V2402048 JOTFOC April 21 2021.pdf

Procurement Request (PR) No. 2402098

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE ASSISTANT SECRETARY OF RESEARCH AND TECHNOLOGY

VOLPE NATIONAL TRANSPORTATION SYSTEMS CENTER (VOLPE CENTER)

ENVIRONMENTAL SCIENCE AND ENGINEERING DIVISION, V-326

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN COMPETITION

PART I - TECHNICAL SUPPORTING DATA

Recommend that negotiations be conducted with FS Engineers, on a noncompetitive basis, to award a follow on contract to the current contractor of Contract No. 6913G618D300009. The contract award value, based on an independent government estimate, will be approximately $488,461, for a period of four years following date of award. The supporting data for this recommendation are as follows:

A. Description of Supplies/Services – The current contract 6913G618D300009 provides Licensed Site Professional (LSP) services for the Volpe Center. The contract period of performance is through August 31, 2022. These services are required in order to guide and support ongoing environmental activities during the planning and redevelopment of the Volpe Center Property (VCP). The contractor provides LSP and environmental engineering services to the Volpe Center to ensure environmental compliance with respect to the construction of the new Volpe Center facility; while also ensuring the protection of the Volpe Center’s financial and regulatory interests with respect to the Exchange Parcel. The Volpe Center is undergoing redevelopment through an exchange agreement with the Massachusetts Institute of Technology (MIT). The government will retain approximately 4 acres of the 14-acre property for the new building and grounds, and the remaining 10 acre (the Exchange Parcel) will become MIT property. The VCP is being redeveloped by MIT in partnership with the General Services Administration (GSA) and the US Department of Transportation/Volpe Center.

B. Market Research – In preparation for the current contract, market research was performed to identify businesses capable of performing the contract requirements. The market research analysis also provided detail on requirements for business, such as having a Massachusetts Licensed Site Professional on staff, the ability to respond to site issues, in person, within 2 hours, etc. This market research revealed the following GSA schedule small business vendors were potentially capable of performing the work: Nobis Engineering and Mabbett, Inc. Additionally, seven firms were identified using SBA’s DSBS: Mabbet and Associates (note;

same firm as Mabbett, inc.), Cushing, Jammallo & Wheeler, Inc., OHI Engineering, Common Sense Evironmental, Inc., Credere Associates, LLC, CDW Consultants, Inc., New England Environmental Technologies (NEET). FS Engineers was not identified during the search, but they had been providing LSP services under purchase orders prior to the award of the contract. They met the contract requirements, and were therefore given an opportunity to compete for the new contract.

The results of the market research, also led to a recommendation that the procurement action be a small business set-aside, not limiting this procurement to the GSA 899-1 schedule. This gave the government the best opportunity to obtain services from a firm who could meet the needs of this requirement, while ensuring adequate competition for the most qualified small businesses available to compete for this work. The process was competitive and FS Engineers was selected as the most qualified firm and an indefinite-delivery-indefinite-quantity (IDIQ) contract was awarded to them.

Since this time, the project needs have evolved. Much of the initial work, performed under the contract, involved standard LSP services of investigating environmental contamination and meeting Massachusetts state reporting requirements under the Massachusetts Contingency Plan (MCP). These services are still required, and FS Engineers has the background knowledge of working as an LSP for the Volpe Center since environmental issues were first identified in 2006. They have provided support through a variety of past contracting efforts, and there were several years where LSP services were not required (2009 – 2016). The current and future work requires an LSP with an in-depth knowledge of the history of the VCP, the current on-going work, the work product that has been delivered under the current contract, and an ability to adapt and respond to additional requirements that result from coordinating with MIT and their legal team as described below.

The government has benefited from FS Engineers staff members extensive knowledge and expertise in following the requirements of the MCP. Our work involves coordination with MIT and their legal team, and our approach has often been questioned by MIT’s legal team. They have frequently required proof that our approach meets MCP requirements. In Massachusetts LSP’s are licensed by an LSP Board and Mr. Siddique has served on this Board in the past and has many years of LSP experience, this has made this negotiation process work. The frequency of challenges by the MIT team and their legal staff of the VCP meeting MCP requirements are monthly and sometimes weekly. FS Engineer’s LSP (Mr. Siddique) are able to cite past instances and MCP requirements that fully support their past and present work on the VCP that are legally sound and have not been challenged further by MIT. Mr. Siddique’s ability to respond in a timely and complete fashion to these challenges are based on his extensive knowledge of the unique environmental issues of the Volpe property and his understanding of MCP requirements as they apply to the Volpe property.

