A.02 Limited Source Justification (LSJ)_CESAJ-CT-24-06_Redacted.pdf

Control Number: CESAJ-CT-24-06

Justification Review Document FAR 8.405-6 Limited Sources Justification Under the General Services Administration

Federal Supply Schedule Program

Supply/Service: Litigation Support Services for two consolidated Armed Services Board of Contract Appeals (ASBCA) Appeals.

Authority: FAR 8.405-6(a)(1)(i)(B), only one source is capable of providing the services required at the level of quality required because the services are unique or highly specialized.

Amount: $

Prepared by:

Assistant District Counsel, CESAJ-OC Date: 8 March 2024 Email:

Contracting Officer:

Email: Date: 11 March 2024

Technical/Requirements:

Assistant District Counsel, CESAJ-OC Date: 8 March 2024 Email:

Reviews: I have reviewed this justification and find it adequate to support limiting competition.

Program/Project Manager:

Signature:

Reviewed by Counsel:

Signature:

REDACTED

CUI - IAW FAR 3.104

U.S. Army Corps of Engineers FAR 8.405-6 Limited Sources Justification Under the General Services Administration

Federal Supply Schedule Program

1. Contracting Activity: The U.S. Army Corps of Engineers (USACE), Jacksonville District is the Contracting Activity responsible for this action.

2. Description of Action: The USACE, Jacksonville District plans to award a contract on a sole-source basis to Capital Project Management, Inc. (CPMI) for expert litigation services to defend appeals before the Armed Services Board of Contract Appeals (ASBCA). The appeals involve complex differing site condition claims and delay claims, among others, on a large reservoir project in South Florida with a demand of $ . In order to defend the appeals, USACE requires the unique and highly specialized services of a delay and incurred cost expert that has experience with litigation concerning large reservoir projects in South Florida. The delay and incurred cost expert is needed to analyze the alleged delays that occurred during the project and the costs associated with those delays. USACE also requires the delay and incurred cost expert to prepare a report on their findings, and testify to such in depositions. The Jacksonville District intends to sole-source the requirement for the services of a delay and incurred cost expert to CPMI by issuing an order from GSA schedule Contract number: 47QRAA23D000A in the amount of $ .

3. Description of Supplies/Services: The purpose of this task order is to provide delay and incurred cost expert litigation services, including providing an initial assessment of the case; a preliminary critical path schedule analysis and evaluation of discrete claims and damages sought;

identify issues not claimed by Appellant that could likely have contributed to its over-runs and delays; assessing Appellant’s damage calculations with respect to methodology and internal consistency; providing discovery assistance identifying delay, schedule, costs and related issues to explore for fact and expert witnesses; preparation of an expert report including an analysis of the alleged delays and identification of apparent causes of delay and responsibility professional opinion whether the impacts of the issues identified in the litigation can be shown as logically and reasonably to have resulted solely from the causes alleged; a review of lost labor productivity claims as to entitlement and damages if necessary, associated with the appeals; expert deposition testimony; and support during mediation if scheduled. The claims range in complexity and involve allegations of delay, disruption, differing site conditions, storm damage, standby time, and other issues. The number of project records are in the hundreds of thousands of documents.

The services are required to be an exceptional level of quality due to the amount in controversy of $ . To ensure that the services are at level of quality required, and said services are performed within the deadlines in the Board’s scheduling order, the services must be provided by a contractor that has experience serving as a delay and incurred cost expert in litigation concerning large reservoir projects in South Florida. Such experience is essential due to the complexity of the $ appeal and the fact that there are urgent deadlines in the Board’s scheduling order for producing an expert report; only a contractor with previous experience in litigation concerning a large reservoir project in South Florida will be able to produce a comprehensive expert report in a timely manner.

The estimated value of the required services is $ . Per the requirement, the project may be completed within 12 months according to the current proposed litigation schedule. The requirement may be extended, up to another 48 months, depending on the conclusion of litigation.

4. Authority Cited: This acquisition is conducted under the authority of the Multiple-Award Schedule Program 41 U.S.C. § 152(3) as implemented by FAR 8.405-6(a)(1)(i)(B), only one source is capable of providing the services required at the level of quality required because the services are unique or highly specialized.

5. Reason for Authority Cited: The USACE Jacksonville District trial counsel requires the unique and highly specialized services of a delay and incurred cost expert with extensive experience with litigation regarding large and complex civil works reservoir projects in South Florida. The FAR allows for services of an expert for litigation under FAR 6.302-3(a)(2)(iii) to be sole source, but since these services will be contracted though GSA, FAR 8.405-6(a)(1)(i)(B) must be used, but the same concept applies.

a. Background and Justification: The subject litigation is extremely complex with many interrelated subclaims totaling $ . As such, the District requires the services of CPMI, a small business, and a professional consulting firm holding a GSA schedule, to serve as the delay and incurred cost expert. CPMI is the only one source is capable of providing these highly unique and specialized services at the requisite level of quality.

