Justification_for_an_Exemption_to_Fair_Opportunity_Tar_Creek_1.pdf

Non‐releasable; internal deliberative Justification for an Exemption to Fair Opportunity: Tar Creek Superfund Site Remedial Action Framework, Design and Engineering Service (DES)

Final 11‐17‐21

JUSTIFICATION FOR AN EXEMPTION TO FAIR OPPORTUNITY

1. Identification of the Agency and Contracting Activity

Requiring Office: U.S. Environmental Protection Agency – Region 6 Superfund and Emergency Management Division Remedial Branch

Contracting Activity: U.S. Environmental Protection Agency – Region 6

Mission Support Division Comptroller Branch Acquisition and Assistance Section

Address: 1201 Elm Street

Suite 500 Dallas, TX 75270

Subject: Tar Creek Superfund Site, all operable units

RI, FS, and RD under Remedial Action Framework, Design and Engineering Service (DES)

2. Nature and/or Description of the Action being Approved The U.S. Environmental Protection Agency (EPA or Agency) Region 6 intends to issue a task order under the Design and Engineering Services (DES) contract, line‐item number (CLIN) 0002, to CH2M Hill, Inc. (CH2M; DES contract 68HE0318D0004) for ongoing Remedial Investigation (RI), Feasibility Study (FS), and Remedial Design (RD) work as well as RD implementation support for the ongoing and future Remedial Action (RA) projects at the Tar Creek Superfund Site (Site). For the reasons provided in this document, there are significant risks to the Government by not using CH2M to support RI/FS, RD, and RA work at the site. Therefore, it is in EPA’s best interest to use an exception to the fair opportunity procedures under these limited facts, since no other contractor can provide the required service that meets the agency’s need.

Upon approval of this Exception to Fair Opportunity, a task order will be awarded directly to CH2M Hill, Inc, under the DES contract.

3. Description of Supplies or Services Required EPA Region 6 requires the contractor to provide RI/FS, RD and RD Implementation Support at the Tar Creek Superfund Site. Such support includes, but is not limited to review, preparation, updating and maintenance of site‐specific plans; performance of field work supporting RD development and subsequent RD implementation support during remediation; management, analysis, evaluation and reporting of information from field activities; data management services; and, FS support through continued tribal risk assessment, development of preliminary remediation goals, and technology evaluation review. The Estimated value of the base period for the task order is $650,000 with options starting in 2024 through July 2028 totaling an estimated $2 million.

Remedial Action Framework, Design and Engineering Service (DES)

4. Identification of the Exception to Fair Opportunity and Supporting Rationale The exception to the fair opportunity process that permits this action is FAR 16.505 (b)(2)(i)(B), only one awardee is capable of providing the supplies or services at the level of quality required because the supplies or services ordered are unique or highly specialized.

Region 6 is dependent on contractor assistance to meet mission critical work related to Site cleanup, and CH2M is uniquely qualified to perform the work because of their first‐hand knowledge of the Site history and their heightened sensitivity to the evolving relationships between EPA and the affected communities, tribes, and states. Other DES contractors are able to perform this type of service, generally, but cannot provide this specific service with these design plans and tribal risk scenarios under these facts and circumstances, as described in detail below.

Since 2000, CH2M has been the sole contractor for the Tar Creek Site and was the incumbent Region 6 Remedial Action Contract (RAC) contractor (reference contract EP‐W‐06‐021) providing RI, including a specialized tribal risk assessment, FS, RD, specialized RD implementation support for state and tribal remediation projects, as well as performing cleanup activities for several projects. A sole source procurement to CH2M will ensure that EPA Region 6 continues to receive consistent and seasoned Site support for ongoing risk assessment, FS, RD and RA activities at Tar Creek.

The EPA requires the unique combination of expertise held by CH2M Hill, Inc., to achieve successful remediation through design support, repository long‐term stability through design support, development of remediation goals in support of the decision document through risk assessment support, technology review and evaluation assistance founded on risk assessment findings, and community and stakeholder outreach and facilitation of information sharing and coordination based on the relationships developed over the last 20 years.

Through the RAC contract, CH2M has an integral connection to the Site and has been involved in the complete study and design of the RA, from initial RI/FS through RD/RA. This design implementation support is required in order to ensure that the work being performed is protective of human health and the environment and consistent with applicable decision documents.

The Site subject to this exception to fair opportunity is in design, clean‐up, and risk assessment phases and delays in providing technical or engineering assistance would result in a significant impact to RD costs, on‐going and upcoming RA action schedules, and ongoing risk assessment and decision document schedules, which will jeopardize the success of current remedial actions at the Site, potentially impacting human health and the environment. CH2M is the only contractor that can continue the existing work and support for the following reasons:

a. CH2M is the Designer of Record (DOR) for the ongoing and upcoming remediation projects, the Central Mill Repository used for source material disposal, and the Core Area Interim Design.

