JOFOC_ETEC_Boeing_Extension_Mod_150.pdf

SOURCE SELECTION SENSITIVE - See FAR 2.101 and 3.104

See FAR 2.101 and 3.104

SOURCE SELECTION SENSITIVE

Justification for Other than Full and Open Competition

EMCBC Office of Contracting Energy Technology Engineering Center (ETEC) Site

1. Agency and Contracting Activity: The United States Department of Energy (DOE), Office of Environmental Management (EM), Consolidated Business Center (CBC), Office of Contracting (OOC), intends to contract through other than full and open competition. This document provides the justification and approval for the use of non-competitive procedures pursuant to 41 U.S.C. 253(c)(1) and in accordance with Federal Acquisition Regulation (FAR) 6.302-1(a).

2. Nature and/or Description of the Action Being Approved: The action being approved is the negotiation of a sole source extension to The Boeing Company (Boeing) Contract No. DE-AC03- 99SF21530 which expires on September 30, 2019.

3. Description of Services Required to Meet Agency’s Needs:

A. Background:

(1). Santa Susana Field Laboratory (SSFL), located on approximately 2,850 acres in the hills between Chatsworth and Simi Valley, CA, was developed as a remote site to test rocket engines and conduct nuclear research. The Atomics International unit of Rockwell International’s Canoga Park-based Rocketdyne Division began in 1947. Thousands of open-air rocket tests were conducted at the site that supported the space program. In 1996, Rockwell International sold its aerospace and defense business, including the SSFL, to Boeing. SSFL is broken up into four administrative areas. There is one area and a small portion of another area that is federal property administered by the National Aeronautics and Space Administration (NASA). The Boeing Company owns the rest, including Area IV where the Energy Technology and Engineering Center (ETEC) is located.

(2). The Atomic Energy Commission built a small nuclear power plant to deliver energy to the commercial grid at the lab. Research also included nuclear powered space vehicles and sodium coolant medium with ten small reactors. DOE performed research work on 90 acres at the former ETEC. All nuclear research work at ETEC was completed in 1988, with all reactor operations ending in 1980. Beginning in the 1960s, several facilities were removed once there was no longer a need for the specific facility.

(3). DOE conducted an Environmental Assessment for the cleanup and closure of ETEC, and in March 2003, issued a decision finding no significant impact in its Environmental Assessment (DOE/EA-1345) Cleanup and Closure of the Energy Technology Engineering Center. This decision was challenged by the Natural Resources Defense Council, the Committee to Bridge the Gap, and the City of Los Angeles.

(4). In May 2007, a District Judge ruled against DOE in a challenge to the Environmental Assessment (DOE/EA-1345) Cleanup and Closure of the Energy Technology Engineering Center. Specifically on May 2, 2007, the U.S. District Court for the Northern District of California (Natural Resources Council et al. v. DOE et al.) issued a decision which directed DOE to complete an Environmental Impact Statement (EIS) and Record of Decision (ROD) for Area IV of the SSFL. The Final EIS and Final ROD are currently being prepared for DOE by CDM, A Joint Venture (CDM) under a task order, with completion scheduled for early 2020.

(5). In August 2007, the California Department of Toxic Substance Control (DTSC) entered into

Consent Order with DOE, NASA, and Boeing under its Resource Conservation and Recovery Act (RCRA) authority. This Order (a) requires cleanup of all chemically contaminated soils at SSFL by 2017 or earlier; (b) provides the option for DTSC to require more work to be conducted offsite from Area IV to assess air, soil and water contamination; and (c) requires the preparation of an Environmental Impact Report (EIR), pursuant to the California Environmental Quality Act. In conjunction with this, DTSC requested that DOE cease all decontamination and decommissioning work until the EIS was completed. Based on the request by DTSC and legislators, DOE ceased D&D work of the remaining structures (DOE partially terminated Boeing’s contract). The EIS being prepared by CDM may be used in the preparation of the EIR required by the DTSC Consent Order.

(6). In September 2007, California Senate Bill 990 became law with an effective date of

January 1, 2008. This law specifies the final clean up level for SSFL that requires all cleanup to be to an agricultural standard and that the risks from chemical and radionuclide contamination be summed when calculating the risk. This law also forbade the Responsible parties from transferring their land until the cleanup is certified by DTSC.

