SCP_TCP_Study_JOTFOC_signed_Redacted_Redacted.pdf

WBR 1406.303-1 Form 1 40373597 (May 2018)

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

PR No: 40373597 Solicitation No.: 140R4018Q0029 Project Name: TCP Studies: Santa Clara Pueblo

In accordance with FAR 13 .50 I, the proposed contractual action is pursuant to the statutory authority of 41 U.S.C. 1901.

1. Agency and Contracting Activity.

Department of the Interior, Bureau of Reclamation, Upper Colorado Region, Western

Colorado Area Office, Durango, Colorado. Administrative Office: Upper Colorado Regional

Office, Salt Lake City, Utah.

2. Nature/Description of Action.

Prior to initiating construction of the Navajo Gallup Water Supply Project (NGWSP), the Bureau of Reclamation, as the lead federal agency, must consider the possible effects upon cultural resources in accordance with the National Historic Preservation Act of

1966 (NHPA) and other applicable federal historic preservation legislation and regulations. Section l O 1 ( d)( 6)(A) of the NHPA states, "Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register." In accordance with Section 101 (d)(6)(B) of the NHPA, Reclamation must therefore "consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph (A)." Executive Order 13007 further stipulates that, to the extent practicable, federal agencies must accommodate access to and use of Indian sacred sites, as well as avoid adversely affecting the physical integrity of such sites. The American Indian Religious Freedom Act (AIRF A) also requires that federal departments act to protect Native American religious cultural rites and practices, including access to sites where these activities occur.

Executive Order 13175 stipulates that the United States "work with Indian Tribes on a government-to- government basis ... " Because Section 10l(d)(6)(B) of the NHPA stipulates that federal agencies consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties affected by federal undertakings and Executive Order 13175 mandates agencies to work with Indian tribes on a government-to-government basis, it follows that only the Santa Clara Pueblo , or a government official with delegated authority from the Santa Clara Pueblo Governor, has the authority to identify and consult on properties of traditional cultural significance for this project.

WBR 1406.303-1 Form I 40373597 (May 2018)

Reclamation has entered into a Programmatic Agreement (PA) to ensure compliance with NHPA and other applicable federal, state, and Navajo Nation historic preservation legislation and regulations forNGWSP. Section II (3.) ofthe PA describes Reclamation's responsibilities in regard to the identification of traditional cultural properties (TCPs) and sacred sites. It states that Reclamation will consult with the signatory and concurring tribes to identify properties of religious and cultural importance, utilizing the guidance provided by National Park Service Bulletin Number 38 (Bulletin 38), Executive Order 13007, Executive Order 13175, Reclamation policy and guidance on the identification and evaluation of sacred sites, and Navajo Nation policy regarding the identification and evaluation of TCPs and sacred sites. To this end, Reclamation will assist each signatory and concurring tribal party to the PA so that the Tribe may conduct its own study of the NGWSP to identify potentially affected TCPs as defined in the National Register of Historic Places (NRHP) and Bulletin 38.

This is intended to be a project-specific 3-year contract, a base plus 2 option years, with the Santa Clara Pueblo for the services described in paragraph 3 below. The contract is anticipated to be a firm-fixed price and the intention is to negotiate a sole-source award with the Santa Clara Pueblo.

The action price is estimated at:

Base Year

Santa Clara Pueblo traditional cultural property ethnographic research and consultation services in support of the Navajo-Gallup Water Supply Project. These services can only be provided by the Santa Clara Pueblo.

The contractor shall conduct research necessary to identify at minimum the location and spatial extent of TCPs and sacred sites of concern to the Santa Clara Pueblo that may be adversely affected by construction and/or maintenance activities on the NGWSP. This research may also identify more detailed data, such as the nature or history of the TCP and/or sacred site. Research activities may include, but are not limited to a literature review, archival research, ethnographic interviews, field visits, ethnobotanical research, and trail identification.

The contractor shall produce an annual report at the end of the first and second years of the contract that describes the work completed up to that point so technical can produce advanced cultural planning reports. Delivery dates for those reports will be added to the contract.

At the culmination of the third year of the contract, the contractor shall produce a final written TCP report that provides information detailing, at minimum, the location and spatial extent of the TCPs and sacred sites of concern to the Santa Clara Pueblo that may be adversely affected by the NGWSP. The report shall contain management recommendations to mitigate the potential adverse effects to these properties anticipated as a result of construction and/or maintenance activities on NGWSP. This report shall be considered the Santa Clara Pueblo 's official response to TCP and sacred site identification as requested by Reclamation in compliance with NHP A and the PA, and in consideration of the directives and standards outlined in Executive Order 13007, Executive Order 13175, and AIRF A.

