W912DW25C0001 HAHD AWSP FPF Justification FAR Part 6_Redacted_Final.pdf

CUI//SP-PROCURE//FEDCON

Control Number: NWS-2026-09

05 Feb 2026

FAR Part 6 Justification and Approval for Other than Full and Open Competition

1. Requiring Activity: Howard A. Hanson Dam (HAHD), United States Army Corps of Engineers (USACE), Seattle District

2. Contracting Activity: USACE Seattle District, Operations & Civil Works Branch (CENWS-CTC), 4735 E Marginal Way S, Seattle, WA 98134

3. Description of Action: Request approval to incorporate incremental funding language into the Howard A. Hanson Dam Fish Passage Facility contract that is currently awarded to Flatiron-AECON JV (CAGE 9WEU9). This contract (W912DW25C0001) used the Integrated Design and Construction (IDaC) delivery method and is a Fixed-Price Incentive (FPI) type contract.

4. Description of Supplies/Services: DFARS clause 252.232-7007 (Limitation of the Government’s Obligation) needs to be included in contract W912DW25C0001 in accordance with 119 Public Law 74 entitled, “Commerce, Justice, Science, Energy and Water Development; and Interior and Environment Appropriations Act, 2026.”

5. Authority Cited: Title 10 U.S.C. §3204(a)(1) and §3204(a)(5) as implemented in FAR 6.302-1(a)(2)(iii) and 6.302-5(a)(2)(i), One responsible source and Authorized or required by statute.

6. Reason for Authority Cited:

a. Legal Background: The contract for the design and construction of the HAHD FPF was awarded using the IDaC delivery method and does not include incremental funding clauses. Option CLIN 0002 of the contract is for the construction of the FPF to be negotiated as the design reached the defined production point. 119 Public Law 74, signed on 23 January 2026, requires the Corps modify the IDaC contract to incorporate the authority provided in 33 U.S.C.

621 and DFARS 252.232–7007, which is the “Limitation of Government’s obligation” clause that contemplates the government will “allot funds” at different times pursuant a schedule (for purposes of simplicity, this will be referred to hereafter as the “incremental funding clause” or “IFC.”

b. Contract Background: This Justification and Approval is deemed necessary because of the requirements of the Competition in Contracting Act. As the contract was competitively solicited without an incremental funding clause, the directed change to now incorporate incremental funding is considered to differ materially from the reasonable expectations of the offerors, and out of scope, which renders the modification subject to FAR Part 6 requirements.

The incumbent contractor is now the most highly qualified source to deliver the

Control Number: NWS-2026-09

05 Feb 2026 best value to the government for the construction of this facility. In accordance with the IDaC model, the incumbent contractor was deeply involved during the design phase, providing critical feedback on constructability, cost, and methods to the government's design team. The contractor’s extensive involvement and valuable input during the pre-construction services phase has given them an unmatched understanding of the project's complexities, uniquely positioning them to deliver a superior quality facility on schedule and within budget. In effect, the government has the contractor to provide valuable “preconstruction services” throughout the design phase in order to leverage the expertise of the contractor and have a common understanding on risk mitigation to reduce cost growth phase. Separating the construction from the contractor who provided the foundational constructability expertise would be fundamentally contrary to the IDaC strategy and would effectively forfeit the benefit of the substantial investment the government has made through the preconstruction process. Were the government to seek a source other than the current awardee of the contract, it would require a notification to the contractor that the construction option would not be exercised.

As a result, the government would have to invest in house resources to repackaging and reprocuring the construction contract separately, resulting in substantial duplication in costs and significant delay (at least a year or more) as the selection decision on contract is resource intensive and requires attention and dedication to properly execute. Given the need of the project is tied to a Biological Opinion requiring completion by certain dates and within certain timeframes to comply with federal law, a year of delay is unacceptable.

Therefore, there is only one responsible source – the current awardee – that can deliver the construction service and performance the government requires that would avoid substantial duplication of costs or unacceptable delay.

c. Alternatives: There are no direct alternatives to this action. While this J&A is necessary to satisfy CICA, it is also clear from 119 Public Law 74 that Congress has directed us (“Corps shall”) modify “the existing IDaC” contract, and “fully obligate any funds” appropriated by Congress for the construction. In other words, Congress has effectively endorsed the continuation of the construction phase of the project with the current awardee. As a result, it can be concluded that this action is further authorized and justified by statute and forms an independent basis for the justification under FAR 6.302-5 to continue this work with the current awardee as the source. The only alternative would be to not include the required IFC language, putting the available funding in jeopardy or creating an Anti-Deficiency Act violation for an unauthorized obligation.

d. Impact if not approved: Based on 119 Public Law 74, the contract must be modified to include incremental funding, and the total funds required to exercise the construction option are not available for obligation at this time.

Consequently, approving this modification is the sole mechanism that allows the project to proceed to the construction phase. A failure to approve would prevent