05_Redacted - Justification for Exception to Fair Opportunity Form.pdf

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JUSTIFICATION FOR EXCEPTION

TO FAIR OPPORTUNITY

(FOR ORDERS UNDER MULTIPLE-AWARD CONTRACTS)

1. AGENCY AND CONTRACTING ACTIVITY

Contracting Organization: Pension Benefit Guaranty Corporation (PBGC) / Procurement Department (PD)

2. NATURE AND/OR DESCRIPTION OF THE ACTION BEINGAPPROVED

Requisition Number: RQ-33-21-000021 Procurement Action Type: Follow-On Task Order Contract Number: 16PBGC-21-R-0008 Contractor Name or Brand Name Product: Schafer & Weiner, PLLC

3. DESCRIPTION OF THE SUPPLIES OR SERVICES REQUIRED TO MEET THE AGENCY’SNEED

Supplies or services to be procured:

PBGC’s Office of General Counsel (OGC) must continue to use outside counsel in connection with the McClatchy bankruptcy proceedings. Counsel will provide transactional and bankruptcy expertise with regard to PBGC's claims which exceed $1 billion. Counsel will assist with negotiation and litigation in response to any objection to PBGC's claims.

The Period of performance and estimated value of each service to be procured:

Base Period: March 31, 2021 through March 30, 2022 Option Period: March 31, 2022 through March 30, 2023

Total Estimated Value: Approximately $100,000 (Includes 1 Base period and 1 Option Period)

4. IDENTIFICATION OF THE EXCEPTION TO FAIROPPORTUNITY

FAR Subpart 16.505(b)(2)(i)(B) - Only one awardee is capable of providing supplies or services at the level of quality required because the supplies or services to be ordered are unique or highly specialized.

FAR Subpart 16.505(b)(2)(i)(C) - Order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided thatall awardees were given a fair opportunity to be considered for the original order.

FAR Subpart 16.505(b)(2)(i)(D) - It is necessary to place an order to satisfy a minimum guarantee.

FARSubpart 16.505(b)(2)(i)(E) - Statute expressly authorizes or requires that purchase be madefrom a specified source.

FAR Subpart 16.505(a)(4) - Brand name product or feature of a product peculiar to one manufacturer.

Explain:

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6. ANY OTHER FACTS SUPPORTING THE JUSTIFICATION

The Contracting Officer will request a proposal and conduct a price analysis to compare the vendor’s proposed prices with the market pricing for similar legal services to make a determination of fair and reasonable pricing. The Contracting Officer will compare the proposed price to the Independent Government Cost Estimate (IGCE) as well for the total period of performance.

Additionally, the Contracting Officer will assure price reasonableness by comparing the proposed labor categories, labor rates, and estimated hours for the follow-on Task Order to the labor categories, labor rates, and estimated hours on previously competed actions (the Price Schedules of the other seven (7) IDIQ holders and the current Task Order Price Schedule.)

PBGC identified a need to retain contractors to perform work as outside counsel to enhance OGC capabilities in various substantive legal areas and increase its ability to rely on emergency contracting procedures when the need arises.

Outside counsel services were competitively bid in the open market and eight (8) law firms were awarded an IDIQ on March 22, 2019, with a five (5) year ordering period, to include one (1) base year and four (4) option years. Market research was conducted at the IDIQ level prior to award of IDIQs. Specifically, the program office used historical data collected from previous agency contracts with the same scope and referenced GSA’s website to identify technically qualified firms. Several potential qualified firms were identified in the open market. Market research on the IDIQ level did not reveal evidence of adequate competition for law firms with GSA schedule, professional services contracts.

Upon evaluation of proposals received for the IDIQ procurement, competitively bid in the open market, IDIQ 16PBGC19D0016 was awarded to Schafer and Weiner, PLLC. IDIQ 16PBGC19D0016 permits for Firm Fixed Price or Labor Hour Task Orders. The maximum IDIQ amount, specific to the Schafer and Weiner IDIQ, shall not exceed $78,000,000.00 for the life of the contract.

A Task Order (the current Task Order) was competitively bid amongst the eight (8) firms and Task Order 16PBGC20T0015 was awarded to Schafer and Weiner, PLLC on February 5, 2020.

Task Order 16PBGC20T0015 has a one (1) year period of performance from February 5, 2020 through February 4, 2021 with an awarded value of $107,000.

The development which requires continued, follow on work is that the plan sponsor filed for bankruptcy protection before the U.S. Bankruptcy Court for the Southern District of New York.

The proceeding is currently identified as In re JCK Legacy Company et, al., case no. 20-10418-mew.

5. DETERMINATION BY THE CONTRACTING OFFICER THAT THE ANTICIPATED COST TO THE

GOVERNMENT WILL BE FAIR AND REASONABLE

https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fecf.nysb.uscourts.gov%2Fcgi-bin%2FDktRpt.pl%3F300428&data=04%7C01%7Cbarnes.erika%40pbgc.gov%7C050802dc58674abbaddf08d896c9ca55%7C2e279aa3dba743a1a9c96df364726a59%7C0%7C0%7C637425140726818634%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=FKjAeS%2B109fjw8Q3SdeunXL2XizGdbpCB3l%2F1aHrNYk%3D&reserved=0 https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fecf.nysb.uscourts.gov%2Fcgi-bin%2FDktRpt.pl%3F300428&data=04%7C01%7Cbarnes.erika%40pbgc.gov%7C050802dc58674abbaddf08d896c9ca55%7C2e279aa3dba743a1a9c96df364726a59%7C0%7C0%7C637425140726818634%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=FKjAeS%2B109fjw8Q3SdeunXL2XizGdbpCB3l%2F1aHrNYk%3D&reserved=0

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The current Task Order Awardee, Schafer & Weiner, has been representing PBGC in the McClatchy bankruptcy from the beginning of the case. They are intimately familiar with all aspects of the case, including PBGC's claims, issues and concerns; the history of the negotiations regarding PBGC's claims; the work of the unsecured creditors committee; and the formulation of the liquidating plan and the formation of the liquidation trust. Engaging a new firm would entail significant duplication of costs and significant delay as the firm familiarized itself with the case.

