JA_2017-45.pdf

MICC Control No: 2017-45 Contractor: Red River Services Corporation

Supply/Service: Solid Waste Service

JUSTIFICATION REVIEW DOCUMENT

FAR PART 6 JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

Supply/Service: Directorate of Public Works (OPW) - Solid Waste Management, Collection and Disposal Services

Authority: 10 U.S.C. 2304(c)(2) as implemented by FAR Part 6.302-2 - Unusual and Compelling Urgency.

Amount:~

Prepared by: 1111!1.t Email:

Contracting Officer :

Technical:

Requirements:

Version - February 2017 FOR OFFICIAL USE ONLY

DSN:

Date: 28 Mar 17

DSN:

Date: 28 Mar 17

DSN:

D te: 28 Mar17

Supply/Service: Solid Waste Service

Reviews: I have reviewed this justification and find it adequate to support other than full and open competition.

Date: t An.. If-, Small Business :

Date: - ---

Date: See Digital Signature lliliiiiiistant Director, Small Business Programs:

DSN: •

Date: See Digital Signature

Version - February 2017 FOR OFFICIAL USE ONLY

Supply/Service: Solid Waste Service

Department of Army FAR Part 6 Justification and Approval for Other than

Full and Open Competition

1. Contracting Activity: MICC- Fort Polk, LA 6661 Warrior Trail Building 350 Fort Polk.LA 71459

2. Description of Action: DPW requests approval for use of other than full and open competition to execute a Requirements type contract extension modification utilizing Fiscal Year 2017 Operations and Maintenance Funds to contract W9124E-15-D-0003 with Red River Services Corporation, 4004 E Hwy 290, Dripping Springs, TX 78620 for the three month period of 01 April 2017 through 30 June 2017 since Contract W9124E- 15-D-0003 expires on 31 March 2017. The Government currently has an Intergovernmental Support Agreement (IGSA) with the Vernon Parish Police Jury (VPPJ) pursuant to 10 USC 2679 that was scheduled to start on April 1, 2017. On 28 March 2017, the U.S. Court of Federal Claims (COFC) issued a temporary restraining order that halted implementation of the IGSA that would have allowed Fort Polk to utilize the VPPJ waste removal contractor Progressive Waste Solutions. An acquisition plan is not required because this procurement does not meet the threshold at Defense Federal Acquisition Regulation Supplement 207.103(d)(i)(B).

3. Description of Supplies/Services: The proposed action is extending an existing Requirements Type and will continue to provide Solid Waste Services for the Directorate of Public Works (DPW), Fort Polk, LA in support of the JRTC and Rotational units. The same services will be provided under the contract extension modification to ensure the status quo continuity of services.

The period of performance for services would be for three months from 01 April 2017 to 30 June 2017, Total Value: approximately$- .

4. Authority Cited: 10 U.S.C. 2304(c)(2) as implemented by FAR Part 6.302-2 - Unusual and Compelling Urgency.

5. Reason for Authority Cited:

a. As described at FAR 6.302-2, when the agency's need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals, full and open competition need not be provided for.

b. The incumbent contractor, Red River Services Corporation is the only responsible source capable of meeting the Army's requirements during the interim period needed and any other alternative would create unacceptable delays in performing critical trash

Supply/Service: Solid Waste Service collection services for the Fort Polk DPW and JRTC and its rotational units. Part of the management and collection is furn ishing the equipment (dumpsters, trash compactors, large truck scale, and vehicles) and trained manpower to ensure the solid waste is collected to support both the garrison and the highly irregular schedule of the JRTC and rotational units. The contract also provides for segregation of restricted materials (Class V items) from collected solid waste, including waste generated by Combat Training Center (CTC) Rotational Train ing Units (RTU) and local units training events. This segregation is done through personnel manually sorting and removing any restricted items (ammunitions, pyrotechnics, cartridges, replicated explosives, etc.) from the waste stream. For this waste stream the contractor provides all of the containers and equipment, such as trucks, to perform the services as required all of which must meet the American National Standard Institute (ANSI) safety standards. If competed on a short term basis, any potential new vendor would have to acquire vehicles, dumpsters, trash compactors, a large truck scale, and an ammunition amnesty box (please see paragraph g.2. for complete list of required equipment should a new vendor win a separate competitive action) for the field waste sorting line. Also any new potential vendor would have to provide employees on the field waste sorting line that have completed the Munitions and Ordnance Handling Procedures Course which consists of a 6 to 8 hour block of instruction. Also the Project Manager would have to complete the Environmental Compliance Officer Training Course which consists of a 40 hour initial train ing. Additionally, the Contractor's workforce must possess the skills, knowledge and training to perform the services and, since personnel will potentially handle munitions and other kind of ordnances, they must be trained in the following: 1) environmental compliance; 2) hazardous materials operations; and 3) munitions and ordnance handling procedures prior to the performance of services. The incumbent has been performing these Solid Waste Services in a satisfactory manner over the course of both this contract and previous long term contract. The proposed contract extension is for the same services as the expiring contract, and only represents maintaining the status quo of services during this time of the disputed IGSA. Red River Services Corporation has all required equipment, vehicles and personnel already in place and have the experience and expertise to continue providing these services. Full and open competition for this bridge period would most likely cause a lapse in service due to the magnitude of the requirement (and required amount of time for successful re-compete and subsequent phase-in of a potentially new vendor). Any subsequent lapse in service would create a threat to health and safety issue on the installation and would directly negatively impact the JRTC and Fort Polk training mission (with the likely potential to disrupt the training mission with an inability to process the inevitable accumulation of the subsequent waste stream on the installation). A lapse in service could also result in the proliferation of restricted (possibly explosive items) on the side of the road or at other locations on the installation. It is the Government's intent to Terminate for the Government's Convenience once the contract is no longer needed as a result of litigation.

