JA Redacted Other Than Full and Open CJD IDIQ FY20.pdf

U.S. ARMY CORPS OF ENGINEERS

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

Control No. NWS-2020-0211

This sole source justification is pursuant to FAR 13.501(a) and completed in accordance with the format in FAR 6.303-2, whereby modified to reflect procedures in FAR 13.5.

JUSTIFICATION

1. Identification of Agency and Contracting Activity. U.S. Army Corps of Engineers (USACE), Northwestern Division (NWD), Seattle District (NWS), Contracting Division

(CT)

2. Description of Action. Award of a sole-source indefinite-delivery, indefinite-quantity (IDIQ) single award task order contract (SATOC) estimated at to provide non-personal, professional miscellaneous services to the Federal Government for managing cultural resources and Historic Properties on lands affected by activities, operation and maintenance of the Chief Joseph Dam Rufus Woods Lake Project (the Project). Task orders issued under this contract will be firm-fixed-price (FFP) orders to support miscellaneous management assistance for cultural resources, historic properties, traditional cultural properties (TCPs), and Historic Properties of Religious and Cultural Significance to Indian Tribes (HPRCSIT). Task orders will be funded using primarily direct funding under the 1997 Bonneville Power Administration and USACE tenance option to extend for six months. The award will be made to the Confederated Tribes of the Colville Reservation ( CTCR ), DUNS 112167510, CAGE Code 1NL62.

3. Description of Services. Services required to meet the agencies needs include non-personal historic property (cultural resources) management services, focusing on resource management program with crucial information about the CTCR cultural values and implementation and execution of the Historic Property Management Plan (HPMP) to provide the following services: periodic reservoir shoreline monitoring, archaeological site monitoring, providing input into cultural management planning, attendance at site visits and cooperating group meetings, identifying and assessing archaeological/traditional cultural property sites and reporting, contacting and educating the public regarding tribal policies and efforts to reduce vandalism risk to the resources, various training sessions, and emergency relocation of inadvertent discovery(ies) of ancestral human remains.

4. Statutory Authority. FAR subpart 13.5 in accordance with 41 U.S.C 1901 permits sole source acquisitions under simplified acquisition procedures which are exempt from g3ct9cep Typewritten Text

FOR OFFICIAL USE ONLY

FAR Part 6; however, the contracting officer must justify the action in writing and gain approval at levels specified under FAR 13.501(a)(2). Pursuant to FAR 13.501(a)(2)(i), the contracting officer may approve justifications that exceed $150,000.00 but are less than $700,000.00. As such, the contracting officer may approve this justification.

5. Qualifications. The award of this contract will be to a federally recognized tribal entity which is not considered a business. This acquisition is unique and is considered a government-to-government contract. CTCR maintains archives of cultural resources and HPRCSITs. The CTCR is composed of twelve tribal bands which include Chelan, Chief Joseph Band of Nez Perce, Colville, Eniat, Lakes, Methow, Moses-Columbia, Nespelem, Okanogan, Palus, San Poil, Wenatchi. The CTCR has access to persons having knowledge of the stories associated with HPRCSIT, confidential information and years of accumulated oral history regarding knowledge of cultural resources, TCPs and HPRCSITs within the Project. Since the creation and implementation of the 2009 Systemwide Programmatic Agreement (PA) for the Management of Historic Properties Affected by the Multipurpose Operations of Fourteen Projects of the Federal Columbia River Power System (FCRPS) for Compliance with Section 106 of the National Historic Preservation Act at the Project between BPA and the Government, the CTCR has successfully assisted with compliance of the FCRPS Systemwide PA.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as required by FAR Subpart 5.2. Due to the nature of this requirement, soliciting to other sources is not a viable option because the project area occurs on tribal lands and requires technical expertise and access to unique and confidential information only held by CTCR; however, upon award of a new contract to CTCR, the justification will be posted within 14 days of award and made publically available in compliance with FAR 13.501(a)(iii) posting requirements.

