A.03.09_17-005_Umatilla_Sole_Source_JA_-_FBO.pdf

NWP-17-005

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

FOR UMATILLA RIVER HATCHERY OPERATIONS

1. CONTRACTING AGENCY:

U.S. Army Corps of Engineers (USACE), Portland District, Contracting Division, 333 SW First Avenue, OR 97204-3495.

2. DESCRIPTION OF ACTION:

Approval is being requested for a new firm fixed price, performance based service contract with the Confederated Tribes of the Umatilla Indian Reservation (CTUIR) using operation and maintenance (“O & M”) funds to operate and manage hatchery facilities on the Umatilla River. Fiscal year (FY) 2017 funds will be used for the base year. Option periods will be funded by the appropriate FY funds.

3. DESCRIPTION OF SERVICES:

The specific work will be performed at Three Mile Falls Dam Fish Facility and the Pendleton Acclimation Facility, both of which are currently operated by the Confederated Tribes of the Umatilla Indian Reservation (CTUIR). Services include providing all personnel, equipment, tools, materials, vehicles, supervision, and other items necessary to produce fall Chinook then release them in the Umatilla River in support of USACE mitigation objectivesassociated with The Dalles and John Day Dams. The requiring activity is Tech Ops, Technical Fisheries. The estimated total value for services including option periods is $544,229.

Base Period, date of award through 31 Dec 2017, value is estimated to be $102,525 Option year one, 01 Jan 2018 through 31 Dec 2018, value is estimated to be $105,592 Option year two, 01 Jan 2019 through 31 Dec 2019, value is estimated to be $108,751 Option year three, 01 Jan 2020 through 31 Dec 2020, value is estimated to be $112,004 Option year four, 01 Jan 2021 through 31 Dec 2021, value is estimated to be $115,357

3.1. Three Mile Falls Dam Fish Facility

Utilize the Three Mile Falls Dam Fish Facility to accomplish activities for fall Chinook production. Three Mile Falls Dam serves as the broodstock collection and spawning location for fall Chinook in the Umatilla River.

Collect and spawn adequate fall Chinook adult broodstock to provide sufficient numbers of eggs to produce and release approximately 900,000 juvenile fish.

CTUIR shall coordinate with the Oregon Department of Fish and Wildlife (ODFW) to transfer eggs for incubation and rearing.

3.2. Pendleton Acclimation Facility

CTUIR shall coordinate with ODFW to receive juvenile fish from Bonneville Hatchery. ODFW is expected to transport approximately 520,000 (equivalent to 52,000 pounds) yearling smolts in February and approximately 260,000 (26,000 pounds) yearling smolts in early March to the Pendleton Acclimation Facility.

Additionally, approximately 120,000 (12,000 pounds) yearling smolts will be transferred in early March for a direct release into the Umatilla River. Juvenile fish will be received, reared for the appropriate period, and released in the Umatilla River.

4. AUTHORITY CITED:

Pursuant to 41 U.S.C. § 1901(e)(2), as implemented in Federal Acquisition Regulation (FAR) 13.501(a)(1)(ii), Commercial Single Source acquisitions greater than the Simplified Acquisition Threshold, only one responsible source and no other supplies or services will satisfy agency requirements

5. REASON FOR AUTHORITY CITED:

a. Background: USACE provides mitigation for The Dalles and John Day Dams in the form of artificial propagation of fall Chinook at a variety of hatcheries within the Columbia River Basin.

In the Flood Control Act of 1950, Congress authorized the construction of The Dalles and John Day Dams. The accompanying 1949 Report of the Chief of Engineers, House Document 81-531 (H.D. 531), describes facilities, including hatcheries, to be provided in connection with the project. Appendix L of H.D. 531 further elaborates on hatchery facilities, specifying construction of hatcheries in the lower Deschutes River. However, due to adverse water quality issues in the lower Deschutes, the USACE did not pursue construction in this location, instead exploring existing hatcheries elsewhere in the basin. Since that time USACE has utilized a variety of hatcheries and fish facilities to assist in meeting mitigation objectives.