Mr. Siddique has also needed to contact officials at the Massachusetts Department of Environmental Protection (MassDEP) for their concurrence on our approach to work, which is not typically necessary for LSP submittals. Mr. Siddique’s many years of LSP work, and past involvement with the LSP Board, has meant that he has built many working relationships at MassDEP, these contacts respect his judgement and his depth of knowledge, and they have always supported his approach. Without this buy in from MassDEP officials our work would not have been able to proceed, again this is not typically required for LSP work, in normal circumstances LSP’s submit their work to the MassDEP and the LSP decides what the approach should be to that work, but our situation is unique because we often have to work in collaboration with MIT and need their approval for certain aspects of our work. MIT’s legal team frequently questions our approach to addressing environmental concerns. FS Engineers has been able to navigate this situation and avoid any delays in our work due to their high level of expertise, relationships with MassDEP officials, and extensive knowledge of the industrial history of the Volpe property and surrounding properties.

It is therefore in the government’s best interest to continue working with FS Engineers, under the existing contract, to meet the immediate, time critical, needs of our on-going construction project to redevelop the Volpe property; and to pursue a follow on non-competitive contract for future LSP services. Given the ongoing and immediate requirements to ensure compliance with MassDEP regulations, including the Massachusetts Contingency Plan, a sole-source, non-competitive follow-on contract with FS Engineers will ensure continuity of services until the new Volpe building is complete, occupied and the remaining property transferred to MIT.

C. Circumstances Requiring the Use of Other Than Full and Open (F&O) Competition.

1. Only One Responsible Source and No Other Supplies or Services will Satisfy Agency Requirements -

FS Engineers was awarded the above-referenced contract for LSP services in July 2018. Prior to the award of this contract, FS Engineers provided LSP services to the Volpe Center to meet MassDEP and MCP requirements for investigation and clean-up of contamination associated with historical site uses, including the adjacent former Manufactured Gas Plant (MGP) site (now the Third Square Apartments).

FS Engineers has extensive knowledge of historic site contamination on the entire 14-acre Volpe property.

This has been critical information for our current work. Cyanide was discovered during the excavation for the new Volpe building and FS Engineers knew that cyanide had been detected during their sampling of the field in front of the Volpe playground, and that this was a contaminant associated with MGP sites.

They were able to expertly advise the government on how to handle MIT’s claim that the cyanide should be treated as an unknown, new condition. FS Engineers advised the government that when working on or near a former MGP you would expect to find cyanide. As MIT continues to excavate for the new Volpe building LSP services will be required to meet the tight building schedule.

Additionally, the Volpe Center property has one active Release Tracking Numbers (RTN) on file with the MassDEP that will require on-going LSP services, please see below.

RTN:3-33952 Facility-Wide MGP Related Impacts

On-going, requirements through 2022. RTN will likely be closed with an AUL (Activity & Use Limitation).

RTN must be closed before the 10 acre Exchange Parcel can be transferred to MIT.

FS Engineers’ current work, under Contract No. 6913G618D300009, ensures that the Volpe Center meets all regulatory requirements associated with the active RTN (RTN:3-33952) on file with the MassDEP.

Massachusetts has a privatized environmental clean-up program and the LSP manages the process and submits all required documentation to the MassDEP. LSP and environmental engineering services are required to support the Volpe Center during redevelopment of the Volpe property and transfer of excess property (Exchange Parcel) to MIT. Due to their long history of work on the Volpe Center property, FS Engineers staff have in-depth knowledge of the site history and previous sampling efforts that have taken place which is critical to the success of the construction of the new Volpe building, and subsequent transfer of property with historical contamination to MIT.

FS Engineers staff have served in leadership roles on the Massachusetts LSP licensing board and have many years of experience as an LSP applying the MCP to a wide variety of contaminated sites. Their field engineers have a wide array of long-term experience overseeing complex investigation of sites with extensive environmental contamination, including the Volpe property. FS Engineers staff have performed this work for the Volpe property, which is a site with extensive contamination from historic heavy industrial site usage dating back to the early 1900s. FS Engineers staff also has in depth knowledge of the MA state process, as well as environmental engineering has resulted in monetary savings for the government, estimated at $200,000 and the avoidance of time delays in the construction of the new Volpe Center facility.

Additionally, the main LSP work remaining for the property redevelopment is the Comprehensive Environmental Response, Compensation, and Liability Act, known also as Superfund (CERCLA) warranty and closure of the one remaining RTN with MassDEP. The CERCLA warranty is required before the excess 10 acres can be transferred to MIT. FS Engineers depth of knowledge with both the MCP, and the Volpe property, and surrounding properties, is invaluable and an asset to the government as we move through negotiations with MIT and successfully redevelop the Volpe property and exchange the excess 10 acres with MIT.