Specifically, Schafer and Weiner expended approximately 4 hours at Senior Partner, 162 Hours at Lead Attorney, 26 hours at Junior Partner, and 18 hours at Senior Associate providing expertise and support throughout the bankruptcy proceedings, including drafting, editing, and reviewing pleadings, conducting legal research, providing legal and strategic advice, and participating in court and mediation proceedings. The bankruptcy proceedings have extended longer than initially expected based on the agency’s experience with proceedings of similar size and scope. Representation of PBGC by outside counsel is essential to completing the bankruptcy proceedings.

The cost of a new outside counsel reaching the same level of expertise and familiarity with these bankruptcy proceedings and PBGC’s claims in the proceedings, thus re-performing work already done by the current contractor, is estimated at a total of $56,000. This amount is based upon the level of effort to familiarize with the case for the existing Task Order. Therefore, it is reasonable to expect that awarding another task order would result in $56,000 or more in duplication of costs for necessary work on this matter.

If an objection is filed to PBGC's claims, which currently total $1,105,231,226 (over $1.1 billion), PBGC will be required to respond to the objection and prepare for litigation within two to three weeks. Because of its familiarity with the case, Schafer & Weiner is the only firm that could respond in a timely manner.

Outside counsel in connection with the McClatchy bankruptcy proceedings was competitively bid and awarded to Schafer and Weiner per Task Order 16PBGC20T0015.

As described in the paragraphs above, additional Market Research was conducted at the follow-on to Task Order 16PBGC20T0015 level which includes, but is not limited to:

(1) The scope of work for the follow-on work (services)

(2) The availability of sources to supply the required services,

(3) The impact and lead time for obtaining the required service,

(4) Potential sources for the supply or service,

(5) The Independent Government Cost Estimate (IGCE) or price reasonableness for the service

(6) Time required to procure additional services and complete the (urgent) work

(7) The costs/risks and/or benefits associated with issuing an award for follow on work to another vendor/not the current Task Order awardee

7. A STATEMENT OF THE ACTIONS, IF ANY, THE AGENCY MAY TAKE TO REMOVE OROVERCOME

ANY BARRIERS THAT LED TO THE EXCEPTION TO FAIR OPPORTUNITY BEFORE ANY

SUBSEQUENT ACQUISITION FOR THE SUPPLIES OR SERVICES IS MADE

(8) Whether the agency has historically procured services under a separate contract

The research conducted in support of the follow-on Task Order has revealed that;

1. The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract.

2. All IDIQ awardees were given a fair opportunity to be considered for the original order.

In consideration of the above it has been determined that, in accordance with FAR 16.505(b)(2)(i)(C) – An Order must be issued on a sole-source basis in the interest of economy an efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.

The agency will continue to monitor the performance and conduct contract oversight reporting to assure services are being provided in accordance with the Performance Work Statement, estimated pricing and any applicable deliverable timelines.

The Contracting Officer will assure that the offeror’s technical proposal for follow on work includes quality control procedures to include offeror’s approach to quickly detecting and correcting errors, deficiencies, and problems effecting contract performance; A Delivery Schedule which identifies procedures for tracking measuring work and an approach to ensuring on-time delivery of assigned work to meet deadlines.

Further, when evaluating the exercise of the option year, the Contracting Officer will take into account the Government’s need for continuity of operations and potential costs of disrupting operations, and price reasonableness of said continuation of services under the anticipated Follow-on Task Order.

8. TECHNICAL OR REQUIREMENTS PERSONNEL’S CERTIFICATION

I hereby certify that this Justification, and all supporting data, are accurate and complete to the best of my knowledge and belief.

Mark F. Maddrey Program Office/COR

MARK MADDREY

Digitally signed by MARK

MADDREY

Date: 2021.03.02 15:48:37 -05'00'

3/2/2021

Signature Date

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9. CONTRACTING OFFICER’S REVIEW ORAPPROVAL

I hereby certify that this Justification, and all supporting data, are accurate and complete to the best of my knowledge and belief.

Justification does not exceed $700K - I approve this Justification.

Justification exceeds $700K adfsdsfasdfads 3/1/2021

Date

10. COMPETITION ADVOCATE’S REVIEW OR APPROVAL

I have reviewed this Justification, and all supporting data, and find it to be accurate and complete to the best of my knowledge and belief. Justification exceeds $700K but does not exceed $13.5M - I approve thisJustification.

Justification exceeds $13.5M

NOT APPLICABLE

Competition Advocate

11. SENIOR PROCUREMENT EXECUTIVE’S APPROVAL (For Justifications that exceed$13.5M)

I approve this Justification.

NOT APPLICABLE

Senior Procurement Executive -

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