Signed JA Exception Havertown SS_Redacted v3_Redacted_1.pdf

JUSTIFICATION FOR EXCEPTION TO FAIR OPPORTUNITY

Environmental Protection Agency

Remedial Acquisition Framework Contracts – Design and Engineering Services

1. Agency/Contracting Activity:

Contracting Officer: Elena Banis, Region 3

Address: US Environmental Protection Agency Region 3 1650 Arch Street Philadelphia, PA 19103

Mail Code: 3MD10

Telephone No.:

Email: banis.elena@epa.gov

Program Office: Superfund & Emergency Management Division

Site Remediation Branch – Eastern PA Section

Project Officer: , Remedial Project Manager

Project Identification: Remedial Acquisition Framework Contracts – Design and Engineering Services for Region 3 Havertown PCP Superfund Site

2. Nature and/or Description of Action to be Approved

The Environmental Protection Agency (EPA) Region 3 intends to award a task order under the multiple award Design and Engineering Services (DES) suite of contracts under the Remedial Acquisition Framework (RAF), using the authority of FAR 16.505(b)(2)(i)(B), “Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.” This task order will provide for continued design support services during construction from the contractor that provided the design plan for these services at the Havertown PCP Superfund Site (Site).

A Record of Decision (ROD) for operable unit 2 (OU-2) addressing groundwater at the Site was issued September 1991. The OU-2 Selected Remedial Action (RA) included: Construction of an extraction/treatment system to extract groundwater from the shallow aquifer and discharge of treated groundwater to Naylors Run. A ROD for OU-3 addressing a deeper portion of the groundwater aquifer was issued April 2008. The OU-3 Selected RA included the construction of deep extraction wells and a redesign of the groundwater treatment plant to increase plant performance and capacity. Further site background and characteristics are available in the ROD.

(Reference ROD, https://semspub.epa.gov/src/collection/03/AR6564).

An Action Memorandum (AM) to initiate a Time Critical Removal Action (TCRA) was finalized on September 19, 2019 and is available here: https://semspub.epa.gov/work/03/2288012.pdf.

The TCRA addresses potential health threats from contaminated groundwater which began entering residential properties and structures in 2018 due to a change in regional weather conditions. As a result of the TCRA, increased volumes of groundwater will need to be treated by the OU-3 groundwater treatment plant (GWTP). The GWTP cannot treat the current projected volumes of water and must be expanded.

As a result of this approved ROD, the EPA had issued Work Assignment (WA) 087-RDRD-0354 to Tetra Tech under its Response Action Contract (RAC) EP-S3-07-04, for this Remedial Design (RD). EPA approved for the RD. The final step in the process is to construct the design under a separate contract using this approved design. That contractor will be required to perform strictly in accordance with the design. As explained herein, Tetra Tech is the Designer of Record, (DOR). Therefore, Tetra Tech must be allowed to monitor the use of, and assist in any changes to, the design. The total estimated price of this stage of the design work is not expected to exceed

As a result of this approved ROD and TCRA AM, the EPA had issued Work Assignment (WA) 087-RDRD-0354 to Tetra Tech under its Response Action Contract (RAC) EP-S3-07-04, for this Remedial Design (RD) to expand the GWTP. EPA approved for the portion of the RD that was estimated could be completed by the time the RAC contract expired on June 5, 2020.

The RD will not be completed by the time the RAC contract expires. The final steps in the process are to complete the RD under DES and to construct the RD under a separate contract using the approved RD. That contractor will be required to perform strictly in accordance with the design. As explained herein, Tetra Tech is the Designer of Record, (DOR). Therefore, Tetra Tech must be allowed to complete the RD and monitor the use of, and assist in any changes to, the design. The total estimated price for these RD and post-RD activities are not expected to exceed

This is in addition to the initial that was previously funded under RAC.

For the reasons provided below, there are significant risks to the Government by not continuing to use Tetra Tech to complete its work and provide support during the construction of the RD. Tetra Tech has made significant progress and must be permitted to complete this RD. After approval and certification, Tetra Tech will also monitor that design while it is being used to perform construction of that design by the construction contractor.

EPA is transitioning all work under the RAC contracts to the new RAF Suite of contracts, where work will be competed using the fair opportunity process outlined in FAR 16.505(b)(1). However, these facts are specialized and self-limiting. The Contracting Officer and Project Officer have carefully considered the remaining work effort and believe that the sole source exception at FAR 16.505(b)(2)(i)(B) as authority to award this task order to Tetra Tech is both necessary and justified.