Boeing filed a lawsuit challenging the Constitutionality of SB 990 in November 2009. In April 2011, a federal district court Judge granted Boeing's Motion for Summary Judgment and declared SB 990 unconstitutional on the grounds that it is preempted by the Atomic Energy Act, which reserves jurisdiction over the cleanup of radiological contamination resulting from DOE activities to DOE. The State of California has appealed the decision, but the Judge stayed enforcement of SB 990 pending the determination of the appeal. SB 990 was ruled unconstitutional and the law was removed. The 2010 Administrative Order on Consent (AOC) signed by DOE with the State of California commits DOE to a cleanup to background, without reference to the cleanup standards in SB 990, so it is doubtful that this case will have an effect on DOE's cleanup responsibilities at SSFL.

(7). In December 2010, a new AOC was signed between DOE and the State of California that requires extensive additional chemical sampling, the preparation of a chemical data gap analysis and a soils remediation action implementation plan for the State of California’s approval. It also requires the U.S. EPA to conduct confirmation activities after DOE completes cleanup activities at the site.

(8). In October 2011, the current Boeing contract (DE-AC03-99SF21530) was extended for three years on a sole source basis through September 30, 2014 to provide landlord, groundwater, site-wide activities, and security services to safely and economically maintain and monitor the ETEC site during the period required to complete the EIS and ROD for

Area IV of the SSFL and beyond until cleanup is achieved. An option for decontamination, decommissioning, and demolition (DD&D) services was also included.

(9). DOE awarded a task order on June 26, 2014 for Environmental Monitoring, Surveillance and Maintenance (S&M), Facility Maintenance and Infrastructure Support, Project Support, and Decontamination and Demolition (D&D) activities for ETEC to North Wind Inc. Since Boeing is the landowner of Area IV where ETEC is located, there are certain areas of scope that only Boeing can provide as the real property owner and these are the areas of scope being acquired under this contract extension.

(10). Boeing and DOE have negotiated an “Access Agreement” which will become effective on July 1, 2014, ninety (90) days prior to the completion of Boeing’s period of performance for CLINs 0001-0005. The purpose of the Agreement is to provide the terms, covenants and conditions under which DOE and its representatives, agents, contractors and subcontractors (“DOE Parties”) may enter the Boeing Property to conduct environmental investigation, remediation, building decontamination, decommissioning, and demolition (“D&D”) activities that are reasonably acceptable to Boeing and that DOE is required to perform pursuant to the AOC signed by DOE and the California Department of Toxic Substances Control (“DTSC”) in 2010; the Record of Decision that DOE will issue when it completes the Environmental Impact Study (“EIS”) that DOE was ordered to complete by Federal District Court Judge Samuel Conti in Case No. C-04-04448 SC, Northern District of California; and the 2007 Consent Order signed by DOE, NASA, Boeing and DTSC.

(11). On January 15, 2015 a sole source contract extension was issued for CLINS 00006, 00007, 00008 and 00009. The period of performance wad extended to September 30, 2019. The CLINS were for all of the services listed below under B. Required Services except for CLIN 00009, CLIN 00009- Records Custody has been completed.

B. Required Services:

(1). DOE, EMCBC intends to issue a sole source extension to contract DE-AC03-99SF21530 with Boeing (site owner of ETEC) to continue to provide a contracting vehicle for the conditions where Boeing may incur reimbursable costs, as specified in the Access Agreement, as landowner of Area IV of the SSFL which included ETEC, on which DOE-owned buildings and other structures are located. CLIN 00006 will be established to account for the conditions where the Contractor may incur reimbursable costs, as specified in the Access Agreement paragraphs 3(b), 8(e), 9(f), 11(g), 11(h), 13(b), 14(a) and 18.

The period of performance for CLIN 00006 will be from the effective date of the Access Agreement through September 30, 2024.

A. “Notice and Security,” pursuant to the Access Agreement paragraph 3(b).

If requested by the DOE, and confirmed by the Contractor’s Project manager, the Contractor shall provide “Off-Hours Access,” (outside of the Contractor’s regular business hours, including overtime, weekend, and holiday work) including personnel and security that exceeds routine security services.

The Contractor may request reimbursement for any additional costs that the Contractor incurs (including personnel and security costs) in connection with any requests by DOE for Off Hours Access; the Contractor shall not charge DOE for any costs related to Off Hours Access that the Contractor will have incurred notwithstanding DOE’s request. Costs incurred by the Contractor to provide Off Hours Access to the DOE Parties may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for CLIN 0006.

