Justification and Approval - W912DQ24D1000_Redacted.pdf

Control Number: NWK-24-03

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

1. Contracting Activity: U.S. Army Corps of Engineers (USACE), Kansas City District (NWK), Contracting Division, 647 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106-2896.

2. Description of Action: A new, five-year, firm-fixed-price Indefinite-delivery indefinite quantity (IDIQ) contract with one base contract line item number (CLIN) with a three year period of performance (POP) and a two-year optional CLIN using Construction General (CG) and Civil Operations and Maintenance (O&M) appropriations to acquire land management and stewardship services in support of various mitigation sites in the State of Kansas in support of the Missouri River Recovery Program (MRRP). The total contract ceiling capacity for the five-year period is $4,000,000.00. The maximum order value for any individual task order will be $4,000,000.00. No fee or profit will be charged on this contract.

3. Description of Supplies/Services: This work will involve professional land management and stewardship of natural resources and specific mitigation features and facilities located on multiple mitigation sites throughout the State of Kansas in support of the MRRP. The work will primarily consist of services and incidental construction activities to include area administration, area maintenance, vegetation management, reforestation, and wetland management. The incidental construction will consist of activities such as repairing parking lots and access roads and repairing or constructing fences on an as-needed basis. Based on historical data, the incidental construction is expected to make up approximately 17% of the overall contract value. In addition, the contractor may occasionally be tasked with executing specific projects to be funded with Construction General funds. Construction is not the primary purpose of the contract, nor is it the main item being procured by the Government. The construction activities will collectively make up only a small portion of the overall scope. The base CLIN will cover a period of three years from award. The option CLIN, if exercised, will extend the ordering period for an additional two years without increasing capacity. The price ceiling capacity for the proposed contract is $4,000,000.00, regardless of whether the option CLIN is exercised. The anticipated CLIN structure is shown in the table below.

CLIN Description Ordering Period 0001 Base Period

The contractor shall provide the services set forth in the attached Performance Work Statement (PWS) for the Missouri River Fish and Wildlife Mitigation Sites in the State of Kansas. All work will be performed in accordance with the PWS and as specified in individual task orders.

Begins on date of award and continues for three years.

(Option)

Option Period Extends the ordering period

The contractor shall provide the services set forth in the attached PWS for the Missouri River Fish and Wildlife Mitigation Sites in the State of Kansas. All work will be performed in accordance with the PWS and as specified in individual task orders.

for an additional two years.

4. Authority Cited: 10 U.S.C. § 3204(a)(5) as implemented by FAR 6.302-5(a)(2)(i), A statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source.

5. Reason for Authority Cited: As explained in the subparagraphs below, NWK is authorized and required to contract with the Kansas Department of Wildlife & Parks (KDWP) for these services as part of complying with its obligations under the Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. §§ 661-666c (Attachment 1).

a. These services are being procured in furtherance of the Bank Stabilization and Navigation Project (BSNP) Fish and Wildlife Mitigation Project (Mitigation Project), which is an effort to replace fish and wildlife habitat that was lost due to past channelization efforts on the Missouri River. As part of the Mitigation Project, USACE has over the years acquired river-adjacent lands in various locations in Iowa, Kansas, Missouri, and Nebraska. Once acquired, the sites are developed, managed, and maintained with a focus on restoring habitat for three specific federally-listed species.

These land-acquisition and development activities have been authorized under Section 601 of the Water Resources Development Act of 1986, Pub. L. No. 99-662; Section 334 of the Water Resources Development Act of 1999, Pub. L. No. 106-53; and Section 3176 of the Water Resources Development Act of 2007, Pub. L. No. 110-114. Relevant portions of the Water Resources Development Acts are compiled in Attachment 2.

b. The FWCA specifically provides for the participation of state wildlife agencies in conservation projects of this sort. The FWCA was enacted in 1934 to protect fish and wildlife from the environmental effects of federal water resource development projects.

With certain exceptions that are not relevant here, the Act requires that whenever the waters of any stream or other body of water are to be modified or controlled by a federal agency:

(1) The agency must first consult with the United States Fish & Wildlife Service, Department of the Interior, and with the head of the agency exercising administration over the wildlife resources of the applicable state. These consultations are done “with a view to the conservation of wildlife resources by preventing loss of and damage to such resources as well as providing for the development and improvement thereof.” 16 U.S.C. § 662(a).