The 1969 U.S. District Court for the District of Oregon decision in Sohappy v.

Smith and subsequent orders, popularly known as United States v. Oregon, resulted in the formation of a basin-wide Columbia River Fish Management Plan (CRFMP). In 1988 the Court adopted the CRFMP, as proposed by the United States v. Oregon parties. The current CRFMP lays out artificial and natural production and management schemes designed to conserve, rebuild, and enhance the fish of the upper Columbia River Basin. Components of the CRFMP include artificial production facilities that USACE funds to provide mitigation for The Dalles and John Day Dams, including facilities involved with releases in the Umatilla River.

In 2008, the National Marine Fisheries Service (NMFS) issued a revised Biological Opinion (BiOp) under the Endangered Species Act (ESA) that concluded the Federal Columbia River Power System (FCRPS) jeopardizes the continued existence of various ESA-listed anadromous fish in the Columbia River Basin, but that jeopardy and adverse modification may be avoided by implementing a reasonable and prudent alternative (RPA) composed of discrete RPA actions covering hatchery operations. RPA action no. 40 calls for a review of the hatchery program that provides mitigation for The Dalles and John Day Dams.

After determining that the 2008 50%-50% hatchery production of lower Columbia River fall Chinook (early spawning “tules”) and upper Columbia River fall Chinook (late spawning “Upriver Brights” or “URBs”) is not consistent with the 2008 BiOp, USACE, among other federal and state agencies and tribes, recommended revising hatchery production to achieve 25% tule-75% URB production. Further, USACE, among others, recommended that hatchery operations be moved into or above Zone 6 of the Columbia River, between the Bonneville and McNary Dams.

Although the release of URB fall Chinook into the Umatilla River began decades earlier, this component of the mitigation program received additional support following the 2008 BiOp. Several letters (Attachments 1, 2) between the United States v. Oregon parties and the Portland District and Northwestern Division outline adjustments to the program that include utilizing Umatilla River facilities and support continued releases of fall Chinook at those Umatilla River locations.

As such, releasing these fish in other locations would conflict with the CRFMP, RPA action no. 40, and USACE commitments expressed in letters to United States v. Oregon parties.

Three Mile Falls Dam Fish Facility and the Pendleton Acclimation Facility are both uniquely situated on the Umatilla River. Three Mile Falls Dam allows for collection of broodstock that originate from the Umatilla River, and provides a way to differentiate between fish species, and hatchery-origin and natural-origin fall Chinook. No other facility is available on the Umatilla River to provide this service.

Likewise, the Pendleton Acclimation Facility possesses the appropriate water temperature, rearing pond space, and availability during the required months to acclimate and release fall Chinook juveniles in the Umatilla River. Other acclimation or release facilities exist on the Umatilla River, but none possess the necessary attributes to produce high quality, biologically, and genetically sound juvenile fish. Regional fisheries experts from NMFS, CTUIR and the USACE agree that the Pendleton Acclimation Facility is the only reasonable location to continue this activity.

b. Justification

Three Mile Falls Dam Fish Facility and the Pendleton Acclimation Facility were constructed by and are currently owned by the Bonneville Power Administration (BPA) (Attachment 3). Three Mile Falls Dam Fish Facility is located on land owned by the Bureau of Reclamation, while the Pendleton Acclimation Facility is located on State of Oregon-owned property (Attachment 4). For unknown reasons, a formal memorandum of agreement or other transfer of ownership documentation does not exist, although it has remained BPA’s intent for CTUIR to own both of the above-mentioned facilities. BPA is currently in the process of developing this documentation (Attachment 7). After construction was complete (1980-1990), BPA furnished all physical components necessary for ownership to CTUIR, including hard keys for gates, doors, and buildings, and key codes for alarms and equipment programing. There is significant precedence for BPA to fund the construction of fish facilities and then transfer ownership to tribal entities. This has occurred in the Yakima Basin with several fish facilities built by BPA and transferred to the Yakama Nation (Attachment 5). Additionally, BPA has constructed and transferred ownership of fish facilities to CTUIR in the Walla Walla Basin (Attachment 6). Here, Three Mile Falls Dam Fish Facility and the Pendleton Acclimation Facility were built for the benefit of CTUIR and BPA's transfer of ownership to the tribe is pending.

