A.03.21_Single_Source_Determination_for_Liberty_Island.pdf

Liberty Island 2018-2020 J&A Page 1 of 2

JUSTIFICATION AND APPROVAL

FOR

OTHER THAN FULL AND OPEN COMPETITION

1. CONTRACTING AGENCY: US Army Corps of Engineers (USACE), San Francisco District (CESPN-CT) 1455 Market St., San Francisco, CA 94103-1398.

2. DESCRIPTION OF ACTION: The proposed action is a sole source, firm fixed price contract to purchase sub tidal habitat credits from Liberty Island Holdings I, LLC for the San Francisco Bay Federal Navigation Program for 2018-2020.

3. DESCRIPTION OF SERVICE: The goal of this contract is to purchase 0.87 sub tidal habitat credits (0.34 credit for 2018, 0.19 for 2019, and 0.34 for 2020) from Liberty Island Holdings I, LLC for the San Francisco Bay Federal Navigation Program. Purchase of the mitigation credits would be used by the bank to conserve sub tidal habitat within the mitigation bank areas in perpetuity for the federally listed smelt species. Under the resource agency requirements, the contractor will report quarterly on the program and on condition of the habitat restoration and management efforts. Funding is available to cover the estimated amount of $130,500.00.

4. AUTHORITY CITED: Federal Acquisition Regulation (FAR) 13.106(b)(1)(i) For purchases not exceeding the simplified acquisition threshold. Contracting Officers may solicit from one source if the contracting officer determines that the circumstances of the action deem only one source reasonably available (e.g., urgency, exclusive licensing agreements, brand-name or industrial mobilization).

5. JUSTIFICATION: USACE is legally bound under federal and state law to purchase these credits as a signatory to:

a. Order No. R2-2015-0023 Regional Water Quality Control Board’s Water Quality Certification for U.S. ARMY CORPS OF ENGINEERS, SAN FRANCISCO DISTRICT SAN FRANCISCO

BAY FEDERAL CHANNEL MAINTENANCE DREDGING PROGRAM, 2015 THROUGH

2019 (Appendix A). Page 14 of Order No. R2-2015-0023 stated “USACE would implement four additional avoidance, minimization, and mitigation measures for entrainment impacts to longfin smelt and delta smelt (measures f, g, h, and I in Finding 18 and provision 12) and purchase mitigation credit at the Liberty Island Conservation Bank, or [CDFW] other approved site…”(Attachment A)

b. Joint NEPA/CEQA document for the SF Bay Maintenance Dredging Program 2015-2024.

(Attachment B)

Failure to do so would subject the government to a violation of the federal Clean Water Act and potential legal action by the State of California.

A search for approved contractors for this region (search result from Regulatory In-lieu Fee and Bank Information Tracking System [RIBITS] included as Appendix C) didn’t identify any contractor.

California Department of Fish and Wildlife (CDFW) was contacted on March 07, 2018 to obtain a list of approved mitigation bank for longfin and delta smelt fish species mitigation credits within this region that satisfy the requirements of the order. Mitigation for fish species must be in the same region that they are impacted. CDFW confirmed on March 7, 2018 that Liberty Island Conservation Bank is currently the only approved vendor (Appendix D).

Liberty Island 2018-2020 J&A Page 2 of 2

6. EFFORTS TO OBTAIN COMPETITION AND INCREASE COMPETITION: As stated in paragraph 5 above, the sub tidal habitat credit for longfin smelt and delta smelt is currently only available from Liberty Island Holding I, LLC. A full and open competition would not reveal any other vendors that could satisfy the mitigation criteria necessary for the project.

7. MARKET RESEARCH: A search of the joint USACE - EPA - NOAA- FWS mitigation banking website and a review of the certified mitigation banks in the Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS) were conducted on March 8, 2018, but didn’t identify any contractor. The California Department of Fish and Wildlife was contacted on March 7, 2017 and confirmed that Liberty Island is currently the only approved conservation bank for salmonids and delta smelt for which the credits are being purchased for.

8. OTHER FACTS: No other resource agency approved species specific mitigation banks in the service area has available habitat credits for purchase for these species.

9. INTERESTED SOURCES: As stated in paragraph 5 above, Liberty Island Holding I, LLC is currently the only approved mitigation bank for these specific concern fish species mitigation credits.

10. TECHNICAL AND 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: Christopher Eng

TITLE: Technical POC/ Environmental Manager SIGNATURE:_______________________

11. 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.

NAME: Theodore Turney

TITLE: District Contracting Chief SIGNATURE:_______________________ Contracting Officer

12. CONTRACTING OFFICER CERTIFICATION:

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

NAME: Theodore Turney

TITLE: District Contracting Chief SIGNATURE:_______________________ Contracting Officer