JA_ACI_Debris_Capacity_Increase_W912P8-14-D-0028.pdf

Control Number MVN 18-0005

US Army Corps of Engineers, New Orleans District Justification & Approval for Other than Full and Open Competition

Citing FAR 6.302-2 Unusual and Compelling Urgency for Increased Capacity on ACI Debris SATOC W912P8-14-D-0028

1. Contracting Agency: US Army Corps of Engineers (USACE), New Orleans, Contracting Division (CEMVN-CT), 7400 Leake Avenue, New Orleans, LA 70118

2. Description of Action: In accordance with FAR 6.302-2 ("Unusual and Compelling Urgency"), approval is requested to increase contract capacity on the existing USACE Advanced Contract Initiative (ACI) Single Award Task Order Contract (SATOC) Indefinite Delivery Indefinite Quantity contract W912P8-14-D-0028 with Environmental Chemical Corporation (ECC). Several task orders have been issued under this contract vehicle for removal, hauling, and disposal of fire debris, ash and rubble from private and commercial properties requesting federal assistance in response to recent wildfires in Sonoma County, Napa County, Mendocino County, and Lake County, California.

These four counties are within the federal disaster area declared by President Trump on October 10, 2017 while thousands of firefighters fought to battle the largest wildfires in northern California's history. In response to the devastation FEMA tasked USACE with fire debris removal and remediation at approximately 7,000 private properties in the four counties.

The proposed capacity increase will allow the Sacramento District (SPK) to continue debris removal services without a break in service which would prevent a public safety and health hazard. Debris removal services have been ongoing under two ACI SATOCs issued by MVN. These ACI SATOC capacities were rapidly being consumed and SPK began to transition to a more competitive environment; therefore, SPK solicited and awarded two replacement SATOCS on 28 December 2017. An unsuccessful offeror filed a protest with the General Accountability Office (GAO) on 9 January 2018 which triggered the Competition in Contracting Act (CICA) automatic stay requirement and prompted the Contracting Officer to issue a suspension of work on both contracts (31 U.S.C. § 3553(d); Federal Acquisition Regulation (FAR) 33.104(c)(1)). It is essential that fire damage response operations continue in the above defined areas with minimal or no interruption under the existing ACI SATOC until the new contract vehicles are available to continue these critical requirements. If the capacity increase is not granted, all work on the sites will stop on January 13, 2018.

The capacity increase required under this Justification is $90,000,000 which forms the basis for the approval authority for the justification. The amount being requested represents the workload that would be accomplished by this SATOC contractor for approximately 20 days. This is the timeframe anticipated to prepare and gain approval for an override of the automatic CICA stay provisions. Based on recent similar override packages submitted within the past month, the override process is expected to take approximately 10 days. The additional 10 days is required for the newly awarded contractors to fully mobilize and initiate work. To calculate the needed capacity increase, the Recovery Field Office reviewed recent productivity, focused primarily on the tonnage cleared, prepared and disposed of, and analyzed the price per ton and tons per parcel historically to determine the estimated disposal quantity required. The disposal quantity needed to be accomplished during the 20 day period is approximately tons, which is based on tons disposed per day. The average cost per ton over all of the four counties and parcels is just under $ .

Federal disaster relief funds in the amount of approximately $200M are in-hand to support the increased capacity and subsequent contract actions.

3. Description of Supplies/Services:

This capacity increase is intended to allow continuing and uninterrupted emergency recovery services for fire debris removal from thousands of private, and in some cases commercial, properties destroyed by October's fires in Sonoma, Napa, Mendocino and Lake Counties in order to meet the Corps' mission responsibilities in direct support of FEMA and arising from federal disaster declaration DR-4344-CA made by President Trump on October 10, 2017.

If granted, the additional capacity would be used to issue task order modifications or new task orders under this SATOC to perform fire debris gathering, transporting and disposal services on a broad scale within each Area of Responsibility (AOR), following detailed CLIN schedules reflecting specific fire remediation tasks contained in the contract's Statement of Work.

The ACI SATOC with ECC included an original capacity of $240M. The Sacramento District has awarded five task orders to date under the SATOC, which essentially consumed the entire capacity. The funds assigned under the existing task orders will be completely expended on January 13, 2018 and work will stop.

To ensure that the Corps fulfills FEMA's debris removal directive for Sonoma, Napa, Mendocino and Lake Counties, while the performance is stayed on the SPK replacement SATOC awards, USACE must increase capacity on this ACI SATOC by $90M.

4. Authority Cited: 10 U.S.C. 2304(c)(2) as implemented by FAR 6.302-2 and DFARS 206.302, Unusual and Compelling Urgency.

5. Reason for Authority Cited: If USACE cannot provide an expeditious contracting solution to ensure uninterrupted emergency operations· to fulfill this critical debris removal mission, damaged communities will face serious health and safety hazards, aggravation of economic loss suffered by thousands of displaced families forced to postpone recovery and reconstruction plans, and severe injury to the reputation of federal agencies like FEMA and USACE when public promises of an all-out, 7-day per week federal recovery operation must be revised or broken.

