JOFOC for Expert services.pdf

United States Department of Energy

Justification For Other than Full and Open Competition

Litigation Support Services Contract with Bruce Diamond, an individual sole proprietorship in the State of Virginia

Time-and-Materials Contract

1. Contracting Activity: The United States Department of Energy (DOE), Office of General Counsel (OGC), located in Washington, DC, intends to issue a Time-and-Materials contract through other than full and open competition to Bruce Diamond (“Mr. Diamond”), an individual sole proprietorship in the state of Virginia, in accordance with FAR 6.302-3.

2. Nature and Description of Action: DOE OGC is responsible for providing legal advice, counsel, and support to the Secretary, Deputy Secretary, and program offices throughout DOE to further the Department’s mission of advancing the national, economic, and energy security of the United States through technological innovation and the environmental cleanup of the national nuclear weapons complex. Within OGC, the Office of the Assistant General Counsel for Environment is the principal program counsel to EM, and is responsible for providing legal review, support, and advice to DOE program offices on a wide range of environmental protection laws, regulations, and other requirements. The action to be approved is the negotiation of a Time-and-Materials contract with Mr.

Diamond for expert legal and litigation support services for various OGC litigation, anticipated litigation, and/or potential disputes.

The basis for limiting the sources for this acquisition is FAR 6.302-3(a)(2)(iii), which authorizes other than full and open competition when it is necessary to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.

3. Description of Services Required to Meet the Agency’s Needs: DOE OGC needs additional legal review, support and counsel for EM-specific projects or initiatives. The additional legal services to OGC would support the EM program office as well as legal and regulatory compliance at specific EM cleanup sites, providing OGC with legal counsel on highly complex technical and regulatory issues for DOE. OGC seeks legal assistance from experts possessing long-term institutional knowledge and experience to identify potential issues, collect information, and provide specific expert advice to government attorneys who will render the legal opinions and legal advice to decisionmakers. This area of the law is extremely complex.

This work scope is expected to result in a period of performance of up to one year. The estimated value of this contract including options is $250,000.00.

4. Statutory Authority for Other Than Full and Open Competition: The authority for this proposed action is 10 U.S.C. § 2304(c)(3), 41 U.S.C. § 3304(a)(3), and FAR 6.302- 3(a)(2)(iii). These sections provide justification that full and open competition need not be provided for when it is necessary to award the contract to a particular source in order to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.

5. Unique Contractor Qualifications: Mr. Diamond is an attorney with a bachelor’s degree from the University of Pennsylvania and a juris doctorate from the University of Michigan.

He has over 40 years of experience with environmental law and litigation. Mr. Diamond is uniquely qualified to serve as an expert to DOE OGC given his particular experience with specific regulatory and EM related issues associated with environmental cleanup and nuclear regulatory compliance. Mr. Diamond previously served as Assistant General Counsel for Environment as well as General Counsel for the National Nuclear Security Administration (NNSA) at the DOE. Mr. Diamond has unique background knowledge and in-depth understanding of the various issues DOE-EM sites face related to environmental cleanup activities, especially regarding resolution of disputes between DOE-EM sites and other entities. He is highly experienced in negotiations between state governments and DOE sites, having previously assisted several DOE-EM sites in these activities, including but not limited to, the Hanford site, the Energy Technology Engineering Center (ETEC) site, and the West Valley Demonstration Project (WVDP) site.

Mr. Diamond is an expert in the field related to resolving disputes concerning cleanup of various DOE-EM sites. His particular knowledge, legal background, and experience make him uniquely qualified to serve DOE OGC as an expert for DOE litigation and/or resolution of potential disputes.

6. Efforts to Solicit Additional Sources:

In accordance with FAR 6.302-3 and FAR 5.202(14), a notice of intent was not required to be posted with respect to the services of an expert to support the federal government in any current or anticipated litigation and/or potential disputes. The Contracting Officer performed market research by reviewing various legal labor categories and rates through the General Services Administration (GSA) to identify legal experts related to federal and state government environmental cleanup disputes.

7. Other Facts to Support the Determination: As stated above, OGC is currently involved in and/or preparing for anticipated litigation or potential future disputes that are complex.

The litigation and/or disputes resulting from nuclear cleanup work is a highly specialized and complex form of litigation or dispute resolution. DOE has a need for expert litigation services related to environmental cleanup (particularly as it relates to negotiations between federal and state governments), and the services of Mr. Diamond will provide OGC with an additional source of expertise relating to legal analysis and dispute resolution associated with environmental cleanup activities.

8. Determination of Reasonable Price: The total estimated value of the contract is approximately $250,000.00 with a one-year period of performance. The price quote was evaluated using one or more of the techniques defined in FAR Part 15 in order to determine whether it was fair, reasonable, and complete. Reasonableness is established through cost and price analysis techniques as described in FAR Subpart 15.404. A comparison of the proposed price with costs or prices for similar services, especially those currently performing various litigation services for contracts with DOE, was performed to ensure the price was fair and reasonable. All costs incurred will be subject to audit.

9. Market Research: Mr. Diamond is the only entity DOE identified as having the ability to immediately perform the analysis related to federal and state government environmental disputes at various EM sites involving nuclear cleanup activities. Mr. Diamond would seamlessly provide the added support for the DOE OGC without any ramp-up time or additional tasks to become familiar with the issues.

10. Listing of Interested Sources: A Notice of Intent was not posted in accordance with FAR

5.202(14).

11. Actions to Overcome Barriers to Competition: The Government will continue to look for possible other experts for future requirements, and ensure competition is executed to the maximum extent practicable.

12. Certification:

i. By the Contracting Officer’s signature on the following page, it is hereby certified that this Justification for Other than Full and Open Competition is accurate and complete to the best of the Contracting Officer’s knowledge.

ii. By the Acquisition Initiator’s signature on the following page, it is hereby certified that the supporting data, which is the responsibility of the technical and requirements personnel, used to form a basis for the Justification for Other than Full and Open Competition is complete and accurate.

Acquisition Initiator:

Melody Bell Date EMCBC – Deputy Director

Approval:

Contracting Officer: Jennifer K. M. Splitt Date

EMCBC—Office of Contracting