A.03.06.01_J A_MDNR.pdf

CONTROL NO. NWK-13-0008

AUTHORITY: FAR 6.302-5 AMOUNT: $1,100,000.00 (EST)

NAME TELEPHONE NO

Hilary Meckel 816-389-3500

TITLE DATE

Contract Specialist

NAME TELEPHONE NO

Travida Byas 816-389-3814

TITLE DATE

Contracting Officer

NAME TELEPHONE NO

John Skelton 816-389-3968

TITLE DATE

Natural Resource Manager

NAME TELEPHONE NO

Richard Lenning 816-389-3719

TITLE DATE

Project Manager

SIGNATURES ARE REQUIRED BELOW:

I have reviewed this J&A and find the justification adequate to support other than full and open competition

SIGNATURE DATE

NAME (Type or Print) TELEPHONE NO Arthur Saulsberry 816-389-3927

SIGNATURE DATE

NAME (Type or Print) TELEPHONE NO Richard Lenning 816-389-3719

SIGNATURE DATE

NAME (Type or Print) TELEPHONE NO Jana Strait 816-389-3699

SIGNATURE DATE

NAME (Type or Print) TELEPHONE NO Teresa McCarthy 816-389-3918

SIGNATURE DATE

NAME (Type or Print) TELEPHONE NO MAJ Rachel Honderd 816-389-3206

Requirements

Deputy for Small Business

Project Manager

Office of Counsel

DCC/CCC Contracting Chf

Field Competition Advocate

JUSTIFICATION REVIEW DOCUMENT FOR OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: Mitigation Activities in Support of the Missouri River Recovery Program throughout MO

Prepared By:

Contracting Officer

Technical

LENNING.RICHARD.EUGENE.

1231216754

Digitally signed by LENNING.RICHARD.EUGENE.1231216754 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=LENNING.RICHARD.EUGENE.1231216754 Date: 2012.12.03 10:30:23 -06'00'

LENNING.RICHARD.EUGENE.1231

216754

Digitally signed by LENNING.RICHARD.EUGENE.1231216754 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=LENNING.RICHARD.EUGENE.1231216754 Date: 2012.12.03 10:31:54 -06'00'

SKELTON.JOHN.ARMSTR

ONG.1231318816

Digitally signed by SKELTON.JOHN.ARMSTRONG.1231318816 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=SKELTON.JOHN.ARMSTRONG.1231318816 Date: 2012.12.03 12:00:56 -06'00'

MECKEL.HILARY.O.140047

Digitally signed by MECKEL.HILARY.O.1400473583 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=MECKEL.HILARY.O.1400473583 Date: 2012.12.03 12:57:48 -06'00'

SAULSBERRY.ARTHUR.ERIC.12

30627890

Digitally signed by SAULSBERRY.ARTHUR.ERIC.1230627890 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=SAULSBERRY.ARTHUR.ERIC.1230627890 Date: 2012.12.03 15:12:00 -06'00'

STRAIT.JANA.LYNN.1150399234 Digitally signed by STRAIT.JANA.LYNN.1150399234 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=STRAIT.JANA.LYNN.1150399234 Date: 2012.12.05 08:45:26 -06'00'

MCCARTHY.TERESA.F.10068

16513

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BYAS.TRAVIDA.DIONNE.1247765537

Digitally signed by BYAS.TRAVIDA.DIONNE.1247765537 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=BYAS.TRAVIDA.DIONNE.1247765537 Date: 2012.12.13 14:26:39 -06'00'

HONDERD.RACHEL.ANNE.1162028

Digitally signed by HONDERD.RACHEL.ANNE.1162028002 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=HONDERD.RACHEL.ANNE.1162028002 Date: 2013.01.04 14:22:00 -06'00'

Control # NWK-13-0008

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. CONTRACTING AGENCY: U.S. Army Corps of Engineers (USACE), Kansas City District (NWK), Contracting Division, 647 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106-2896.

2. DESCRIPTION OF ACTION: A new firm-fixed-price (FFP), three-year, Indefinite Delivery Indefinite Quantity (IDIQ) contract with a two-year optional CLIN using Construction General (CG) and Civil Operations and Maintenance (O&M) appropriations to acquire mitigation services at the Confluence Point Mitigation site in the State of Missouri, in support of the Missouri River Recovery Program (MRRP). The total contract ceiling for the five year period is $1,100,000 and there is no fee or profit charged on this account.

