JOFOC18-14_DEV_Wastewater_Utility_Svcs_FY18_Redacted.pdf

JUSTIFICATION FOR OTHER THAN FULL

AND OPEN COMPETITION

PUBLIC UTILITY – WASTEWASTEWATER UTILITY

SERVICE

FEDERAL MEDICAL CENTER DEVENS

AYER, MASSACHUSETTS

Contractor: MDFA

Period of Coverage: 10/1/2017 through 9/30/2018 Estimated Amount: $242,211.24

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Wastewastewater Utility Services

Pursuant to the Federal Acquisition Regulation (FAR) Subpart 6.302-1 (a) and 6.302-1 (b) (3), and the Bureau of Prisons Acquisition Policy (BPAP) Part 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 Devens, MA 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 FMC Devens 42 Patton Road PO Box 880 Ayer, MA 01432

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

This action is for the acquisition of wastewater utility services supplied to the FMC Devens, MA from the sole provider of such services in the Ayer, MA area.

3. Description of supplies or services required to meet the agency’s needs:

The service required is transportation and related services for wastewater utility services from October 1, 2017 through September 30, 2018, subject to funds availability (FAR Clause 52.232-18). The services will be procured by way of purchase order. The estimated cost for the transportation of the utility is as follows:.

Contract Line Item Number Utility Performance Period

Estimated Annual Cost ($)

CLIN 0001 Wastewater October, 2017– September, 2018 $242,211.24

Total Estimated Cost: $242,211.24

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 U.S.C. 3304 (a)(1), when the supplies or services required by the agency are available from only one source. The application which permits use of the cited statutory authority are stated at FAR 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)”.

Analysis of the market indicates that the Massachusetts Development Finance Agency (MDFA) dba: Massachusetts Government Land Bank (MGLB) or MassDevelopment has proprietary rights up to the meter at FMC Devens. 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 the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited:

MDFA is uniquely qualified as the designated sole source supplier of wastewater services for the Devens area. Massachusetts State Legislation under Special Acts of 1993, Chapter 498 The Act Creating the Devens Commission, has authorized the Massachusetts Government Land Bank (MGLB) to provide all public services, including all utilities, for the Devens area either directly or by contract. The purpose of this legislation is for the redevelopment of Devens for non-military uses beneficial to the local economy. In 1998, MassDevelopment was created by the Massachusetts State Legislature enactment of M.G.L. Chapter 23G, which merged MGLB and the Massachusetts Industrial Finance Agency (MIFA). As a result MassDevelopment is responsible for the Devens area and designated to provide wastewater utility services. The Massachusetts Department of Public Utilities (MDPU) is the administrative agency charged under Massachusetts law with the supervision and control over all public utilities in the state of Massachusetts. The MDPU has regulatory authority with a statutory mandate to ensure utilities are provided at reasonable rates, however MDPU does not regulate MDFA.

6. Efforts made to solicit from as many potential sources as practicable, including whether a notice was or will be publicized as required by FAR Part 5.2:.

As stated in FAR Part 5.202 (a)(5), “the contract action is for utility services other than telecommunications services and only one source is reasonably available;” therefore, a notice is not required in the Government wide point of entry. General Services Administration (GSA), Energy Management Center of Expertise, has previously determined that there are no area wide contracts for the transportation of utilities and that no opportunity exists in the local area to compete the requirement.

7. Contracting Officer Determination that the cost to the Government will be fair and reasonable:

The current rates offered by MDFA are equal to or below the market price levied other commercial, industrial, and Government users when compared to other utility prices in the state.

Prices are determined to be fair and reasonable and will continuously be analyzed by the Contracting Officer and Facility Manager in order to maintain price reasonableness.

8. A description of the market research conducted:

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

North American Industry Classification System (NAICS): 221320 Sewage Treatment Facilities Standard Industrial Classification (SIC) Code: 4952 Sewerage Systems

Potential Sources: MDFA is the sole provider of wastewater utility service in the FMC Devens service area. I applied personal knowledge, interaction with knowledgeable individuals in local and Federal Government regarding market capabilities to meet the requirements, and research of generally accessible literature available on-line were the techniques used in researching this procurement for a supply/services of this type. After serving as the U.S. Army’s New England headquarters for 79 years, Fort Devens was closed in 1996. With financial support from the Commonwealth and a vote of the people, the Devens Regional Enterprise Zone was created by Statute and is redeveloping Devens into a sustainable and diverse mixed-use community.

Pursuant to FAR Part 41.202, the MDFA continues to provide the “entire wastewater utility services.” Under the condition precedent to the initial and continuing supply of wastewater utility services at FMC Devens by the MDFA (“Mass Development”, The “Agency” or “MDFA”), a body politic and corporate and a public instrumentality of the Commonwealth of Massachusetts, created and existing under the provisions of Mass. St. 1998, c. 289, Sections 23-29, 33. The Act authorizes MDFA to be the exclusive public agency responsible for the acquisition, control, maintenance, and redevelopment of Devens. It is intended that these Terms and Conditions apply with equal force to supplying all utility services. Due to its historical relationship with the FMC Devens under the initial infrastructure connection contract, MDFA is the only contractor that can maintain and sustain the current and future infrastructure management of all required utility systems. It would not be in the government’s best interest to expect MDFA to propose small business subcontractor labor support when they have been performing this effort since the institution was dedicated in 1998.

Market Analysis: The market research conducted by the contracting office and the Facilities Department staff determined that a GSA area-wide nor a single point contract with MDFA is available in accordance with Title 31 USC § 1535. GSA is specifically authorized by law and regulation to purchase utility services on behalf of other agencies by providing an Assisted Acquisition. However, MDFA in not willing to enter into a bilateral agreement to provide wastewater utility service. In August 2010, in accordance with Title 40 USC § 121(d), GSA issued the FBOP a Delegation of Authority for nationwide authority to negotiate and execute utility service contracts at Federal facilities under the control and direction of the FBOP in accordance with Title 40 USC § 501(b)(1)(B). Search of previous purchases of similar/identical acquisitions shows MDFA is the current wastewater utility service provider for FMC Devens and has serviced the facility since dedication.

It is this Contracting Officers determination there is a source available that is capable of providing the required services. The procurement will be conducted in accordance with the procedures as outlined in FAR Part 6,12, 13, and 41. A Performance-Based Acquisition (PBA) method will not be used for this procurement as it is determined not applicable. A PBA relies

10/27/2017 Bonnie

10/30/2017Date: 2017.10.30 12:40:20 -05'00'