PWS_IDIQ_RealEstateServices-WaterRightsAcquisition_120222.docx

Performance Work Statement (PWS)

Indefinite Delivery/Indefinite Quantity (IDIQ) Contract for Real Estate Services to Acquire Water Rights in New Mexico and West Texas

Summary:

The International Boundary and Water Commission, U. S. Section (USIBWC), requires professional real estate services to acquire surface water rights within the USIBWC Rio Grande Canalization Project in Doña Ana County, New Mexico, and possibly El Paso County, Texas. The Contractor will assist the USIBWC to acquire water rights which will be used for habitat restoration. The contractor will conduct necessary due diligence work (except as noted) to obtain the water rights, according to federal acquisition procedures for real property, including, but not limited to, confirming validity of the water rights, contacting water rights owners, finding willing sellers, informing sellers of the Environmental Water Transaction Program, conducting title investigations, contacting land owners to gather and disseminate information, coordination with irrigation districts or regulating entity, assisting with negotiation of final agreements, obtaining signatures from landowners, and assistance with closing. The Contractor will not be required to complete inherently governmental tasks such as negotiation. Most surface water rights acquired under this contract will be located within the Elephant Butte Irrigation District (EBID) in Sierra and Doña Ana Counties, New Mexico. It is possible, later within the contract, for water rights to be purchased within the El Paso County Water Improvement District #1 in El Paso, Texas; however, primarily water rights will be in New Mexico. This contract is not expected to require the acquisition of New Mexico groundwater rights, which are governed by the New Mexico Office of the State Engineer (OSE).

All real property acquisition work under this contract should conform with federal and state regulations for real property. The Uniform Relocation Assistance (URA) and Real Property Acquisition Policies Act, Public Law 91-646, and its implementing regulations (49 CFR Part 24) set forth minimum requirements for real property acquisition for Federal and federally-assisted programs. Work under this contract must be prepared in accordance with such federal requirements. In addition, the title work must be in accordance with the Department of Justice Title Standards, 2001 or any subsequent version.

The Contractor must demonstrate the ability to comply with federal real property acquisition regulations and standards. Contractors must also be licensed or certified to perform real estate services. The Contractor will preferably also demonstrate experience purchasing or dealing with surface water rights in New Mexico, and preferably also with groundwater rights in New Mexico.

Background:

Water rights will be acquired under the Rio Grande Canalization Project Environmental Water Transaction Program. The purpose of the program is to acquire water rights (either surface or ground water) from willing sellers to support up to 30 riparian habitat restoration sites in accordance with USIBWC's 2009 Record of Decision for the River Management Alternatives for the Rio Grande Canalization Project. The USIBWC Rio Grande Canalization Project stretches from Percha Dam in Sierra County, New Mexico downstream to American Dam in El Paso County, Texas.

Required Work:

The contract will be divided into two Tasks: 1) Real Estate Services and 2) Administrative.

Task 1. Real Estate Services The Contractor will coordinate professional real estate services for the Subtasks listed below. Chronology is described in Attachment A. There may be three phases to this task that will generally be as follows:

· Phase 1: Pre-purchase/ pre-title opion: Contractor does Subtasks 1- 8, 15, and 16, pre-purchase.

· Phase 2: contractor submits packet with information gathered in 1 – 8 to USIBWC and/or DOJ for title opinion (subtask 11). If, during drafting of title opinion, DOJ or USIBWC need curative work, the contractor shall be directed to conduct subtask 10. Once title opinion is done, then Contrator moves to Phase 3:

· Phase 3 post title-opinion & purchase: subtasks 9, 12, 13 to provide a record.

Contractor shall assist, but not perform, the inherently governmental functions which are: first, the negotiation on price; second, the title opinion; third, the purchase/ execution of contract. Those must be performed by Government personnel.

Subtasks

1. Title Reports – Prepare various forms of title reports. Title research includes the title report on land as well as the title for the water rights, which will involve coordinating with the EBID, OSE, or regulating entity for appropriate water rights title information. May also require obtaining subfile orders on water rights adjudication status with the OSE.

2. Abstract of Title – Prepare abstracts of title in order to provide a complete title history of real property so a title opinion can be rendered by a Governmentattorney. For water rights, title searches will be required for the property to which the water rights are appurtenant. Title searches should meet the requirements of the Department of Justice, including spanning the appropriate number of years for the value of the purchase and obtaining a sastisfactory certificate of abstract.

3. Real Property Appraisals – USIBWC completed appraisals in 2014 and 2021. The Contract may be be required to advise whether existing appraisals are no longer appropriate. In such instance, the contractor may be required to hire an appraiser and separate review appraiser to update the appraisal in accordance with federal appraisal guidelines.