Dry, gale-force winds buffeted northern California in early October 2017, igniting hundreds of wildfires that in total burned 1,138,907 acres, including large residential neighborhoods and subdivisions in Santa Rosa, California and nearby communities and causing 42 deaths.

On October 9, 2017, California Governor Edmund G. Brown Jr. declared a state of emergency in Sonoma, Napa, Mendocino, Lake, Yuba, Butte, Nevada and Orange Counties due to the effects of multiple fires, and requested a Presidential Major Disaster Declaration to support the state and local emergency response. President Trump signed a Major Disaster Declaration on October 10, 2017 to expedite recovery by making federal disaster relief available. On October 19, 2017, FEMA's Region IX tasked the Sacramento District of the Corps with Mission Assignment COE-SPD-05V to provide coordination and execution of debris clearance, removal and disposal of fire debris, rubble and ash from private properties in Sonoma, Napa, Mendocino and Lake Counties. State and Federal partners are now coordinating with affected jurisdictions to remove fire debris from thousands of private properties where homes and apartments were erased by fire.

An array of hazardous chemicals and materials were stored in garages, homes, sheds and storerooms, of unknown quantities and compositions. Building materials, furnishings, appliances, automobiles, motorcycles, lawn mowers, paint cabinets, cleaning solvents, pesticides, and ammunition were reduced to ash and debris that now contains high concentrations of dangerous chemicals, and heavy metals. When inhaled caustic ash can cause serious respiratory ailments, and burns to mucus membranes.

The ash and debris containing these dangerous pollutants must be rapidly collected, wrapped and transported to appropriate landfills to prevent further exposure of nearby residents, families planning to rebuild their lives, and the natural environment. Winter has arrived, with the threat of rain growing each week. A wet winter will cause dangerous contaminants to migrate into topsoil on private property lots, and through run-off into storm drains, creeks, wetlands and the Sacramento Delta, doing potentially great harm to ecosystems and waterways. If introduced into the watershed these toxic materials could have a devastating effect on local fisheries and the overall food web. It is vital that the Corps' contractors continue clean-up operations without interruption while relatively dry conditions persist in order for the federal government to protect public health, the environment, and the local economies in these fire- scarred communities.

Soils destabilized by wildfires in mountainous regions pose a great risk to human health, private property, public infrastructure, and the environment. Similar conditions in Southern California have recently generated massive mudslides with devastating effects, including multiple fatalities. In the event of a landslide, debris laden mud can become mobile, and spread out over large areas, contaminating local streams, rivers, and areas previously cleared of debris. An event like this could expose thousands of additional individuals to dangerous contaminants, set the mission back months, and add enormous costs. Rapid response is imperative in order to remove existing debris to prevent the added contamination due to the high risk slopes affected by the Northern California fires.

Even during dry conditions ash from the wildfires can easily become airborne, degrading air quality. Ash particulate can pose significant health problems, with fine particles able to travel deep into the respiratory tract and cause shortness of breath, or aggravate pre-existing medical conditions such as asthma, lung disease, and heart disease. Winds can carry wildfire ash long distances, spreading contaminants and the caustic properties of the ash itself to areas not directly impacted by the wildfires.

Further, delays in cleanup will result in delays in the rebuilding efforts of thousands of people in the affected communities. These delays perpetuate the displacement of people from their property, adversely affecting economic recovery and community cohesion. If recovery efforts are delayed, FEMA and SPK are concerned that many impatient property owners may attempt to clean up debris themselves.

Such people may expose themselves to significant health risks and may not practice appropriate disposal of hazardous substances and debris, inadvertently spreading environmental hazards.

The following summary describes debris removal procedures that have been and are still underway:

• State and FEMA liaisons are coordinating with County officials to obtain Rights of Entry (ROE) permissions from property owners and to identify lots and prioritize work.

• State and Federal agencies will verify county approvals and consistent coordination prior to green-lighting contractors to begin site assessment work.

• Contractors will send samples of ash and debris to testing labs in order to characterize fire residue materials as toxic·, hazardous or benign.

• Appropriate collection, separation and wrapping of hazardous and toxic materials will be conducted in accordance with best management practices.

• Excavation equipment will remove foundations, footings, masonry walls, chimneys.

• Work crews and equipment will transfer waste materials to haul trucks for transfer to approved disposal sites.

Prioritization of properties in line for site remediation will be designed to ensure efficient field operations and to restore properties to their owners for redevelopment as efficiently as possible. Without the ability to respond quickly to the massive amount of debris left in Sonoma County and the balance of work yet to complete in Napa, Mendocino and Lake Counties the federal government may risk catastrophic public health consequences if hazardous contaminants leach into water ways and into the water table, causing adverse environmental impacts for years to come and further injuring citizens whose lives have already suffered serious loss.

Based on current task order execution, it is believed that the majority of work is definable via firm fixed price rates that were competed and included in the ACI SATOC.

Actual contractor compensation is determined by measurement of actual quantities achieved, such as tons of debris hauled, lots tested, etc. The Contracting Officer’s Representative monitors and validates completed work on a daily basis.

6. Efforts to Obtain Competition:

The Sacramento District has conducted a competitive solicitation and award for the debris removal services, which was protested triggering the CICA automatic stay requirement and prompting the Contracting Officer to issue a work suspension. The capacity of the current ACI SATOC is essentially exhausted. If this capacity is not increased, USACE will not be able to fulfill the requirement to remove debris during the interim period of time until the CICA stay is lifted. Further competition during this time will result in failure to meet the urgent and compelling need to remove the debris. A break in services would be detrimental to public health and safety. The ACI SATOC contractor is currently mobilized on site and can respond without delay. No further efforts to obtain competition will be undertaken. In accordance with the exception found in FAR 5.202(a)(2), a FedBizOpps announcement will not be made in support of this justification. However, the final approved justification will be posted within 30 days in accordance with FAR requirements.

The huge scale of this fire debris remediation effort can only be accomplished through broad mobilization of potentially hundreds of subcontractors. Many smaller contracting firms in these counties are already at work as subcontractors performing current task orders issued under this ACI SATOC with ECC and a second SATOC with AshBritt.

Present task order experience with the two SATOCs now in performance also shows that prime contractors operate largely as project managers in disaster recovery work of this scale, mobilizing, overseeing, and depending on dozens and dozens of specialized local and regional subcontractors for virtually all field work. Accordingly, the Government's duty to assure that the prime contractors under these SATOC awards obtain as much competition as possible in subcontracting, is satisfied as much by the scale of the effort as by the Government's active management of subcontracting plans.

Innumerable subcontractors are already at work; attracted by the immense scale of work to be accomplished.

7. Actions to Increase Competition and Remove or Overcome Barriers to Competition:

The original ACI Debris contracts were solicited and awarded under full and open competitive procedures. In addition, SPK has already undertaken to perform two limited competition solicitations and awards to qualified, large-scale disaster relief contractors.

The Assistant Secretary of the Army for Acquisition Logistics and Technology (ASA- ALT) approved the unusual and compelling urgency justification for limited competition on November 21, 2017. Two solicitations (W91238-18-R-0018 and W91238-18-R- 0019) were issued on November 23, 2017. On December 28, 2017 two resulting replacement SATOCs were awarded. Both were protested by the same unsuccessful offeror on January 9, 2018, causing the automatic CICA stay in performance. The capacity requested by this justification will only be used for a limited period of time until the new replacement contract vehicles are available to continue to fulfill these critical requirements.

8. Market Research:

Market research was not conducted in preparation of this justification. The original ACI SATOC awards were extensively researched and competed on unrestricted and restricted bases.

9. Interested Sources:

No interested sources have been identified due to the urgent and compelling nature of this justification.

10. Other Facts:

Procurement History: Direct Assistance Request from Federal Emergency Management Agency (FEMA) was received on 19 October 2017, to support California Fire Debris Removal for 4 counties. The ACI IDIQ contracts were identified as the appropriate contract vehicles by the USACE National Debris Subject Matter Expert (SME). There were two (2) contracts available to the South Pacific Division (SPD) including W912P8-14-D-0033 awarded to prime contractor AshBritt Environmental, and W912P8-14-D-0028, awarded to prime contractor Environmental Chemical Corporation.

These contract vehicles allowed the Government to issue firmed fixed unit priced task orders with estimated quantities. The CLINs in the SATOC were negotiated for the units of issue for this particular debris removal requirement and firm-fixed priced.

FAR 18.203 states local area set-asides, or an evaluation preference, be given to local firms for disaster response work under an emergency declaration. While SPK Contracting recognizes its obligations under FAR 26.202 and the Stafford Act (42 U.S.C. § 5121, et seq.), careful market research for the recently competed/protested awards found no firms in the affected areas qualified to serve as prime contractor managing a recovery project of such vast magnitude. While local contractors will perform a high percentage of remediation work as subcontractors, the Contracting Officer has approved a justification to expend Federal funds to other than local firms in negotiation of these prime contracts, in accordance with FAR 26.204 and 42 U.S.C. § 5150(b)(1).

Under FAR 26.203(b) there is a duty to transition work of a prime contractor to local firms in an area of declared disaster. Historically, the two ACI SATOCs had been in place for use in California since 2014 for use in the event of a natural disaster. These prime contractors were selected for capacity and skills relevant to addressing rare but sizeable natural disasters. For reasons discussed above including the massive size of the requirement and the need for highly specialized skills held by the ACI contractors, it is not feasible or practicable to transition the prime debris removal contract to local firms. Nonetheless, local firms are expected to receive significant work on this requirement.

Fair and Reasonable Pricing: The ACI SATOCs were awarded based on full and open competition. The base contracts include CLIN pricing that forms the basis of estimating for quantities of work placed on the individual task orders and this pricing would remain in effect for the duration of the contract periods. In addition, as the previously awarded task orders were solicited and pricing analyzed, the Contracting Officer was able to achieve additional savings on the contract rates due to the quantity of work being ordered and other factors. The Contracting Officer will do the same due diligence in determining fair and reasonableness of the proposal for work under this additional capacity. The new competitive IDIQs issued by SPK also included similar pricing and provide a good resource to the Contracting Officer in developing negotiation objectives and ultimately negotiating the best price on behalf of the Government.