JOFOC_LEX_Wastewater_FY19_Redacted.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Pursuant to the Federal Acquisition Regulation (FAR) 6.302-1 (a) (1) and 6.302-1 (b) (3), and the Bureau of Prisons Acquisition Policy (BPAP) 4100.06 Subpart 6.304(b), the Federal Bureau of Prisons (BOP) has determined that the procurement of wastewater utility services for the Federal Medical Center (FMC) located in Lexington, meets the criteria established for other than full and open competition. It is further determined that only one responsible source and no other supplies and/or services will satisfy agency requirements. This limitation on competition is justified as supported by the following information in accordance with FAR Part 6.303-2:

1. Agency:

Department of Justice Federal Bureau of Prisons Federal Medical Center 3301 Leestown Road Lexington, KY 40511

2. Nature and/or Description of Action being Approved:

This action is for the acquisition of wastewater utility usage to the FMC located in Lexington, KY, from the sole provider of such services in the Lexington area.

3. Description of Supplies or Services Required to Meet the Agency Needs:

Pursuant to FAR Part 41.202, the Lexington Fayette Urban County Government (LFUCG) continues to provide the “entire wastewater utility service” (i.e., collection, treatment, conveyance, system operation and maintenance, storage, metering, billing, etc.). LFUCG shall provide to the government facility at FMC Lexington, wastewater services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. The LFUCG shall provide services on an un-interruptible daily basis 365 days per year. LFUCG will be responsible to maintain and/or repair all associated pipelines and equipment, including associated costs for such repair, up to the delivery point or meter of FMC Lexington. LFUCG will be responsible to ensure that the pipelines and associated equipment, utilized to provide wastewater services will be maintained and operated in compliance with all rules and regulations set by the Kentucky Department of Public Health, in accordance with all Federal, State, County, and local government for a safe and sanitary wastewater service. Pursuant to FAR Part 41.202, LFUCG continues to provide the “entire wastewater utility service” (i.e., collection, treatment, conveyance, system operation and maintenance, metering, billing, etc.).

Wastewater utility service from October 1, 2018 thru September 30, 2019 is subject to funds availability (FAR Clause 52.232-18). The services will be procured by way of purchase order. The estimated average annual costs for wastewater utility service are

$426,270.25. The pricing includes all associated charges to the government for providing the services required (e.g., insurance, overhead, minimum wages, planning, etc.). The quantity of supplies/services to be provided by the contractor is estimated.

4. Statutory Authority Permitting Other Than Full and Open Competition:

This justification to award as a sole source is prepared pursuant to the exception to full and open competition requirements in accordance with the statutory authority for these services that is found at 41 USC § 3304 (a)(1), when the supplies or services required by the agency are available from only one responsible source. The application which permits use of the cited statutory authority are stated at FAR Part 6.302-1(b)(3), “When acquiring utility services (see 41.101), circumstances may dictate that only one supplier can furnish the service (see 41.202).” When a public utility supplier refuses to execute a tendered contract the agency may proceed with the acquisition and pay for the utility service under the provisions of 31 USC § 1501(a)(8). Analysis of the market indicates that the LFUCG has proprietary rights up to the meter or property line at FMC Lexington. In order for another provider to be capable of providing the service, significant capital improvements would be needed. The Bureau would be required to pay for the capital improvements, but it would not recover the costs of duplication of services, connection fees and infrastructure installation costs through competition. The current requirement is for follow-on services and does not include funding for capital improvements.

5. Determination that Proposed Contractor’s Unique Qualifications or the Nature of the Acquisition Requires Use of the Authority Cited:

LFUCG is the sole provider of wastewater utility usage service in the Lexington service area. LFUCG is authorized by city ordinance, as the sole authorized provider waste water utility usage in the Lexington area. All rates are regulated by city ordinance.

6. Efforts Made to Solicit from as Many Sources as Practicable Including Whether or Not a Notice Was or Will be Publicized as Required by FAR Part 5.2:

As stated in FAR 5.202 (a) (5), “the proposed contract action is for utility services other than telecommunications services and only one source is available.” Therefore, a notice is not required in the Government wide point of entry.

7. Contracting Officer’s Determination that the Cost to the Government Will be Fair and Reasonable:

LFUCG, which is charged under State of Kentucky law to ensure that rates be just and reasonable. The State of Kentucky and the City of Lexington websites have provided sufficient data to the FBOP contracting officer, pursuant to FAR 15.402, Pricing Policy, allowing the ability to make a preliminary determination that such anticipated costs appear to be fair and reasonable. All rates, rules and regulations of the LFUCG are subject to the approval of the Lexington City Council. A formal decision in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set pricing (see FAR 15.403-1(c)(2)). The establishment of the current supply and delivery of services began when the original service connections were installed. As such, this Contracting Officer has determined the anticipated cost to the Government is fair and reasonable.

8. Description of the Market Survey Conducted:

The market research conducted by the contracting office and the Facilities Department staff determined that a General Services Administration area-wide contract does not exist. Also, the LFUCG is the only supplier capable of providing FMC Lexington with wastewater transport and treatment services. LFUCG is the current wastewater service provider for FMC Lexington and has serviced the facility for the past twelve-years.

Product or Service Code: S- Utilities and Housekeeping Services– S119 Other Utilities.

North American Industry Classification System (NAICS): 221320 Sewage Treatment Facilities = this industry comprises establishments primarily engaged in operating water systems or sewage treatment facilities that collect, treat, and dispose of waste.

Standard Industrial Classification (SIC) Code: 4952 Sewage Systems

9. Other Facts Supporting the Use of Other Than Full and Open Competition:

No additional facts are known at this time.

10. List of Sources, Expressing in Writing, Interest in the Acquisition:

A sources sought was published on August 18, 2017 to www.fbo.gov. There are no sources that expressed an interest in this acquisition.

11. Actions Taken by the Agency to Remove or Overcome Barriers to Competitions:

The BOP will continue to monitor the market trends in the utility industry to seek competition or sources that may be able to meet the minimum needs of the government and its utility requirements. Should opportunities arise in the future the BOP will take appropriate action to ensure these services are competed.

12. Contracting Officer’s Certification:

I hereby certify that this request for Justification and Approval of Other Than Full and Open Competition is made in good faith, that the supporting data and information are accurate and complete to the best of my knowledge and belief, and that I would not be making this request if it were feasible to fully compete this requirement. I further certify that this request is not the result of lack of advance planning or a desire to expend funds while those funds are still available.

9/13/2018

Digitally signed by ALFRED RAUSCHUBER DN: c=US, o=U.S. Government, ou=Dept of Justice, ou=BOP, cn=ALFRED RAUSCHUBER, 0.9.2342.19200300.100.1.1=15001000663620 Date: 2018.09.13 08:53:21 -05'00'