As the DOR, Tetra Tech made significant progress in completing the design work under its RAC WA. Extensive Site surveying was completed as was a new hydrogeologic model to perform capture zone analyses for the updated extraction system. Six new pairs of monitoring wells were also installed in coordination with the TCRA. The necessary zoning variances from the local

Township have been granted and all Site access has been secured. The Preliminary Design will be completed in April 2020. The Pre-Final/Final Design is scheduled for completion in August 2020 and approximately 55% complete. The work cannot be continued or finished under its RAC WA as Contract EP-S3-07-04 will expire on June 6, 2020. The Pre-Final Design should be at least 50% complete by the time when the RAC contract terminates on June 6, 2020.

Tetra Tech must continue the monitoring phase of its approved design as the other contractor performs the construction of the design. For the reasons provided in this Justification and Approval (J&A), there are significant risks to the Government by not using Tetra Tech, the DOR, to complete its work. It is in the Government’s best interest to allow Tetra Tech to complete its work. Therefore, it is in EPA’s best interest to use an exception to the fair opportunity procedures under these limited facts. EPA will use the sole source exception at FAR 16.505(b)(2)(i)(B) and award this task order to Tetra Tech, so that it may complete its performance of this work.

FAR 16.500(d) requires that architect-engineer services, if being awarded under the FAR 16.5 multiple-award preference procedures, must be consistent with subpart 36.6 when placing orders.

The “placement of orders [must be] consistent with subpart 36.6.” The Government has awarded multiple contracts for DES using the authority of FAR Part 16.5. The Government believes that by issuing this task order to Tetra Tech under these facts is consistent with the direction given in FAR 16.500(d). This is not new work. This is a continuation of existing work that is approximately two-thirds complete, and which would have been completed under Tetra Tech’s RAC contract but for the reasons given above.

It is crucial to the completion of this RA that the Government be able to consult with the DOR, Tetra Tech during the performance of the Remedial Action activities. Tetra Tech will provide all design support services during the Remedial Action activities. Tetra Tech will provide all design support services such as interpretation and explanation of the design plan as written, detection and revision of any design defects found during construction, advising the EPA representatives and the Construction Contractor on how best to meet the design plan, and all other issues regarding the design plan requiring consultation. These services are unique to Tetra Tech because it is the DOR.

Other DES contractors are able to perform this type of service generally but cannot provide this specific service with this design plan under these facts and circumstances.

3. Description of Supplies or Services Required to Meet the Agency’s Needs

The proposed task order will have a period of performance of four years (tentatively scheduled to begin on or about June 2020). There will be a two-year base period and two one-year option periods. This period of performance will coincide with the estimated time to complete the remainder of the RD and implementation the GWTP construction/expansion. The estimated aggregate amount of this Justification for an Exception to the fair opportunity process is approximately

Tetra Tech is uniquely able to provide the related oversight support services during construction to ensure the effectiveness of the implemented remedy. As the DOR that certified the final design plan, Tetra Tech will provide technical support for the following activities: interpretation of the design, advise the construction contractor on how best to meet the design plan, revise design defects as needed, perform post-construction evaluations, support for operations and maintenance of the Site, assistance with the drafting of monitoring reports, perform data reviews and overall be available for consultation regarding related issues with respect to the design plan.

Tetra Tech will be expected to hold consultations with the stakeholders before, during, and after task order award. The Government estimates that there will be approximately thirty-five (35) consultations during the construction period and ten (10) consultations during the post-construction period. Each consultation is expected to include one 3-hour, on-site meeting with EPA and other entities involved with the RA construction, and thirty-six (36) hours of additional time to review documents and prepare a short (approximately two pages) technical memorandum summarizing its findings and recommendations.

Under this task order, Tetra Tech will provide EPA with technical support in monitoring the on-site response action (EPA lead) being conducted by the contractor that will construct the design. EPA, however, will review all documents and make final decisions, determinations, and judgements. The support activities may include, but are not limited to, the following:

• Review of contractor bid packages for remediation contracts, describing variances with the ROD or approved RD;

• Review of submittals and proposed variations from the approved RD, and QA/QC review of RA work and as-builts;

• Technical reviews of site-related files; and

• Administrative and technical support to EPA in the preparation of any site reports and other technical documents.