3. DESCRIPTION OF SUPPLIES/SERVICES OR NATURE OF

CONSTRUCTION: This work will involve professional land management and stewardship of natural resources and specific mitigation features and facilities located at the Confluence Point Mitigation site in the State of Missouri, in support of the MRRP.

The work will primarily consist of services and incidental construction activities to include area administration, area maintenance, vegetation management, reforestation, and wetland management. The period of performance for the base award will cover the period of 26 March 2013 through 25 March 2016. There will be one two-year optional CLIN included with this contract award, with the final period of performance ending 25 March 2018. The price ceiling for the proposed contract is $1,100,000.00 for the three-year base with the optional CLIN extending the ordering period by two years without increasing capacity. Each task order will be funded with approximately forty-percent Construction General (CG) appropriations and sixty-percent Civil Operations and Maintenance (O&M) appropriations. Clauses 52.217-8 “Option to Extend Services” and 52.217-9 “Option to Extend the Term of the Contract” will be included with the contract award; the final end date of the contract will be 25 March 2018.

4. AUTHORITY CITED: 10 U.S.C. § 2304(c)(5), as implemented by the Federal Acquisition Regulation (FAR) 6.302-5, Authorized or Required by Statute.

5. REASON FOR AUTHORITY CITED:

(1) Background: The Missouri Department of Natural Resources (MDNR) agrees to develop and maintain mitigation features of the Missouri River Fish and Wildlife Mitigation Project on the site specified in this contract, in accordance with applicable provisions of § 601(a) of Public Law 99-662 and Public Law 106-53 (Attachment 1), using funds made available under this contract by USACE. This work will involve professional land management and stewardship of natural resources, specific mitigation features, and facilities located along the Missouri River. MDNR manages the Confluence

Point Mitigation site for the State of Missouri, as it is directly adjacent to the existing Confluence Point State Park.

(2) Justification:

(a) Minimum Requirements: Authority to contract with Missouri Department of Natural Resources, as required by Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. § 661- 666c) (Attachment 2).

The minimum requirement of services provided by MDNR is coordinating with USACE to ensure design, restoration, operation, and maintenance of the Confluence Point Mitigation site, in accordance with the MRRP, to assure public and agency acceptance of the authorized fish and wildlife features included in the project. MDNR will utilize onsite natural resource managers and their substantial staff of experts in ecosystem restoration and fish and wildlife management to resolve complicated and complex site-specific management issues in a timely manner, which is continually evolving through the adaptive management process. In addition, to meet minimum requirements, MDNR must establish and enforce area-specific regulations on MRRP lands and waters to ensure the protection of natural resources, including rare, threatened or endangered animal and plant species.

(b) Statutory Authority: FWCA expressly authorizes contracting with MDNR for this requirement.

FWCA was enacted on 10 March 1934 to protect fish and wildlife when federal actions result in the control or modification of a natural stream or body of water. The Act requires Federal and State involvement for water resource development projects, such as the Missouri River Fish and Wildlife Mitigation Project, in order to evaluate and minimize the impacts to fish and wildlife.

In particular, FWCA requires that whenever the waters of any stream or other body of water are authorized to be modified or controlled by a federal agency, the agency must first consult with the United States Fish and Wildlife Service (FWS), Department of Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein the modifying is occurring. See 16 USC §662(a) (emphasis added). In addition, any use of such waters, land, or interests therein for wildlife conservation purposes must be in accordance with general plans approved jointly by the same three agencies. See 16 USC §663(b).

While the Missouri Department of Conservation (MDC) is the Fish and Wildlife Management Agency for the State of Missouri, MDNR manages the Confluence Point Mitigation site because it is directly adjacent to the existing Confluence Point State Park.

Per the coordination that is required by FWCA, both MDC & FWS have agreed that MDNR is the appropriate State agency that exercises administration over the wildlife resources of Missouri and manages the site in order to preserve native flora & fauna in the area subject to modification by the MRRP.

