JOFOC19-95_DEV_Wastewater_Utility_Services_FY20_Redacted.pdf

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:

North American Industry Classification System (NAICS): 221320 Sewage Treatment Facilities

Standard Industrial Classification (SIC) Code: 4952 Sewage 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. 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 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.

9. 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 June 5, 2019, an open and continuous sources sought notice was posted on www.fbo.gov. No sources expressed an interest in this acquisition.

11. 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. The BOP has contacted GSA and they will not pursue an area wide contract, pursuant to FAR Part 41. If opportunities arise in the future the BOP will take appropriate action to satisfy the agency’s requirement.

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 and 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 desire to expend funds while those funds are still available.