A.02 Final Approved J&A - Eugene River Avenue Facility.pdf

DAL-20-5778

Justification and Approval for Other than Full and Open Competition

Revised 27 April 2020

1. CONTRACTING AGENCY: U.S. Army Corps of Engineers, Portland District (CENWP), Contracting Division, Portland, OR

2. DESCRIPTION OF ACTION: In support of Presidential National Emergency Declaration Concerning the Novel Coronavirus Disease (COVID-19) Outbreak on 13 March 2020, approval is requested for a Justification and Approval (J&A) to award a two-phase design-build construction, firm-fixed price (FFP) Letter Contract to Turner Construction Company, 375 Hudson Street Floor 6, New York, NW 10014-7462, on an other than full and open competition/sole-source basis. The action was awarded as an Undefinitized Contract Action (UCA) and will ultimately be definitized as a FFP “C-type” contract. The type of funds utilized will be Federal Emergency Management Administration (FEMA) Disaster Relief funds. There are no planned options identified for the contract.

3. DESCRIPTION OF SUPPLIES/SERVICES: The purpose of this contract is to provide design-build construction services in accordance with (IAW) the Presidential National Emergency Declaration. Work effort will consist of the design and construction to retrofit the selected space into an Alternate Care Facility (ACF) to serve patients ranging from Non-Acute Non-COVID patients up to critical-care (COVID) patients. This effort is to provide an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection and life safety. This Justification is for the Eugene River Avenue Facility in Eugene, Oregon. The UCA was awarded on 17 April 2020 with a Not-to-Exceed amount of $1.5M. The period of performance for the design-build contract is 28 calendar days in total, which required performance to begin immediately to meet this schedule.

4. AUTHORITY CITED: 10 U.S.C. § 2304(c)(2), as implemented by FAR 6.302- 2, Unusual and Compelling Urgency.

5. REASON FOR AUTHORITY CITED: In support of the Presidential National Emergency Declaration, consistent with DFARS PGI 206.302-2(b), where “use of this [unusual and compelling urgency] authority may be appropriate . . . [for] construction needed at once because of fire, flood, explosion, or other disaster.” The agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to sole-source a contract to a single firm selected from the group of firms that were down-selected into Phase II of this two-phase design-build acquisition.

Background/Selection of Sole Source Contractor: As discussed in paragraph 8, Market Research, Portland District is conducting this procurement IAW the Two-Phase Design-Build Selection Procedures in FAR 36.3. To that end, Portland District issued a limited competition Phase I design-build request for proposals to a total of 10 firms (supported by a programmatic nationwide limited sources J&A approved by the

Assistant Secretary of the Army, AL&T), and adequate competition was obtained in Phase I. The Government conducted its Phase I evaluation and down-selected to six

(6) firms that were determined to be among the most highly qualified firms. Portland District will continue sole-source negotiations as part of Phase II of the design-build acquisition only with Turner Construction Company for the particular requirement identified as Eugene River Avenue facility.

Turner Construction Company was determined to be the highest qualified firm for the specific requirement at the Eugene River Avenue Facility because of its demonstrated ability to complete similar work on time or early, very relevant experience performing construction in a healthcare setting, design-build construction, and projects that incorporated both elements. For example, Turner has recently completed the Rocky Mountain VA and Weed Army Hospital projects, both of which were construction projects in a healthcare setting. Additionally, Turner has a wide array of healthcare and design-build experience. Turner completes an average of 260 healthcare projects annually and maintains a special projects division for health care projects. The Portland office has completed over $1 billion in healthcare work over the past 10 years, some of which was completed for Salem Hospital, Providence Health & Services, and PeaceHealth. Turner’s design-build experience is extensive as well, as ti has over 120 design-build projects totaling over $9B in revenue in the last 5 years. Turner’s demonstrated past performance was very relevant and demonstrated successful completion of the projects. As a result, Portland District has a high expectation that Turner will successfully perform the required effort. Further, Turner identified multiple key subcontractors located in the area which allows for technical representatives to respond in less than 48 hours for scoping efforts. Nearly all of Turner’s proposed subcontractors are located in the greater Portland Metropolitan area or southwest Washington. Turner also demonstrated that many of their team members and subcontractors have previously performed medical facility projects in the area. The proposed project director has over 41 years of service in the construction industry and has overseen multiple medical facility projects in Oregon, some of which were in Eugene. The proposed project manager and superintendent each demonstrate having completed multiple medical construction projects as well. Turner’s demonstrated local experience on construction projects indicates it has the necessary infrastructure to immediately begin performance on this project.