4. Identification of the Authority Permitting an Exception to the Fair Opportunity Process

The statutory authority permitting exception to fair opportunity relative to this request is 41 U.S.C. 3304(a)(1), as implemented by the Federal Acquisition Regulation (FAR) paragraph 16.505(b)(2)(i)(B): “Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.” No other firm can perform these specific, specialized services due to this highly unique requirement under these unique facts.

5. A statement demonstrating the unique qualifications of the proposed contractor or nature of the acquisition requiring the use of the authority cited.

Tetra Tech is uniquely qualified to provide these services and allowing any other firm to perform these services for this requirement would harm the government. As described below, the risks of increased costs and uncertainties, project delays, as well as potential for disputes, are so compelling that having any other contractor perform these services would not be in the Government’s best interest.

Risk of Increased Cost and Uncertainties

There is a significant risk of increased cost that the Government cannot recoup. Work on constructing the remedy would be delayed while a new task order and contractor to provide this technical support was competed and selected. The new contractor would need additional time to become familiar with and ask any relevant questions regarding the current iteration of the uncompleted design. This would require time for such things as reviewing documents, determining if the design is the correct implementation method for the remedy, or even determining whether the design should be modified. This is of particular concern as the design is currently far along in the process, as the Preliminary Design will be complete in May 15, 2020 and the Pre-Final/Final Design will be at least 50% complete by the end of the RAC contract on June 6, 2020.

Past experience has shown that new firms frequently make changes to existing designs, largely in part because they do not want to be responsible for another firm’s work. This would likely be exacerbated as the design is not complete and would cause additional delay. A newly revised design would then have to be routed through this firm in order to be stamped and certified. To date, the current remedial design contractor has spent approximately to generate the current remedial design. EPA estimates that a new designer would require an additional to review and certify that all the plans and specifications in the current design meet their separate engineering and design standards as well as revise and complete the Pre-Final/Final design.

The Government would be required to pay another firm for these additional hours to become familiar with the design enough to complete it and act in consultation with the RA Contractor.

Therefore, having another Contractor besides Tetra Tech perform these support services poses a duplication of effort and increased cost. Since Tetra Tech is already familiar with the design and the Government has already paid for the design’s development up to this stage of completion, it is in our best interest from a cost perspective to continue the work with Tetra Tech.

Risk of Project Delays

It is important that the Government not have any delays to this project. This project is in a critical stage in the clean-up process and allowing a delay in implementing the remedy would result in a significant impact to human health and the environment. The first phase of the Time- Critical Removal Action (TCRA) for the Site is nearing completion to address an additional area impacting residential properties. Upon completion of the TCRA, the volume of water that requires treatment compared to the current state will be nearly double. The treatment plant design must be completed and implemented in order to be able to implement the groundwater collection and remediation to the full necessary capacity.

Tetra Tech is the only firm that is intimately familiar with the basis and assumptions that are part of the design. Any other firm would need additional time and money to become familiar with the design basis and assumptions, before being able to continue with the design’s development and completion. The final design accounts for needed resources such as equipment, materials, tools, and personnel in order to perform the construction of the expanded GWTP. Changes in site conditions are not unusual during construction and the Government expects that changes in site conditions are likely. These will require modification of the initial design and will, therefore, require changes to those required resources such as equipment, material and personnel.

Only Tetra Tech (as the DOR) can best circumvent such possible changes to site conditions since it knows the basis and assumptions of the original design. Tetra Tech can quickly recertify the design changes that become necessary. Tetra Tech may only need to revise the existing design whereas another contractor may opt to scrap the existing Tetra Tech certified design and do its own full design. If another Contractor were to provide a new, full design, after discarding what Tetra Tech has completed, then the entire current progress made on the design would be lost and this would unduly delay the Construction Contractor/ from performing its RA activities. Based on experience, we expect that it would take a new contractor upwards of 6 months to make revisions and even longer to create a completely new design. The undue delay associated with revision and/or redoing the design would ultimately result in the undue delay of the contractor constructing the design, placing it on hold while the design is being reworked. This would also have wasted the dollars that the Government already paid to Tetra Tech under its RAC contract to reach this stage of completion.

