80JSC024PA001-CLC JOFOC - signed.pdf

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA)

Lyndon B. Johnson Space Center (JSC)/White Sands Test Facility (WSTF)

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION (JOFOC)

For City of Las Cruces (CLC) Natural Gas and Wastewater Services, 80JSC024PA0001

1. Federal Acquisition Regulation (FAR) 6.303-2(b)(1) – Identification of the Agency and the contracting activity, and specific identification of the document as a “JOFOC.”

This document is a JOFOC prepared by NASA JSC/WSTF.

The procuring Agency is NASA JSC/WSTF, and the contracting activity is WSTF located in Las Cruces, New Mexico.

2. FAR 6.303-2(b)(2) – The nature and/or description of the action being approved:

This justification provides the rationale for contracting by other than full and open competition to award a sole-source Purchase Order (80JSC024PA0001) to CLC for natural gas and wastewater services in support of the Agency mission as well as current and future NASA programs tested at WSTF. The purchase order has an estimated value of $3 million and a period of performance of 10-years, December 1, 2023, through November 30, 2033.

Currently, WSTF receives utility services from CLC under the predecessor purchase order NNJ13HA06P, which has a 10-year period of performance of December 1, 2013, through November 30, 2023, and estimated value of $2.8 million.

3. FAR 6.303-2(b)(3) – A description of the supplies or services required, to meet the Agency’s needs (including the estimated value):

The natural gas and wastewater services being procured are necessary for daily operation of WSTF and enables the support to all WTSF’s programmatic requirements, which include but are not limited to: Support International Space Station (ISS) operations, Multiple Purpose Crew Vehicle (MPCV) and Space Launch System (SLS) test flights, early manned missions, environmental remediation, restoration, and compliance operations in addition to all evolving mission requirements. The total value of the Purchase Order is estimated at $3 million with a period of performance of 10-years, December 1, 2023, through November 30, 2033.

4. FAR 6.303-2(b)(4) – An identification of the statutory authority permitting other than full and open competition:

The statutory authority permitting other than full and open competition is 10 U.S.C. 3204(a)(1), as implemented by FAR 6.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.

5. FAR 6.303-2(b)(5) – A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited:

The rationale supporting the use of 10 U.S.C. 3204(a)(1) is there is only one responsible source as described below.

Natural gas and wastewater services are required to maintain daily operations and enable WSTF to conduct support and critical testing to NASA and other federal agencies. CLC is the only

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responsible source who can provide these services to WSTF. CLC operates as a regulated monopoly, limiting the opportunity for customers to choose among competing providers.

Historically, WSTF has maintained a sole source relationship with CLC for over 60 years since its establishment in 1963.

6. FAR 6.303-2(b)(6) – A description of the efforts made to ensure that offers are solicited from as many potential sources as 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:

The Contracting Officer has determined this action is exempt from the notice required in FAR 5.202(a)(2) which states. “The contracting officer need not submit the notice required by FAR

5.201 when the proposed contract action is for utility services other than telecommunications services and only one source is available.” Therefore, the Contracting Officer has determined a publicized notice of this action is not required.

7. FAR 6.303-2(b)(7) – A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable:

The Contracting Officer’s signature on this document indicates that the Contracting Officer has determined that the anticipated cost to the government will be fair and reasonable. The Contractor shall be required to submit a proposal to be evaluated and negotiated by the Government. Prior to execution of the contractual instrument, a proposal analysis will be performed. The proposal analysis will ensure that the final agreed-to price for the purchase order action is fair and reasonable.

Price reasonableness will be evaluated and determined fair and reasonable in accordance with the techniques detailed in FAR Part 13.106-3. Such techniques include comparison to an independent Government estimate and historical prices paid for the same or similar services provided by CLC for natural gas and wastewater services at WSTF. An Independent Government Cost Estimate was generated based on the Project Manager’s expertise in managing requirements of this nature and historical prices in the form of actual costs from current services rendered under the predecessor purchase order.

Furthermore, New Mexico Statutes Chapter 3 Article 18 Section 3-18-1(H) allows a municipality to “establish rates for services provided by municipal utilities which the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities.” In Las Cruces, City Council has final authority over setting rates with the Utility Customer Advisory Group (UCAG), an ad hoc committee of five volunteers appointed by the mayor and city council, representing the interest of all customer classes during proposed rate increases. Furthermore, Las Cruces City Resolution 16-222 sets forth a streamlined and standardized rate setting process. The governing bodies mitigate risk associated with any unexpected or excessive rate increase over the 10-year period of performance and provides for a prudent business action.

Additionally, FAR clause 52.241-7, Change in Rates or Terms and Conditions of Service for Regulated Services, allows for the contract to be modified to incorporate rate changes approved by the regulatory body having jurisdiction over the utility, Las Cruces City Council, as prescribed by FAR 41.402, which directs against unreasonable rate changes and potential regulatory intervention.

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8. FAR 6.303-2(b)(8) – Description of the market research conducted, and the results, or a statement of the reasons market research was not conducted:

Market research was conducted in accordance with FAR Part 10 to determine if services are available to meet the Government’s needs. Market research concluded, CLC is the only source available to service utility services to WSTF. Historically, WSTF has maintained a sole source relationship with CLC for over 60 years since establishment of WSTF in 1963. This relationship has been solidified for over twenty years by the execution of sole-source, firm-fixed price purchase orders utilizing the General Services Administration (GSA) delegation of authority with a 10-year period of performance.

Furthermore, the CLC’s Permit/Inspections and Utilities divisions was contacted in order to assess whether there were other providers capable of providing natural gas and wastewater services to WSTF. It confirmed CLC is the only provider permitted to provide natural gas and wastewater services to WSTF and no other natural gas and wastewater providers forecasted to enter the monopolized market during the period of performance of December 1, 2023, through November 30, 2033.

Therefore, it is determined, CLC is the only source capable of satisfying the Government’s requirement.

9. FAR 6.303-2(b)(9) – Any other facts supporting the use of other than full and open competition:

A deviation to the 5-year period of performance limitation was approved for the subject services which authorized a 10-year period of performance. Therefore, eliminating the need to reacquire these services in 5 years from the same provider utilizing the same GSA delegation of authority, increasing efficiency and effectiveness during contract administration.

10. FAR 6.303-2(b)(10) – A listing of the sources, if any, that expressed an interest in writing in the acquisition:

In accordance with exception at FAR 5.202(a)(5) “The contracting officer need not submit the notice required by FAR 5.201 when the proposed contract action is for utility services other than telecommunications services and only one source is available.” Therefore, a synopsis was not required for this acquisition.

11. FAR 6.303-2(b)(11) – A statement of actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required:

The removal of barriers to competition is not considered feasible or practical at this time due to regulation of monopolized utility services in New Mexico. The Agency will continue to examine the market in the future for alternative solutions or new sources before executing any subsequent acquisitions for the same requirements.