A.02_JA_WVP_Fish_Monitoring_ODFW_NWP-19-010_KO_Sign.pdf

Control Number NWP-19-010

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. CONTRACTING AGENCY:

U.S. Army Corps of Engineers, Portland District, (CECT-NWP-S), Service and Supply Branch, 333 SW First Ave, Portland OR 97204-3495.

2. DESCRIPTION OF ACTION:

Approval is requested for a new firm-fixed price services contract using FY 2019 OMA funds to the Oregon Department of Fish and Wildlife (ODFW) for scientific fish monitoring and studies. This contract shall have a one-year period of performance (1 October 2019 through 30 September 2020).

3. DESCRIPTION OF SUPPLIES/SERVICES OR NATURE OF CONSTRUCTION:

The work under the sole source contract will include monitoring and surveying of existing Bull Trout and Oregon Chub fish species affected by USACE dams within the Willamette Basin, Oregon. Services will include monitoring, collecting data, capturing fish populations, marking and tagging, and conducting analysis assessments related to the effects on the Bull Trout and Oregon Chub population from the continued operations of USACE dams in the Willamette Basin, Oregon. These services will assist USACE with its requirement to comply with the 2008 Biological Opinion, which directs the USACE to follow reasonable and prudent measures (RPMs) necessary and appropriate to minimize impacts of incidental take of Oregon Chub and Bull Trout from the continued operation and maintenance of USACE dams in the Willamette Basin, Oregon.

The total amount of the acquisition is estimated to be approximately $692,842.34.

4. AUTHORITY CITED:

Pursuant to 10 U.S.C. § 2304(c)(1 ), as implemented by Federal Acquisition Regulation (FAR) 6.302-1 and DFARS 206.302-1, only one responsible source and no other type of services will satisfy agency requirements. Note, the procedures at FAR Part 13.5 will be used in accordance with 41 U.S.C. 1901.

5. REASON FOR AUTHORITY CITED:

5.1 Background:

On 11 July 2008, USFWS signed a “Biological Opinion on the Continued Operation and Maintenance of the Willamette River Basin Project and Effects to Oregon Chub, Bull Trout, and Bull Trout Critical Habitat Designated under the Endangered Species Act.”

(USFWS 2008). This Biological Opinion (BiOp) directed USACE to follow reasonable and prudent measures (RPMs) necessary and appropriate to minimize impacts on Oregon Chub and Bull Trout from the continued operation and maintenance of the Willamette projects. The RPMs required USACE to monitor the status of populations impacted; minimize incidental take caused by Willamette Project reservoir fluctuations;

minimize incidental take from flow management and floodplain restoration actions below

Willamette Project dams; and minimize incidental take from USACE’s construction projects.

In order to effectuate these RPMs, in 2008, USACE entered into a cooperative agreement with ODFW, in which ODFW agreed to assist USACE with monitoring and survey services necessary to comply with the BiOp. ODFW has been performing these services through a cooperative agreement since that time; approximately 11 years.

Recently, USACE, Portland District, determined that a cooperative agreement is not the appropriate legal instrument to obtain these services as there is no separate authority authorizing an assistance relationship between USACE and ODFW for these services.

However, despite the change from a cooperative agreement to a contract, ODFW remains the only entity capable of performing the required services.

5.2. Justification:

ODFW is the only entity that has the necessary expertise and ability to effectuate the highly specialized services needed here. To obtain these highly specialized services from any other source would create a substantial duplication of cost and cause unacceptable delay in fulfilling the Government’s requirement.

Oregon Chub Monitoring Services:

ODFW has been operating for nearly 30 years to improve the status of Oregon Chub in the Willamette basin through its research on ecology, genetics, and life history, restoration projects, and ongoing monitoring. Through ODFW’s conservation management, the Oregon Chub is the first fish to be delisted from the Endangered Species Act (ESA). ODFW has played a key scientific, recovery, and collaborative role in this successful conservation effort. The ongoing work of these Oregon Chub services could not be conducted by any other group.