Remedial Action Framework, Design and Engineering Service (DES)

In accordance with the Unified Field Guide Specifications (UFGS), a standard of practice adopted by DoD and NASA, the DOR is defined as the Professional Registered members of the Contractor’s Design team that check, approve, sign, date, and certify, prior to submitting the deliverables to the Government. The DOR's stamp, sign, and date each design drawing and other design deliverables under their responsible discipline at each design submittal stage. The DOR(s) are responsible for maintaining the integrity of the design and for compliance with the contract requirements through construction and documentation of the as‐built condition by coordination, review and approval of extensions of design, material, equipment and other construction submittals, review and approval or disapproval of requested deviations to the accepted design or to the contract, coordination with the Government of the above activities, and by performing other typical professional design responsibilities.

Pursuant to FAR 36.608 Architect‐Engineer contractors shall be responsible for the professional quality, technical accuracy, and coordination of all services required under their contracts. A firm may be liable for Government costs resulting from errors or deficiencies in designs furnished under its contract. It is crucial to this RA that the Government be able to consult with the DOR, CH2M, during the performance of the Remedial Action activities. CH2M, is the only DES contract holder that is intimately familiar with the basis and assumptions that went into the designs. Any other firm would need additional time and money to become familiar with the design basis and assumptions. As the original designer, CH2M has a professional and legal responsibility to the integrity of the work packages and products they’ve produced. A new design firm that has not been integrally involved in the Site since the inception would not be willing to modify designs and specification packages without extensive study or rework. The new firm would then assume legal responsibility for any scientific, technical or design assumptions and changes they’ve made. If that happened, CH2M could refuse to honor their previous design should flaws or shortcomings be discovered during the RA phase of work, affecting EPA potential rights and remedies. Awarding a task order to CH2M, to continue to perform the support services for its own certified design greatly reduces the Government’s risk and keeps a clear chain of responsibility with the DOR for design defects or necessary changes, should such become necessary.

b. CH2M is the only awardee that has the necessary knowledge, staff, and experience to complete the work and is capable of providing design implementation support in a timely and cost effective manner due to their extensive knowledge and previous work.

The Site was listed in 1983 and has been the subject of multiple investigations, research studies, pilot studies, and cleanup actions. The site requires a significant amount of time and resources for a contractor to understand the extensive project background information and study area complexity. The Tar Creek Site consists of former lead and zinc mines located in northeast Oklahoma, on the Kansas/Missouri border. Mining left greater than 45 million cubic yards of lead, cadmium, and zinc contaminated mine waste in “chat piles,” concentrated in a 40‐square mile area, but also distributed throughout the 485 square miles of Ottawa County for residential purposes, as well as throughout the areas streams and creeks which cover an

Remedial Action Framework, Design and Engineering Service (DES) estimated 437 square miles. Tar Creek is part of the Tri‐State Mining district, which covers approximately 2,500 square miles in northeast Oklahoma, southwest Missouri, and southeast Kansas requiring coordination with multiple stakeholders including local communities and governments, other federal agencies, EPA Region 7, 3 states, and 9 tribes.

CH2M has spent hundreds of hours investigating, developing, maintaining and supporting remedial designs and actions covering over 4000 acres of mined lands and 6 million tons of chat. Incorporating historical documents and knowledge, authored and non‐authored, with current new Site surveys, results in complete Site project designs and remediation project support. Additionally, the long history on the Site provided the opportunity to build solid relationships with tribes and states to finalize the risk assessment scenarios, continue remediation goal discussions, and begin assisting EPA in communicating and summarizing an overall Site strategy to coalesce all operable unit activities at all Tri‐State Mining Sites.

This institutional knowledge makes CH2M, uniquely qualified to complete the activities listed in Section 3 of this document. There are years of technical or scientific documents describing the source and extent of pollution that have been reviewed and incorporated into the designs and the risk assessment. As an example, there are reports for the mine workings, the extent of marketable material, and subsidence and mine shaft locations, as well as CH2M completed Site reports on the Hydrogeologic Characterization, including modeling, of the ground water, Injection Pilot Studies on Chat, a Metals Reclamation Study, all previous remedial designs (Site‐ wide, specific projects, repository, Core interim), and Site‐specific risk assessments for two operable units, including tribal scenarios.

A new engineering firm would need to conduct extensive reviews of Site information to become familiar with the Site, the selected remedy, the design and engineering completed to date, and tribal specific risk assessment scenarios. This represents a duplication of effort and would result in significant schedule delays and significant additional cost the Government would not recoup through competition. This requires the new firm to adopt an approach that is aligned and consistent with established project assumptions, to provide equivalent expertise, and to conduct substantial coordination among stakeholders and the EPA. All of which is avoided due to CH2M’s experience at the Site and established stakeholder relationship.

Issuing a sole source task order to CH2M, to maintain continuity of services is the only available method to meet the Government’s need without causing significant financial harm and creating unnecessary breaks and delays in services. Multiple remedial actions are underway, including continued placement of source material in the repository. CH2M can quickly make changes or interpretations since they understand the basis and assumptions of the original design, and without the ability to engage CH2M engineering staff and their companywide knowledge of the Site for technical assistance, remedial action work could come to a stop. Likewise, development of remediation goals based on tribal risk scenarios and implementation of the lead model adds another complexity that only CH2M can address because they are the developers and originators of the risk assessment.