D. Steps to Foster Competition (or Consideration)

The government has an on-going need for LSP and environmental engineering services, a non-competitive follow-on contract is in the best interest of the government and therefore there are no steps being taken to foster competition. Additionally, the Government reviewed the requirement for any potential changes that could foster competition and was unable to identify any. This justification for the follow-on contractual requirement will not be synopsized as allowed under FAR 5.202(a)(11) since the proposed contract action is being made under the identical technical terms of the existing contract No. 6913G618D300009 that was previously synopsized in sufficient detail to comply with the requirements of FAR 5.207 with respect https://www.acquisition.gov/far/part-5#FAR_5_207 to the current proposed contract action. However, the Government will continue to monitor the marketplace and seek to foster competition for new and different technical requirements on a competitive basis to the maximum extent practicable.

E. TECHNICAL OFFICE CERTIFICATION:1

The requirement as set forth above, is initiated to satisfy a recognized Government need. As applicable, the plans, drawings, specifications, and statement of work are limited to state the minimum needs of the Government. I certify that the above information, which serves as the basis for the justification for other than full and open competition, is accurate and complete to the best of my knowledge and belief.

Karen Petho 04/15/2021 Technical Initiator

Concurred By:

Julie Borgesi, Chief, V-326 04/15/2021 Division Chief or Technical Center Director2

1 Certification statement is to be worded exactly as stated in the template.

2Concurrence by the Technical Initiator’s immediate Supervisor is required to ensure consistency with programmatic goals (NOTE: Managerial titles may be other than Division Chief or Technical Office Director; include the correct titles based on the Technical Initiator’s organization.)

The Supervisor’s signature will be obtained after the Contracting Officer adds Parts II and III to the document and routes the document for signature.

PART II – CONTRACTS SUPPORTING DATA

A. Description of the Procurement Action – This action is to award a follow-on contract in accordance with FAR 6.302-1, Only One Responsible Source. In accordance with the cited FAR 6.302-1, only one responsible source has been determined to perform the work as detailed in the justification above. The current contract 6913G618D300009 and subsequent contract action will be performed on a Firm Fixed Price (FFP) basis.

B. Authority3 – 41 U.S.C. 3304(a)(1) and as implemented by FAR 6.302-1: only one responsible source.

C. Efforts to Obtain Competition4 - It is in the Government’s best interest to execute this action on a non-competitive basis in order to complete the current Volpe Center Property development work with minimal disruption. This follow-on contractual action will be not be synopsized based on the exception cited under by FAR 5.202(a)(11) since the proposed contract action is being made under identical technical terms of the existing contract No. 6913G618D300009 that was previously synopsized in sufficient detail to comply with the requirements of FAR 5.207 with respect to the current proposed contract action. New and different technical requirements in the future will be on a competitive basis to the maximum extent practicable.

D. Fair and Reasonable Cost5 – The signature of the Contracting Officer below represents a determination that the anticipated dollar value of this action will be determined fair and reasonable. This determination will be made using a variety of methods, including historical and current pricing, the government’s independent cost estimate, and the technical representative’s expertise and understanding of the industry and work being performed.

E. CONTRACTING OFFICER CERTIFICATION6:

I certify that the justification is accurate and complete to the best of my knowledge and belief.

Roland J. Regan Date Contracting Officer

PART III - REVIEW AND APPROVAL SIGNATURES (<$650,000)7

REVIEWED FOR LEGAL

SUFFICIENCY:

Volpe Center Attorney Date Office of Legal Services

3 For limited source FAR 8.4 FSS orders, cite the following authority: The acquisition is conducted under the authority of the Multiple Award Schedule Program (see FAR 8.401), as implemented by - either FAR 8.405-6(a)(1) for limited source, or FAR 8.405-6(b) for brand name . For FAR Part 16.5 orders, identify the exception to fair opportunity (see 16.505(b) (2)), as implemented by FAR 16.505(b) (2) (i), and the supporting rationale. For sole source FAR 13.5 purchases, cite the authority of the test program for commercial items (section 4202 of the Clinger-Cohen Act of 1996) or the authority of the Services Acquisition Reform Act of 2003 (41 U.S.C. 428a), as implemented by FAR 13.501.

4 This element does not need to be addressed for contract actions processed under FAR 8.4, and 16.5; either annotate as “N/A” or eliminate and re-designate elements D and E to read as C and D.

5 For FAR 8.4 limited source FSS orders, revise this section to read as “Best Value” and include a determination by the CO that the order represents best value and results in the lowest overall cost alternative (considering price, special features, administrative costs, etc.) to meet the Government’s needs.

6 Certification statement is to be worded exactly as stated in the template.

7 Format for Review/Approval signature is based on dollar value of the procurement including the value of all options. Revise FAR citations as applicable to FAR Part 8.4, 13.5 or 16.5 as needed.

https://www.acquisition.gov/far/part-5#FAR_5_207 https://acquisition.gov/far/current/html/Subpart%2016_5.html#wp1095799 http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+2+13++%2841%29%20%20AND%20%28%2841%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20

REVIEWED FOR LEGAL