KO Determination _Redacted.pdf

Control No: LRL-FY22-81

Contracting Officer’s Determination – Limiting Competition at or below the Simplified Acquisition

Threshold

1. Contracting Activity: Louisville District

2. Description of Action:

Nature: New Requirement

Contract Vehicle: Purchase Order

Pricing/Contract Type: Fixed Price

Funds: Other Funds: Civil Works (Supplemental)

FY22

Name of Proposed Contractor(s) and Address:

EIP III Credit Co., LLC 5550 Newbury Street, Suite B Baltimore, MD 21209

Brand Name Buy: No

3. Description of Services or Supplies: This KO determination for limiting competition is for a sole source supply contract to EIP III Credit Co., LLC for the purchase of environmental stream mitigation credits from the North Fork Stream Mitigation Bank located in Breathitt County, Kentucky as compensatory mitigation for impacts related to the City of Paintsville, Johnson County, Kentucky flood risk management project.

Period of Performance: 30 days past NTP or not to exceed 30SEP22.

Total Value: $

4. Authority:

FAR 13.106-1(b)(1)(i): For purchases not exceeding the simplified acquisition threshold (SAT), contractors may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand name, or industrial mobilization).

5. Reasons for Authority Cited:

a. Seeking to keep stream bank mitigation within the regional area (in or near Johnson County). Limited availably exists for credits in this watershed. “As part of the Detailed Project Report for the Johnson County, Kentucky Section 202 Project (DPR), the District performed an informed analysis of the mitigation needs and potential mitigation alternatives for mitigating project impacts to stream habitat. The DPR resulted in the establishment of a Recommended Plan for the project that included a mitigation plan involving the purchase of credits from a mitigation bank to mitigate these impacts. Under 40 CFR §

Control No: LRL-FY22-81

239.83, mitigation bank credits must be purchased from an approved mitigation bank whose service area includes the area where the project impacts will be located. The District’s market research determined that the North Fork Mitigation Bank is the only approved mitigation bank whose service area includes the location of the impacts that will result from the Johnson County, Kentucky Section 202 project.

Procurement of mitigation bank credits from the North Fork Mitigation Bank on a sole source basis is necessary, because the North Fork Mitigation Bank is the only responsible source capable of meeting the agency’s compensatory mitigation requirements as set out in the DPR’s Recommended Plan.

While the Recommended Plan will be supplemented by an Engineering Documentation Report, the supplement will modify only the amount of stream credits required to offset impacts and will not modify the District’s informed analysis of the project’s mitigation needs or the mitigation plan involving the purchase of stream credits from an approved mitigation bank.”

b. Without this agreement/contract in place, the District will be unable to carry out the mitigation plan established as part of the Recommended Plan from the DPR.

6. Publicizing Contract Actions: For FAR Part 13 actions, the public display and synopsis requirements of FAR 5.101 and FAR 5.203 do not apply due to the $ threshold, apply and will be followed, or do not apply due to an exception at 5.202 ______________________.

Requirement to post justification in accordance with FAR 8.405-6(b)(3), FAR 13.105(c), or FAR 16.505(a)(4)(iii)(A)

Action is NOT a brand name restriction and is under SAT, no posting required

7. Market Research: PDT research has determined very limited available mitigation credits available within the regional area. RIBITS (Regulatory In-lieu Fee and Bank Information Tracking System) was referenced for mitigation banks and sites that had an available credits in accordance with the credit ledger summary under the service area for the proposed project https://ribits.ops.usace.army.mil/ords/f?p=107:10:::::P10_BANK_ID:4369). The Bank Sponsor EIP III Credit Co., LLC had stream credits available for the service area from EIP-KSWMBI-III North Fork Stream Mitigation Bank (LRL-2015-00322) which is located in Breathitt, Kentucky (37.64045°;- 83.41447°). This site is associated with the umbrella instrument for Kentucky Stream and Wetland Mitigation Bank III (Corps ID No. LRL-LRL-2016-808). This was the only approved mitigation bank within the service area with available credits for purchase, so this Bank Sponsor was chosen to purchase stream mitigation credits.

8. Other Facts: NA https://ribits.ops.usace.army.mil/ords/f?p=107:10:::::P10_BANK_ID:4369