07-18-0087,_FMC_Devens,_Electric_Utility,_$1,216,856.97_Redacted.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

ELECTRIC 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 (c), the Federal Bureau of Prisons (FBOP) has determined that the procurement of electric utility services for the Federal Medical Center (FMC) Devens 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. Identification of the Agency:

Department of Justice Federal Bureau of Prisons Federal Medical Center 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 electric utility services supplied to the FMC Devens, MA from the sole provider of such services in the Devens, MA area. FMC Devens has a present and continuing requirement for electric utility service for the proper operation of the facility.

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

The service required is transportation and related services for electric utility services from October 1, 2018 through September 30, 2019, subject to funds availability (FAR Clause 52.232-18). The services will be procured by way of purchase order. The estimated cost for the supply and transportation of the utility is as follows:

Contract Line Item Number Performance Period Estimated Annual Cost ($) CLIN 0001 October 1, 2018- September 30, 2019 $1,216,856.97

Total Estimated Cost: $1,216,856.97

4. An Identification of the Statutorv 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)(l), 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-l(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 (MDF A) 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. A Demonstration that the Proposed Contractor's Unique Qualifications or the Nature of the Acquisition Requires use of the Authority Cited:

MDF A dba: Massachusetts Government Lank Bank (MGLB) or MassDevelopment is uniquely qualified as the designated sole source supplier of electric utility services for the Devens area. Massachusetts State Legislation under Special Acts of 1993, Chapter 498 The Act Creating the Devens Commission, has authorized the 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 ofM.G.L. Chapter 23G, which merged MGLB and the Massachusetts Industrial Finance Agency (MIF A). As a result MDF A is responsible for the Devens area and designated to provide electric 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 MDF A.

6. A Description of 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)(S), "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 ( GPE) according to the exemptions. GSA, Energy Management Center of Expertise, has previously determined that there are no area wide contracts for electric utilities and that no opportunity exists in the local area to compete the requirement.

7. A Determination by the Contracting Officer that the Anticipated Cost to the Government will be Fair and Reasonable:

The current rates offered by MDF A are equal to or below the market price levied other commercial, industrial, and Government users when compared to other utility prices in the state. Current estimated prices are considered fair and reasonable. Prices will be continuously analyzed by the Contracting Officer and Facility Manager in order to determine price reasonableness.

8. A Description of the Market Research Conducted:

Product or Service Code: S- Utilities and Housekeeping Services- Sl 12 Utilities - Electric.

North American Industry Classification System (NAICS): 221122 Electric Power Distribution= this industry comprises electric power establishments primarily engaged in either (1) operating electric power distribution systems (i.e., consisting of lines, poles, meters, and wiring) or (2) operating as electric power brokers or agents that arrange the sale of electricity via power distribution systems operated by others.

Standard Industrial Classification (SIC) Code: 4911 Electric Services

Potential Sources: MDF A is the sole provider of electric 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 electric utility services." Under the condition precedent to the initial and continuing supply of electric utility services at FMC Devens by the MDF A ("Mass Development", The "Agency" or "MDF A"), 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, MDF A 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 MDF A to propose small business subcontractor labor support when they have been performing this effort since the institution was dedicated in 1998.

Market Analysis: The results of market research have determined that the government's needs can be met by an item customarily available in the commercial marketplace.

The market research conducted by the contracting office and the Facilities Department staff determined that a General Services Administration (GSA) area-wide nor a single point contract with MDF A 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. 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)(l)(B). Search of previous purchases of similar/identical acquisitions shows MDF A is the current electric service provider for FMC Devens and has serviced the facility since dedication. MDF A is not willing to enter into a bilateral agreement to provide electric utility service. Also, MDF A is the only service supplier with the infrastructure in place at this time to provide FMC Devens with electric services. No other company has presented itself with the capabilities nor the infrastructure to provide this utility service to the current connection site. The amount compensated for the construction of the electric infrastructure systems currently being used at FMC Devens is not available. No other sources have been located that are currently capable or that could acquire the capability of meeting the Bureau's requirement.

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 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 on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

The provision of electric utility service is essential for the orderly operation of FMC Devens. The specifications/description requirements documents shall specify needs using market research in a manner designed to promote full and open competition and only include provisions or conditions to the extent necessary to satisfy the needs of the FBOP or as authorized by law. History shows and economics dictate that the construction of facilities by multiple utilities in the same location would be extremely costly and disruptive to communities. The ratemaking process ensures the lowest reasonable rate for consumers while maintaining the financial stability of the utility. Under the law, the utility is entitled to recovery of its reasonable incurred expenses.

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

None.

10. A listing of sources, if any, that expressed in writing, an interest in the acquisition:

On August 18, 2017, an open and continuous sources sought notice was posted to www.fbo.gov. No sources expressed an interest in this requirement.

II. A Statement of the Actions Taken by the Agency to Remove or Overcome Barriers to Competition:

At this time, full and open competition is not available for this requisition. If opportunities arise in the future the FBOP will take appropriate action to satisfy the agency's requirement.

12. CONTRACTING OFFICER CERTIFICATION:

I hereby certify that this request for Justification and Approval of other than Full and Open Competition is made in good-faith and that the suppo1ting data and info1mation 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 fu1ther certify that this request is not the result of lack of advance planning or desire to expend funds while those funds are still available.

Bonnie ~~~~~~~;~:~!~~."~~~,~·'•' Bueter ~~:~1=:o~"s~~~:~~~~v3;~s~oo· 0711712018

Bonnie Bueter, Contract Specialist Field Acquisition Office

Date

I hereby ce11ify that the supporting data, provided by the technical and requirements personnel, which form the basis for this justification is complete and accurate to the best of my knowledge and belief.

FMC Devens

Concurrence of:

CAPT S. Spaulding, W FMC Devens

CHARLES

DOGGETT

Oigillllfy a.gned tiy CHARI.. ES DOGGETT ON eocus. o=U s Government. 01FDepi of Jl.llttce. ouzBOP, Cl'l=CHARLES OOOOETT 0.923421920030010011•15001000663439 Oete·201807180El1923-05'00'

Al Rauschuber Jr., Chief Field Acquisition Office

Approved:

07/18/2018

Date t//!JaliY Date •

The Competition Advocate for the procuring activity, designated pursuant to FAR 6.501 and BPAP 4100.06, has reviewed this justification for a proposed contract action. Based on the forgoing determination and findings, I hereby approve this justification on an other than full and open competition basis pursuant to the statutory authority cited in paragraph 4 above, subject to availability of funds, and provided that the service herein described have otherwise been authorized for acquisition.

Bradley . Gross Assistant Director for Administration Competition Advocate

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