36C24221D0093 - APPROVED J_A - VISN 2 DOWNSTATE PRESCRIPTION EYEGLASSES AND OPTICIAN SVCS - FULLY SIGNED.pdf

Request for SDVOSB/VOSB Sole Source Justification Format >SAT Acquisition Plan 36C242-21-AP-1678, VISN 2 Downstate Prescription Eyeglasses & Optician

Services

VHAPM Part 819.7007/7008 Page 1 of 7 Original Date: 08/30/2017 Revision 03 Eff Date: 04/03/2020

DEPARTMENT OF VETERANS AFFAIRS

Justification and Approval (J&A) For

Other Than Full and Open Competition (>SAT)

Acquisition Plan Action ID: 36C242-21-AP-1678

1. Contracting Activity:

Department of Veterans Affairs, New York/New Jersey Health Care Network Veterans Integrated Services Network (VISN) 2 Downstate James J. Peters Veterans Affairs Medical Center 130 West Kingsbridge Road, Bronx, NY 10468

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

Network Contracting Office (NCO) 2 Downstate intends to award a sole source contract to PDS Consultants, Inc. (hereafter referred to as PDS), a Vendor Information Pages (VIP)-verified Service-Disabled Veteran-Owned Small Business (SDVOSB), for Prescription Eyeglasses and Optician Services in VISN 2 Downstate. This requirement is for the manufacturing and delivery of both dress and safety prescription eyeglasses to include fitting services provided by a licensed optician. The Contractor shall offer both dress and safety frames, as well as single vision, bifocal, trifocal, and progressive lenses. The proposed sole source contract will be a Firm Fixed Price (FFP) Indefinite Delivery Indefinite Quantity (IDIQ) contract with a base period of five (5) months, along with inclusion of Federal Acquisition Regulation (FAR) Clause 52.217-8, Option to Extend Services, which would allow for an extension of services up to 6-months in length, if necessary. The anticipated performance period for the base is May 1, 2021 through September 30, 2021.

3. Description of Supplies/Services Required to Meet the Agency’s Needs:

The Department of Veterans Affairs (VA) has an ongoing program to provide prescription eyeglasses (both dress and safety) to eligible veterans. The provision of corrective eyeglasses is required for eligible veterans to meet their optic and low vision medical needs.

The VA eye clinic prescribes corrective lenses based upon a medical exam. The clinical judgement and assessment are used to determine medical necessity in conjunction with VHA Directive 2008-070 (Prescribing Hearing Aids and Eyeglasses) and 39 CFR 17.149 (Sensory- Neural Aids). Eyeglasses are not an emergent service and follow the administrative standard for assessment and procurement practices. The Contractor shall provide all labor and materials necessary to provide prescription eyeglasses and in-house (onsite at VA facilities) optician fitting services.

At this time, all ordering is done by the Prosthetic and Sensory Aids Service (PSAS) Central Processing Section. However, each VISN 2 Downstate site reserves the authority to develop individual ordering and payment processes during the contract term.

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The Contractor is to provide prescription eyeglasses including fitting services by a licensed optician according to contract specification for beneficiaries of the following sites of care and their entire catchment areas, within the Veterans Integrated Service Network New York/New Jersey VA Health Care Network (VISN 2) Downstate (formerly part of the now no longer existing VISN 3):

VA NYHHCS Manhattan 423 E 23rd Street New York, NY 10462

VA NYHHCS Brooklyn 800 Poly Place Brooklyn, NY 11209

VA NYHHCS St. Albans 179th Street & Linden Blvd St. Albans, NY 11425

VA HVHCS Castle Point 41 Castle Point Road Wappingers Falls, NY 12590

VA HVHCS Montrose 2094 Albany Post Road Montrose, NY 10548

JJP VAMC Bronx 130 West Kingsbridge Rd.

Bronx, NY 10468

Northport VA Medical Center 79 Middleville Rd Northport, NY 11768

VA NJHCS East Orange 385 Tremont Ave East Orange, NJ 07018-1095

VA NJHCS Lyons 151 Knollcroft Rd Lyons, NJ 07939

VA anticipates the award of a single, firm-fixed-price, IDIQ contract resulting from this solicitation. The number of patients covered by this contract is expected to increase/decrease among VISN 2 Downstate patients and dependent upon beneficiaries added or removed throughout the contract term. The volumes or amounts of prescription eyeglass orders shown below are estimates only and represent the historical quantities of eyeglasses ordered for Veteran patients in the VISN 2 Downstate optical clinics during the last five fiscal years (FY), excluding FY 2020 due to the significant impacts of the Coronavirus Disease 2019 (COVID-

19) pandemic, which greatly reduced the quantity of eyeglasses ordered:

VISN 2 Downstate Medical Center FY 2015 FY 2016 FY 2017 FY 2018 FY 2019

(526) VAMC Bronx 9,951 9,949 8,775 9,589 9,233

(561) VA New Jersey HCS 13,889 20,308 22,986 23,447 24,279

(620) VA Hudson Valley HCS 11,123 9,041 10,949 11,687 11,596

(630) VA New York Harbor

HCS 18,255 17,417 17,562 17,179 17,675

(632) VAMC Northport 7,322 7,059 7,016 6,359 7,389

Downstate Order Total 60,540 63,774 67,288 68,261 70,172

Downstate Obligations Total $3,056,499.00 $3,220,865.00 $3,391,608.00 $3,472,707.00 $3,646,710.00

4. Statutory Authority Permitting Other than Full and Open Competition:

41 USC §3304(a)(5), 38 U.S. Code § 8127(c), as implemented by FAR 6.302-5 (Authorized or Required by Statute). COs may use the non-competitive (sole source) procedures authorized in VAAR 819.7007 or 819.7008 up to $5,000,000. Check the specific VAAR clause used below:

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(x) 819.7007 Sole source awards to a verified service-disabled veteran-owned small business; or

( ) 819.7008 Sole source awards to a verified veteran-owned small business

5. Demonstration that the Contractor’s Unique Qualifications and/or Nature of the

Acquisition Requires the Use of the Authority Cited Above (applicability of authority):

VAAR 819.7007 permits sole source awards to SDVOSB entities based on 38 U.S.C. § 8127(c) and PDS has been determined to be a responsible source with respect to performance under existing Contract 36C24219D0082. Additionally, in accordance with VAAR 819.7003(b)(1)-(3), PDS is an eligible SDVOSB, has certified they are small under NAICS code 339115, and they are a verified SDVOSB within the VA’s VIP database, as confirmed by the Contracting Officer on April 16, 2021. PDS has previously made assurances in writing that they were in compliance with the requirements of the Buy American Statute and Limitations on Subcontracting, and written assurance will be sought again prior to award of this sole-source contract.

Pursuant to VAAR 819.7007 and 38 U.S.C. § 8127(c) a sole source award to a SDVOSB concern is authorized where the SDVOSB concern is determined to be a responsible source with respect to performance of the contract; the anticipated award will exceed the simplified acquisition threshold but will not exceed $5,000,000; and the contract award can be made at a fair and reasonable price that offers best value to the United States. PDS is a verified SDVOSB by the Center for Veteran Enterprise (CVE) on the Vendor Information Pages (VIP), as confirmed by the Contracting Officer on April 16, 2021. PDS (DUNS No. 071196179) has performed satisfactorily on existing Contract 36C24219D0082, as well as on contracts for similar supplies and services to other Veteran Integrated Service Networks.

Prior to the current contract, VISN 2 Downstate had historically received prescription eyeglasses and onsite licensed optician services through a Memorandum of Understanding (MOU) with PDS, while VISN 2 Upstate had contracted with Winston-Salem Industries for the Blind, Inc. (WSIFB; AbilityOne). Prescription eyeglasses were added to the Procurement List effective January 8, 2006 for VISN 2 Upstate and were considered a mandatory purchase through AbilityOne since that point. On October 17, 2018 the United States Court of Appeals for the Federal Circuit (CAFC) issued a ruling in PDS Consultants v. U.S., Winston-Salem Industries for the Blind that states “Where a product or service is on the [AbilityOne Procurement] List and ordinarily would result in the contract being awarded to a nonprofit qualified under the JWOD, the [Veterans Benefits Act of 2006] unambiguously demands that priority be given to veteran-owned small businesses.”, which directly impacted VISN 2 Upstate’s contract with WSIFB. As a result of the ruling, VISN 2 conducted market research and identified SDVOSB interest and capability to provide prescription eyeglasses and onsite licensed optician services and entered into the sole source contracts currently in place for both portions of the VISN. VISN 2 Upstate’s contract with WSIFB concluded September 30, 2019 and they have contracted with VIP-verified SDVOSB Superior Optical Labs, Inc. since that time. In order to provide continuity of services to Veteran beneficiaries for VISN 2 Downstate while a VISN-wide competitive long-term contract was sought that would cover both Upstate and Downstate, a short-term sole source contract (36C24219D0082) with PDS was awarded in 2019 in accordance with 38 U.S.C. § 8127(c).

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VISN 2 was in the process of assembling a procurement package for the VISN-wide long-term contract when the President signed HR 4920 on August 8, 2020 (PL 116-155) which revised 38 USC § 8127. The revised statute stated that AbilityOne vendors maintain their mandatory status for covered products. The VISN 2 Upstate eyeglass requirement was added to the AbilityOne Procurement List on January 8, 2006 and was therefore considered a covered product in accordance with 38 USC § 8127(d)(2)(C)(i)(I) and (II). Although the statute provided for an exception in 38 USC § 8127(d)(2)(B), VA determined that the exception did not apply to VISN 2 Upstate because the current contract for this requirement was awarded to Superior Optical Labs, Inc. under 38 USC § 8127(c) rather than under 38 USC 8127(d)(1) as required by the statute’s exception. As such, and in accordance with the statute, it was determined that the requirement must be returned to WSIFB, the AbilityOne vendor. Accordingly, a solicitation was issued to WSIFB on September 14, 2020 and the efforts on the VISN-wide long-term contract were halted.

VA’s determination to transition the VISN 2 Upstate requirement back to WSIFB was challenged before the U.S. Court of Federal Claims (COFC) who disagreed with the agency’s interpretation of its statute. The COFC issued its decision on October 21, 2020. In accordance with the COFC’s opinion and order issued in Superior Optical Labs, Inc. v. U.S.

and Winston-Salem Industries for the Blind, No. 20-1211C, the VA is permanently enjoined from transitioning the VISN 2 Upstate eyeglass requirement to the AbilityOne program. Accordingly, the VA cancelled the solicitation that had been issued to WSIFB on October 26, 2020. In order to comply with the permanent injunction issued by the Court and prevent a lapse in the availability of prescription eyeglasses for Veteran beneficiaries of VISN 2 Upstate, VA extended the contract with Superior and is now working on a competitive, long-term SDVOSB set-aside solicitation for VISN 2 Upstate that is expected to be released on Contract Opportunities on or around April 30, 2021.

While both VISN 2 Upstate and VISN 2 Downstate (formerly VISN 3) each have a requirement to provide prescription eyeglasses, a determination was made after cancellation of the WSIFB solicitation that separating the requirements would be the most advantageous approach due to differing procurement timelines, differing scopes (VISN 2 Downstate requires optician services at all sites, whereas Upstate requires no services), and any future potential statutory changes or challenges related to the AbilityOne Procurement List that could impact the Upstate procurement and delay the Downstate procurement. In order to allow time for the long-term follow-on efforts and prevent a lapse in the availability of prescription eyeglasses and onsite licensed optician services, the Downstate contract with PDS was extended through July 31, 2021, however, the $5,000,000 ceiling on Contract 36C24219D0082 is expected to be reached by April 30, 2021, which is sooner than had been anticipated.

Award of a follow-on short-term contract to PDS will allow for continued services in VISN 2 Downstate during the long-term competitive procurement process, as significant time was lost in the long-term procurement planning due to the belief VISN 2 Upstate would be reverting to WSIFB. Without this contract extension, Veteran beneficiaries of VISN 2 Downstate would not have access to prescription eyeglasses and optician services.

Moreover, due to the complexities involved in a transition to another contractor who could provide the same or similar services, care would undoubtedly be disrupted. Any gap in the continuity of services would have a detrimental impact on the Veterans. It is therefore necessary to provide continuous services from the incumbent contractor until a long-term contract can be competitively awarded covering VISN 2 Downstate. A competitive, long-term

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SDVOSB set-aside solicitation is expected to be released on Contract Opportunities for VISN 2 Downstate on or around April 30, 2021.

6. Description of Efforts Made to ensure that offers are solicited from as many potential sources as deemed practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under 5.202 applies:

In order to conduct market research for the in-process long-term competitive requirement, a Sources Sought Notice was posted on Contract Opportunities and four (4) responses were received from VIP-verified SDVOSBs, as well as one (1) response from a Large Business.

Separate market research was not conducted for this short-term requirement as it was realized that the $5,000,000 ceiling under Contract 36C24219D0082 will be reached sooner than anticipated and VA had intended to have a long-term requirement awarded prior to that point. Due to the complexities involved in a transition to another contractor who could provide the same or similar services, care would undoubtedly be disrupted, therefore, follow-on market research regarding availability of sources will not be conducted at this time as PDS continues to meet the eligibility criteria outlined in VAAR 819.7003. A competitive, long-term SDVOSB set-aside solicitation is expected to be released on Contract Opportunities for VISN 2 Downstate on or around April 30, 2021.

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

The Contracting Officer will determine fair and reasonableness of the proposed prices through a comparison of those prices to the Independent Government Estimate (IGE), market research, and other available price analysis techniques in accordance with FAR 13.106-3(a)(2). Prices under existing Contract 36C24219D0082 with PDS were determined fair and reasonable prior to award.