Remedial Action Framework, Design and Engineering Service (DES)

As stated above, the designs, remedial actions, and the risk assessment are in critical stages of completion. The designs and remedial actions require the contractor be intimately familiar with the designs and engineering specifications to provide design implementation support while the risk assessment requires intimate knowledge and familiarity with the assumptions of the risk assessment, the exposure scenarios, and the implementation of the Integrated Exposure Uptake Biokinetic (IEUBK) model. CH2M is the only firm that has the specific experience and necessary Site background to allow EPA to continue the designs, remedial actions and risk assessment conversations at the required quality level without delays and additional costs.

c. CH2M is the contractor responsible for development of the specialized tribal risk assessment and associated preliminary remediation goals, including implementation of the IEUBK Lead Model.

During the past 6 years, CH2M developed the tribal and general public risk assessment, including the presentation of potential preliminary remedial action goals. This work involved the completion of multiple sampling events to gather the data needed to support the risk assessment as well as extensive coordination with all 9 tribes. Work evolved significantly through a series of revisions stemming from discussions, work meetings, and work product development with the tribes. The specialized tribal scenario(s) was further complicated by the use of the IEUBK Lead model which necessitated consultation with the EPA National Lead work group. This collaborative process resulted in CH2M producing several separate and phased risk documents for which CH2M maintains all the historical knowledge that is key to understanding the exposure inputs, the lead model outputs, the evolution of the tribal scenarios, and a better understanding of the overall stakeholder interest and perspective.

Discussions related to the use of the IEUBK lead model and its use in evaluating tribal risk scenarios continues, and the specialized experience of CH2M with the use of the model is critical. Issuing a sole source task order to CH2M, to maintain continuity of the evolving risk conversation is the only available method to meet the Government’s need without causing significant financial harm and creating unnecessary breaks and delays. As the originator of the risk assessment, CH2M will provide uninterrupted, quick and reliable support for the continued risk conversations that will be integral to the feasibility study and ultimately support a cleanup decision document. CH2M can quickly make changes and adjust and/or revise existing risk scenarios because they developed and understand the basis and assumptions of the original risk assessment. Without the ability to engage CH2M risk assessment staff and their companywide knowledge of the Site for technical assistance, there could be delays with the FS work, and ultimately the decision document. Remedial goals are critical to the Site and are

Remedial Action Framework, Design and Engineering Service (DES) goals for protection of human health and the environment, and should be supported by those with the experience and knowledge of their evolution.

Additionally, it is noted that CH2M developed and supported EPA during the completion of the tribal and general public risk assessment associated with operable unit 4, involving exposures to source materials, as well as support EPA in the development of the OU4 decision document.

This historic knowledge will assist with the integration of risk results across operable units under a unified remediation approach, promote consistency across the Site, and help the public and stakeholders understand the issues, scope and complexity of the work.

5. Determination of Fair and Reasonable Costs The Contracting Officer hereby determines that the anticipated cost to the Government will be fair and reasonable by utilizing the CH2M Hill, Inc.’s approved DES contract rates, which were approved at the contract‐level at time of award. Each task order will require a detailed work plan including cost estimate with hours. Prior to issuing a task order, the Contracting Officer will ensure that the work plan will be reviewed, negotiated, and the price determined reasonable for the work to be performed. No award will be made unless the anticipated costs are determined fair and reasonable.

6. Additional Supporting Facts The Estimated value of the base period for the task order is $650,000 with options starting in 2024 through July 2028 totaling an estimated $2 million.

7. Proposed Actions to Overcome Barriers to Competition The use of this Exception to Fair Opportunity is the unavoidable result of the Government’s current requirement for design, design support, and risk assessment support previously completed under a CH2M RAC that expired on August 21, 2021. The Remedial Actions resulting from the design are to be performed under cooperative agreements with the State of Oklahoma and the Quapaw Tribe. All future design or design support work for sites not included above will be competed in accordance with FAR Part 36 requirements.

Notice of this Justification for an Exception to Fair Opportunity will be published on Beta.Sam.Gov in accordance with the posting requirements in FAR 5.301 as described in FAR 16.505(b)(2)(ii)(D).

Remedial Action Framework, Design and Engineering Service (DES)

8. Technical Certification In accordance with FAR 16.505(b)(2)(ii)(B)(9), I hereby certify that the technical requirements which form the basis for this Justification are accurate and complete to the best of my knowledge and belief.

John C. Meyer, Chief Date Remedial Branch, Region 6 Superfund Division

9. Contracting Officer’s Certification In accordance with FAR 16.505(b)(2)(ii)(B)(8), I hereby certify that this Justification is accurate and complete to the best of my knowledge and belief.

Chanel Colbert, Contracting Officer Date

6MSD‐CA

10. Reviewing Official

Lottie Plater, Deputy Director Date

OMS/OAS/HQAD

11. Approving Official Determination

In accordance with FAR 16.505(b)(2)(ii)(B)(10), I hereby determine the information provided in this justification supports the citation provided in Section 4 of this document.

Tommie Madison Date Agency Advocate for Competition