B. “Stormwater Permit and Management,” pursuant to the Access Agreement paragraph 8(e)(vi).

If any of DOE’s activities at the SSFL cause or may result in a noncompliance or violation of the Contractor’s National Pollutant Discharge Elimination System (NPDES) Permit:

1. The Contractor may request reimbursement for the related costs, fines or penalties that the Contractor incurs; and

2. The Contractor may request reimbursement for costs for related system modifications or other changes agreed to and performed by the Contractor to resolve the permit violation(s).

Costs, fines or penalties incurred by the Contractor in connection with any noncompliance or violation of the NPDES Permit arising from DOE’s activities at the SSFL may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for CLIN 0006.

C. “Performance of and Responsibility of Permitted Activities,” pursuant to the Access Agreement paragraph 9(f).

If requested by DOE, the Contractor shall repair to its preexisting condition, any damages to the Contractor-owned buildings and infrastructure (e.g., roads, utilities, and/or structures/systems) in the Access Area caused by the act or omission of any DOE Parties in connection with the access provided by the Access Agreement. Any repairs performed by or on behalf of DOE will be of a similar quality to the damaged structure.

Costs incurred by the Contractor for repairs may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for CLIN 0006.

If a utility line is damaged by any DOE Party, and is not repaired within 24 hours, any damages incurred by the Contractor related to the disrupted service may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for CLIN 0006.

D. “Compliance with Law; Permits,” pursuant to the Access Agreement paragraph 11(g) and (h).

The Contractor has installed and may in the future install various systems and controls at the property to comply with the Contractor’s Permits.

If the Contractor, after coordination with DOE, reasonably determines that an expansion or modification of any system or control is required as a result of the DOE Permitted Activities in the Access Areas, the Contractor shall perform such system expansion or modifications, as necessary.

Costs incurred by the Contractor for expansions or modifications to systems and controls at the SSFL arising or resulting from DOE’s activities under the Access Agreement may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for CLIN 0006.

Fines or penalties incurred by the Contractor as a result of violations of any Contractor Permit(s) resulting or arising from DOE’s activities at the SSFL may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for

CLIN 0006.

E. “Environmental Protection,” pursuant to the Access Agreement Paragraph 13(b)

Fines or penalties issued by a governmental authority and incurred by the Contractor as a result of a spill or release caused by any DOE Party may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for

CLIN 0006.

F. “DOE Environmental Impact Statement and Contractor Property,” pursuant to the Access Agreement paragraph 14(a)

Costs incurred by the Contractor as a result of the implementation measures required by the final Biological Opinion which exceed existing Contractor policies and practices may be submitted to DOE for reimbursement pursuant to Contract Section B.9, Cost Reimbursement Procedures for CLIN 00006.

(2). Outside of the Access Agreement, there are other areas of scope required by contract with Boeing to provide continuity of services during the period required to complete the EIS and ROD for Area IV of the SSFL and beyond until cleanup is achieved. CLIN 00007 and CLIN 00008 will be established to account for the conditions where the Contractor may incur reimbursable costs, other than those specified in the Access Agreement. The period of performance for CLIN 00007 and CLIN 00008 will be October 1, 2014 through September 30, 2024. These areas of scope include, but are not limited to the following:

(a) CLIN 00007: Energy Employees Occupational Illness Compensation Program Act of

2000 (EEOICPA) - Reimbursement of Boeing labor costs for production of personnel records related to claims under the EEOICPA Act. Boeing will be required to continue its current EEOICPA program and respond to the requirements of the EEOICPA for their employees and activities; however these activities will not include the employees and activities under the Task Order DE-EM0000837-DE-DT0007583.

(b) CLIN 00008: Road Maintenance – Reimbursement for cost to repair and maintain access roads within SSFL pursuant to the tri-party Transportation Agreement with

DOE, Boeing, and NASA. Periodic road maintenance and repair is anticipated during the term of this contract extension. Such repair work performed by Boeing on behalf of DOE, will be reimbursed by DOE for its share of costs. All parties will inspect roads and will document their baseline condition. The roads that are DOE’s responsibility will be maintained to the baseline condition and repaired as needed. The maintenance costs associated with the roads will be the responsibility of the parties and apportioned based on the aggregate weight of each party’s outgoing hazardous waste, non-hazardous waste, demolition debris, and the incoming soil for backfill. Woolsey Canyon Road is an easement partially held by Boeing, it is also a privately-owned road. Each party recognizes that the homeowners along Woolsey Canyon Road have come to expect that Boeing will maintain this road. Future repairs to the road surface, guardrails, and structural support will be apportioned based on records of the outgoing weight for the following: hazardous or non-hazardous waste, demolition debris and backfill soil. The tri-party’s agreement on the allocation of costs for each party is identified in the transportation agreement. In the event that the Woolsey Canyon/Valley Circle intersection must be improved in order to safely accommodate truck traffic, the costs will be borne equally by the parties.