(2) Adequate provision must be made for the use of such waters (along with associated lands and property interests) for wildlife conservation purposes. These uses of the waters, lands, or interests therein for conservation purposes must be done in accordance with general plans approved jointly by the federal agency, the Secretary of the Interior, and the head of the agency exercising administration over the wildlife resources of the applicable state. 16 U.S.C. § 663(a)-(b).

c. The consultation and approval processes described above have previously resulted in recommendations that KDWP—the state agency that exercises administration over Kansas’s wildlife resources—conduct the land management services for the Kansas mitigation sites. This is documented, for example, in a supplemental environmental impact statement (SEIS) that USACE completed for the Mitigation Project in March 2003 (see Attachment 3 hereto for relevant excerpts).

USACE prepared the SEIS in consultation with KDWP and the state natural resource agencies in the other states encompassed by the Mitigation Project. (SEIS at S-31 to S- 32.) The SEIS notes that the state agencies were participating in the Mitigation Project “by providing oversight through the Mitigation Project coordination team and by managing and maintaining the [mitigation] sites.” (SEIS at S-6.) The SEIS also documents the Government’s decision to continue to have the sites administered and managed by the state natural resource agencies. (SEIS at S-8 to S-10.) Consistent with the approach documented in the 2003 SEIS, NWK subsequently awarded multiple previous contracts to KDWP to perform mitigation site management services, including Contract No. W912DQ13D1006 (awarded in July 2013) and Contract No.

W912DQ18D1004 (awarded in September 2018). Awarding these contracts is part of how USACE fulfills its statutory obligation under the FWCA to consult and coordinate with the applicable state wildlife agencies in the areas encompassed by the Mitigation Project.

d. Contracting with KDWP will ensure continuity of the services that have been performed under the predecessor contracts mentioned above. Continuity of work by this agency is the only way to ensure the long-term habitat development and monitoring goals of the MRRP will be met. Failing to contract with KDWP for these services would result in a gap in the management of the mitigation areas, which would lead to a reversal in the habitat development and wetland mitigation that has been done over the last several years and would jeopardize USACE’s ability to continue meeting the goals of the MRRP. At current staffing levels, NWK does not have the resources to complete the work that will be required under this contract using in-house resources. And, for the reasons described above, it would not be possible to contract with a commercial entity to provide these services and remain in compliance with the Government’s obligations under the FWCA. Thus, as with the predecessor contracts, the current requirement can and should be awarded to KDWP on a sole-source basis pursuant to FAR 6.302- 5(a)(2)(i) because it is authorized or required by a federal statute.

6. Efforts to Obtain Competition: As explained in paragraph 5, competition for this action is not feasible due to the requirements of the FWCA and given KDWP’s status as the state agency that is authorized to exercise administration over Kansas’s wildlife resources. The notice that would otherwise be required under FAR 5.201 has not been published and is not required due to the exception set forth in FAR 5.202(a)(4) for actions that are expressly authorized or required by a statute to be made through another Government agency. With respect to subcontracting, KDWP has historically self-performed these services and has not subcontracted, but KDWP will be asked to prepare a subcontracting plan for this action. KDWP has indicated a willingness to subcontract portions of the work to small businesses where possible. However, they have also indicated that the aspects of the services that they consider suitable for subcontracting tend to arise on an ad hoc basis, and this may pose an issue with respect to developing a realistic subcontracting plan. The NWK contracting team will continue engaging in discussions with KDWP regarding potential subcontracting opportunities.

7. Actions to Increase Competition: There are no additional actions to be taken to increase competition with respect to the provision of land management services for the MRRP mitigation sites. Any re-procurements will be done under the same authority with the same contractor unless: (a) the FWCA is amended in a way that would require a different approach; or (b) future consultations with KDWP and other required stakeholders under the FWCA result in unanticipated changes to the agreed-upon plans for managing the MRRP mitigation sites.

8. Market Research: Contract Specialist (CS) Erick Ottoson conducted market research between 21 March 2024 and 3 April 2024. The research is summarized below.

a. The market research included checking for possible mandatory sources and searching for existing federal contract vehicles through which the services could be obtained. Those searches did not yield any viable results.

b. The CS also ran dynamic small business searches on the Small Business Administration’s (SBA) website. Those searches did not identify any small businesses that could provide the full scope of the required services. The searches did identify seven small businesses in Kansas and the four bordering states that appeared to be potentially viable sources for this requirement, except for that portion of the services that will require the contractor to enact regulations and enforce Kansas fish and wildlife laws.