ODFW is the only entity with the expertise necessary to perform this work. Since 1993, when Oregon Chub was placed on the ESA list, ODFW is the only group that has conducted ongoing, wide-ranging research on the Oregon Chub fish species. Monitoring Oregon Chub presents a particular challenge because of the species’ unique off-channel habitats, which presents high temperatures and low oxygen levels, making it so standard fish trapping and handling protocols cannot be used. ODFW is the only entity that has the expertise and knowledge for the proper protocols for handling Oregon chub and co-occurring species, including threatened and endangered salmonids, to minimize stress and mortality. Site-specific knowledge of microhabitat preferences and life-history patterns are also essential to successful monitoring of this species while minimizing the impact on Oregon Chub and co-occurring species. This knowledge base has taken years to accumulate and is not held by any other group. As such, if this work were conducted by another group it would be likely to result in increased stress and mortality on endangered salmonids occurring in the same habitat, which is the opposite of BiOp’s mandate.

In addition to its expertise, ODFW also ensures continuity of the data collected, which is critical for research on long-term population trends. A shift in the group collecting this data increases the likelihood of data outliers that would make it impossible to compare future efforts to past data.

ODFW also has a scientific collecting permit, which gives ODFW the required ability to sample off-channel habitats throughout the Willamette valley. Necessary sampling could not be performed without this permit. A new contractor would have to obtain a scientific collecting permit, which requires both federal and state agency approvals to conduct the required monitoring, and can take up to 6 months to obtain. Because of ODFW’s experience, expertise, and institutional knowledge, ODFW also has the authority under current permits to exercise a high degree of flexibility in field methodology and study implementation, which would be impossible for non-state groups. The ability to take timely management actions would be lost if an outside group was contracted to conduct these surveys, causing unacceptable delays for completing USACE’s requirement.

Finally, as mandated in the BiOp, fish populations affected by USACE operations and maintenance need to be monitored. Many of these fish populations that need monitoring are located on sites needing private land access. 42% of extant populations of Oregon Chub are located on private land. ODFW has acquired access at each site with an individual agreement with the private land owner, which in some cases required years of relationship development before access was provided. Building these partnerships took years of steady efforts to build trust and mutual respect with individuals and communities throughout the Willamette valley. The agreements between private landowners and ODFW are entirely voluntary, and a change to a different contractor results in risks to alienating these vital partners. Should an outside group be unable to negotiate new agreements to allow access to these populations, it may trigger a status review for potential ESA re-listing of the Oregon Chub under the provisions of the post-delisting monitoring plan.

Bull Trout Monitoring Services:

ODFW has been operating for over 16 years to improve the status of endangered Bull Trout in the upper Willamette basin. The expert staff who have conducted this work have a wealth of experience, including over 60 years of collective experience working with Bull Trout in the Upper Willamette, and countless collaborative partnerships with state, federal, private, and academic organizations.

ODFW staff have considerably more experience and expertise with Willamette Bull Trout than any other group. Most importantly, ODFW has developed site-specific expertise in the construction and maintenance of stationary PIT tag detection systems spanning large main stem river channels; mobile systems for surveying deep, swift water; non-standard trapping techniques necessary to capture downstream-migrating adult and subadult Bull Trout; and constructing and operating in-stream weirs, including complex floating weirs necessary for some high discharge locations. Much of this equipment was custom-built or modified by ODFW to meet the unique challenges of this study area, and is not commercially available. It is estimated that the specific Bull Trout equipment would cost in excess of $100,000 in order to reproduce the equipment believed to be owned by ODFW.

In addition to ODFW being the only entity to have the necessary modified equipment to perform the work, ODFW has also perfected the means to perform the age estimation needed to track the Bull Trout population. Age estimation of Bull Trout requires the use of scales, fin rays, and otoliths. This process is difficult in Bull Trout, and requires extensive specialized training, and these methods have been modified, refined, and improved by ODFW. ODFW maintains a catalog of scales and other structures, unavailable from any other source, to advance the accuracy and precision of age estimation for this species.