Justification: The President declared a national emergency on 13 MAR 2020. FEMA assigned USACE to support Emergency Support Function (ESF) #3 “Public Works and Engineering.” On 15 April 2020, FEMA assigned the Agency a mission assignment that included the above referenced hospital work. This work is urgent and compelling in nature. 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 April 02, 2020, 226,216 people from 50 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 must undertake design and construction as quickly as possible, to provide the necessary surge capacity.

Without limiting the number of sources from which the Government solicits Phase II proposals to a single firm, the Government would be unable to undertake construction quickly enough to meet the immediate need for additional hospital capacity in this area and would not meet the delivery schedule necessary to provide additional capacity as close to the projected surge date as possible. A traditional design-build project acquired IAW 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 is expected to be 6-9 months (or greater). This time savings is critical in order for construction to begin as quickly as possible, supporting the urgent and compelling nature of this procurement, and to ensure timely response to the national emergency.

Alternative: Portland District examined several alternatives for fulfilling these requirements, but no other alternative would allow for performance to begin immediately. The only viable alternative is to select a single firm from the group of firms that were down-selected into Phase II of this two-phase design-build acquisition with whom the Government will negotiate, in conjunction with utilizing a letter contract to allow the contractor to begin performance immediately and definitize 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. The USACE is the only entity with the capacity to build the infrastructure needed to support response to this emergency, but can only do so if certain exceptions full and open competition are implemented.

Failure to select a single firm from the group of firms down-selected into Phase II of this two-phase design-build acquisition with whom the Government will negotiate, undertake construction immediately, and complete within 28 calendar days, in conjunction with utilizing a letter contract to allow the contractor to begin performance immediately and definitize at a later date, would result in delays in design and construction of medical infrastructure required to adequately respond to the COVID-19 outbreak and would have severe adverse impacts on the safety and the public health of the United States.

Approval of this J&A will enable U.S. Army Corps of Engineers, Portland District to expedite award for urgently needed design and construction services identified above in paragraph 3.

6. EFFORTS TO OBTAIN COMPETITION: Portland District solicited from as many firms as was practicable for Phase I. A programmatic nationwide limited sources J&A approved by the Assistant Secretary of the Army, AL&T on 26 March 2020, Control No.

NAN 20-003, supported other than full and open competition for Phase I. It is now necessary to negotiate a contract with a single source selected from the group of firms down-selected into Phase II of this two-phase design-build acquisition. As discussed in

Paragraph 5, Alternative, no other alternative will allow 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: Portland District 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. However, here it is not practicable to request an offer from more than one source under Phase II of a design-build procurement, because without issuing a letter contract on a sole-source basis, Portland District would be unable to undertake construction immediately and would not meet the delivery schedule of 28 calendar days. However, a competitive process was utilized in Phase I to select the most highly qualified firms to advance to Phase II as identified in paragraphs 5 and 8.

8. MARKET RESEARCH: Based upon the Presidential National Emergency Declaration, Portland District was instructed to determine the most expeditious tools available to fulfill these urgent and compelling COVID-19 requirements. Immediately a review of existing contract vehicles was conducted. Across the ACF mission, the Government is attempting to maximize competition to the greatest extent practicable IAW FAR Part 6, and provide maximum practicable opportunities to locally based contractors. Leadership, understanding the latitudes afforded under FAR 6.302-2, did not want to completely divest itself of a competitive environment and therefore Portland District issued a limited competition Phase I design-build request for proposal to 10 firms. The Government conducted its Phase I evaluation and down-selected to the most highly qualified firms, and will now continue sole-source negotiations as part of Phase II only with Turner Construction Company.

9. INTERESTED SOURCES: In this instance, the need to undertake construction as soon as possible is of such an unusual and compelling urgency that the Government and the public would be seriously injured unless Portland District is able to limit the number of sources from which it solicits Phase II proposals to one. To date, no other sources have written to express an interest.

10. OTHER FACTS: NA

JUSTIFICATION AND APPROVAL (J&A)

2 Phase Design Build Construction Contract NTE $1.5M Alternate Care Facility (ACF)

Eugene River Avenue Facility, Eugene OR Portland District

Based on the foregoing justification, I hereby approve (The SCO gave verbal approval to proceed on 16 April 2020 based on a ROM of $730K. On 24 April based on changes to the requirement, the ROM was revised to $1.5M. The SCO gave verbal approval to proceed based on the revised amount of $1.5M on 27 April 2020), the subject sole source contract to Turner Construction Company pursuant to 10 U.S.C. § 2304(c)(2), as implemented by FAR 6.302-2, unusual and compelling urgency.

CONCURRENCE:

Thomas J. Warren Date Assistant Counsel, Procurement Law & Contract Disputes Office of the Chief Counsel

APPROVAL:

Denver S. Heath Date Advocate for Competition (AFC)