4. Landowner Contact – Contact landowners within project areas to gather personal data pertinent to the sale, to inform them of the project, and to discuss the servitude, offer letter, and/or purchase document, and participate in subsequent communications about the same between agency and landowner. May include identifying willing sellers. Coordinate the signing of a purchase agreement for water rights. May include attending negotiations conducted by the Government; negotiations are inherently Governmental and will be led by the Government. May include obtaining a warranty deed from landowner in order to provide to the title company. May include contacting water rights holders who are at risk of involuntary suspension due to failure to pay assessment fees for two (and going on three) years.

5. Tax, Mortgage Certificates, or Assessments or Evidence Thereof, and other related Documents – Obtain properly executed document(s) from water rights and land owners, with authority to sign documentation, if required, within project by field visits. Obtain tax and/or mortgage certificates or provide evidence of them from the county records for each tract in an assigned project, if so directed by the Contracting Officer. May include obtaining evidence of payment of water rights assessment fees and verification that water rights are free of encumberances. May include working with landowner’s bank to provide a release of lien on mortgages for the water rights separation.

6. Water Rights Documentation – Obtain documentation of the water rights, which may include stipulated subfile order for the New Mexico adjudication, records of the irrigation district ownership and status of water rights, or related documents.

7. Legal Opinion of Water Rights - obtain a Legal Opinion of Water Rights to establish validity of water rights and highlight for agency attorneys any legal issues related to the water rights ownership or transfer.

8. Database Research and Mapping – Compile and deliver the landowner information and property/water rights descriptions in a format provided by the Contracting Officer for inclusion in the USIBWC GIS and/or Realty database(s), if so directed by the Contracting Officer. All delivered geospatial data shall be contained in an ESRI file geodatabase that is compatible with the ArcGIS version currently used by USIBWC, or some other mutually agreed upon format as described by task order. Delivered geospatial data must have complete metadata that meets or exceeds the minimum content required by either the Federal Geographic Data committee's Content Standard for Digital Spatial Metadata (FGDC CDSGM) or the North American Profile of ISO 19115 2003 Standard or as specified in task order, and include detailed definitions of all layer attributes.

9. Transfer of Water Rights - Coordinate with USIBWC and the irrigation district, OSE and/or appropriate regulatory entity to facilitate USIBWC participation in the steps required for the approval of the transfer of water rights to USIBWC property prior to closing on the water rights transaction. Includes applying for transfer and coordinating with the irrigation districts for a voluntary suspension and transfer hearing, including application fee, public notice, and public hearing.

10. Curative Work – Be able to perform title curative work to address issues in the process stated above, if so directed by the Contracting Officer.

11. Coordinate with USIBWC to obtain preliminary title review/opinion, either from USIBWC Legal or from Department of Justice, as required by 40 U.S.C.A. 3111.

12. Closing – Assist USIBWC in closing, to include verifying all documents are in order, coordinating with closing agent, advising, generating closing documentation, verifying closing contingencies have been met, and other closing tasks. Assist in recording and certification, final processing and distribution of documents certified by county clerks. May require that Contractor holds or establishes a contract with a closing agent and transfers funds on behalf of the Government.

13. Complete Water Rights Package/Administrative Record – Provide a complete water rights package which will include all work activities from start to finish and required water rights documents necessary to secure rights. Such work may include, but is not limited to, title work and title curative work, abstracting, review of title opinions, appraisals, water rights surveys, legal opinions, negotiations with property owners, expropriation and preparation of purchase and sale documents, transfer documentation, water rights documentation, and correspondence related to the acquisition. All work for the purchase and/or expropriation of real property will be pursuant to Public Law 91-646, as amended and/or applicable State laws. All work shall be performed by the Contractor with minimal direct oversight from the USIBWC Contracting Officer’s Representative (COR).

14. Advise the USIBWC throughout the acquisition process of any potential issues and provide recommendations.

15. Any other due diligence required for the federal acquisition of water rights.

16. The Contractor may also be asked to find and secure willing sellers of water rights prior to acquisition.

After award, the Contractor will have at its disposal USIBWC’s Environmental Water Transaction Program Framework Document supplemental information (main report is available online (https://ibwc.gov/Files/EWTP_Final_Framework_2015_3_11.pdf), including example and template documents used in pilot transactions of water rights acquisitions. Table 1 shows an example process/chronology for obtaining water rights which the Contractor shall adhere to as close as possible. Contractor shall provide the specific deliverables related to each subtask as stated in Task 1 and Table 1.

Task 2. Administrative The contractor shall assign a Project Manager for each project to implement the contract and coordinate the subtasks listed in Task 1.

