A02 - JA Sole Source_Expert Scheduler Services_20APR2021.pdf

J&A Document Control No. FY21-22

Control No.: SPK-FY21-22

JUSTIFICATION AND APPROVAL

FAR PART 6 OTHER THAN

FULL AND OPEN COMPETITION

Forensic Scheduling Expert Services for Use in ASBCA

Litigation Related to MOTCO General Purpose Maintenance Shop

W9123821R0051

1. Contracting Agency: U.S. Army Corps of Engineers (USACE) Sacramento District (SPK), Contracting Division, Construction Branch, Sacramento, CA 95814.

2. Description of the Action: The Sacramento District seeking approval for a new Firm-Fixed- Priced contract. The intended sole source is Ockman & Borden Associates whose forensic scheduling expert services are needed to support litigation for Task Order 0001 under W91238-15-D-0014 for the design and construction of the Military Ocean Terminal Concord (MOTCO) General Purpose Maintenance Shop.

3. Description of Supplies/Services: The work to be performed includes consulting with our local attorney handling the litigation for the above contract; evaluation of the contractor’s claims;

determining a reasonable estimate of the owner-caused delay damages and impact costs; review of contractor’s schedule and impact costs; and report preparation. Additionally, the contract will include options for trial preparation, trial, and post-trial analysis. The estimated period of performance for the base contract and all options, if exercised, will be from April 2021 through December 2021. The value of this effort, including options, is $143,045.00 ($82,160.00 for the base task and $60,885.00 in option tasks). The effort will be paid for with military construction funds appropriated for the design and construction of the MOTCO General Purpose Maintenance Shop.

4. Authority Cited: The statutory authority permitting other than full and open competition is 10 USC 2304(c)(3), as implemented by FAR 6.302-3(a)(2)(iii), to acquire the services of an expert for any current or anticipated litigation or dispute.

5. Reason for Authority Cited:

a. Background. The Sacramento District Office of Counsel is defending against the Appeal of GEMS Environmental Management Services, Armed Services Board Contract Appeals (ASBCA) Nos. 61737, 61831, 62322-62333, 62785-62787. The appeals involve multiple claims of delay by the contractor and a Government claim for liquidated damages. In order to defend against the delay claims and to prove the liquidated damages claim, the Government requires the use of an independent, outside forensic scheduling expert to prepare a credible as-constructed schedule analysis in support of the Government’s position.

b. Justification. FAR 6.302-3(a)(2)(iii) provides that full and open competition need not be provided for when it is necessary to award the contract to a particular source in order to acquire the services of an expert for any current litigation. There is insufficient time to conduct a competition and meet the Board-ordered pre-trial schedule. The hearing date has been set by the ASBCA for late October 2021, and the Board has ordered all expert reports to be completed by 21 May 2021. The majority of the claim before the ASBCA is for delay claims and it is necessary for the Government to obtain a forensic scheduling expert that is uniquely qualified to not only take a deep dive in the schedule but to also provide this information during testimony at the trial. This analysis is much more than a time impact analysis that would be done locally during schedule reviews and requires particular skills to deconstruct the schedule to determine the merit of the actual delay claims. The proposed contractor, Stuart Ockman of Ockman and Borden Associates is particularly qualified to provide the services. He specializes in project planning and control, claims management, and claims avoidance. He has worked for USACE. Most recently in mid-2020, Mr. Ockman prepared an expert report on a similar matter for the Louisville District.

c. Alternatives. The Government could have used a USACE employee as a scheduling expert, but that expert would have low credibility with the Board because a USACE expert would be considered biased towards his or her employer. The Government also could have conducted a competition among outside experts, but few experts are willing to invest the resources in a competition when they have sole-source opportunities available, and there was not sufficient time to conduct a competition based on the hearing schedule established by the Board of Contract Appeals.

The South Pacific Division has a contract for construction phase services in which a scheduler could be obtained however, this scheduler would not meet our needs of an expert forensic scheduler that could provide testimony at trial.

d. Impact. If the J&A is not approved, and consequently the independent forensic scheduling expert service could not be provided, the Government is significantly more likely to either lose the case on appeal or be required to settle the litigation at a higher amount than if the expert contract was issued. the J&A is not approved, the Government would likely become liable for a larger percentage of the amount that is sought.

6. Efforts to Obtain Competition: In accordance with FAR 5.202(a)(10)5.202(a)(10), the authority cited above (6.302-3) exempts the notice of proposed contract action (synopsis) required by FAR 5.201.

7. Actions to Increase Competition: This J&A supports a discrete requirement that will end when the litigation is complete. Therefore, there are no planned actions to increase competition for the requirement covered by this J&A. Also, FAR 6.302-3(a)(2)(iii) does not mandate actions to increase competition, because that subsection states that full and open competition need not be provided for when it is necessary to award the contract to a particular source in order to acquire the services of an expert for any current litigation. Consistent with this, FAR 6.302-3, unlike FAR 6.302-2, does not require that agencies request offers from as many potential sources as is practicable under the circumstances.

8. Market Research: A similar sole-source contract in the amount of $125,770.00 (including base and options) was awarded on July 1, 2020 to the same contractor for expert witness services. This contract was awarded from the Louisville District under W912QR20P0064.

Additionally, this forensic scheduling expert has been used in the past under sole-source contracts to support other litigation that has been handled by our Office of Counsel.

9. Interested Sources: Not applicable per paragraph 6. In accordance with FAR 5.202(a)(10), a synopsis is not required.

10. Other Factors: Independent forensic scheduling experts are commonly used by USACE in ASBCA litigation where delay damages are at issue. Contracts for schedule experts are rarely competed, but may be in situations where significantly higher amounts are at issue in the litigation, and when the hearing schedule permits completion of a competitive action early enough for the awardee to have sufficient time to complete its expert report.

Signature: Date: 2021.04.20 17:48:19 -07'00'