JA - YBEL-S Emergency_AfterThe Fact_Approved 24JAN25_Redacted.pdf

Control Number: SPK25-130

CUI//SP-SSEL

Justification and Approval for Other than Full and Open Competition � FAR Part 6

1. Contracting Activity: U.S. Army Corps of Engineers, Sacramento District

2. Description of Action: This work is a modification to an existing contract no.

W9123823C0012, awarded to Nordic Industries on 20 April 2023. The scope of the original contract included the construction of approximately 2,400 feet of a combination stability/seepage berm and approximately 6,150 feet of rock slope protection at the Yolo Bypass East Levee. The proposed modification is emergency levee repair work needed to keep the levee from potential failure over the winter. The work will be funded with existing Civil Works program funds.

3. Description of Supplies/Services: The proposed modification includes all materials, supplies and equipment to construct an offset levee on the land side of the existing levee from station 0+00 to station 1600+50 approximately 1650 feet (ft.) long, 20 ft. tall and 40 ft. wide. This offset levee will be constructed of type 1 levee fill. The new levee will be benched into the land side of the existing levee with the areas stripped and reused for topsoil. Relocate 1650 ft. of the existing road by moving the road to the extent practical further landward to allow for the new offset levee. Reuse the existing road base to reconstruct a new road and then add 6-inch new Asphalt Base (AB) on top of the road to provide a solid road surface to handle large equipment. Remove 1650 linear feet (LF) of Rock Slope Protection (RSP) off the levee surface on the water side and reuse it for part of the rock revetment in the levee toe canal. Add additional new stone to construct the rock revetment 20 ft. wide and 1650 LF long. Install envelope method plastic sheeting along the water side of the levee 1650 LF. Remove the existing AB road on the existing levee crest in the repair area and move it to the new offset levee. Add additional AB as needed to construct the new road with a minimum of 6-inches of AB. Provide 1300 Tons of RSP in a stockpile for flood fighting on site. The initial unofficial estimate of this repair was approximately $8,000,000.00 which used the unit price from the original contract and the estimated cubic yards needed for berm embankment and placement of rock work. However, since this requirement was first identified, we have received a final proposal and negotiated the final amount in the amount of $10,823,005.00.

4. Authority Cited: 10 United States Code 3204(a)(2) as implemented in Federal Acquisition Regulation 6.302-2, Unusual and Compelling Urgency

5. Reason for Authority Cited: During a site walk in late September by the Valley Resident Office Resident Engineer and other staff, there appeared to be a slip in the levee. The slip discovered in the levee is in no way the fault of Nordic. They built the project as specified although adding the additional rock on the water side of the levee may have contributed to the slip happening sooner. It was initially thought the repair might be some minor additional rock work however, the issue appeared to be much larger requiring a more robust fix. It now appears temporary repairs are needed to keep the levee from potential failure over the winter and then a permanent fix would be completed next construction season.

On 23 October 2024, the Sacramento District issued a declaration of emergency, in accordance with ER 500�1, stating �an emergency has been declared to exist in the Sacramento District.� Accordingly, the work must be performed immediately due to concerns of potential flooding of the city of West Sacramento. Since the issue was found late in the construction season, there is an extremely limited window of available work time before the rainy season begins. This emergency work is required now in order to complete before the normal high water reaches the levee. The contractor needs to start immediately as we are already soon approaching the end of the standard construction work season. Any delay could increase risk of flooding and/or further damage to the City of West Sacramento.

As required by FAR 6-302-2(b)(1), the work described is unusual and compelling and therefore cannot be procured using traditional contracting methods. As described above, work of this nature is typically done during the construction season, which is 15 April through 31 October. While most of the work is being performed on the land side and not strictly subject to this work window, the later in the year the work is performed during flood season, there are additional risks associated with potential rain events.

Rock on the water side needs to be removed from the levee slope and placed in the adjacent canal. Additionally, the slope will be protected from erosion with a plastic blanket.