c. Background: Solid Waste Management, Collection and Disposal Services is a Common Level of Support. The current contract was awarded as a Sole Source Bridge contract to ensure continuity of services to the Installation as a result of the re procurement receiving several GAO protests. A solicitation was issued by MICC-Fort

Supply/Service: Solid Waste Service

Drum on 17 April 2014. After which a GAO protest was received in May 2014 ultimately resulting in cancellation of the solicitation. Another solicitation was issued by MICC-Fort Bragg and posted on 08 May 2015 which received a GAO protest 8-411760 on 10 July 2015. The GAO rendered their decision on 12 August 2015 dismissing the protest based on the agency's pending corrective action. A subsequent GAO protest was received on 13 October 2015. The basis of the protest was as follows: (1) the solicitation, which seeks commercial services pursuant to Federal Acquisition Regulation (FAR) Part 12, contains terms that are inconsistent with customary commercial practice, and (2) that the estimated quantities in the solicitation are not based on the best available information.

The GAO rendered its decision on 20 January 2016 sustaining the protest in part and denying it in part. The GAO sustained the first grounds for protest because the agency's market research failed to reasonably support the agency's determination that the solicitation's pricing terms were consistent with customary commercial practice, as required by the FAR The GAO denied the second grounds for protest, finding the agency based its estimates on the most recent historical data and also provided offerers with the additional data covering the preceding 3 years. In regards to the sustained basis for protest, the GAO concluded that the line item structure in the solicitation, which contemplated per-ton pricing, was not an established customary commercial practice.

d. Events after GAO Decision.

1) On 01 February 2016, following an Army review of the GAO decision, the Army submitted a Request for Reconsideration to the GAO. On 15 June 2016 the GAO denied the Army's Request for Reconsideration.

2) On 28 June 2016 the Fort Polk Installation was sent a copy of the GAO's decision to deny the Army's Request for Reconsideration.

3) From 29 June to 24 Aug 2016 discussions and meetings were held among MICC-Fort Bragg and Fort Polk to determine the path forward for the solicitation in accordance with GAO's guidance for corrective action. During this time period, revisions were drafted to the solicitation.

e . Intergovernmental Support Agreement (IGSA).

1) On 19 January 2017 , Ml CC-Fort Polk received a notice of approval of an Intergovernmental Support Agreement (IGSA). The IGSA authorized the Fort Polk Garrison Commander to sign a non-Federal Acquisition Regulation based agreement on behalf of the Army to acquire the solid waste services from the VPPJ.

2) On 13 February 2017 a GAO protest#B-414367 was filed on the IGSA.

3) On 21 March 2017 the GAO protest on the IGSA was dismissed due to the fact that it was not timely filed. it failed to state a valid basis for protest, and challenging the actions of the IGSA awardee are not for consideration under GAO's bid protest authority.

Supply/Service: Solid Waste Service

4) On 20 March 2017 a protest dispute was filed with the U.S. Court of Federal Claims (COFC) on the IGSA with VPPJ.

5) On 28 March 2017 a hearing was held based on a temporary restraining order fi led by Red River Waste Solutions on 23 March 2017. A temporary restraining order was issued that halted performance of the IGSA by the VPPJ which was to start on 01 April 2017 which had a duration of fourteen days.

f. As stated above, the current IGSA solution's performance has been halted due to the temporary restraining order issued by the COFC. An extension of the current award W9124E-15-D-0003 is required to avoid a break in service, and subsequent disruption of the JRTC Mission at Fort Polk, Louisiana.

g. Alternatives:

1) Use in- house personnel: Solid waste and disposal personnel must possess the required education, experience, equipment, and training in all critical aspects of performing the required Solid Waste Management, Collection and Disposal Services.

