A.02.13 JA - Sole Source for Walter E. Washington Conv Center ACF beta.SAM.pdf

NAB-20-032

After-the-Fact JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: Walter E. Washington Convention Center CONTROL NO: NAB-20-032

(W912DR20C0021)

AUTHORITY: 10 U.S.C. 2304 (C) (2) AMOUNT: $37,200,000

PREPARED BY:

CONTRACT SPECIALIST

NAME: Michael Getz

PHONE: (410) 962-3455

DATE:

CONTRACTING OFFICER

NAME: Pa

PHONE: (4 )

DATE:

TECHNICAL

NAME: James Hilbert

PHONE: (571) 926-4280

DATE:

REQUIREMENTS

NAME: Daria Vanliew

PHONE: (443) 749-2064

DATE:

SIGNATURES ARE REQUIRED BELOW:

I have reviewed this J&A and find the justification adequate to support other than full and open competition.

DISTRICT SMALL BUSINESS SPECIALIST

SIGNATURE:

NAME: Tamika Gray

DATE:

PHONE: (410) 962-2587

PROJECT MANAGER

SIGNATURE:

NAME: CPT Charles Robitaille

DATE:

PHONE: (717) 941-1107

DISTRICT COUNSEL

SIGNATURE:

NAME: Elizabeth Hoefer

DATE:

PHONE: (410) 962-8123

DISTRICT CONTRACTING CHIEF

SIGNATURE:

NAME: Paula M. Beck

DATE:

PHONE: (410) 962-0874

COUNSEL TO SCO-ATLANTA SIGNATURE:

NAME: Tristan Brown

DATE:

PHONE: (206) 617-8408

SCO-ATLANTA/ALTERNATE

COMMAND ADVOCATE FOR

COMPETITION

SIGNATURE:

NAME: Laura Eichhorn

DATE:

PHONE: (404) 562-5051

GRAY.TAMIKA.S.

1390814565

Digitally signed by

GRAY.TAMIKA.S.1390814565

Date: 2020.04.30 12:20:08 -04'00'

30 April 2020

2 May 2020

2 May 2020

2 May 2020

4 May 2020

4 May 2020

Digitally signed by

BECK.PAULA.M.1041789456

Date: 2020.05.02 09:53:07 -04'00'

BROWN.TRIST

AN.S.1394813

Digitally signed by

BROWN.TRISTAN.S.1394

813717 Date: 2020.05.04 11:52:09 -04'00'

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

1. CONTRACTING AGENCY: U.S. Army 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 Hensel Phelps Construction Co. , 1600 Tysons Blvd. Ste. 800, Tysons Corner, VA 22102-4872, 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 will be 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 of this 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 Walter E. Washington Convention Center is to build an Alternate Care Facility (ACF) to treat a range of Non- Acute Non-COVID patients up to critical-care COVID patients with 1910 treatment spaces.

This work is providing an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. This Justification is for Walter E.

Washington Convention Center, in Washington, DC. The estimated total value of the contract awarded under this J&A is $37,200,000, based on the not-to-exceed (NTE) amount for the awarded UCA. This amount is based upon the Government’s estimate for the project and the NTE for the awarded contract. The period of performance for the design-build contract is anticipated to be 44 days in total and performance began immediately upon award of the UCA in order to meet this aggressive schedule. Efforts are underway to definitize the contract.

4. AUTHORITY CITED: 10 U.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 (DFARS) 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 16 firms (supported by a J&A approved by the

Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020), and adequate competition was obtained in Phase I. The Government conducted its Phase I evaluation and down-selected to 13 firms that were determined to be the most highly qualified firms. CENAB continued sole-source negotiations as part of Phase II of the design-build acquisition only with Hensel Phelps Construction Co. for the particular requirements of Walter E. Washington Convention Center.

Hensel Phelps Construction Co. was determined to be the highest qualified firm for the Walter E.

Washington Convention Center because of their demonstrated qualifications. Hensel Phelps Construction Co. provided 6 very relevant projects. Three out of six projects demonstrated experience with temporary structures and emergency operations. Hensel Phelps Construction Co.

demonstrated a wide range of experience in new construction, designing, and renovation of health care facilities for acute and non-acute care which included Intensive Care Units, outpatient clinics and surgery centers, exam rooms, pharmacies, and all the HVAC, Mechanical and Electrical upgrades necessary to support those spaces. Hensel Phelps Construction Co. proposal demonstrated the ability to mobilize in less than 24 hours, included experienced subcontractors located in FEMA Region III, and identified 10 field skilled professionals. Hensel Phelps Mechnical, Electrical, and Plumbing (MEP) subcontractors (Southland Industries and MC Dean) are both design-builders and with the complexity and magnitude of MEP work in this ACF, having MEP subcontractors that are both the designer and the constructer is critical for speed of delivery. In addition, Hensel Phelps and its subcontractors has the ability to use local prefabrication facilities to provide modular solutions for mechanical and electrical requirements, a strength identified for the work required at the Convention Center. For example, free standing mobile power centers, fire alarm devices, and wireless and hardwired networks are being developed and manufactured locally by M.C. Dean for rapid release and delivery. Hensel Phelps Construction Co. had a Substantial Confidence for Factor 1 Past Performance and an Outstanding consensus rating for Factor 2 Technical Approach. Specifically, Hensel Phelps Construction Co. was identified as the most highly qualified firm to meet the unique requirements for the District of Columbia and complexities of the ACF to be constructed within the Walter E. Washington Convention Center. Their ability and emergency operation experience to act fast and effectively aligns with this specific COVID requirement.

Justification: The President declared a national emergency on 13 March 2020. FEMA assigned USACE to support Emergency Support Function (ESF) #3 “Public Works and Engineering.” On April 1, 2020 FEMA assigned the CENAB a mission assignment that included the above referenced ACF 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 ACF 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 of this 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 has been approved by the Senior Contracting Official.

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 44 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 will enable 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, CENAB did not want to completely divest itself of a competitive environment and issued a limited competition Phase I design-build request for proposal to 13 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 Hensel Phelps Construction Co. 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 44 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 ACF 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 ACF 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.

Name: CPT Charles Robitaille Title: Program Manager Signature: ______________________________ (date in electronic signature)

ROBITAILLE.CHARLES.

PIERRE.1187519949

Digitally signed by

ROBITAILLE.CHARLES.PIERRE.11875

19949 Date: 2020.05.02 12:32:12 -04'00'

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 Signature: _______________________________ Management (date in electronic signature)

13. FAIR AND REASONABLE COST DETERMINATION:

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

This will be 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: Paula Beck Title: Contracting Officer Signature: _____________________________

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

Name: Paula Beck Title: Contracting Officer Signature: ___________________

Digitally signed by

BECK.PAULA.M.1041789456

Date: 2020.05.02 09:53:25 -04'00'

Digitally signed by

BECK.PAULA.M.1041789456

Date: 2020.05.02 09:53:38 -04'00'

VANLIEW.DARIA.L.12

29324450

Digitally signed by

VANLIEW.DARIA.L.1229324450

Date: 2020.05.02 11:24:56 -04'00'

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 Walter E.

Washington Convention Center 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: Ms. Jill E. Stiglich, SES Title: Head of the Contracting Activity Signature: _____________________________