A.02.13 JA - Sole Source for CMS as AMS_beta.SAM.pdf

NAB-20-033

After-the-Fact Justification and Approval for Other than Full and Open Competition

1. CONTRACTING AGENCY: U.S. Anny Corps of Engineers (USACE), Baltimore District (CENAB), Contracting Division, Baltimore, MD

2. DESCRIPTION OF ACTION: In support of Presidential National Emergency Declaration Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, dated 13 March 2020, after the-fact approval is requested for a Justification and Approval (J&A) for a two-phase design build construction, firm fixed price (FFP) Letter Contract awarded to Patriot Construction, LLC , 3240 FERRY LANDING RD, DUNKIRK MD 20754-2946, on an other than full and open competition/sole-source basis under circumstances of Unusual and Compelling Urgency. The action was awarded as an Undefinitized Contract Action (UCA) and was definitized as a FFP "C-type" contract. The type of funds utilized are Federal Emergency Management Administration (FEMA) Disaster Relief funds . There were no options identified for the contract.

3. DESCRIPTION OF SUPPLIES/SERVICES: The purpose ofthis contract was to provide design-build construction services in accordance with the Presidential National Emergency Declaration. Work effort consisted of the design and construction at United Medical Center parking lot to provide six Containerized Medical Stations (CMS) for acute care (COVID-19) patients. This work provided an Alternate Care Site (ACS) meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. This Justification is for Pilot for CMS as ACS in Washington, DC. The total definitized contract amount is $275,000. The period of performance for the design-build contract was 15 days in total and performance began immediately upon award of the UCA in order to meet this aggressive schedule.

4. AUTHORITY CITED: l0U.S.C. § 2304(c)(2), as implemented by Federal Acquisition Regulation (FAR) 6.302-2, Unusual and Compelling Urgency.

5. REASON FOR AUTHORITY CITED: Consistent with Defense Federal Acquisition Regulation Supplement (DF ARS) Procedures, Guidance and Information (PGI) 206.302- 2(b ), "use of this [unusual and compelling urgency] authority may be appropriate ... [for] construction needed at once because of fire, flood, explosion, or other disaster." In support of the Presidential National Emergency Declaration, the agency's need for this construction was of such an unusual and compelling urgency that the Government would have been seriously injured unless the agency was permitted to sole-source a contract to the single firm selected from the group of firms that were down-selected after Phase I of this two-phase design-build acquisition.

Background/Selection of Sole Source Contractor: As discussed in Paragraph 8, Market Research, CENAB conducted this procurement in accordance with the Two-Phase Design-Build Selection Procedures in FAR 36.3. To that end, CENAB issued a limited competition Phase I design-build request for proposals to a total of sixteen firms (supported by a J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020). The Government conducted its Phase I evaluation and a total of thirteen firms were deemed the most highly qualified for down-selection to Phase II. After the down select was finalized, one Offeror withdrew from consideration for Phase II. The Government's best interests demanded immediate action by a contractor who was capable and could immediately mobilize. CENAB continued sole-source negotiations as part of Phase II of the design-build acquisition only with Patriot Construction, LLC for the particular requirements of Pilot for CMS as ACS.

Patriot Construction, LLC was determined to be the highest qualified firm for the Pilot for CMS as ACS because of their demonstrated qualifications. Patriot Construction, LLC (Patriot), a small business, was the selected contractor to perform the project based upon the magnitude of construction, the Washington D.C. requirements, and the firm's experience with Medical Support Teams (MST). These qualifications made them uniquely suited for the Pilot for Containerized Medical Stations at the United Medical Center in Washington, DC. Patriot's local presence and connections with trade partners in the Washington DC area enable them to respond in an efficient and timely manner. Patriot's experience supporting MEDCOM projects nationwide demonstrates their ability to successfully respond to the unique engineering and construction requirements associated with medical projects. In addition, several of their submitted projects have similar features of work with respect to the CMS Pilot.

Justification: The President declared a national emergency on 13 March 2020. FEMA assigned USA CE to support Emergency Support Function (ESF) #3 "Public Works and Engineering." On 08 April 2020, FEMA assigned the CENAB a mission assignment that included the above referenced ACS work. The nature of this work was of such an unusual and compelling urgency that work had to commence immediately. As described by the President, "[t]he spread of COVID-19 within our Nation's communities threatens to strain our Nation' s healthcare systems. As of March 12, 2020, 1,645 people from 47 States have been infected with the virus that causes COVID-19. It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability."

USACE has been requested to provide design and construction support to increase the capacity of our Nation's healthcare system and needed to undertake design and construction as quickly as possible, to provide the necessary surge capacity.

Without limiting the number of sources from which the Government solicited a Phase II proposal to a single firm, the Government would have been unable to undertake construction quickly enough to meet the immediate need for additional ACS capacity in this area and would not have met the necessary delivery schedule to provide additional capacity as close to the projected surge date as possible. A traditional design-build project acquired in accordance with the requirement for full and open competition under the Competition in Contracting Act (CICA) could take upwards of 6-9 months to award based upon historical averages of contracts of this dollar amount.

The time savings achieved through use of other than full and open competition was 6-9 months, as this entire two phase process took little more than three days. This time savings was critical in order for construction to begin as quickly as possible, supporting the unusual and compelling nature of the urgency ofthis procurement and the national emergency.

Alternatives: CENAB examined several alternatives for fulfilling these requirements, but no other alternative would have allowed for performance to begin immediately. The only viable alternative was to select a single firm from the group of firms that were down-selected after Phase I of this two-phase design-build acquisition with whom the Government negotiated, in conjunction with utilizing a UCA or letter contract to allow the contractor to begin performance immediately and definitize the contract at a later date. A Determination and Findings to award an UCA that will ultimately be definitized as a FFP "C-type" contract was approved by the Senior Contracting Official on 08 April 2020.

Impact: As determined by the President, the current COVID-19 outbreak presents a public health crisis and constitutes a national emergency. Because of the magnitude and gravity of the emergency, the President declared that hospitals must be prepared to surge capacity and capability, and that additional measures are needed to successfully contain and combat the virus in the United States. USACE is the only entity with the capacity to build the infrastructure needed to support response to this emergency, but could only do so if certain exceptions to full and open competition were implemented. Failure to select a single firm from the group of firms down-selected after Phase 1 of this two-phase design-build acquisition, utilize a letter contract, undertake construction immediately, and complete within 15 days, would have resulted in delays in design and construction of medical infrastructure required to adequately respond to the COVID-19 outbreak and would have had severe adverse impacts on the safety and the public health of the United States. This J&A enabled CENAB to expedite award for urgently needed design and construction services identified above in Paragraph 3.

6. EFFORTS TO OBTAIN COMPETITION: CENAB solicited from as many firms as was practicable for Phase I. A limited sources J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020, supported other than full and open competition for Phase I. It was necessary to negotiate a contract with a single source selected from the group of firms down-selected after Phase I of this two-phase design-build acquisition. As discussed in Paragraph 5, "Alternatives," no other alternative would have allowed performance to begin immediately. The notice required at FAR 5.201 will not be published based on the exception at FAR 5.202(a)(2), Unusual and Compelling Urgency.

7. ACTIONS TO INCREASE COMPETITION: CENAB is mindful of the requirement in FAR 6.302-2 to request offers from as many potential sources as is practicable under the circumstances, and therefore did perform a limited competition for Phase I of the design-build procurement. Understanding the latitudes afforded under FAR 6.302-2, CENAN did not want to completely divest itself of a competitive environment and issued a limited competition Phase I design-build request for proposal to sixteen firms. The Government conducted its Phase I evaluation and down-selected to the most highly qualified firms, and only then undertook sole source negotiations as part of Phase II with Patriot Construction, LLC. It was not practicable to request an offer from more than one source under Phase II of a design-build procurement, because without issuing a UCA letter contract on a sole-source basis, CENAB would have been unable to undertake construction immediately and would not be able to meet the delivery schedule of 14 days.

8. MARKET RESEARCH: Based upon the Presidential National Emergency Declaration, CENAB determined the most expeditious tool available to fulfill this urgent and compelling COVID-19 requirement. Immediately, a review of existing contract vehicles was conducted.

CENAB identified firms from prior experience which were known to have capacity to complete the ACS Mission. CENAB also utilized other sources of market research, including qualifications submitted to USACE by firms volunteering to help with the COVID mission, to the extent practical within the time constraints of the emergency. Across the ACS mission, the Government attempted to maximize competition to the greatest extent practicable in accordance with FAR Part 6, and provided opportunities to locally based contractors. Market research was conducted as part of the Phase I process, and the Phase II process was limited to only consideration of those firms down-selected after Phase I.

9. INTERESTED SOURCES: In this instance, the need to undertake construction as soon as possible was of such an unusual and compelling urgency that the Government and the public would have been seriously injured unless CENAB was able to limit the number of sources from which it solicited a Phase II proposal to one.

10. OTHER FACTS: NA

11. TECHNICAL CERTIFICATION: I certify 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.

Digitally signed by Name: CPT Charles Robitaille ROBITAILLE.CHARLES RosIrAILLE.cHARLEs.PIERRE.11s7

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12. REQUIREMENT CERTIFICATION: I certify 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.

Name: Daria Vanliew Title: Deputy for Program

Management

VANLIEW.DARIA.L.122 Digitally signed by

VANLIEW.DARIA.L.1229324450

Signature: 9324450 Date:2020.05.0114:31:53-()4'00'

( date in electronic signature)

13. FAIR AND REASONABLE COST DETERMINATION:

I hereby determine that the cost or price to the Government for this contract action was fair and reasonable.

This was determined by conducting a detailed cost and price analysis of the offeror' s definitization proposal, taking into consideration all pertinent information including field pricing assistance, audit reports and technical analysis, fact-finding results, independent Government cost estimates, and price histories. The contractor will be required to submit their price/cost proposal in accordance with FAR Part 15, and Certified Cost or Pricing Data will be required in accordance with FAR 15.403-4.

Name: Patricia Morrow Title: Contracting Officer

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14. CONTRACTING OFFICER CERTIFICATION: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Name: Patricia Morrow Title: Contracting Officer

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APPROVAL

Based on the foregoing justification, I hereby approve after-the-fact this contract to provide design-build construction services in support of the Alternate Care Facilities effort for the Pilot for CMS as ACS in Washington, DC on an other than full and open competition basis pursuant to the authority of 10 U.S.C. § 2304(c)(2), Unusual and Compelling Urgency, subject to the availability of funds, and provided the work herein described was otherwise authorized for acquisition.

Name: Patricia Morrow Title: Contracting Officer

MORROW.PATRICIA.136 Digitally signed by

Signature: 7939946 ~~:~~~:.:Sr~\c;~;!!~~t:ii