CPMI has extensive experience assisting the Federal Government and USACE with the defense of claims encountered on the construction projects. CPMI’s professional staff has provided construction scheduling and claims analysis on dozens of USACE projects. CPMI possesses a well-rooted knowledge of standard and special USACE contract provisions as well as an intrinsic familiarity with Federal Acquisition Regulations.

CPMI has specialized expertise in evaluating complex delay and disruption claims. CPMI has extensive experience with Critical Path Method (CPM)/network schedules and Time Impact Analyses. CPMI professionals are actively involved in providing scheduling services for current construction assignments and bring hands-on experience to schedule analysis on claims. CPMI’s hands-on experience with schedules, coupled with detailed issue analysis, provides it with the insight to effectively assess the impact of delay-causing events on the schedule and apportion delay responsibility as owner-caused (excusable), contractor-caused (inexcusable), or concurrent.

CPMI also has significant experience with evaluating claims associated with unabsorbed and extended home office overhead and extended field office/general conditions claims. In addition, CPMI has prepared cost estimates for discrete work items, evaluated construction damages, and testified concerning the reasonable and supported costs associated with the performance of change order work.

Additionally, CPM is familiar with all facets of the procedures of the Board. In other appeals, CPMI has assisted in document production, discovery, depositions, and preparation of affidavits, motions and interrogatories, as well as assisting with the compilation of the Government’s trial exhibits. CPMI is thoroughly familiar with the requirements of the Board and has, on numerous occasions, prepared expert reports, trial graphics, and other documents for submission and provided expert testimony.

CPMI also has the unique and highly specialized experience of previously performing delayed and incurred cost services for litigation regarding large and complex civil works reservoir projects in South Florida. CPMI performed exemplary work as an expert for the District on a total defense victory involving complex delay and differing site condition claims before the United States Court of Federal Claims on an intake canal project, adjacent to the reservoir project at issue in the litigation here, in South Florida. Given the complexity of the $ appeal, the unique aspects of this large reservoir project in South Florida, and the deadlines in the Board’s scheduling order, CPMI is the only known source that is capable of providing these unique and highly specialized services as a delay and incurred cost expert.

For the above reasons, the District intends to contract directly with CPMI through the GSA Schedule.

b. Alternatives: There is no viable alternative. As stated above, this litigation is complex and involves claims totaling $ . The report produced by the delay and incurred cost expert is vital to defending against the claims. The alternative to a sole source contract to CPMI is competing this requirement among other similar vendors. It is not feasible, however, to compete this requirement as there is unacceptable risk that this work would be awarded to a contractor without sufficient expertise to analyze these complex claims and provide the requisite quality within the deadlines in the Board’s scheduling order. CPMI is the only source capable of providing the services required at the level of quality required. Any other contractor will not be a sufficient expert witness as there are no known contractors that have similar experience as CPMI in serving as a delay and incurred cost expert on a reservoir project involving a differing site condition claim in the South Florida that also has experience with ASBCA appeals. The use of in-house resources was explored but it was determined that the District does not have the requisite experience in-house to analyze these claims, produce an expert report, and testify in a deposition about such report. Additionally, the District will rely on the in-house scheduler as a fact witness; as such, an expert separate from the fact witness is needed to present the delay expert opinion.

C. Impact: If a sole source contract is not issued to CPMI, there is a risk that the Government will be unable to properly defend its position at hearing and pay damages of $ . In addition, not awarding to CPMI can potentially cost the Government $ in judgment even though it is the Government’s position that it has abided by the contract. Since the contractor was initially awarded the amount of $ , any judgment favoring the contractor will equate to a duplication of effort (essentially paying the contractor twice). A sole source contract to CPMI for delay and incurred cost expert services, and using their extensive expertise on complex delay claims for the analysis and expert report, puts the District in the best litigation posture to defend this complex $ appeal. A sole source contract to CPMI minimizes the risk that this work is completed by an inexperienced contractor that is unable to analyze these complex claims, produce an extensive expert report, and provide compelling testimony, within the deadlines in the Board’s scheduling order. CPMI has proven that it is capable of providing the level of technical assistance required. The District cannot litigate the issues in this appeal without the expert assistance and opinions memorialized in a report from

CPMI.