7. Contracting Officer a Fair and Reasonable Price. See signature page.

8. Market Research Conducted, Results, or Reason Market Research was not conducted. Market research was conducted in accordance with FAR 10. For the results, refer to the Market Research Report, dated 10/28/2019, which outlines the rational for non-competitive selection of CTCR.

9. Facts Supporting the Use of Other Than Full and Open Competition. CTCR is a federally recognized tribe as identified in 84 Federal Register 1200 and has immunities and privileges available to federally recognized Indian Tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, limitations and obligations. The Tribes reservation is located both on and within the vicinity of CJD. USACE Policy, Regulation No. 5-1-1, dated 15 August 2001, paragraph 5.(b)(1)(f) states that the District must proactively work to preserve and protect natural and cultural resources, g3ct9cep establish Native American Graves Protection and Repatriation Act (NAGPRA) protocols and procedures, and allow reasonable access to sacred sites. Pursuant to Executive Order No. 13287, Mar 3, 2003, 68 FR 10635, National Historic Environmental Policy Act ([former] 16 U.S.C. 470 et seq.) [see 54 U.S.C 300301 et seq.] (NHPA), and the National Environmental Policy Act [of 1969] (42 U.S.C. 4321 et seq.), Section 106 of the National Historic Preservation Act, the Systemwide PA along with the other various statutes, laws, regulations, and policies of the Division and District, contracting directly whose historical knowledge is unique and invaluable regarding the location(s) being surveyed, monitored, and reported is required.

Technical expertise, territorial restrictions, and legal implications prevent use of full and open competition for this procurement thereby limiting this award to a single source.

Other commercial sources have the general professional skills to perform services required under this acquisition; however, they would require the cooperation and approval of CTCR to work on the tribal territory and to access tribal historical records.

Previous acquisition history provides additional indications that this requirement can only be sole-sourced to the CTCR. A justification and approval for other than full and open competition was completed in April 2016 under control number NWS-2016-03.

The approval of that justification supports the basis for this action. While this action and the previously awarded contract are similar in scope, there are some variances.

USACE is unable to represent tribal views concerning HPRCSIT for all the consultation required under NHPA and NAGPRA and does not have cultural resource management staff at the Project to carry out the management activities covered by this procurement;

however, the CTCR has qualified staff on site and individuals and archives to fulfill this requirement.

10. Interested Sources (if any). Not applicable.

11. Statement of Action (if any) to Remove or Overcome Barriers to Competition.

Not applicable. As stated previously, Federal laws, CTCR territorial rights, as well as the

HPRCSIT prevent the need to remove or overcome barriers in an attempt to obtain competition for this procurement.

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JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

Cultural Resource Services, CJD, WA

FAR 13.501

CONCURRENCE

Requirements Certification:

I certify that the supporting data which form the basis for the justification for other than full and open competition are accurate and complete to the best of my knowledge and belief.

Archaeologist USACE, Seattle District

Legal Sufficiency:

Based on the foregoing justification, I hereby determine legal sufficiency pursuant to

AFARS 5101.602-2-90.

Assistant District Counsel USACE, Seattle District

CENWS Control No: NWS-2020-0211

TAPS Control Number: Dal-20-5810 Amendment 1

AMENDMENT TO JUSTIFICATION

FOR OTHER THAN FULL AND OPEN COMPETITION

This sole source justification is pursuant to FAR 13.501(a) and completed in accordance with the format in FAR 6.303-2, whereby modified to reflect procedures in FAR 13.5. In addition, the amendment to this justification, as identified herein, is completed pursuant to the format in AFARS 5106.303-2-90(c)(3).

JUSTIFICATION

1. Identification of Agency and Contracting Activity. U.S. Army Corps of Engineers (USACE), Northwestern Division (NWD), Seattle District (NWS), Contracting Division

(CT).