Risk for Disputes

The risk for disputes and ability to assign responsibility for defects becomes significantly higher when a new contractor provides consultation support services on, as well as to complete, a prior firm’s design. For example, another contractor may not agree with the requirements imposed by the government that it continue with completing the existing design nor that the previous iteration of the design meets the remedy requirements. Understandably, it may not want to take the risk of assuming a different contractor’s prior, in-process work and therefore advise the Government either that a revision to the design is necessary or that a whole new design be contemplated. The Government would be put in a difficult position of whether to insist on going forward with the previous contractor’s substantially completed design, or begin anew with developing a new design with the new contractor. The Government may be required to engage in additional consultations with a third-party contractor to aid in determining which contractor’s arguments hold more validity in order to decide on the best course of action.

Pursuant to FAR 36.608 and 36.609-1, the DOR is held liable for design errors and the Government may hold the DOR responsible for revisions at no cost to the Government. Since the DOR is in the process of preparing the plans and specifications in accordance with professional engineering standards the DOR is professionally responsible for the design. If the new contractor were to make changes to Tetra Tech’s design which the government required but they did not agree with, they could place blame at the feet of the Government or the previous RAC contractor. It will become unclear as to who is professionally responsible for the design and the government will have lost the benefit of that assurance. Involving a new firm in the use and modification of the design adds risk to the Government’s ability to complete the remedy. There could be disagreements and lack of understanding between two such design firms, which would needlessly complicate and delay construction.

Construction delays will most likely result in claims. This would create liability issues and disputes as to which party is more culpable for creating the defects, whether there really is a defect, or how to assign responsibility for any additional design changes or errors. The construction contractor would then focus on those differences in professional opinions, adding confusion and unnecessarily negatively impacting the Government’s ability to complete the work, while the public is unnecessarily subjected to prolonged exposure to contaminants. The level and extent of contamination present at these sites poses significant risk to human health -even more so to young children. Having Tetra Tech perform the remainder of the support services for its own design work greatly reduces the Government’s risk and keeps a clear chain of responsibility with the DOR for design defects or necessary changes, should such become necessary.

6. Proposed Actions to Overcome Barriers to Competition

The use of this Exception to Fair Opportunity is the unavoidable result of the Government’s current requirement for design support for a design previously approved under a separate RAC contract, and work that is continuing. The Remedial Action resulting from that design is to be performed under a separately competed RAF RES contract task order. All new and future RA support services requirements that are not in progress under an existing contract will be incorporated into the Remedial Design Statement of Work with services obtained under Fair Opportunity considerations outlined within the RAF DES contracts. Those requirements will be competed using the fair opportunity procedures under FAR 16.5, giving all multiple awardees the opportunity to be considered.

Notice of this JOFOC will be published at the Governmentwide Point of Entry (GPE) in accordance with the posting requirements in FAR 5.301(a)(2)(ii) and it will be made publicly available at the GPE.

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

The Contracting Officer will negotiate a fair and reasonable price with Tetra Tech. The Government will issue a Request for Proposal (RFP) and request that Tetra Tech submit a technical and price proposal. A price analysis will be performed by evaluating the price elements in comparison to the Government estimate and data obtained from historical and similar contracts. The Government will evaluate the labor mix proposed, the level of effort (number of hours to perform each task) and other indirect price elements in order to determine a fair and reasonable price. The Government is confident that a fair and reasonable price will be reached with Tetra Tech considering that historically, this Contractor has a record of successful performance under its contracts with the EPA Region 3 for many years at fair and reasonable prices.

8. The Contracting Officer’s certification that the justification is accurate and complete to the best of the Contracting Officer’s knowledge and belief.

CONTRACTING OFFICER'S CERTIFICATION

In accordance with 16.505(b)(ii)(B)(8), I hereby certify that this Justification is accurate and complete to the best of my knowledge and belief.

Date

ELENA BANIS

Contracting Officer

9. Additional Supporting Facts

None.

10. Written Determination by approving official

Approval and Certification I have reviewed these facts and certify that this Justification is accurate and complete to the best of my knowledge and belief. I agree that these facts justify the use of the exception to the fair opportunity process, “Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.” FAR 16.505(b)(2)(i)(B). Therefore, under the authority of FAR

16.505(b)(ii(C)(1), I approve this Justification

DATE: ________________________ _________________________

JOHN ROBB

Contracting Officer/RAM

04/24/2020