ODFW work on this project includes frequent, intensive coordination with USACE, USFWS, USFS, EWEB, ODFW district offices, academic research staff at OSU, and other groups working with Bull Trout throughout the region. These partnerships, built through continuous collaboration over the past decade and more, allow ODFW to identify areas where USACE objectives for the upper Willamette overlap with the goals of other agencies and programs, and to complete mutually beneficial projects efficiently and effectively. These partnerships also permit ODFW access to specialized equipment and facilities such as the Fryer Aquatic Animal Health Lab, state fish hatcheries, state and federal genetics research labs, etc.

Finally, similar to the Oregon Chub, ODFW has agreements in place to access and survey private property needed to monitor the Bull Trout. These access agreements would be voided if the surveys were not conducted by the State, and landowners may be reluctant to provide access to non-public entities for future work.

Impact:

If USACE is unable to sole source this work to ODFW, USACE will be unable to fulfil its obligation, as required by the 2008 USFWS Biological Opinion, for the impacts created through its construction and continued operation of the Willamette Valley Project.

6. EFFORTS TO OBTAIN COMPETITION:

A Notice of Intent to Sole Source (NOI) was posted to the Federal Business Opportunity (FBO) Website on 29 July 2019 for 15 days. NOI closed on 12 August 2019 with no responses received.

7. ACTIONS TO INCREASE COMPETITION:

NWP Contracting will re-assess the market environment to determine whether other businesses exist that have expertise and capabilities with these specific fish species. NWP Contracting will implement changes to ensure maximum competition of one or more parts of this requirement if such a situation ever arises where increased competition is a possibility. In 2020 prior to the procurement of these services again, Willamette Valley staff will evaluate equipment ownership and seek access from private landowners in order to determine if ODFW is the only firm that can continue providing these services for the reminder of the BiOP mandate.

8. MARKET RESEARCH:

Market research was conducted on 25 Aug 2019 using the Small Business Administration's (SBA) Dynamic Small Business Search (DSBS) and Quick Market Search (QMS) tools. Market research indicates that there are no vendors that provide a similar service or have rights to utilize key structures of various Willamette Valley fish monitoring sites. All required sources of supply were considered but none are capable of providing the needed services. Due to the need for continuity of the database, partnerships, equipment, and experience, ODFW is the only vendor capable of providing immediate and cost effective services. No other vendor would be able to transition into this role without additional set-up costs which would be then passed on to the Government.

9. INTERESTED SOURCES:

No other known sources are available.

10. PROCUREMENT HISTORY:

a. Previous Cooperative Agreements

1. W9127N-14-2-0008 – ODFW Bull Trout Monitoring; Base plus four years - PoP ends 31 Oct 19

2. W9127N-14-2-0009 – ODFW Chub Monitoring; Base plus four years – PoP ends 31 Oct 19

11. TECHNICAL CERTIFICATION:

I certify that the supporting data under my cognizance which are included in the justification are accurate and complete to the best of my knowledge and belief.

NAME: Gregory Taylor TITLE: Willamette Valley Fisheries Biologist

12. REQUIREMENTS CERTIFICATION:

I certify that the supporting data under my cognizance which are included in the justification are accurate and complete to the best of my knowledge and belief.

NAME: Gregory Taylor TITLE: Willamette Valley Fisheries Biologist

13. FAIR AND REASONABLE COST DETERMINATION:

I hereby determine that the anticipated cost or price to the Government for this contract action will be fair and reasonable. The basis to be used shall be in comparing the proposed price by the Contractor against an historical pricing and an informal cost estimate. Certified cost or price data IS NOT required under FAR Part 15.403-1(c) (3)(i) Prohibition on obtaining certified cost or pricing data, Standards for exceptions from certified cost or pricing data requirements- Commercial Items.

NAME: Brooke L. Patterson TITLE: Contracting Officer

14. CONTRACTING OFFICER CERTIFICATION:

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

NAME: Brooke L. Patterson TITLE: Contracting Officer