Thus, MRRP has been planned and implemented in accordance with FWCA and specific Congressional authorizations that have mandated the full participation of state and federal fish and wildlife agencies, such as MDNR. This contract with MDNR is necessary to fulfill the statutory requirement that federal agencies, such as USACE, must consult with the head of the state agency—here MDNR—that has authority over preserving wildlife resources in the areas impacted by waters subject to the MRRP. Consultations with the State of Missouri resulted in recommendations that MDNR conduct the land management services for the MRRP. Therefore, MDNR is authorized by statute to act as the sole source for this acquisition.

(c) Previous Contracts: All previous contracts for mitigation of the sites covered by this requirement are with MDNR.

Missouri Department of Natural Resources 1101 Riverside Drive Jefferson City, Missouri 65101-4272

MDNR is currently conducting similar fish and wildlife management work under Contract W912DQ-09-D-1001, in accordance with the same authority identified in Paragraph 4 and with FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements. That IDIQ contract was awarded with a total capacity NTE $500,000.00. The current task order (0004) is set to expire 25 March 2013.

The period of performance did not impact the decision to restrict competition.

(d) Other: Over the last several years, costs for varying projects have fluctuated from task order to task order. The main reason for this is that the mitigation activities identified by USACE and MDNR change for each mitigation site on an annual basis.

(3) Impact: MDNR has been doing this work for several years under a previous contract.

The same type of work will be needed indefinitely. Continuity of work by this agency is the only way to ensure the long-term habitat development and monitoring goals of MRRP will be met. Additionally, the continuation of these services is necessary to ensure ecological success, to continue optimization of restoration benefits, and to ensure that the current level of service for all authorized purposes is maintained while complying with the Biological Opinion. The Biological Opinion was published in 2003 by the U.S. Fish and Wildlife as part of a Section 7 Consultation under the Endangered Species Act. The purpose is to ensure the protection for the listed species in the Missouri River Basin while allowing for the other authorized purposes. MDNR is a designated Fish and Wildlife Management Agency for the State of Missouri. The impact of not having MDNR perform this work would result in a gap in the management of these mitigation areas.

This would lead to a reversal in the habitat development and wetland mitigation that has been done over the last several years. It would also mean that USACE would fail in keeping with the goals of MRRP.

(4) Alternatives: At current staffing, there are not enough resources available to complete these tasks and implement these activities, at all of these sites, with in-house personnel.

In addition, FWCA requires coordination and partnering among the agencies to ensure effective oversight and administration of the sites. Since FWCA requires coordination among the agencies, only MDNR, as the approved state agency is equipped to accomplish this. A commercial company would not be a viable alternative unless the authority from FWCA is changed.

6. EFFORTS TO OBTAIN COMPETITION: As noted in paragraph 5, MRRP has been planned and implemented in accordance with FWCA and specific Congressional authorizations that mandate the full participation of state and Federal fish and wildlife agencies, such as MDNR. MDNR has performed well in past years and has contributed much to the overall success of MRRP to date. As explained in paragraph 5, competition for this action is not feasible due to the requirements of the FWCA mandating federal agencies to consult with the cognizable State entity that exercises administration over Missouri wildlife resources impacted by federal programs such as the MRRP. A synopsis will not be posted due to reasons outlined in Paragraph 9 of this document. There is no competition anticipated for this acquisition for the reasons stated above. Only one (1) source, the MDNR, will be solicited.

7. ACTIONS TO INCREASE COMPETITION: There are no additional actions to be taken to obtain continuing operation and maintenance services for the MRRP sites.

Unless FWCA is amended, no actions can be taken to increase competition. Any re-procurements will be done under the same authority with the same contractor.

8. MARKET RESEARCH: Hilary Meckel, Contract Specialist, conducted market research between 06 November 2012 and 09 November 2012. The previously awarded IDIQ contract, in addition to the most recent task order, were reviewed by Ms. Meckel to look at both the performance of the contractor and to verify that there are no issues with receiving fair and reasonable prices. MDNR’s performance has been exemplary and their working relationship with USACE is vital to the success of this program. Price reasonableness will be determined using a comparison of the contractor’s proposal to the Independent Government Estimate. A format for the submission of the proposal will be given to the contractor in the Request for Proposal to ensure that each wildlife mitigation area and labor category supporting each area are clearly identified which can provide a basis for conducting negotiations, if required.