4. Identification of the Statutory Authority Permitting Other Than Full and Open Competition:

The Competition in Contracting Act (41 U.S.C. 253(c)(1)), implemented under FAR 6.302-1(a), authorizes other than full and open competition when the supplies or services required by the agency are available from only one responsible source, and no other type of supplies or services will satisfy agency requirements.

5. Unique Contractor Qualifications:

A. The ETEC environmental restoration and remediation work began in 1990 under a Management and Operating (M&O) contract (DE-AC03-76SF00700) with Rockwell International’s Rocketdyne Division, at a time when the primary mission of ETEC was to conduct nuclear energy research and development activities. As DOE-sponsored research and development activities ceased, the ETEC mission changed to one of environmental restoration and remediation, waste management, and related support activities. Boeing North American Inc. / Rocketdyne Propulsion and Power (BNA-Rocketdyne P&P) purchased the Rocketdyne Division in December 1996. The change in the ETEC mission required DOE and BNA-Rocketdyne P&P to enter into a non-M&O form of contractual arrangement which included terms and conditions suitable to the environmental restoration and remediation activities. The selection process was a non-competitive process and the services of BNA- Rocketdyne P&P were solicited on a sole source basis under the statutory authority of 41 U.S.C. 253(c)(1). The Justification for Other than Full and Open Competition (JOFOC) for the resultant contract anticipated that, with the exception of long-term groundwater treatment and monitoring, there would be no future requirements for environmental restoration of the ETEC site after work under the contract was completed. Contract DE-AC03-99SF21530 was awarded to BNA-Rocketdyne P&P on December 31, 1998. During the period of performance of the contract, the Contractor’s name changed to The Boeing Company.

B. As follows, unique and special circumstances, many of which existed at the time of award of contract DE-AC03-99SF21530, also warrant the award of a contract extension to Boeing through September 30, 2024:

(1). Access Issues: ETEC is located within the SSFL, a secure, limited access facility jointly owned by Boeing and the U.S. Government (administered by NASA). The only physical access to ETEC is through the SSFL. If DOE were to award the contract to someone other than Boeing, site access to ETEC could become extremely contentious. As the land owner, Boeing has ultimate responsibility for the condition of its property and for the conduct of operations on its property.

(2). Infrastructure Support: The new contractor, North Wind (under the Task Order awarded under DOE Solicitation # DE-SOL-0005803) provides water and sewer services and electrical power beyond September 30, 2014 for ETEC. DOE would need to enter into a contract with Boeing for road maintenance and physical security (Boeing has communicated that they will provide site access control and fire protection support, and this will not be charged to DOE) services even if another contractor were to be awarded a contract for the environmental restoration and remediation work. Therefore, DOE intends to issue a sole source contract extension to Boeing.

(3). EEOICPA Support Activities: Boeing has communicated that not all of its personnel current files relating to EEOICPA is related to DOE past work. Boeing has personal employee information that Boeing views as confidential and is considered Boeing personnel files, and is not willing to transfer these files to another contractor. Due to this fact, Boeing’s personnel files will need to be available for continued support of EEOICPA requests related to DOE past work.

6. Efforts to Solicit Offers from as many Potential Sources as Practicable:

Per FAR 5.202 (a) (11), the Contracting Officer has determined that this “proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action.”

On August 12, 2014 DOE issued a synopsis stating the intent to issue a sole source modification to extend the period of performance under contract DE-AC-3-99SF21530. The sole source modification for this previous extension was executed on January 15, 2015 under Modification Number 138 to the contract. The Modification 138 contract extension included the following services: Reimbursable Conditions as specified in the Access Agreement, performing work as agreed upon in the tri-party Transportation Agreement, EEOICPA/Privacy Act responsibilities and returning certain records back to DOE. The synopsis notice was issued as a “Special Notice” and stated the DOE’s intent to issue a sole source modification to extend the period of performance under contract DE-AC-3-99SF21530 through September 30, 2019.

Responsible parties believing they have all of the capabilities described within the synopsis were requested to submit capability statements to provide the services, including a demonstration of the ability to meet all of the needs identified within the notice within 15 days of publication of the notice (August 27, 2014). No responses or inquiries were received by DOE.