2. Description of Action. Approval is being requested to award of a sole-source indefinite-delivery, indefinite-quantity (IDIQ) single award task order contract (SATOC) estimated at with cumulative dollar value of to provide non-personal, professional miscellaneous services to the Federal Government for managing cultural resources and Historic Properties on lands affected by activities, operation and maintenance of the Chief Joseph Dam Rufus Woods Lake Project (the Project). Task orders issued under this contract will be firm-fixed-price (FFP) orders to support miscellaneous management assistance for cultural resources, historic properties, traditional cultural properties (TCPs), and Historic Properties of Religious and Cultural Significance to Indian Tribes (HPRCSIT). Task orders will be funded using primarily direct funding under the 1997 Bonneville Power Administration and USACE Memorandum of Agreement “Direct Funding of Power Operations and Maintenance Cost at Projects”. The contract will include a two year base ordering period with one option to extend for six months. The award will be made to the Confederated Tribes of the Colville Reservation (herein referred to as “CTCR” and/or “the Tribe”), DUNS 112167510, CAGE Code 1NL62.

3. Description of Services. Services required to meet the agencies needs include non-personal historic property (cultural resources) management services, focusing on providing USACE’s cultural resource management program with crucial information about the CTCR cultural values and implementation and execution of the Historic Property Management Plan (HPMP) to provide the following services: periodic reservoir shoreline monitoring, archaeological site monitoring, providing input into cultural management planning, attendance at site visits and cooperating group meetings, identifying and assessing archaeological/traditional cultural property sites and reporting, contacting and educating the public regarding tribal policies and efforts to reduce g3ct9cep

CENWS Control No: NWS-2020-0211

TAPS Control Number: Dal-20-5810 Amendment 1 vandalism risk to the resources, various training sessions, and emergency relocation of inadvertent discovery(ies) of ancestral human remains.

4. Statutory Authority. FAR 13.5 in accordance with 41 U.S.C. 1901 permits sole source acquisitions under simplified acquisition procedures which are exempt from FAR Part 6; however, the contracting officer must justify the action in writing and gain approval at levels specified under FAR 13.501(a)(2). Pursuant to FAR 13.501(a)(2)(i), the contracting officer may approve justifications that exceed $150 but are less than $700,000.00. As such, the contracting officer may approve this justification. Pursuant to 13.501(a)(2)(ii), the advocate for competition for the procuring activity may approve justifications that exceed $700,000.00 but do not exceed $13.5M. The original justification for this action was approved by the contracting officer under approval thresholds at FAR 13.501(a)(2)(i); however, after receipt of the final negotiated proposal, the contract price surpassed the contracting officer’s approval authority.

Therefore, an amended justification, as identified in AFARS 2106.303-1-90, and following procedures under AFARS 5106.303-2-90(c)(3) are used for this amended justification.

5. Demonstration of Proposed Contractor’s Unique Qualifications. No change.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as required by FAR Subpart 5.2. No change.

7. Contracting Officer’s Determination of a Fair and Reasonable Price. See signature page.

8. Market Research Conducted, Results, or Reason Market Research was not conducted. Market research was conducted in accordance with FAR 10 and documented in the market research report dated 10/28/2019 in which various procurement options were considered to include use of a competitive solicitation and use of existing contracting vehicles. While these options were initially considered, it was determined that there were no existing active contracting vehicles to meet the requirements of this procurement and soliciting to sources other than the CTCR was not a viable option due to the nature of this requirement and because the project area is located on tribal lands and requires technical expertise and access to unique and confidential information only held by the tribe.

9. Facts Supporting the Use of Other Than Full and Open Competition. As required by AFARS 5106.303-2-90(c)(3)(i)(D), paragraph 10 (herein paragraph 9) in the amended justification is used to explain the reason for the amendment and provide additional information regarding the changes; therefore, the reason for the amendment and changes are outlined here. During the initial planning stages of the requirement, the services were initially estimated by the Government at $ . All pre-solicitation g3ct9cep