The Contractor shall designate key personnel, including contract manager, program manager, and real estate specialist or other appropriate staff. Contractor personnel must posess knowledge and experience with federal acquisitions procedures and transactions and areas pertinent to the Performance Work Statement, including water rights transactions in New Mexico and water rights due diligence, and appropriate real estate licensure. The Contractor shall submit a resume/vitae of all key personnel with the IDIQ proposal and with each task order proposal for any new or changed staff. The key personnel identified in the Contractor's technical proposal are considered essential to the successful completion of the work being performed by the Contractor under this Contract. If, during the performance of this Contract, the Contractor must utilize key personnel or specialized personnel other than those named in the technical proposal, such substitution shall not be made without prior written approval of the Contracting Officer.

For each task order, the Contractor shall submit a work plan and an estimated time schedule encompassing all necessary activities from title research to document recordation and certification for each assigned project to the USIBWC COR for review and coordination with other project implementation elements. The project schedule shall include key milestones and deliverables.

Contractor shall provide reports and written deliverables to the USIBWC in both written and electronic formats. Electronic formats shall be Microsoft Word and Adobe Acrobat on compact disks (i.e., CD-Recordable) or other agreed upon electronic sharing platform such as Sharepoint. Project schedules and schedule updates shall be provided in Microsoft Project or Word. Drawings shall be submitted in the original format (ie. GIS or AutoCAD).

The Contractor shall advise the USIBWC throughout the period of performance of any potential issues and provide recommendations.

The Contractor shall report progress on each on-going task to the COR through the use of Monthly Progress Reports and shall accompany and support all invoices. All invoices shall be submitted through Invoice Processing Platform (IPP).

Contractor performance and products shall be subject to review and approval by USIBWC technical staff and management to ensure adequacy, accuracy and completeness. The USIBWC may request advance copies of specific documents be provided for review prior to completion of the full deliverable.

The USIBWC will designate a team that will include the Contracting Officer, COR, Realty and Asset Management Division representative, and legal staff to coordinate throughout the process of water rights acquisition. The main point of contact will be the COR.

Government Furnished Property:

· Documentation available or drafted under previous water rights acquisitions transactions

· Environmental Water Transaction Program Framework Document, March 2015 and appendices, as appropriate

· Surface Water Rights Appraisal, September 2021

· Appraisal Review Report, September 2021 Documents are considered sensitive Government Property and shall not be distributed without prior USIBWC written consent. Any additional technical information may be requested and will be provided by the COR if USIBWC determines the information is distributable.

Period of Performance:

The Contract period of performance shall be for one (1) Base Year of 12 months and four (4) 12-month option years. Options are to be exercised at the unilateral right of the Government. The award of the base year does not guarantee that the Contractor shall receive award of any option years. Each task order issued under this IDIQ will have its own Period of Performance specified.

Work Plans When required by the task order, the Contractor shall submit a Work Plan (WP). The WP shall describe the detailed approach for the performance of the Task order. At a minimum, the WP shall contain the following elements:

(i) Introduction. A general explanation documenting the task and goals.

(ii) Work Plan Approach. Explanation of how the activities will satisfy the requirements.

(iii) Key Personnel. Identification of key personnel who will work on the project and their responsibilities.

(iv) Quality Control. A description of the quality control organization.

(v) Schedule. An overall schedule for the execution of the work required by the TO shall be included in the WP.

The Contractor shall furnish the WP for review by the USIBWC no later than thirty calendar (30) days after receipt of the task order notice to proceed (or a date mutually agreed to by both parties). In some cases, the Contracting Officer may request a work plan to be submitted in less than thirty (30) calendar days. The WP will be reviewed and approved by the CO or returned to the Contractor with comments for revision. Approval of the WP is required prior to performing the work specified in any task order which requires a WP. Upon approval of the WP, changes shall not be implemented without written concurrence by the CO.

Evaluation criteria:

This IDIQ will be awarded to best value. Non-price evaluation factors are:

Merit Factor 1 - Experience Merit Factor 2 - Past Performance Merit Factor 3 - Professional Qualifications Merit Factor 4 - Knowledge/Technical Understanding Merit Factor 5 – Public/Stakeholder Communication Merit Factor 6 – Sample Task Order Technical Proposal.

The Evaluation Plan describes the price and non-price evaluation factors for this IDIQ.

For Merit Factor 2, offerors must provide three references for USIBWC to contact.