Private companies do not have the authority to promulgate laws or regulations that are legally binding upon the general public. Nor do they have law enforcement powers. By contrast, KDWP does have the requisite authority. See Kan. Stat. Ann. § 32-807(a) (granting the Secretary of Wildlife and Parks the power to adopt regulations to implement the state’s wildlife and parks laws); § 32-807(q) (granting the Secretary the power to establish regulations to preserve and protect wildlife); and § 32-808 (providing that conservation officers and other employees of KDWP shall have the power to enforce Kansas laws, provided they meet the training requirements). (See Attachment 4 for copies of the aforementioned Kansas statutes.) Due to that limitation and in light of the statutory basis for a sole-source award to KDWP, the capabilities of these seven companies were not investigated beyond a review of their SBA profiles and, where available, their public-facing websites.

c. The CS also searched the Federal Procurement Data System website (fpds.gov) to try to identify previous USACE contracts having the relevant North American Industry Classification System (NAICS) Code (924120) and Product/Service Code (F019) that will apply to the current action. This yielded 62 contract actions (excluding modifications) dating back to the year 2006. None of the contractors on the list were non-governmental, commercial entities.

d. The CS also reviewed the market research from the immediate predecessor contract (No. W912DQ18D1004) for these services. That research concluded that NWK was authorized under the FWCA to contract with KDWP on a sole-source basis. The award was ultimately made on a sole-source basis pursuant to FAR 6.302-5.

e. The CS also sought feedback from the Project Manager (PM) regarding KDWP’s performance on previous contracts. The PM confirmed that KDWP has performed satisfactorily on the previous contracts and that the working relationship between NWK and KDWP has been very good. There have been no known issues with not receiving effective performance or negotiating fair and reasonable prices and KDWP is considered a trusted partner.

f. In summary, the market research did not identify any viable sources other than KDWP and supported the approach of a sole-source award to KDWP.

9. Interested Sources: No sources have written to express an interest in this acquisition.

10. Other Facts:

a. Procurement history.

(1) The predecessor contract for these services was Contract No.

W912DQ18D1004, a single-award task order contract (SATOC) awarded to KDWP1 in September 2018. Its ordering period ended on 9 September 2023. The 2018 contract was awarded on a sole-source basis pursuant to FAR 6.302-5 based on the same rationale outlined above in paragraph 5(a)-(d) of this Justification & Approval (J&A). A written justification for the sole-source approach was approved in July 2018. Paragraph 7 of the 2018 J&A stated that no additional actions would be taken to increase competition because such actions would not have been feasible unless the FWCA were amended. The circumstances that justified the sole-source approach in 2018 were the same in all material respects as the current circumstances outlined in paragraph 5(a)-

(d) of this J&A.

(2) The 2018 contract was preceded by Contract No. W912DQ13D1006 (also a

SATOC), which was awarded to KDWP in July 2013. Its ordering period ended on 30

1 For clarification, the 2018 and 2013 predecessor contracts referred to KDWP by its previous name, which was the Kansas Department of Wildlife, Parks and Tourism.

June 2018. The 2013 contract was also awarded on a sole-source basis pursuant to FAR 6.302-5 based on the same rationale outlined above in paragraph 5(a)-(d) of this J&A. A written justification for the sole-source approach was completed in February 2013. Paragraph 7 of the 2013 J&A stated that no additional actions would be taken to increase competition because such actions would not have been feasible unless the FWCA were amended. The circumstances that justified the sole-source approach in 2013 were the same in all material respects as the current circumstances outlined in paragraph 5(a)-(d) of this J&A.

(3) The 2013 contract was preceded by Contract No. W912DQ11D1000, which was awarded to KDWP in late 2010. A reasonable search was conducted in the Paperless Contract Files system to try to locate a virtual contract file for this contract, but no file was located. According to paragraph 10 of the J&A that was prepared for the 2013 contract, the 2010 contract was awarded to KDWP on a sole-source basis pursuant to the same authorities cited above.

b. Other Facts. No additional facts are necessary to justify the requested sole-source approach. Aside from the facts described in the preceding paragraphs, there are no additional or unusual facts surrounding the history of this procurement.