While CTUIR may not yet have exclusive rights to both facilities (such that it's uncertain whether the tribe could exclude a USACE contractor), BPA likely does have exclusive rights and could exclude a USACE contractor from both facilities.

And, regardless, given BPA's current effort to transfer rights to both facilities to CTUIR, a USACE contractor would frustrate the existing and future dealings between BPA and CTUIR.

Therefore, a sole source contract is required considering: (1) the Portland District's desire to release mitigation program fall Chinook in the Umatilla; (2) the fact that Three Mile Falls Dam Fish Facility and the Pendleton Acclimation Facility are the only locations that can meet agency requirements; and (3) no other service will satisfy USACE requirements given BPA's and CTUIR's existing and future interests in the facilities which effectively bar a USACE contractor from using these facilities during the contract term.

c. Impact

The impact of not awarding this contract would be substantial. By not using the Umatilla River facilities, and more heavily relaying on tule fall Chinook production downstream of Zone 6, USACE activities would then conflict with RPA action no. 40. In addition, discontinuing the Umatilla River releases would be counter to fulfilling the mitigation objectives associated with the The Dalles and John Day Dams, which may adversely impact tribal fisheries in Zone 6.

6. EFFORTS TO OBTAIN COMPETITION:

A notice of intent to sole source was posted to FBO on 20 October 2016 for 15 days. No responses were received. Based on paragraph 5 above, competition for this requiement is not feasible due to the existing and future rights of BPA and CTUIR in the Umatilla River Hatchery and Pendeleton Acclimation Facilities, and a USACE contractor would frustrate the existing and future dealings between BPA and CTUIR.

7. ACTIONS TO INCREASE COMPETITION:

Competition is not feasible due to the existing and future rights of BPA and CTUIR in the Umatilla River Hatchery and Pendelton Acclimation Facilities, and a USACE contractor would frustrate the existing and future dealings between BPA and CTUIR.

8. MARKET RESEARCH:

Market research was conducted 26 October 2016 using SBA DSBS and QMS searches.

The DSBS search indicates there are two (2) potential vendors that provide a similar service, but no other vendors could be located to provide a service that is equal or exceeds the service requested. USACE Portland District hosted an Industry Day event 02 November 2016. Multiple potential vendors were identified, however none would have sufficient access to the subject facilities. In other words, none of the vendors identified through market research will satisfy USACE requirements given BPA's and CTUIR's existing and future interests in the facilities which effectively bar any USACE contractor other than CTUIR from using these facilities during the contract term.

9. INTERESTED SOURCES:

A notice of intent to sole source was posted on FedBizOps on 20 October 2016 for 15 days. No vendors have expressed an interest in this project or as a possible source in the near future based on the notice of intent to sole source.

The notices required by FAR 5.201 shall be or have been published, and any bids or proposals received shall be considered.

10. OTHER FACTS:

Operation and management services of Three Mile Falls Dam Fish Facility and the Pendleton Acclimation Facility on the Umatilla River has been historically performed by the CTUIR under a Cost Reimbusrement contract between the BPA and the CTUIR.

CTUIR has operated and managed these facilities since at least the early 1990’s.

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:

TITLE: NWP Hatchery Coordinator SIGNATURE:

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:

TITLE: NWP Hatchery Coordinator SIGNATURE:

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 on an Independent Government Estimate. In accordance with Far 15.1403, certified cost or pricing data is not required because the service is estimated to be less than $750,000 and it is a commercial service.

NAME:

TITLE: Contracting Officer SIGNATURE:

14. CONTRACTING OFFICER CERTIFICATION:

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

NAME:

TITLE: Contracting Officer SIGNATURE: