23-2441_JA_20240726_Redacted.pdf

Justification for an Exception to Fair Opportunity or to Use Brand-Name Restriction

CONTROLLED UNCLASSIFIED INFORMATION

v 18 Jan 2024 CONTROLLED UNCLASSIFIED INFORMATION Page 2 of 5v 18 Jan 2024 CONTROLLED UNCLASSIFIED INFORMATION Page 2 of 5 general contracting work. The projects included in the VELA MACC require the use of a registered architect or engineer during the development of the requirement for architect and engineering design services.

The total VELA MACC IDIQ ceiling is $275M; $98.6M of which has been executed through Option Year 3, leaving an available ceiling of $176.4M. The maximum task order value allowed under the VELA MACC IDIQ is $10M. The VELA MACC IDIQ is currently in Option Year 4, which has an ordering period of 15 May 2024 to 14 May 2025. IAW FAR Part 37.102(1)(ii), construction contracts are exempt from performance-based contracting methods.

(4) Identification of the exception to fair opportunity and the supporting rationale:

The specific exception that precludes the fair opportunity process for this acquisition is FAR 16.505(b)(2)(i)(C), "The order must be issued on a sole-source basis in the interest of economy and efficiency as 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."

Previous Project XUMU 23-2207 awarded in FY23 is a renovation of Building 8175, including the design and construction of additional HVAC, electrical, and communications systems for four new classrooms within the building. This previous project was a competitive acquisition solicited as a Task Order Request to three (3) small business contractors under the VELA MACC IDIQ.

The Contractors' proposals were evaluated for technical acceptability on the basis of Lowest Price Technically Acceptable 23 July 2024. There are three (3) contractor awardees under the VELA MACC IDIQ. In conducting market research into the potential interest in providing a proposal for this project, the contracting officer reached out to the two (2) other contractors, Heffler Contracting Group and Sealaska Constructors, LLC on the VELA MACC IDIQ and inquired as to whether or not either contractor intended to provide a proposal; no response was received from either contractor.

The previous project involves tying into the building's mechanical and electrical systems that communicate directly to the air handlers and controls that are to be replaced in the current acquisition, Project XUMU 23-2441 Replace HVAC in Building 8175.

The HVAC system being installed under the previous project in the four new classrooms must tie directly into the renovation of the building's HVAC system under the current requirement in order to have one cohesive, functioning unit. Additionally, because the previous project is in the design phase, both projects will overlap in timelines, resulting in conflicting working areas because both projects would be in construction at the same time. Further, if the project were to be awarded to another contractor, the construction phase of the contract could not proceed until after construction on the current project is complete (estimated April 2025), plus an additional one year during the warranty period in order to not void the warranty included on the current contract. Therefore, if the project were to be awarded to a different contractor, onsite construction could not begin until April 2026, during which time, inflation on materials and manpower would increase, causing an additional cost to the Government. With nonresidential construction inflation rates averaging approximately 7 percent annually, on a project this scale, the total increased cost of materials alone would be approximately $130,480.00. The need to incorporate the subject project into the previous project's current design also reduces the likelihood of design deficiencies and errors due to multiple design contractors developing designs for the same system which may conflict, causing design deficiencies and creating an unsynchronized system, which would lead to construction delays, and hindering the Government's ability to execute its mission.

Awarding a sole source contract under the VELA MACC IDIQ to the incumbent contractor will streamline the design process, reduce design errors and deficiencies, and allow for the testing of equipment and tying equipment together in the same timeline. As stated above, incorporating this project into the current design effort would save the Government approximately $130,480.00 and reduce the timeline by an estimated 18 months.

The current project is a logical follow-on to the previously-awarded project because it is a continuation of HVAC replacement within Building 8175, of which must be tied in together during the design and construction phase in order to deliver a usable, integrated system that functions properly for the building tenants.

(5) Contracting Officer's determination that the anticipated cost to the Government will be fair and reasonable:

A determination that the anticipated cost to the Government will be fair and reasonable through the technical evaluation conducted by Government technical experts, an analysis of historical pricing data such as similar previous contracts determined to be fair and reasonable, and by requesting the Contractor provide data other than certified cost and pricing data, including but not limited to data related to prior sales of project materials.

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(6) Other facts supporting the justification:

N/A

(7) Actions the agency may take to remove or overcome any barriers to increasing fair opportunity before any subsequent acquisition for the supplies or services:

In order to overcome any barriers to increase fair opportunity in the future, the Government Civil Engineering (CE) project manager must conduct a thorough investigation of the project site prior to developing the project requirements, while also reviewing current and planned projects where multiple contractors would be working in the same building and/or same system.

The CE project manager must use this information to posture such projects to be awarded within the same fiscal year in order to be combined or separated by sufficient time so that each project can be performed independently.

(8) Program Manager's certification that supporting data is accurate and complete:

As evidenced by my signature below, I certify that any supporting data contained herein, which is my responsibility, is both accurate and complete.

(9) Contracting Officer's certification that the justification is accurate and complete:

As evidenced by my signature below, I certify that the justification is accurate and complete to the best of my knowledge and belief.

(10) Approving Official's determination that one of the circumstances in FAR 16.505(b)(2)(i) applies to the order.

As evidenced by my signature below, I hereby determine that the fair opportunity exception checked on page 1 applies.

