam to the National Marine Fisheries Service (NMFS) “for further explanation” and for NMFS to “reassess” its decisions. Friends of the River v. NMFS, et al., 786 Fed. App’x 666, 668 (9th Cir. 2019). The District Court’s remand order stated the court’s expectation that NMFS would coordinate with the USACE to comply with the Ninth Circuit’s 2019 order and that compliance with the District Court’s remand order would be monitored “by requiring the parties to file periodic joint status reports that include specific details regarding the work completed and actions taken by NMFS as well as best estimates as to when its work will be completed.” Friends of the River v. NMFS, et al., 2020 WL 6391314 (E.D. Cal. Oct. 30, 2020).

To ensure compliance with the District Court’s order, USACE and NMFS have increased the number of coordination meetings and technical discussions about the USACE’s discretionary activities associated with operation and maintenance of fish passage facilities at Daguerre Point Dam, the 2013 Daguerre Point Dam Biological Assessment (BA) prepared by HDR Engineering, Inc. (HDR) and compliance with the terms and conditions of the 2014 Biological Opinion for operation of fish passage facilities at Daguerre Point Dam. The level of interaction and coordination was not anticipated at the time of contract award on September 23, 2020.

USACE requires additional technical support by HDR for technical information and attend additional coordination meetings with NMFS. The cost estimate for the additional effort is $194,000.00.

It is estimated that an award to a new source would cost the Government an additional $1,500,000.00 and an additional year on the schedule.

11. TECHNICAL CERTIFICATION: I certify that the supporting data under my cognizance, which are included in the justification are accurate and complete to the best of my knowledge and belief.

NAME: Randy P. Olsen

TITLE/ORGANIZATION: Chief, Operations Division

Signature: Date:

12. REQUIREMENTS CERTIFICATION: I certify that the supporting data under my cognizance, which are included in the justification are accurate and complete to the best of my knowledge and belief.

NAME: Randy P. Olsen

TITLE/ORGANIZATION: Chief, Operations Division

Signature: Date:

13. FAIR AND REASONABLE COST DETERMINATION: I hereby determine that the anticipated cost to the Government for this contract action will be fair and reasonable. This will be determined by conducting a detailed cost/price analysis of the offeror’s proposal, taking into consideration all pertinent information including independent Government cost estimates and price histories. The contractor will not be required to submit their price/cost proposal IAW FAR Part 15, and Certified Cost or Pricing Data will not be required IAW FAR 15.403-1(b).

NAME: Aldone R. Graham

TITLE/ORGANIZATION: Contracting Officer / Chief, Services & Supply Branch

Digitally signed by GRAHAM.ALDONE.R.1045836572

Signature: DDatae:t2e0:21.09.17 12:20:16 -07'00'

14. CONTRACTING OFFICER CERTIFICATION: I certify that this justification is accurate and complete to the best of my knowledge and belief.

NAME: Aldone R. Graham

TITLE/ORGANIZATION: Contracting Officer / Chief, Services & Supply Branch

Digitally signed by GRAHAM.ALDONE.R.1045836572

Signature: DDatae:t2e0:21.09.17 12:21:10 -07'00'

Approval

Based on the foregoing justification, I hereby approve the procurement of technical assistance and fisheries support to the USACE on an other than full and open competition basis pursuant to the authority of 10 U.S.C. 2304(c) FAR Part 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements, subject to availability of funds, and provided that the services and property herein described have otherwise been authorized for acquisition.

Aldone R. Graham

GRAHAM.ALDONE.R.1045836572

Date: 2021.09.17 12:23:55 -07'00'

Contracting Officer / Chief, Services & Supply Branch