JA Exception to Fair Opportunity P00001.pdf

JUSTIFICATION FOR AN EXCEPTION TO FAIR OPPORTUNITY

Acquisition Title: Business Operations Support Center (BOSC) Agency: CMS Acquisition Year: 2023 Author: Andy Mummert – Contracting Officer, Tamar Zelcer, Office of Information Technology, Enterprise Systems Solutions Group – Contracting Officer’s Representative

1. Description of Action:

A. Nature

New Requirement Follow-On Order Modification of Existing Purchase Order / Contract Number

B. Order Against HHSM-500-2016-00069I Strategic Partners Acquisition Readiness Contract

(SPARC)

C. Contract Type Firm-Fixed Price Time and Materials Cost Plus Fixed Fee (CPFF)

Term Completion

Cost Plus Award Fee (CPAF) Other:

D. Projected Cost / Price of contract (Base & All Options): N/A E. The total estimated value of the proposed sole source action (for modifications only):

$4,885,265.77 F. Funding Source (s): 006930:0511, 006930:0522, 000787:0511

G. Basis for Approval (Far 6.303-1(d)) Individual Basis

Class Basis

The SPARC IDIQ contract contains ordering procedures which are described in clause G.1 – Task Order Procedures. The procedures provide for sole source task orders conducted under the procedures described at FAR 16.505 (b), such as the order described in this justification. CMS supported the award of the logical follow-on task order for the Business Operations Support Contractor (BOSC) by approving the required justification on June 14, 2023.

This justification contemplates the modification of the logical follow-on task order. The modification will extend the term of the bridge order due to protest. This proposed modification will increase the period of performance and cost of the logical follow-on order to provide time for prepraration of the agency’s response to the protest and its ultimate decision. CMS will execute this justification since this action was not included in the original justification.

The current contract number/task order number is HHSM-500-2016- 00069I/75CMC23F0002. The overall period of performance for the current contract is July 1, 2023 through December 30, 2023. The total dollar value obligated to date is $3,854,173.05.

2. Description of Supplies or Services:

The Centers for Medicare & Medicaid Services’ (CMS) Business Operations Support Center (BOSC) provides customer support for the Medicare Advantage and Prescription Drug (MAPD) program, Medicare Shared Savings Program (SSP), Innovation Center Alternative Payment Models (APMs), and Enterprise Identify Management (IDM). This follow-on order will provide up to six additional months of severable services to continue to provide these services for a short term and to transition the services to the successful offeror who wins the competitive procurement for the continuation of these services.

3. Authority and Rationale:

The Contracting Officer shall give every awardee a fair opportunity to be considered for a delivery/task order exceeding $3,500 unless one of the following statutory exceptions applies. FAR 16.505(b)(2). Mark the applicable exception:

The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays [FAR 16.505(b)(2)(i)(A)];

Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services are unique or highly specialized [FAR 16.505(b)(2)(i)(B)];

The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order [FAR 16.505(b)(2)(i)(C)]; or

It is necessary to place the order to satisfy a minimum guarantee [FAR 16.505(b)(2)(i)(D)].

A statute expressly authorizes or requires that the purchase be made from a specified source. [FAR 16.505(b)(2)(i)(E)].

Extending this logical follow-on will allow CMS to continue to provide BOSC services to the users dependent on this contractor for triaging and resolving their incidents and requests related to the MAPD, SSP, APMs, IDM.

CMS conducted a fair opportunity for consideration procurement under for the services. An unsuccessful offeror successfully protested CMS’ award to the U.S. General Accountability Office (GAO). GAO sustained the protest on May 22, 2023 and recommended that CMS re-evaluate the awardee’s proposal and make a new source selection in accordance with the terms of the solicitation.

CMS made a new source selection and an unsuccessful offeror protested the decision to the GAO. CMS determined that it would take corrective action to enter discussions with offerors and make a new selection decision. CMS made a new selection decision on August 17, 2023. An unsuccessful offeror protested to the GAO on August 28, 2023. CMS expects this GAO protest to be resolved by early December 2023. The current BOSC follow-on task order with New Wave Technologies expires on December 30, 2023. CMS seeks to modify the logical follow-on task order to add more time so that if CMS is successful in the GAO protest, the contractor can then transition the work to the new contractor. The transition would occur from January 2024 through March 2024.

It would not be economical or efficient to conduct a new separate procurement to provide the required services in this interim period. It is not cost effective or realistic to expect a contractor other than the incumbent to perform during the interim period considering the amount of transition effort expected when transferring this work to a new cont actor.

4. Provide a statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made:

The need for a sole source task order is a direct result of a protest. The agency has taken steps to remove barriers to competition as demonstrated through the ongoing effort to recompete these services. As a result of the ongoing competitive process, there are no additional actions that need to be taken to increase competition or reduce barriers to fair opportunity.

5. State any other facts supporting the justification:

The CO has no reasonable expectation that any offeror, other than the incumbent, would ever be determined a better value than award to the incumbent because of the reasons stated above, and therefore use of fair opportunity under these circumstances would be unreasonable.

Approvals:

1. Program Office Certification. This is to certify that portions of this justification have been developed by the undersigned program office personnel, including supporting information and/or data verifying the Government’s minimum needs, schedule requirements and other rationale for Exceptions to Fair Opportunity, which form the basis for this justification.

Contracting Officer Representative (COR) / Date

Program/Project Manager (P/PM) / Date

2. Contracting Officer Certification and Best Value Determination:

This is to certify that the justification for the proposed acquisition has been reviewed and that to the best of my knowledge and belief, the information and/or data provided to support the rationale and recommendation for approval, is accurate and complete.

By my signature below, after review of the relevant documents, I have determined that the order subject to this Justification represents the best value for the Government as set forth in FAR 16.505(b)(2)(ii)(B)(5), and constitutes a fair and reasonable price. The basis for my determination is as follows:

I will perform price analysis and cost analysis on the proposal to determine that it is fair and reasonable.

Contracting Officer / Date

3. CMS Competition Advocate Approval

I have reviewed this Exception to Fair Opportunity and find that it adequately supports other than full and open competition.

Name / Date

4. Head of Contracting Activity (HCA) Approval

I hereby confirm that the circumstances described above apply and approve this Justification for Exception to Fair Opportunity.

Tamar N. Zelcer -S Digitally signed by Tamar N. Zelcer -S Date: 2023.09.05 08:44:47 -04'00'

Robert C. Burger -S Digitally signed by Robert C. Burger - S Date: 2023.09.05 09:08:17 -04'00'

Andrew Mummert -S Digitally signed by Andrew Mummert -S Date: 2023.09.05 10:54:04 -04'00'

_N/A_________________________________________________ HCA Name / Date

5. Office of Small and Disadvantaged Business Utilization

_N/A__________________________________________________ Name / Date

6. OGC Legal Review

__N/A_________________________________________________ Name / Date

7. HHS Competition Advocate Approval

_N/A__________________________________________________ Name / Date

8. Senior Procurement Executive (SPE) Approval

Based on the foregoing justification, I hereby confirm the circumstances described above apply and approve the Justification for Exceptions to Fair Opportunity.

_N/A________________________________________________ SPE Name / Date