We have identified a current, open contract in which Nordic performed work under the initial construction contract in this area earlier year. By contracting with Nordic for this work, we will be able to save significant pre-award acquisition time by nearly 30 days by foregoing a standard emergency acquisition process. Additionally, by contracting directly with Nordic we will be able modify existing submittals from this contractor greatly reducing time for approval. Additionally, it has been demonstrated that this contractor has previously provided approved key personnel such as SSHO, Site Superintendent, and QC Manager. This greatly reduces the risk of lost time looking for qualified personnel. The work is a mixture of erosion protection on the water side and a berm on the land side. Therefore, Sacramento District executed this emergency work by issuing an unpriced change order on this existing contract. The Contractor was notified and put on notice of the emergency work. The Senior Contracting Official (SCO) provided email approval for an After-the-fact J&A on 28 October 2024 (Attachment 1). A part one change order in the amount of $3,000,000.00 was issued to Nordic on 29 October 2024 which allowed Nordic to mobilize on Wednesday, 30 October 2024. This initial $3,000,000.00 was to get the crews and equipment on site to begin work such as the initial work plans, bringing our temporary power, clearing and grubbing and beginning embankment construction. The remaining amount would include completing the embankment, keyway excavation, relocating a road, constructing rock revetment, topsoil, and hydroseeding.

Emergency repairs of this nature and the essential timing of the emergency repairs given the upcoming rainy season, does not allow time for the Government to solicit using traditional contracting vehicles and strategies. This is not a scenario that the Government could have planned ahead for and foreseen in order to allow a contract lead time. Therefore, the contracting officer chose to modify a current, open contract with a Contractor that is familiar with the site and the requirements needed to remobilize to the area quickly and complete the work expeditiously.

As required by FAR 6.302-2(b)(2), delays in this repair would result in serious injury to the Government. In the event of a breach for the north basin, there is potential for catastrophic consequences to over 57,000 people, 15,000 structures, and $10.5 billion of property damage if the emergency repairs are not constructed. The district has determined that damages at the above sites pose imminent risk to life, health, property, and severe economic loss. As a result, this emergency declaration was issued on 23 October 2024 providing the Government authorization to proceed expediently so as to protect the City of West Sacramento.

6. Efforts to Obtain Competition: Per FAR 5.202(a)(2), the proposed contract action is made under 6.302-2, unusual and compelling urgency, and the Government would be seriously injured if the agency solicited this requirement using normal acquisition procedures.

a. Effective competition. There will be competition for this effort.

b. Subcontracting competition. This work involves not only the levee repair but will require testing, surveying and biological monitors for the levee which will likely be small business subcontracts.

7. Actions to Increase Competition: The current acquisition will not be competed as it is an emergency repair. However, this is just a temporary fix to fortify the levee during the winter season. SPK Engineering is currently developing a course of action for a permanent fix to the levee that will be a separate contract next year and suitable for competition. That project would be solicited using a standard competitive action, likely an Invitation for Bid.

8. Market Research: Since the emergency repair work was on a project site that was recently completed, the Government first considered the previous contractor. No other Market Research was conducted.

9. Interested Sources: Not applicable.

10. Other Facts:

a. Procurement history.

(1) Contract No. W9123823C0012, was awarded to Nordic Industries on 20 April 2023 in the amount of $3,959,333.00. The original scope included the construction of approximately 2,400 feet of a combination stability/seepage berm and approximately 6,150 feet of rock slope protection.

(2) The project was solicited as full and open competition with a magnitude of construction between $5M-$10M. Five bids were received from four small businesses and one large business. The bid prices ranged from $3,959,333.00 to $8,833,780.50. At the time of this award, Nordic Industries was a Small Business.

(3) Nordic Industries successfully completed the project on 2 November 2023 with minimal change orders and a final contract amount of $4,823,501.63.

b. Other facts. Not applicable.