Sole Source Justification-ERG Diesel Tampering executed.pdf

(DAS Rev. 8-19-21) Page 1 of 3

SOLE-SOURCE DETERMINATION AND JUSTIFICATION

FOR SUPPLIES AND SERVICES

OregonBuys # B-34000-00002671

To: DEQ Procurement Office

From: Department of Environmental Quality/Air Quality/Vehicle Inspection Program

Designated Procurement Officer: Brian Boling, DPO

Agency Analyst/Procurement Specialist: Stephanie Brandon

Date: April 1, 2022

Re: Sole Source Determination pursuant to Oregon Revised Statute (ORS) 279B.075 and Oregon Administrative Rule (OAR) 125-247-0275

Part A

1. Authority to enter into a Sole-Source Contract: OAR 125-246-0170(2)(c)(H)

2. Estimated Total Value of Contract: $20,000

3. Subject of Contract: Diesel emission systems consultation and related enforcement action support for diesel tampering cases.

4. Background:

The DEQ Vehicle Inspection Program (VIP) is working with the Oregon State Police (OSP) agency representative to investigate diesel tampering cases of the type highlighted in a recent EPA enforcement initiative. EPA officially prioritized this initiative through an enforcement memo in late 2020. As part of EPA’s implementation of its national enforcement priority, it partnered with Eastern Research Group (ERG) for consultation and support in prosecuting these specific types of cases. ERG, among other activities, joined EPA in developing trainings materials and in otherwise supporting federal and state law enforcement, and similar agencies, that encountered cases of this type.

DEQ and VIP have committed to EPA in participating in these enforcement matters for the State of Oregon. As the technical and enforcement information expertise needed to prosecute these cases does not exist within DEQ, VIP reached out to EPA for support. EPA suggested consultation with ERG given its unique role in these matters. Quoting an EPA enforcement representative:

“ERG has been working with us for a number of years to evaluate OEM data, and they have developed a list that is fairly comprehensive, based on queries to the web, OEM certification representatives, and help from CARB. This is a unique task that few if any other contractors would have performed, since, other than enforcement at the Federal level, there is very little demand for this information at the wholesale level.”

EPA also provided the EPA/ERG training materials to OSP and VIP with specific instructions that these materials are to be kept confidential and to be utilized by staff directly involved in the relevant vehicle assessments. These materials confidentially address the specific techniques, approaches and methodologies for uncovering and documents instances of vehicle tampering of the type addressed in the EPA initiative. The ERG materials also provide specific instructions to enforcement personnel about the data collection and information gathering needed to effectively prosecute these cases.

EPA has also recommended that DEQ utilize ERG to advance investigations and potential prosecutions involving alleged vehicle tampering.

5. Findings:

A. Market Research Overall Finding. There is no other entity, other than ERG, that provides this consultation service.

DEQ assessed the marketplace using Google to determine if another viable contractor exists in the marketplace. The search results, and review of work performed, and relevant expertise, training resources, etc. further confirmed the lack of another contractor. Although competitors may exist for general enforcement action support or consultation, this unique enforcement case niche area is one for which no other competitor could be identified.

Additionally, OSP discussed with EPA officials, including the enforcement representative quoted above, whether other enforcement partners may be available to provide these services. OSP learned that ERG is the only company that has a contract with EPA for these services, and is the sole partner with EPA for the described training materials and services.

ERG has been working with EPA for a number of years to evaluate OEM data, and they have developed a list that is fairly comprehensive, based on queries to the web, OEM certification representatives, and help from CARB. This is a unique task that few, if any, other contractors would have performed, since, other than enforcement at the Federal level, there is very little demand for this information at the wholesale level.

And

B. Findings of Fact pursuant to OAR 125-247-0275(2) must include, at a minimum, one of the following:

1. Pursuant to OAR 125-247-0275(2)(a): Compatibility. Provide findings supporting your determination that the efficient utilization of existing goods requires the acquisition of compatible goods or services from only one source.

N/A

2. Pursuant to ORS 279B.075 (2)(b): Exchange of Software or Data. Provide findings supporting your determination that the goods or services required for the exchange of software or data with other public or private agencies are available from only one source.

N/A

3. Pursuant to ORS 279B.075 (2)(c): Pilot or Experimental Project. Provide findings supporting your determination that the goods or services are for use in a pilot or an experimental project.

N/A

4. Pursuant to ORS 279B.075 (2)(d): Other findings that support the conclusion that Supplies and Services are available from only one source may include but are not limited to considerations of: unique design, availability, geographic location, exclusive authorized representative, cost of conversion, and warranty services.

There is no other entity that provides the specific diesel enforcement consultation service and ERG is the sole servicer for EPA per information provided by EPA to DEQ and OSP. More specifically, as noted above, the due diligence performed by DEQ and OSP confirms that the unique elements of ERG’s services include but are not limited to:

Knowledge of a unique sub-category of environmental enforcement actions involving tampered diesel trucks above 8500 to 14,000 GVWR;

The only entity that EPA has contracted with to provide these consultation and enforcement services;

The exclusive holder of a collection of vehicle manufacturer data and other information needed for effective and successful evaluations of potentially modified vehicles;

The only entity that has joined EPA in developing the mandatory training materials for enforcement personnel pursuing these enforcement actions.

Approved By: ____________________________________________________________________ Brian Boling, Central Services Division Administrator/DPO Date