05_SOLE SOURCE JUSTIFICATION REDACTED Version- USA Today - November 2021_2.pdf

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SOLE SOURCE JUSTIFICATION

(FOR SAP PROCUREMENTS)

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

22-000008Requisition Number: 13-

Procurement Action Type: New Contract

Contract Number: 16PBGC22S0001

Contractor Name or Brand Name Product: USA Today

The Pension Benefit Guaranty Corporation (PBGC) intends to procure advertising space in a national newspaper publication, as an initial step to assume responsibility for the Times Publishing Company Pension Plan. PBGC is seeking to terminate the pension plan effective November 30, 2021. Ten (10) Optional CLINs are being included for the same specifications/size in order to meet the same termination notice requirements on plans over the next 12 months.

In order for a plan termination to be effective, plan participants must at least have constructive notice to extinguish their expectation of plan continuation. Federal courts have previously held that newspaper publication is sufficient notification to do so. See e.g., PBGC v. Heppenstall Co., 633 F.2d 293 (3d Cir. 1980). The court of appeals has held that in selecting a plan termination date, the interests of the plan participants and PBGC must be balanced. The court of appeals also held that the earliest possible date that properly can be selected by a court is the date on which participants had reasonable notice that PBGC was seeking termination. Reasonable notice is notice sufficient to extinguish the participants’ justifiable reliance interests, and constructive notice by publication is sufficient.

Times Publishing Company Pension Plan has over 3,000 participants and beneficiaries in 49 states. Based upon the forgoing concerning constructive notice requirements, and the geographic spread of plan participants, PBGC requires a vendor that can publish—in print—a notice in a nationwide publication that PBGC intends to seek termination of the Times Publishing Company Pension Plan.

Overall Period of Performance: 6-month duration CLIN 0001's Publish Date for Times Publishing Company Ad in USA Today: November 30, 2021.

Estimated Value per Ad: $18,925.89 CLIN 0001 for the 1st ad and three (3) Optional CLINs for USA Today Ads for PBGC over 6-month duration for a total of $75,703.56

2. NATURE AND/OR DESCRIPTION OF THE ACTION BEING APPROVED

1. AGENCY AND CONTRACTING ACTIVITY

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

4. AUTHORITY PERMITTING SOLE SOURCE PROCUREMENT

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Provide an explanation supporting and clearly addressing the items applicable to the situation requiring Sole Source procurement:

USA Today is a national publication capable of providing the constructive notice required by law as described in the Description of the Requirement section of this document. Other publications were considered, but were local or regional publications, which would not meet the requirement for participants to receive constructive notice required by law due to the plan participants being geographically dispersed.

Additionally, USA Today has by far the broadest reach compared to other national publications. Its 2019 circulation was 1,621,091. By comparison, The New York Times had a circulation of 483,701. USA Today is the publication that reaches the widest audience which, given the geographical dispersion of plan participants, makes that publication uniquely suited to meet PBGC’s needs.

The agency considered alternatives, which included multiple purchases with the Government Purchase Card (GPC) with a number of regional newspaper providers, but again due to the plan participants being geographically dispersed across much of North America, such an approach was not feasible in order to meet this urgent requirement. Additionally, the agency considered performing these services in-house and simply posting the notice on the agency website; however, it is questionable and unlikely this would meet the notice requirements required by law.

Not applicable to Sole Source procurements at or below the SAT, per FAR Part 13.501(a)(1).

Determination: Before the contract is issued, a determination that the cost/price is fair and reasonable will be made by the Contracting Officer by comparing contract prices with prices contained in current or previous contracts.

Market research was conducted as described above concerning national publications capable of meeting the agency need.

However, PBGC considered required sources of services under FAR Part 13.003(a) (e.g., Federal Prison Industries, Committee for Purchase from People Who are Blind or Severely Disabled, and Federal Supply Schedule contracts), and it was determined no required sources of services were inapplicable for this requirement, as documented more fully in the Market Research Report.

Further, as required by FAR 13.003(b), the agency considered and documented why the subject services were not set aside for small business, as required when the anticipated dollar value is above the micro-purchase threshold, but at or below the simplified acquisition threshold, but it was determined there were no small businesses available to meet the agency's need, as documented more fully in the agency's Market Research Report.

Based upon the market research conducted, as well as the information set forth in other sections of this document, and the agency's urgent need related to the condensed timeline for this one-time procurement, a sole source award is necessary under the circumstances. It is in the best interest of the Government to use USA Today for this

5. DEMONSTRATION THAT THE CONTRACTOR’S UNIQUE QUALIFICATIONS OR THE NATURE OF THE

ACQUISITION REQUIRES THE USE OF THE AUTHORITY CITED

6. DESCRIPTION OF EFFORTS MADE TO ENSURE THAT QUOTATIONS/OFFERS ARE SOLICITED FROM

AS MANY POTENTIAL SOURCES AS PRACTICABLE

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

GOVERNMENT WILL BE FAIR AND REASONABLE

8. DESCRIPTION OF THE MARKET RESEARCH CONDUCTED AND THE RESULTS, OR A STATEMENT

OF THE REASON MARKET RESEARCH WAS NOT CONDUCTED

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requirement.

9. ANY OTHER FACTS SUPPORTING THE USE OF SOLE SOURCE

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Not applicable to Sole Source procurements at or below the SAT

Not applicable to Sole Source procurements at or below the SAT

Not applicable to Sole Source procurements at or below the SAT

This procurement is necessary to meet the agency's minimum needs. The agency intends to explore making future purchases with local or regional publications below the micro-purchase threshold which does not require the same "maximum extent practicable" competition requirements for a procurement of this dollar value. For procurements that require a national publication, such as the subject action, the agency intends to take efforts to ensure future procurements are received timely when initial market research indicates the services will exceed the micro-purchase threshold, which will allow for greater competition. Further, the agency plans to evaluate its current acquisition strategy to determine if there are more efficient means to meet these requirements by having an established contract in place, within the agency, for when such requirements arise. Such a procurement would meet necessary competition procedures. Finally, the agency intends to further consider whether such notices can be provided by posting public notices on the agency's website and/or social media.

10. LISTING OF SOURCES, IF ANY, THAT EXPRESSED, IN WRITING, AN INTEREST IN THE ACQUISITION

11. A STATEMENT OF THE ACTIONS THE AGENCY MAY TAKE TO REMOVE OR OVERCOME ANY

BARRIERS TO COMPETITION BEFORE MAKING ANY SUBSEQUENT ACQUISITION FOR THE

SUPPLIES OR SERVICES REQUIRED