4. Statutory Authority Permitting Other than Full and Open Competition.

Authority FAR Coveraee Application

• 41 U.S.C. 253(c)(l) FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements

• 41 U.S.C. 253(c)(2) FAR 6.302-2 Unusual and compelling urgency

• 41 U.S.C. 253(c)(3) FAR 6.302-3 Industrial mobilization; engineering, developmental or research capability; or expert services r l 41 U.S.C. 253(c)(4) FAR 6.302-4 International Agreement I I 41 U.S.C. 253(c)(5) FAR 6.302-5 Authorized or required bv statute

• 41 U.S.C. 253(c)(6) FAR 6.302-6 National Security

• 41 U.S.C. 253(c)(7) FAR 6.302-7 Public Interest

• 41 U.S.C. 3304(a)(l) FAR 6.302-l(c) Application for brand-name descriptions IX] 41 U.S.C. 190l(a)(2) FAR 13.50l(a) Sole source (including brand name) acquisitions

5. Demonstration of Contractor's Unique Qualifications.

Reclamation is required by federal law, Executive Order 13175, and the NGWSP PA to consult directly with the Santa Clara Pueblo on TCPs and sacred sites within the NGWSP area. At a minimum Reclamation needs a report detailing the location and spatial extent ofTCPs that may be adversely affected by the NGWSP that are of concern to the Santa Clara Pueblo, along with management recommendations to mitigate any adverse effects. The PA stipulates that, as a concurring party, Reclamation must assist the Santa Clara Pueblo in the development of this TCP study.

The Santa Clara Pueblo has the necessary qualifications and authority under Executive Order 13175 and NHP A to provide the culturally sensitive and proprietary information that is necessary to meet Reclamation's regulatory needs. In order to gather information on TCPs of concern to the Santa Clara Pueblo, the ethnographer(s) needs to have delegated authority from the Santa Clara Pueblo to identify and consult on these properties, be a tribal member who speaks the Acoma language, is initiated into certain ceremonial societies, is an active participant in ceremonial events, and is recognized as someone who is worthy ofreceiving this information and can be trusted with sacred knowledge. The Santa Clara Pueblo is the only source that can meet these stipulations and has the necessary authority under Executive Order 13175 and NHP A to perform these tasks. Ultimately, because the information Reclamation requires to fulfill its responsibilities is proprietary, the Santa Clara Pueblo is the only source that is able to access this information and provide it to Reclamation.

6. Description of efforts made to maximize competition.

Due to our federal consultation mandates, the stipulations made in the NGWSP PA that

Reclamation assist signatory tribal parties with the development of their own TCP studies, and the fact that the Santa Clara Pueblo is the only authority under Executive

Order 13175 and NHPA that can officially act on its own behalf to identify its concerns regarding TCPs and sacred sites within the NGWSP area, it is not feasible to compete this action.

A notice will not be published because of the exemption under 5.202(a)(4), the proposed contract action is expressly authorized or required by a statute to be made from a specific source.

7. Determination of Fair and Reasonable Cost.

Price reasonableness will be in accordance with FAR 13 .106-3 upon review of the quote submitted by the Santa Clara Pueblo. A review of other projects the Santa Clara Pueblo have worked on both in the Upper Colorado Region and Lower Colorado Region will be utilized to support this decision along with research of similar services via the GSA Advantage market which contain hourly rates for ethnographers in their GSA schedules. Reclamation has stipulated in the scope of work that the Santa Clara Pueblo must provide at minimum the location and extent of properties that could be adversely affected by the project, while more sensitive data regarding use and history may be withheld if the Tribe deems it too sensitive.

Should the Santa Clara Pueblo fail to provide these data for any property of traditional cultural significance under this contract, Reclamation will not be liable for any adverse effects, including complete destruction, to said properties due to project construction or maintenance.

Therefore, it is in the best interest of the Santa Clara Pueblo to provide the minimum data necessary to protect these properties.

8. Description of Market Research Conducted.

An internet search identified several domestic companies that provide ethnographic research services, such as the Navajo Archaeology Department, Dinetahdoo CRM

Services, and Full Circle Heritage Services; however, these companies do not have the delegated authority from the Santa Clara Pueblo to officially identify these concerns on their behalf following Executive Order 13175 and NHPA for the NGWSP. A review of

GSA schedules for cultural resource management firms in the Southwest provided a list of rates that ethnographers charge on government contracts for similar services. The Bureau of Applied Anthropology (BARA), who conducts TCP studies on behalf of the

Blackfeet Tribe in Montana was also contacted and provided an example of a statement of work that outlines what kind of tasks may be performed under this contract.

Reclamation would not be fulfilling its requirements under the PA to assist the Santa

Clara Pueblo in the development of its own TCP study if Reclamation competed this contract. Without the Santa Clara Pueblo 's direct participation in this contract, Reclamation cannot fulfill its requirements under the PA. It is impossible for any vendor other than the Santa Clara Pueblo to perform Reclamation's requirements for TCP ethnographic research and consultation services with the Santa Clara Pueblo.

9. Any Other Supporting Facts.

NA

10. Listing oflnterested Sources.

Santa Clara Pueblo Tribal Historic Preservation Office expressed interest in this procurement in response to a query Reclamation made to the Santa Clara Pueblo.

WBR 1406.303-1 Form l 40373597 (May 2018)

11. Actions Taken to Remove Barriers to Competition.

Unless and until the Santa Clara Pueblo identifies other sources that have the qualifications, ability, and authority to provide TCP ethnographic research and consultation services on its behalf, the government's options to find other sources are fully exhausted. Reclamation will continue to coordinate and work with the tribe, encouraging them to consider granting permits to other potential, capable sources to promote competition.

CONTRACTING OFFICER (CO) CERTIFICATION:(::; $25K)

Date: 7 December 2018

Type Name: Amy Loveless

AMY

Signature: X LOVELESS

Contracting Officer

Digitally signed by AMY

LOVELESS

Date: 2018.12.07 1 0: 1 8:55 -07'00 '

CHIEF of the CONTRACTING OFFICE CONCURRENCE (CCO): (> $25K)

Date: 7 December 2018

Type Name: James Durrant Signature: