Description
1. IDENTIFICATION OF THE AGENCY AND CONTRACTING ACTIVITY. U.S. Environmental Protection Agency (EPA) / Office of Acquisition Management (OAM) / Headquarters Procurement Operations Division (HPOD) / Administrative Contract Service Center (ACSC). 2. NATURE AND/OR DESCRIPTION OF THE ACTION BEING APPROVED. The purpose of this justification is to extend the Office of Civil Enforcement (OCE) Mission Support contracts ? EP-W-09-032 with Leidos, Inc., and EP-W-09-033 with Eastern Research Group, Inc. (ERG) ? for three months, with six one-month option periods, due to a pre-award protest filed against Request for Proposals #SOL-DC-13-00031 which was intended to award a follow-on vehicle to the expiring contracts. Pursuant to FAR Subpart 33.104, the Contracting Officer suspended contract award after the agency received the protest from the Government Accountability Office (GAO). 3. DESCRIPTION OF THE SUPPLIES OR SERVICES REQUIRED TO MEET THE AGENCY?S NEEDS (INCLUDING THE ESTIMATED VALUE). The purpose of the services provided under the OCE Mission Support contracts is to assist the EPA civil enforcement program protect the environment and human health by assuring compliance with federal environmental laws. Civil enforcement encompasses the investigations conducted, and the cases filed and settled, to address environmental violations including EPA administrative actions and judicial cases referred to the Department of Justice (DOJ). EPA works closely with states (e.g., in the joint development of cases) as well as with tribes and other federal agencies to implement enforcement programs. Civil enforcement actions serve a number of important goals such as returning violators to compliance, eliminating or preventing environmental harm, deterring the violator from future violations and others from misconduct, and preserving a level playing field for responsible companies that work hard to abide by the law. The agency puts an emphasis on those actions that reduce the most significant risks to human health and the environment; and it has extensive consultation with states and other stakeholders on the determination of risk-based priorities. The OCE, within the Office of Enforcement and Compliance Assurance, and its regional counterparts, is charged with the development, litigation, and settlement of administrative and civil judicial cases against violators of the environmental laws pursuant to federal environmental statutes. These include the Clean Water Act (CWA); Safe Drinking Water Act (SDWA); Marine Protection, Research and Sanctuary Act (MPRSA); Clean Air Act (CAA); Resource Conservation and Recovery Act (RCRA); Oil Pollution Act (OPA); Federal Insecticide, Fungicide and Rodenticide Act (FIFRA); Toxic Substance Control Act (TSCA); Federal Facility Compliance Act (FFCA); Emergency Planning and Community Right-to-Know Act (EPCRA); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Asbestos Hazard Emergency Response Act (AHERA); and Mercury-Containing and Rechargeable Battery Management Act (Battery Act). The OCE Mission Support contractors provide analytical, technical, and administrative support services to OCE and other EPA offices, regions, states, U.S. territories, and tribes. Major activities can include case development and settlement negotiation strategies support; developing management controls and data systems for assisting with enforcement of, and monitoring compliance with, all national enforcement initiatives and programs; targeting, developing, and implementing compliance assurance activities to monitor and improve compliance of regulated pollution sources; ensuring effective enforcement of environmental requirements; compliance monitoring including on-site inspections and investigations of pollution sources; motivating the regulated community to voluntarily discover, disclose, and correct violations; developing and implementing, in association with the National Enforcement Training Institute (NETI), enforcement related training and workshops; monitoring and enfo rcing federal, and federally-authorized, state programs; and providing support to Regions, states, territories, tribes, and other regulatory authorities. These requirements are perpetual in that there is no foreseeable ?end date? when these services will not be required by the agency. The maximum estimated value for the three month extension of both contracts is $1,400,000 ($700,000 each). Each option period (one month) is estimated at $200,000 per contract. This estimate is based on the average spend per invoice period, as well as the time of year of the extension, certain inspections which are done more frequently in the spring/summer time, the amount of the current ongoing work, and the slowdown in work as we have approached ceiling and funding capacity. 4. AN IDENTIFICATION OF STATUTORY AUTHORITY PERMITTING OTHER THAN FULL AND OPEN COMPETITION. 41 U.S.C. 3304(a)(1) in accordance with Federal Acquisition Regulation (FAR) 6.302-1: only one responsible source and no other services will satisfy agency requirements. 5. A DEMONSTRATION THAT THE PROPOSED CONTRACTORS? UNIQUE QUALIFICATIONS OR NATURE OF THE ACQUISITION REQUIRES USE OF THE AUTHORITY CITED. The contractors listed under Section Two of this document are currently providing support for the requirement. This is ongoing work, the majority of which is for case and settlement negotiations support and inspections. Until the follow-on contract(s) are awarded, Leidos and ERG are the only sources that possess the ability to perform the EPA requirement in a timely, uninterrupted, and cost-effective manner. Cases and negotiations are initiated under single or multiple EPA statutes. Most cases or negotiations involve confidential business information (CBI) and the contractors are allowed access to this CBI. There are various requirements under the different statutes for access to CBI, with TSCA and RCRA being the most stringent. Currently, both contractors have work assignments under which they must access TSCA and/or RCRA CBI. Contractors have to be certified to receive these types of CBI. Currently Leidos and ERG both have employees that have been approved to receive such CBI under the OCE mission contracts. Employees have to go through a testing process for both TSCA and RCRA CBI as well as annual refresher training for TSCA CBI. Also, both contractors have a required EPA approved TSCA CBI room at their facility. When new contract awards are made, the TSCA and RCRA CBI requirements require an announcement in the Federal Register stating that the awardee will be allowed access to TSCA and RCRA CBI. This requirement allows time for businesses to respond to the announcement. Meeting all of the TSCA and RCRA CBI requirements ? announcement period in the Federal Register, approval of employees to access the CBI, and the creation and approval of a TSCA CBI room would take a minimum of 60 days to complete. An open competition to compete the extension period would cause unnecessary and damaging delay and costs, and would be impossible to implement with the TSCA and RCRA CBI requirements. In addition, inspectors need to be credentialed by EPA to conduct inspections under the aforementioned statutes (see Section Three). Credentialing requirements include having the inspectors complete specialized courses as well on the job training for each statute they are credentialed to inspect under, being trained in EPA?s Safety and Health requirements, and passing a moderate background investigation by the Office of Personnel Management. Both current contractors have credentialed inspectors and have been trained in the requisite EPA requirements which will ensure uninterrupted support in compliance inspections. Because the current contractors have staff already approved by EPA to access TSCA and RCRA CBI, an EPA approved TSCA CBI room, and inspectors that have EPA issued credentials, they are the only contractors that can continue the current work being done under each contract. Also, OCE?s procurement initiation notice had required a two month overlap between the current contracts and any new contract(s) to allow time for the CBI and inspector requirements to be met while current work continued. 6. A DESCRIPTION OF EFFORTS MADE TO ENSURE THAT OFFERS ARE SOLICITED FROM AS MANY POTENTIAL SOURCES AS IS PRACTICABLE, INCLUDING WHETHER A NOTICE WAS OR WILL BE PUBLICIZED AS REQUIRED BY SUBPART 5.2 AND, IF NOT, WHICH EXCEPTION UNDER 5.202 APPLIES. As required by FAR Part 5.2, a notice of the intent to extend the two current OCE Mission contracts was publicized in FedBizOpps on February 26, 2015 (postings: Extension of EP-W-09-032 and Extension of EP-W-09-033). 7. A DETERMINATION BY THE CONTRACTING OFFICER THAT THE ANTICIPATED COST TO THE GOVERNMENT WILL BE FAIR AND REASONABLE. At the respective times of award, the Government determined that the cost plus fixed fee dollar values of the OCE contracts were fair and reasonable. The respective extensions to the contracts are for three months from April 1, 2015 through June 30, 2015. If the option periods are needed (six one-month option periods), they will extend the contract end dates up to December 31, 2015. The estimated cost of the extensions is based on previous invoiced amounts and direct and indirect billing rates that have already been determined to be fair and reasonable. Therefore, the Contracting Officer hereby determines that the anticipated cost to the Government for the extensions is fair and reasonable. 8. A DESCRIPTION OF THE MARKET RESEARCH CONDUCTED AND THE RESULTS OR A STATEMENT OF THE REASON MARKET RESEARCH WAS NOT CONDUCTED. Market research was not conducted for this action as doing so was not relevant to the contract extensions. Extensive market research was conducted during the pre-solicitation phases of both the previous and current acquisition. 9. ANY OTHER FACTS SUPPORTING THE USE OF OTHER THAN FULL AND OPEN COMPETITION. The work performed under these contracts provides critical and indispensable services to the Agency, DOJ, state, tribes, and the general public, and the continuity of these services is imperative. If the current contracts were allowed to end, and there was a lapse in support services, it would cause irreparable damage, specifically to ongoing cases and settlement negotiations. There is the potential that cases could be overturned and negotiations could be halted and settlements not reached. There is additional potential for the U.S. Treasury to lose funds since the settlements reached have the violators/defendants pay the settlement amounts directly to the Treasury. It is imperative that the current OCE Mission Support contracts remain active to fully provide required services to EPA. A break in these essential services at any point would adversely impact the EPA, as well as the public in both health and economic perspectives. It is vital that the agency be able to continue these ongoing OCE Mission Support services with the current contractors. Therefore, as a result of the halt to the award of a new contract(s), it is imperative that both contracts be extended to assure that there is no gap in essential services. 10. A LISTING OF SOURCES, IF ANY, THAT EXPRESSED IN WRITING AN INTEREST IN THE ACQUISITION. Based upon the rationale contained in the foregoing, no other sources will be solicited for the period of the extension. 11. A STATEMENT OF THE ACTIONS, IF ANY, THE AGENCY MAY TAKE TO REMOVE OR OVERCOME ANY BARRIERS TO COMPETITION BEFORE ANY SUBSEQUENT ACQUISITION FOR SUPPLIES OR SERVICES IS REQUIRED. The current solicitation, that is under protest, was competed under full and open competition, as the next requirement will be. When the government begins acquisition planning for OCE Mission Support in four years, it will again opt for a full and open and competition, thus eliminating all barriers to competition. Contracting Officer Certification: This is to certify that this JOFOC has been reviewed and that, to the best of my knowledge and belief, the information provided to support the rationale and recommendation for approval is accurate and complete. Michael Gilham [Electronic signature of physical document] 3/4/15 Contracting Officer, OAM Technical or Requirements Personnel Certification: This is to certify that the provided supporting information which is the responsibility of the undersigned program representative is accurate and complete. Rose Green [Electronic signature of physical document] 3/3/15 Contracting Officer?s Representative, OCE Advocate for Competition Approval: Lisa Maas [Electronic signature of physical document] 3/10/15 Acting Competition Advocate, OAM