In summation, MDNR is an authorized source for procuring these services under 10 U.S.C. 662(a). Even if USACE was able to procure these services from another source, there would be significant risk associated with having a disruption in service of these mitigation sites. A sources sought was not performed for the reasons detailed in paragraph 9 of this document, and there were no questions raised from conducting market research.

9. INTERESTED SOURCES: A synopsis will not be posted due to the exception found in FAR 5.202(a)(4) which states that the Contracting Officer need not submit the notice when it is determined that the “proposed contract action is expressly authorized or required by a statute to be made through another Government agency.” A memorandum documenting the exception was signed by Travida Byas, Contracting Officer, on 6 November 2012.

10. OTHER FACTS: The mitigation services contract covering these sites is currently with MDNR. The most recent contract number is W912DQ-09-D-1001. The base year covered the period from 1 October 2009 through 30 September 2010, with exercised option years from 1 October to 30 September each year. The contract expires on 30 September 2013, and the last task order (0004) it set to expire 25 March 2013. The current award was not competed and was also a sole source award under the same authority as detailed in this Justification and Approval document. The procurement history was retrieved from the current contract file and all the modifications located in both the Procurement Desktop Defense (PD2) and Corps of Engineers Financial Management System (CEFMS) in August 2012. The Performance Work Statement cannot be developed in such a way to better enhance competition due to the reasons outlined in Paragraph 5(2)(b) above.

While MDC as per the Fish and Wildlife Coordination Act is the Fish and Wildlife Management Agency for the State of Missouri, MDNR manages the Confluence Point Mitigation site because it is directly adjacent to the existing Confluence Point State Park.

Both MDC & FWS agreed that MDNR be allowed to manage the area in a way to preserve native flora & fauna.

Other than the facts listed above, there are no additional or unusual facts surrounding the history of this procurement.

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: John Skelton DATE: ___22 January 2013 __

TITLE: Natural Resource Manager 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: Richard Lenning DATE: __22 January 2013_________

TITLE: Project Manager SIGNATURE: ___________________

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 based on comparison to the Independent Government Estimate (IGE). IAW FAR 15.403-1(b)(2), the Contracting Officer shall not require certified cost or pricing data to support any action when the Contracting Officer determines that prices agreed upon are based on prices set by law or regulation. FAR 15.403-1(c)(2) States that pronouncements in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set a price for purposes of FAR 15.403-1(1)(b)(2). Salaries for MDNR personnel are set by the Missouri Personnel Division and the Personnel Advisory Board in the Classification and Pay Plans. Mo. Code Regs. tit.1, § 20-2.010 to § 20-2.020 (2011) (Attachment 3). The level of effort required for mitigation services will be determined at the task order level.

NAME: Travida Byas DATE: ___22 January 2013________

TITLE: Contracting Officer SIGNATURE: ___________________

14. CONTRACTING OFFICER CERTIFICATION:

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

NAME: Travida Byas DATE: ___22 January 2013_______

TITLE: Contracting Officer SIGNATURE: ___________________

SKELTON.JOH

N.ARMSTRON

G.1231318816

Digitally signed by

SKELTON.JOHN.ARMSTRONG.1231318816

DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=SKELTON.JOHN.ARMSTRONG.123131881 Date: 2013.01.22 11:43:32 -06'00'

LENNING.RICHAR

D.EUGENE.12312

16754

Digitally signed by LENNING.RICHARD.EUGENE.1231216754 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=LENNING.RICHARD.EUGENE.1231216754 Date: 2013.01.22 12:47:25 -06'00'

BYAS.TRAVIDA.DIONNE.1247765537

Digitally signed by BYAS.TRAVIDA.DIONNE.1247765537 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=BYAS.TRAVIDA.DIONNE.1247765537 Date: 2013.01.22 16:13:18 -06'00'

BYAS.TRAVIDA.DIONNE.1247765537

Digitally signed by BYAS.TRAVIDA.DIONNE.1247765537 DN: c=US, o=U.S. Government, ou=DoD, ou=PKI, ou=USA, cn=BYAS.TRAVIDA.DIONNE.1247765537 Date: 2013.01.22 16:13:45 -06'00'