Justification_for_Other_Than_Full_and_Open_Competition.pdf

Justification for Other Than full and Open Competition

Subject: Transfer Task Order DE-DT0008868 Requirements under Department of Energy (DOE) Low

Level Mixed Low Level Waste Treatment Indefinite Delivery / Indefinite Quantity (IDIQ) Contract DE-

AM30-10CC60040 to Task Order DE-EM0004353 under DOE Low Level Mixed Low Level Waste

Treatment Basic Ordering Agreement (BOA) DE-EM0003714.

1. Agency and Contracting Activity: The Agency is the US Department of Energy (DOE). The

Contracting Activity is the DOE Environmental Management – Los Alamos Field Office (EMLA).

2. Nature and Description of Action: Task Order DE-DT0008868 was awarded on February 23, 2015 to Perma-Fix Environmental Services Inc. (Contractor) against the DOE Low Level Mixed Low

Level Waste Treatment Indefinite Delivery / Indefinite Quantity (IDIQ) Contract DE- AM30-

10CC60040. The Period of Performance of this Task Order is for one year from the date of award.

This task order is for the purpose of treating absorbed sludge’s (solid) and various debris Class C mixed low level waste (M/LLW) with a total volume of 34 m3 generated at the Los Alamos National

Laboratory (LANL). Unfortunately, a shipping restriction was imposed on all waste being transported from LANL due in part to the on-going corrective actions being applied as a result of the February

2014 contamination release at the DOE Waste Isolation Pilot Plant (WIPP) that occurred as a result of uncompliant waste packaged from LANL. Therefore, all treatment work under Task Order DE-

DT0008868 has been delayed because the waste has not been yet shipped from the LANL site to the

Contractor’s facility. Modification 003 was issued on November 4, 2105 for the purpose of extending the task order to June 30, 2016 in hopes that the shipping restriction would be lifted by then. This date is significant because per F.01 of the IDIQ contract, all work under any task orders issued against the

IDIQ must be completed by this date.

In discussing the situation with the DOE technical representatives at the Environmental Management

– Los Alamos Field Office (EM-LA), it has been determined that some waste has and will continue to be shipped to the Contractor’s facility prior to June 30, 2016 date. However, considering the current timing, there is no ability for the Contractor to complete the work before this June 30 th date per F.01 of the IDIQ contract. Therefore, it is necessary for DOE to transfer this work over to the Contractor’s

BOA, DE-EM0003714, with DOE.

In conversing with the DOE BOA Contracting Officer, it has been determined that considering the extenuating circumstances involving the shipment of waste from LANL, this approach to transferring the work makes the most business sense for DOE. The Contractor is already mobilized to perform the work and they understand the approach to treatment better than any other contractor at this point.

They have also started to receive some waste shipments. The Contractor has performed some preliminary work that may be difficult to transfer over to a new contractor in its current form. The

Contractor has also committed to keeping their pricing under task order DE-DT0008868 if the waste is shipped prior to the June 30, 2016 date. If the waste is shipped after this date, the Contractor has proposed a modest escalation charge since the original task order was issued in February 2015 and it was anticipated to be completed within one year. Furthermore, by transferring the work over, DOE avoids any potential termination for convenience charges that the Contractor may claim as a result.

In accordance with Section H.07 of DE-EM0003714, DOE Low Level Mixed Low Level Waste

Treatment Basic Ordering Agreement (BOA), all orders made against the BOA shall be done in a manner that does not in any way restrict competition. All pricing for task orders are determined at the task order level on the basis of competition between the various BOA holders. Therefore, in order to transfer this requirement from the IDIQ to the BOA, a Justification for Other Than Full and Open

Competition is required.

This memorandum to the Contract provides justification in accordance with FAR 6.303-2 for transferring the requirements under DE-DT0008868 to a task order under the Contractor’s BOA with

DOE – DE-EM0003714.

3. Description of Supplies or Services Required to Meet Agency Need: The continued services involve the treatment of 129 drums containing Nuclear Regulatory Commission (NRC) Class C Low

Level radioactive waste. The total volume of this waste is 33.73 m3. There is no anticipated change in the volume of the waste or the associated value of this work through the transfer to the BOA. The value of this work, if waste is shipped prior to June 30, 2016, will continue to be $493,748.20. If the waste is shipped after that date, the value of the work will increase to $518,435.61. DOE considers this increase to be fair and reasonable considering that the original prices are from February 2015 and natural inflation has to be accounted for.

4. Statutory Authority for Other than Full and Open Competition: The authority is 41 USC 3304

(a) (1) and FAR 6.302-1 (b) (1): Only one responsible source and no other supplies or services will satisfy the agency requirements.