8. Description of the Market Research Conducted and the Results, or a Statement of the

Reasons Market Research Was Not Conducted:

Due to the complexities involved in a transition to another contractor who could provide the same or similar services, care would undoubtedly be disrupted, therefore, follow-on market research regarding availability of sources was not conducted at this time as PDS continues to meet the eligibility criteria outlined in VAAR 819.7003.

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

None. Pursuant to 38 U.S.C. § 8127(c) a sole source award to a SDVOSB concern is authorized where the SDVOSB concern is determined to be a responsible source with respect to performance of the contract; the anticipated award will exceed the simplified acquisition threshold but will not exceed $5,000,000; and the contract award can be made at a fair and reasonable price that offers best value to the United States. PDS is a VIP-verified SDVOSB and has performed satisfactorily under Contract 36C24219D0082, as well as on contracts for similar supplies and services to other Veteran Integrated Service Networks.

Based on market research performed during the planning stage for the in-process long-term competitive requirement for prescription eyeglasses and optician services, the Contracting Officer has determined that multiple awards shall not be used to acquire this supply in https://www.acquisition.gov/content/part-5-publicizing-contract-actions https://www.acquisition.gov/content/part-5-publicizing-contract-actions

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Revision 03 Eff Date: 04/03/2020 indefinite quantities. The requirements of FAR 16.504(c)(1)(ii)(A)&(B) were considered in making this decision, and the rationale is as follows:

Prescription eyeglasses and optician services require a high level of oversight to ensure all contract requirements are being met. The VISN 2 Downstate Optical staff and Prosthetics and Sensory Aid Service (PSAS) staff are in daily contact with the Contractor and monitor areas such as staff licensing, timeliness of eyeglasses shipping and delivery, compliance with ANSI quality standards, and customer satisfaction survey processing, in addition to working with the contractor to place orders throughout the day when a Veteran is seen by the VA optical shops.

Prior to Contract 36C24219D0082 with PDS, VISN 2 Downstate had obtained prescription eyeglasses and optician services through a Memorandum of Understanding between VA and PDS. To ensure the commercial marketplace could fulfill VISN 2 Downstate’s estimated annual order quantity (70,172 orders in Fiscal Year 2019) when conducting market research for the in-process long-term competitive requirement, a Sources Sought Notice was issued and included a response item about capability to provide the required prescription eyeglasses and onsite licensed optician services taking into consideration the annual estimated quantity information. All respondents stated they could fulfill the outlined requirements within the notice. Considering the scope of the requirement, the required level of oversight and time in order to effectively manage the prescription eyeglasses and onsite licensed optician services program, it would not be in the best interest of the Government to award multiple contracts.

10. Listing of Sources that Expressed, in Writing, an Interest in the Acquisition:

During market research for the in-process long-term competitive procurement, the following VIP-verified SDVOSBs expressed interest in the VISN 2 Downstate requirement: PDS Consultants, Inc., Superior Optical Labs, Inc, Optical Technologies, Inc. and SDV Command Source.

11. A Statement of the Actions, if any, the Agency May Take to Remove or Overcome any

Barriers to Competition before Making subsequent acquisitions for the supplies or services required:

NCO 2 will continue working with VISN 2 Downstate on the in-process competitive long-term procurement for the stated requirement in order to minimize the need for future sole source requirements. The competitive, long-term SDVOSB set-aside solicitation is expected to be released on Contract Opportunities on or around April 30, 2021.

12. Requirements Certification:

I certify that the requirement outlined in this justification is a Bona Fide Need of the Department of Veterans Affairs and that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Christopher J. Costantini Date VISN 2 Network Prosthetics Manager

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13. Approvals in accordance with the VHAPM Part 806.3 OFOC SOP:

a. Contracting Officer or Designee’s Certification (required): I certify that the foregoing justification is accurate and complete to the best of my knowledge and belief.

Lauren M. Helming Date Contracting Officer Network Contracting Office (NCO) 2

b. One Level Above the Contracting Officer (Required over the SAT but not exceeding $700K): I certify the justification meets requirements for other than full and open competition.

Allan M. Preston Date Branch Chief, Medical Sharing Network Contracting Office (NCO) 2

c. VHA RPO HCA Review and Approval: I have reviewed the foregoing justification and find it to be complete and accurate to the best of my knowledge and belief and recommend approval (if over $68 million) or approve ($700K to $68 million) for other than full and open competition.

Joseph P. Maletta Date Executive Director, RPO East Head of Contracting Activity (HCA) https://vaww.pclo.infoshare.va.gov/PMWeb/VHAPM_Part_806.3.aspx

Date8_af_date: 4/20/2021