The Fort Polk DPW does not have the necessary manpower nor the equipment required to perform all of the service requirements in a safe and effective manner. These services have historically been performed by contract and by contractor personnel for at least nineteen years (since 1998). Without a current in-house capability, there is insufficient time to justify, recruit, hire and train new Government civilian personnel or to train Borrowed Military Manpower to meet this immediate need . The Government could rent trucks to collect trash. However, this trash would have to be sorted (as described above, this is an important task requiring trained personnel), weighed and then transferred to a licensed trash facility. Fort Polk currently has no Government personnel that do this work now nor are there excess personnel that can be reassigned to perform these duties. Therefore, this is not a viable option.

2) Use of a competitive contracting action: As stated above, the COFC has halted performance of the IGSA by the VPPJ through a temporary restraining order that was issued on 28 March 2017. Therefore performance on the IGSA has been precluded by the COFC protester (appellant) to begin service on 01 April 2017. Currently, there is insufficient time for developing, soliciting , evaluating, and awarding a separate competitive contract of this magnitude. A limited competition for these services would fall severely short of the time deadlines for this action .. A new vendor trying to phase-in the allotted 30 day t imeframe would have to be able to ac uire or otherwise be able to uti lize), mobilize. and position the followin e i ment

This would amoun o an equipment startup cost of approximately - In addition to this equipment. the contractor will have to have multiple truck drivers, and sorting line

Supply/Service: Solid Waste Service personnel (fully trained as stated in Paragraph 5 above) to meet the requirement. It is due to this fact that the time and massive effort (which would be duplicative in cost to the Government) to phase in all this equipment and personnel that the Government has to keep the status quo until a decision is rendered by COFC. This is required to allow full performance to continue forthe period of 01 April 2017 through 30 June 2017.

Competing this requirement would result in Fort Polk's failure to provide a common level of support (CLS) function (IMCOM CLS 60) for non-hazardous waste, creating a threat to health and safety of the installation community. Rotational Training Units (RTUs) also use this contract as well for hazardous waste removal services above the CLS. Such a break in service would also negatively impact Fort Polk's training mission.

3) Forego the Services: As stated above, this service supports the Sol id Waste requirements for the JRTC, RTUs and Fort Polk, LA. Solid Waste Management, Collection and Disposal services are crucial for Fort Polk, in general, and JRTC in particular to continue to conduct their training mission successfully. An installation without Solid Waste Collection services would prove to be a health and safety issue very quickly, compromising all the personnel stationed on the post and those coming for training. If services were allowed to lapse or be suspended then the planned JRTC RTUs and local units training events would have to be cancelled until a COFC decision can be implemented. Foregoing services would also seriously impact the ability of Fort Polk to provide mission essential training and negatively impact the support of other mission requirements.

6. Efforts to Obtain Competition: In accordance with FAR 5.202(a)(2), th is action will not be synopsized.

7. Actions to Increase Competition: This document, and the bridge contract that accompanies it, provide an interim extension of vital services pending resolution of a complaint presented to the COFC on the IGSA. No actions were taken to attempt to obtain competition for this extension contract. The incumbent contractor currently performs these solid waste services for the Installation and has the knowledge and personnel on hand that can perform these existing services, which are currently ongoing .

Since the last contract was issued on a non-competitive basis, the MICC issued a Request for Proposals in an attempt to award Fort Polk's sol id waste services on a competitive basis. From that solicitation, which pursued full and open competition for the subject services, a protest was filed and a decision rendered by the GAO. The Army's Request for Reconsideration was denied in June 2016. The Army, either through the current contracting office or the United States Corps of Engineers, was pursuing a competitive procurement at that time. In January 2017, the Fort Polk Garrison received approval to proceed with an IGSA with the local parish. On 13 February 2017, a Government Accountability Office (GAO) protest was filed on the IGSA. On 21 March 2017 the GAO protest on the IGSA was dismissed due to the fact that it was not timely filed , it failed to state a valid basis for protest, and challenging the actions of the IGSA awardee are not for consideration under GAO's bid protest authority. On 20 March 2017, the vendor stated that it intends to file a protest dispute with the COFC on 21 March with a temporary restrain ing order and a preliminary injunction that would halt

Supply/Service: Solid Waste Service performance of the IGSA by the VPPJ. On 28 March 2017 a temporary restraining order halted performance of the IGSA. Therefore, a competitive action could not have been conceivably started until 28 March 2017. Due to the special training requ irements, and massive barriers to phasing in a very large amount of equipment (due to the very large population of 30,000+ people at Fort Polk, LA), and large amount of work required there is not a high likelihood of completing a competitive action without a break in service. The steps that would preclude the timely completion of a competitive solicitation are as follows: drafting a solicitation, time to complete solicitation review, allowing a reasonable amount of time for potential vendors to submit an offer, completing evaluations, and allowing for a 30 day phase in.