Date

04 Apr 2024

Program Manager Trenton Shimata

CENMP / 805-276-7030

Signature

Date

14 May 2024

Contracting Officer Meghann E. Applebay

30CONS/PKA / 805-605-2465

Signature

Date

01 Jul 2024

Local Legal Reviewer Samuel Casazza

SLD30/JA / 805-606-2208

Signature

Date

08 Jul 2024

Chief of the Contracting Office (COCO) Maj Corey M. Arruda

30CONS/CC / 805-605-8022

Signature

Date

26 Jul 2024

Approval Authority/Competition Advocate and Commercial Advocate Erik J. Symanski

AFICC/KS / 791-554-3668

Signature

SHIMATA.TRENTON.

M.1544945749

Digitally signed by

SHIMATA.TRENTON.M.1544945749

Date: 2024.04.04 10:38:01 -07'00'

APPLEBAY.MEGHAN

N.E.1537981233

Digitally signed by

APPLEBAY.MEGHANN.E.1537981233

Date: 2024.05.14 12:52:08 -07'00'

CASAZZA.SAMUEL.T.

1235035878

Digitally signed by

CASAZZA.SAMUEL.T.1235035878

Date: 2024.07.01 13:27:00 -07'00'

ARRUDA.COREY.MIC

HAEL.1009062765

Digitally signed by

ARRUDA.COREY.MICHAEL.1009062765

Date: 2024.07.08 12:05:32 -07'00'

SYMANSKI.ERIK.J

OHN.1010663454

Digitally signed by

SYMANSKI.ERIK.JOHN.101066345

Date: 2024.07.26 10:54:24 -04'00' v 18 Jan 2024 CONTROLLED UNCLASSIFIED INFORMATION Page 4 of 5v 18 Jan 2024 CONTROLLED UNCLASSIFIED INFORMATION Page 4 of 5

Instructions for Completing the Template IAW FAR 16.505(b)(2)(ii)(B)

(2) State whether the action is a new order or a modification to an existing order. Identify the basic multiple award contract number and the order number for the current action. Also identify the type of the order/line items on the order (e.g., Firm Fixed price, Cost Plus Fixed Fee, etc.).

(3) Specifically describe the supplies/services to be acquired including the price/cost and quantity of each item in the order and the total estimated value of the order. For services, state whether services are performance-based, and if not, provide rationale for not being performance based. State the delivery/performance schedule/period for the items under the order. Explain how the requirement/order fits under the scope of the basic multiple award contracts.

(Note: The Contracting Officer must ensure that the order is issued within the period of performance and within the maximum value of the contract).

(4) Include the appropriate exception from FAR 16.505 (b)(2) and the supporting rationale. FAR16.505(b)(1)(i) requires the Contracting Officer to provide each awardee under a multiple award contract, a fair opportunity to be considered for each order exceeding $3,000 unless a statutory exception applies. The specific exception that precludes the fair opportunity process for this acquisition is FAR 16.505(b)(2)(i)(__) [Insert A,B, C, D, or E]. If a brand name product description is being justified, use this section to explain why the particular brand name, product, or feature is essential to the Government's requirements and why other companies' similar products/services do not meet, or cannot be modified to meet, the agency's needs.

FAR 16.505(b)(2)(i)(A): “The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays”. When using this exception provide a detailed justification with supporting documentation that explains the exact urgency of the requirement and the mission impact if awarded to any other contractor. The user/customer typically provides this supporting information. Recommend attaching supporting documentation to the back of the document. General statements of urgency are not acceptable.

FAR 16.505(b)(2)(i)(B): “Only one awardee is capable of providing the supplies or services required at the level at the level of quality required because the supplies or services ordered are unique or highly specialized”. When using this exception provide a detailed justification, with supporting documentation, as evidence of the “unique or highly specialized” nature of the procurement. The user/customer typically provides this supporting information.

Supporting documentation may be attached to the back of the document. General statements are not acceptable.

FAR 16.505(b)(2)(i)(C): “The order must be issued on a sole-source basis in the interest of economy and efficiency as 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”. When using this exception provide information on the previously competed order under this contract and detail the economies and efficiencies that will be obtained by going sole source for the follow-on order. The user/customer typically provides this supporting information.

General statements are not acceptable.

FAR 16.505(b)(2)(i)(D): “It is necessary to place an order to satisfy a minimum guarantee.”

FAR 16.505(b)(2)(i)(E): “For orders exceeding the simplified acquisition threshold, a statute expressly authorizes or requires that the purchase be made from a specified source.”

Discuss the market research that was conducted by the user/technical team/contracting officer among the supplies/services of all awardees that resulted in the conclusion that a fair opportunity exception applied. The narrative in this section should provide a high level of confidence that the requirements of FAR 16.505(b)(1) and DFARS 216.505-70 could not be met. If no market research was conducted, state so and provide the rationale. If any other awardee expressed interest in fulfilling the requirement, but was not considered a potential source, explain why that awardee cannot provide the required supplies/perform the service.

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If the use of a brand name purchase description is being justified, the market research should include an analysis of any industry proposed alternative products or approaches to meeting the requirements. Additionally, the Government's efforts to identify as many potential sources as practicable offering the required brand name item(s) should be addressed.

(5) This paragraph needs to be tailored based on the types of CLINs in the order and the pricing arrangements on the basic multiple award contract. If the contract did not establish the price for the supply or service, the Contracting Officer must establish prices for each order IAW FAR 15.4. The paragraph needs to describe the steps that will ensure that the prices/estimated cost of the order will be fair and reasonable. For example, even if firm-fixed prices were obtained under adequate price competition in the award of the multiple award contract, the Contracting Officer still needs to consider market conditions and other factors that may have changed since contract award and explain the basis in the determination that prices/costs are fair and reasonable prior to award of the order.

(6) Provide any other facts supporting the use of exceptions to the fair opportunity process.

(7) Include a statement of the actions, if any, to be to be taken 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. If no actions are planned, so state and provide reasons.