The services to be performed by Boeing for the contract extension period of October 1, 2019 – September 30, 2024 include all landlord activities listed in the paragraph above except for returning certain records back to DOE which were previously synopsized in August 2014. The details of these required landlord activities are further defined in the Access Agreement and are also outlined in Section 3 of this document.

7. Determination of Fair and Reasonable Anticipated Cost:

A. The original contract with Boeing was awarded with an effective date of December 31, 1998.

The current total estimated contract value is approximately $212.6 million for the contract period of performance through September 30, 2019. As stated earlier in Section 3, the DOE EMCBC intends to issue a sole source extension to contract DE-AC03-99SF21530 with Boeing (site owner of ETEC) to provide a contracting vehicle for the conditions where Boeing may incur reimbursable costs. There will be no increase in cost for this contract extension, as there is still available ceiling from the previous contract modification.

B. CLIN 00006 – Extension Period – Reimbursable Conditions as Specified in the Access Agreement will be established to account for the conditions where the Contractor may incur reimbursable costs, as specified in the Access Agreement paragraphs 3(b), 8(e), 9(f), 11(g), 11(h), 13(b), 14(a) and 18.

1. Para. 3b – Notice and Security

2. Para. 8e – Stormwater Permit and Mgmt. (NPDES)*

3. Para. 9f – Damages, Repairs

4. Para. 11g – System Expansions and Modifications

5. Para. 11h – System Expansions and Modifications

6. Para. 13b – Environmental Protection (Spills & Releases)

7. Para. 14a – final EIS, Biological Opinion

8. Para. 18 – Dispute Resolution)

Outside of the Access Agreement, there are other areas of scope required by contract with Boeing to provide continuity of services during the period required to complete the EIS and ROD for Area IV of the SSFL and beyond until cleanup is achieved. CLIN 00007 - Transportation Agreement and CLIN 00008 – EEOICPA will be established to account for the conditions where the Contractor may incur reimbursable costs outside of those specified in the Access Agreement. CLIN 00007 covers conditions where the Contractor may incur reimbursable costs pursuant to road maintenance as specified in the tri-party Transportation Agreement and CLIN 00008 covers the work scope associated with continued EEOICPA services.

8. Description of Market Research Conducted:

A formal market survey was not conducted.

9. Other Facts Supporting the Use of Other than Full and Open Competition:

Boeing:

Is the private land owner of ETEC; ETEC resides on the Boeing premises which provides the only access to the site;

Has been the operating contractor at the site since 1998;

Understands the requirements and complexities of the site, as the land owner;

Understands the very complex regulatory and stakeholder environments;

10. Listing of Interested Sources:

A synopsis notice was issued as a “Special Notice” and stated the DOE’s intent to issue a sole source modification to extend the period of performance under contract DE-AC-3-99SF21530 through September 30, 2019. Responsible parties believing they have all of the capabilities described within the synopsis were requested to submit capability statements to provide the services, including a demonstration of the ability to meet all of the needs identified within the notice within 15 days of publication of the notice (August 27, 2014). No responses or inquiries were received by DOE.

11. Actions to Remove or Overcome any Barriers to Competition Before any Subsequent

Acquisition for the Services Required:

Since Boeing is still the landowner of Area IV where ETEC is located, there are certain areas of scope that only Boeing can provide as the real property owner and these are the areas of scope being acquired under this contract extension. DOE completed a competitive acquisition under DOE Solicitation # DE-SOL-0005803 for all of the other DOE services that Boeing has provided in the past. Other competitive acquisitions are anticipated for remediation activities required to complete closure of the ETEC site. It is intended for the remediation acquisition to also be conducted on a competitive basis.

12. Certification:

A. By the Contracting Officer’s signature below, the Contracting Officer certifies that this JOFOC is accurate and complete to the best of the Contracting Officer’s knowledge and belief.

B. By the Acquisition Initiator’s signature below, the supporting data that is the responsibility of technical and requirements personnel which was used to form a basis for the JOFOC is certified as complete and accurate.

Acquisition I nitiator:

Concurrence:

LegalCounsel:

Aporoval:

Contracting Officer:

q /tr,/¡atl

SOURCE SELECTION SENSITIVE .

Page l0 of l0

3.t04

Project Director Technology Engineering Center

PaulWhale Attorney Envlronmental Management Consolidated Business Center

Nt

¡1 n

Contracting Officer Environmental Management Gonsolidated Business Center