5. Unique Contractor Qualifications: The Contractor has already started preliminary work towards treating this waste. Specifically, the Contractor has initialized mobilization and has worked with DOE to ensure the waste is properly characterized. Therefore, the Contractor understands the work requirements better than any other available contractor at this point. The integration between the

Contractor and DOE has been established and any interruption of this integration would be detrimental to the progress made to-date.

6. Efforts to Solicit Additional Sources: Prior to award of task order DE-DT0008868 in February

2015, DOE competed the requirements amongst the IDIQ Contract holders. Thus, this requirement was originally competed and was the basis for establishing price reasonableness. A notice regarding the initial requirement was not published on the Government Point of Entry (GPE) as the exemption at FAR 5.202 (a) (6) was applicable.

7. Determination of Reasonable Price: The Contracting Officer has determined that the pricing under this action is indeed fair and reasonable. The Contractor has indicated to DOE that the prices used at the time of award of DE-DT0008868 will be held on the new task order if the waste is shipped by

June 30, 2016. DOE anticipates that all waste will be shipped by this date. However, DOE and the

Contractor have agreed to an escalation charge if the waste is not transported to the Contractor’s facility by that date. This escalation charge is in line with the escalation used by the Contractor in the basic IDIQ contract from year to year. It is also fair considering that the original task order was awarded in February 2015. Natural economic inflation indicates that the cost of the services in 2015 would, in fact, be lower than the costs of services in late 2016. It is fair and reasonable for the

Contractor to assess this additional escalation cost if waste is not shipped by June 30, 2016.

8. Determination of Reasonable Price: Market research was not performed for this effort. Task Order

DE-DT0008868 was awarded off of the IDIQ contract, which listed pre-established pricing, and then was competed amongst other IDIQ contract holders. Therefore, competition established price reasonableness. The Contractor has since guaranteed its pricing in transferring the work over to the

BOA if work is started by a set date. The proposed escalation assumption is reasonable considering what was used from year to year on the IDIQ pre-established pricing and what is considered typical industry standard.

9. Other Facts to Support the Determination:

i. Cost Considerations – Terminating the current task order, DE-DT0008868, could result in potential increased costs to DOE if it isn’t replaced with a task order off of the Contractor’s

DOE BOA for LLW MLLW Treatment Services. First, DOE will likely have to pay termination costs to the Contractor as a potential result of termination claims. Since DOE has not yet been able to provide the Contractor with the waste for treatment, the Contractor’s potential claims have significant merit. Second, if DOE chose not to transfer this work over onto the Contractor’s DOE BOA for LLW MLLW Treatment Services, DOE would likely incur additional procurement costs to re-compete this work. This provides little value because the Contractor has already initialized pre-work activities to a satisfactory level. Transferring work over to another Contractor has its own risks as well like inefficacies in work progress or complete loss for all initial work progress performed to-date.

ii. Performance Considerations – The delays on the original task order, DE-DT0008868, were not due in part to the Contractor’s control. The Contractor has completed pre-work activities with satisfactory quality. The Contractor has also remained professional throughout the entire process and has worked diligently with DOE to try and restart shipping operations.

iii. Economy and Efficiency - Transferring this work from DE-DT0008868 to a new task order under the BOA with the current Contractor represents the most efficient and economical way of achieving progress towards completing the requirements. The original task order was competed amongst eligible DOE LLW Treatment Services IDIQ contract holders at the time of award and therefore represents a fair and reasonable price to be converted to a new task order under the BOA. Furthermore, if the escalation assumption is indeed entered in, this added cost is also considered reasonable considering natural inflation.

10. Listing of Interested Sources: None

11. Actions to Overcome Barriers to Competition: Future waste treatment requirements will be competed amongst the DOE BOA holders. In fact, all task orders issued off of the BOA by EMLA have been fully competed against eligible DOE BOA holders.

The original task order for this requirement, DE-DT0008836, was competed amongst available and eligible DOE LLW MLLW Treatment Services IDIQ Contract holders. This transfer of the work to the DOE BOA is entirely due to the circumstances surrounding shipping the waste off site and the restrictions on work exceeding June 30, 2016 for task orders issued against the IDIQ Contract. This is a onetime action that is unlikely to be replicated on other DOE EMLA waste treatment requirements.

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 reasonability of the technical and requirements personnel, used to form a basis for the Justification for Other than Fully and Open Competition is complete and accurate.

Acquisition Initiator:

REDACTED 6/16/2016

M. Lee Bishop Date

Contracting Officer Representative

EM Los Alamos Field Office

Approval:

REDACTED 6/16/2016

Christopher Lockhart Date

Contracting Officer

EM Los Alamos Field Office