LLW_Disposal_-_Extend_Ordering_Window_JOFOC_-_WCS_2023-02-27_FINAL_1.pdf

Justification for Other than Full and Open Competition U.S. Department of Energy Environmental Management

Low-Level Waste & Mixed Low-Level Waste Disposal Contract Number 89303318DEM000004

Waste Control Specialists LLC Original Task Ordering Window: April 12, 2018 to April 11, 2023

1. Identification of the agency and the contracting activity, and specific identification of the document as a Justification for Other than Full and Open Competition

The U.S. Department of Energy (DOE), Office of Environmental Management (EM), Consolidated Business Center (EMCBC), intends to issue a modification to the Low-Level Waste & Mixed Low-Level Waste (LLW/MLLW) Disposal IDIQ Contract No.

89303318DEM000004 with Waste Control Specialists LLC (WCS) of Texas, by means of other than full and open competition. See Federal Acquisition Regulation (FAR) 6.303. This document sets forth the “Justification for other than full and open competition” (JOFOC) allowed under the Competition in Contracting Act of 1984 and records approval of the same.

2. The nature and/or description of the action being approved.

This JOFOC is in accordance with FAR 6.302-1, “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements,” and Title 41, United States Code (USC), Section 3304(a)(1).

DOE intends to modify the current contract to extend the IDIQ task ordering period (contract clause F.3 Period of Performance) from the current period (5 years from the date of IDIQ award) by an additional five years. This will result in a task ordering window of ten years from the date the IDIQ was awarded — i.e., April 12, 2018, through April 11, 2028.

The WCS Waste Disposal IDIQ contract allows for task orders to be placed by DOE offices and DOE contractors that need low-level waste disposal. The IDIQ’s Administrative Contracting Officer (ACO) can also give permission to other waste generators in the US to place orders, though none have sought this approval to date.

Waste generators utilize the IDIQ by first identifying the type(s) and quantity/ies of waste(s) they wish to dispose of. If the waste falls within the scope of the WCS IDIQ, then the generator may utilize the IDIQ or may pursue any other disposal path available to them (the IDIQ is non-exclusive). If the generator selects the WCS IDIQ, then the generator uses the pre-agreed pricing table in Section B.5 to determine the total price WCS will charge based on the waste types, quantity, packaging, and method of delivery. The waste generator then drafts a proposed task order and sends it to the IDIQ ACO for review to confirm that the order complies with the terms and conditions of the IDIQ. Once approved by the ACO, the waste generator sends the proposed

JOFOC – Extension Low-Level Waste & Mixed Low-Level Waste Disposal

89303318DEM000004

order to WCS for its review and signature. After WCS signs the proposed order, the waste generator then signs and awards the task order.

Upon task order award, performance commences with shipment of the waste(s) to WCS’s facility in Texas. WCS examines and accepts the waste, decontaminates the shipping vehicle as needed, and then disposes of the waste(s) in a manner consistent with its state and federal permits. If contemplated by the task order, waste can be divided into multiple shipments and sent at different times, but the IDIQ requires that performance of each task order be completed within one year after award.

Nothing in this justification authorizes an increase to the IDIQ ceiling price.

3. Description of the supplies or services required to meet the agency’s needs (including the estimated value):

The primary mission of the U.S. Department of Energy (DOE) Office of Environmental Management (EM) is to safely and efficiently address the environmental liability resulting from decades of nuclear weapon production and government-sponsored nuclear energy research. The liability of concern for this JOFOC is low-level and mixed low-level waste at sites throughout the DOE EM complex nationwide.

As a Waste Disposal IDIQ contractor, WCS is ready to receive and dispose of Class A, B, and C LLW and MLLW and sealed sources. WCS is not capable of receiving or disposing of other wastes covered by the multi-award IDIQ scope, namely 11e.(2) byproduct material (as defined by the Atomic Energy Act) or technologically enhanced, naturally occurring radioactive material (TENORM). The waste types and disposal requirements were originally competed on a full and open basis and no changes beyond the scope of the competition have been made since award that could be included in this extension.

EMCBC is executing this JOFOC for a timely issuance of a contract modification to ensure the continuation of crucial support to the DOE EM complex. There is no change in total IDIQ ceiling price of $120 million. The total value of orders as of January 17, 2023, is $3,881,116.26 and this pace of usage is expected to continue, with disposal services for similar waste types and quantities ordered and negotiated prices remaining similar to the existing rates on contract.

4. Identification of the statutory authority permitting other than full and open competition.

The statutory authority permitting other than full and open competition is 41 U.S.C. 3304(a) (1), as implemented by FAR 6.302-1, “Only one responsible source and no other supplies or services will satisfy agency requirements.”

5. Demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires the use of the authority cited.

Use of a sole-source contract extension is in the best interest of the agency concerned. The anticipated cost of the extension will be fair and reasonable based on historical pricing and other known factors and the nature of the contract.

DOE-EM’s ongoing market research has provided knowledge of all firms within the US that possess the appropriate licenses to dispose of the waste types covered by the IDIQ, of which there are only two. In particular, DOE released a Request for Information (RFI) to industry in 2016, conducted a full-and-open competition for the IDIQs in 2017, and released a subsequent RFI in 2022 — all of these activities confirmed that only two firms are capable of performing the IDIQ requirements and both of the capable firms hold a Disposal IDIQ.

The companion IDIQ is with EnergySolutions of Utah and was issued as part of a multiple-award procurement. When a task order over $3,000 could be awarded to either firm, then the waste generator must provide fair opportunity to both IDIQ holders. However, neither of the firms is capable of performing 100% of the IDIQ requirement. WCS is the only firm capable of disposing of Class B or Class C LLW and MLLW. As a result, when a waste generator utilizing EM contract vehicles has a need for Class B or Class C disposal (either alone or alongside other types of waste that are not possible or economical to dispose of separately), WCS is the only responsible source capable of performing the task. Similarly, EnergySolutions is the only firm capable of disposing of 11e.(2) byproduct material and TENORM. In practice, the vast majority of task orders under the Disposal IDIQs can only be awarded to one firm or the other because of these waste type limitations.

6. Description of the efforts made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under 5.202 applies. Describe whether any additional or similar requirements are anticipated in the future.

DOE is aware of the demands that proposal generation places on industry and is mindful that both rounds of RFIs (in 2016 and 2022) and the IDIQ competition in 2017 drew detailed responses from firms that did not fully understand the requirement and were easily deemed not capable of performing the work as they did not have their own licensed disposal facilities, as required by DOE. A new competition would be futile today, since the current IDIQ holders are the only firms capable of performing the work (reconfirmed in the 2022 RFI) and would merely waste government and contractor resources generating and evaluating full proposals from those IDIQ holders (and any other firms that mistakenly believe that this is a viable business opportunity). A competition would be certain to end up in the same place as a simple modification of the existing IDIQ (to extend the ordering window, add agreed-upon prices for years 6 to 10, and update applicable clauses), but at considerably greater expense to industry and DOE and would take substantially longer to accomplish.

7. Determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.

This modification will not change the Maximum Value of Services of the IDIQ contract. Any increase in additional work or new task orders will be negotiated on a task order by task order basis. The Contracting Officer will negotiate a fair and reasonable price on each individual task order using the pre-established rates in Table B.5. The rates that are in the current contract were previously determined to be fair and reasonable and the contractor’s proposed rates for Years 6 to 10 will be compared against the previously negotiated rates to ensure they remain fair and reasonable.

8. Description of the market research conducted and the results or a statement of the reason market research was not conducted. Do not simply refer to the sources sought synopsis.

DOE released a RFI to industry in 2016, conducted a full-and-open competition for the IDIQ in 2017, and released a subsequent RFI in 2022 — all of these activities confirmed that only two firms are capable of performing the IDIQ requirements in whole or part. The CO intends to post this JOFOC for the IDIQ extension within 14 days after execution of the contract modification on the agency website and at the Contract Opportunities section of SAM.gov. This JOFOC will be amended, if necessary, to reflect the responses.

9. Any other facts supporting the use of other than full and open competition, such as, when 6.302-1 is cited for follow-on acquisitions as described in 6.302-1(a)(2)(ii), an estimate of the cost to the Government that would be duplicated and how the estimate was derived, or, when 6.302-2 is cited, data, estimated cost, or other rationale as to the extent and nature of the harm to the Government.

No other facts supporting use of other than full and open competition have been identified beyond those discussed herein.

10. List of sources that expressed an interest in the current acquisition by responding in writing to the 2022 Request for Information:

• Waste Control Specialists (Current contract holder. Submitted responsive capability statement.)

• EnergySolutions (Current contract holder. Submitted responsive capability statement.)

• Perma-Fix (Not capable. Submitted 90-page statement, late, which admitted incapability, but encouraged changing the requirements to allow disposal at facilities not owned by the contractor. This would enable Perma-Fix to use DOE-owned disposal site in Nevada.

DOE declines to change those requirements for this IDIQ vehicle.)

https://sam.gov/content/opportunities

• A-Bear Consult LLC (Not capable. Submitted 5-page statement that was largely non-responsive to the elements of the RFI and did not show any ability to meet disposal requirements)

• Eberline Services (Not capable. E-mailed clarifying question to CO and did not submit further materials.)

11. Statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required.

None

12. Contracting officer certification:

This Justification for Other than Full and Open Competition is accurate and complete to the best of my knowledge and belief.

Contracting Officer