Individual task orders issued under this IDIQ will be awarded lowest price technically acceptable. evaluation factors for individual task orders may vary based on each task order but are typically as follows: will be. (1) Technical understanding of the work, (2) knowledge and experience with federal real property acquisitions requirements (3) Key personnel qualifications (4) Most efficient and effective plan to accomplish the work and quality of technical proposal (5) Ability to meet schedule requirements, (6) Past performance on similar work, including experience with acquisition of water rights in New Mexico, (7) No perceived or actual conflict of interest for prime contractor and any subcontractors, and (8) Cost.

Contractual Information Delivery orders/task orders will be funded and awarded for the tasks under this contract on an as needed basis. Tasks under the delivery order will be priced as firm fixed price, except for curative work which shall be based on an hourly rate for anything above an initial threshold for reasonable amount of work within each task order, as defined by the Contractor in each proposal.Any work above the threshold shall require the approval of the Contracting Officer.

Quality Assurance The Contractor performance and deliverables shall be subject to review by USIBWC technical staff and management to ensure adequacy, accuracy, and completeness. If project performance and deliverables do not meet the USIBWC acceptance criteria, the USIBWC may ask for multiple revisions at the cost of the Contractor, and USIBWC reserves the right to issue corrective action to remedy the deficiencies. Corrective action may include withholding of payment and denial of schedule modifications until project deliverables are met. The USIBWC acceptance criteria may include percent complete; timeliness of scheduled deliverables; degree of technical accuracy and coverage of subject; compliance with legal requirements and industry standards; efficacy of design. In limited circumstances, the USIBWC may request that advance copies of deliverables be provided for review prior to completion of the full deliverable. The COR shall review, for completeness, preliminary or draft documentation that the Contractor submits, and may return it to the Contractor for correction. Absence of any comments by the COR shall not relieve the Contractor of the responsibility for complying with the requirements of this SOW. Final approval and acceptance of deliverables required herein shall be by letter of approval and acceptance by the COR.

Data and Information Management/Control of Documents All documents, reports, photos, and data that are produced as a result of this Contract and individual Task Orders are property of the USIBWC and shall not be released outside the USIBWC until final approval or official review of the study is accomplished.

Distribution of studies, reports, photos, or data in any stage of development or completion to other than the addressee as identified in each contract shall not be made without the Contracting Officer’s approval. The Contractor shall submit any request for distribution other to the addressee to the Contracting Officer. The Contractor shall not duplicate or distribute in any form or manner any material generated during the performance of this Contract and individual Task Order; no public release is authorized without the express written consent of the Contracting Officer.

Table 1: Example of Chronology of Steps for Federal Acquisition of EBID Surface Water Rights:

USIBWC Environmental Water Transaction Program for the RGCP

1. Initial Opportunity Scoping

a. Identify Willing Sellers

b. Develop Offer Slate

c. USIBWC Decision on Offer Slate

2. Purchase Offer Development

a. Indicia of Seller Intent

b. Preliminary Review and Due Diligence (includes Preliminary Title Report on Land)

c. Establish USIBWC's Fair Market Value Estimates (Programmatic Appraisal)

d. Purchase Offer Letter Draft

3. Purchase and Sale Agreement Development

a. Confirm Seller Interest

b. Appraisal (Programmatic Appraisal, unless update or individual appraisal is needed)

c. Negotiation Period

d. USIBWC Purchase Request and Obligation of Funds

e. Purchase and Sale Agreement (PSA) Draft

f. Purchase and Sale Agreement (PSA) finalized

g. Notification to Title Company/ Closing Agent

i. Notification to Title and Abstract Company to proceed

h. Escrow opened

4. Contingency Period

a. Appraisal Review (Programmatic Appraisal Review, unless update or individual appraisal is needed)

b. Satisfaction Contingencies

i. Release of Liens (Release of Mortgage Lien on Water Rights, may require Broker’s Opinion)

ii. Water Rights documentation

1. stipulated subfile order

2. irrigation district records

3. Irrigation District Water Rights Transfer

a. Application for a voluntary suspension and transfer hearing

b. Board approval

4. OSE Water Transfer, if necessary

c. Legal Opinion - Title and Water Rights

d. Legal or Expert Opinion - WR Transfer (for groundwater only)

e. Agency Review

f. Preliminary Title Opinion – USIBWC or Department of Justice (review of preliminary title report, release of lien, legal opinion, etc)

5. Review of Closing Instructions and Forms

a. Review of closing instructions, draft deed, non-foreign affidavit, etc

6. Closing

a. Window Title Search

b. Transfer of Funds

c. Notification of District Court, OSE, Irrigation District, etc

d. Recording

7. Post Closing

a. File notes for Audit

b. DOJ Confirmation and Final Title Opinion

PWS for Real Estate Services IDIQ for Water Rights Acquisition, page 7