8. Market Research: Specific market research in this case was not conducted. Due to the limited time between the required stay of performance and the end of the current contract period, there was not sufficient time to conduct market research of companies capable/willing to perform a 3-month contract for the required services.

9. Interested Sources: In accordance with FAR 5.202(a)(2), this action will not be synopsized.

A notice of intent to Sole Source was posted on Federal Business Opportunities on 23 March 2017 with a response date of 27 March 2017. There were no timely responses to the notice to support a competitive procurement.

10. Other Facts:

a. Procurement History

Contract: W9124 E-15-D-0003-POOOOB Contractor: Red River Services Corporation Award Date: 31 March 2017 Dollar Amount: -

Contract: W9124E-15-D-0003-P00007 Contractor: Red River Services Corporation Award Date: 25 S~5 Dollar Amount: $- Competitive Status: Non-Competitive - Small Business

MICC Control No: 20.17-45

Supply/Service: Solid Waste Service

Contract: W9124E-15-D-0003-P00005 Contractor: Red River Services Corporation Award Date: 25 Sep 2015 Dollar Amount: $- Competitive Status: Non-Competitive - Small Business

Contract: W9124E-15-D-0003 Contractor: Red River Services Corporation Award Date: 29 June 2015 Dollar Amount: $- Competitive Status: Non-Competitive - Small Business

Contract: W911 SE-09-D-0002- P00019 Contractor: Red River Services Corporation Award Date: 03 Dec 2014 Dollar Amount - Competitive Statu~Competitive - 6 month Extension

Contract: W911 SE-09-D-0002-P00016 Contractor: Red River Services Corporation Award Date: 30 May 2014 Dollar Amount: $- Competitive Status: Non-Competitive FAR 52.217-8 Extension

Contract: W911 SE-09-D-0002 Contractor: Red River Services Corporation Award Date: 14 May 2009 Competitive Status: Unrestricted

Contract: W9124E-04-D-0001 Contractor: Red River Services Corporation Award Date: 20 October 2003 Competitive Status: Unrestricted

Contract: DAKF24-98-C-0011 Contractor: Red River Services Corporation Award Date: 28 May 1998 Competitive Status: Unrestricted

Supply/Service: Solid Waste Service

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.

Date: 4 Ar.c... I ::J--

DPW, Chief Engineering Division

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.

DPW, Director

13. Fair and Reasonable Cost Determination: I hereby determine that the anticipated cost to the Government for this contract action will be fair and reasonable based upon FAR 15.404-1(b)(ii) Comparison of proposed prices to historical prices paid, FAR 15.403-3(a)(1 )(iv), and FAR 52.222-43 (as the offerer has requested an increase based on the Wage Determination increase from Wage Determination No. 2005-2230 Rev.16 dated 12/22/2014 to Wage Determination No. 2015-5198 Rev.02 dated 12/2~ was found the amount of increase for this Wage Determination increase of - (is approximatel./o of the total -extension) for three months was insignificant. A fair and reasonable determination for the additional three months of pricing will be based upon a comparison of pricing proposed by the offerer against previous historical pricing from the offerer, other than certified cost and pricing data, and allowable increases for the Wage Determination. Certified cost or pricing data is not required in accordance with 15.403-1 (b )(3).

Date: j JqnJJ-011

14. Contracting Officer Certification: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Supply/Service: Solid Waste Service

Approval

Based on the foregoing justification, I hereby approve the procurement of Solid Waste Services for the DPW, Fort Polk, LA in support of the JRTC and Rotational units for a three month period to Red River Services Corporation at an estimated amount of$ on an other than full and open competition basis pursuant to the authority of 10 U.S.C.2304(c)(2), as implemented by FAR 6.302-2, Unusual and Compelling Urgency, subject to availability of funds, and provided that the services or supplies herein described have otherwise been authorized for acquisition. I have reviewed the actions for planned eliminating competition in the previous justification and I have determined they were completed precluding the need for higher level approval in accordance with department procedures.

Special Advocate for Competition US Army Mission and Installation Contracting Command, Ft Sam Houston, TX