A4e. JA_Other_Than_Full_and_Open_Competition COVID-19 DHS Final.pdf

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition Office of the Chief Procurement Officer Version 3.1

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Class Justification &Approval (J&A) For Other Than Full And Open Competition, Class Limited Sources Justification (LSJ), and Class Fair Opportunity Exception (FOE)

J&A No.: 20-012

Pursuant to the requirements of the Competition in Contracting Act (CICA) as implemented by the Federal Acquisition Regulation (FAR), specifically in multiple areas such as further identified under section 1, with facts and rationale as follows:

1. Agency and Contracting Activity.

This is a class justification & approval (J&A) for the Department of Homeland Security, Federal Emergency Management Agency (FEMA) in accordance with (a) FAR 6.303-1(d) and 6.302-2, Unusual and Compelling Urgency, (b) FAR 8.405-6(a)(1)(A), Limiting Sources (“[a]n urgent and compelling need exists”), and (c) FAR 16.505(b)(2)(i)(A), Exceptions to the Fair Opportunity Process (“need for the supplies or services is … urgent”) for some contract actions to facilitate the recovery efforts necessary to address the 2019 Novel Coronavirus (COVID-19). Because COVID-19 is a rapidly contagious and emerging disease, and there are no vaccines or approved treatments, it is prudent to have adequate flexibility to address this public health emergency. This class J&A is essential to respond to urgent requests for immediate support to respond to the expanding outbreak of COVID-19, which was just declared a pandemic on March 11, 2020 and a national emergency via Presidential Proclamation on March 13, 2020. As of March 30, 2020, twenty one states, the District of Columbia, Puerto Rico, and Guam had Federal Emergency Declarations approved, with additional declarations expected for the remaining states and territories.

2. Nature and/or description of the action being approved.

(a) Type of action: Purchases of critically needed supplies, equipment and services to respond to the COVID-19 outbreak.

(b) Name and address of the contractor: TBD

(c) Contract type: This class J&A will cover multiple contract types. Anticipated contract types include but are not limited to firm-fixed price, time-and-materials, labor-hour, cost-reimbursement, indefinite and definite-delivery, and blanket purchase agreements.

(d) Estimated total value: The estimated value of these supplies and services is $30,000,000,000. This estimate is based on historical information from the first 6 weeks of the emergency COVID-19 response, and previous federal presidentially declared responses for similar public health emergencies such as Zika and H1N1).

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition Office of the Chief Procurement Officer Version 3.1

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(e) Type of funding: Disaster/Emergency funds; COVID-19.

(f) Year of funding: FY2020

(g) Solicitation number: To be identified at the individual contract or task/delivery order level. All actions made under this class J&A shall include a copy of this J&A in the contract file.

(h) Background information about the requirement: The requirement is to purchase critically needed supplies and services to respond to the COVID-19 global outbreak. On March 11, 2020, the World Health Organization (WHO) declared the COVID-19 outbreak a global pandemic, and on March 13, 2020, the United States issued a Presidential Proclamation declaring the COVID-19 outbreak to be a national emergency. As stated above, FEMA expects that all fifty states and US territories will have Federal Emergency Declarations approved.

3. Description of Supplies/Services.

Under its Stafford Act authorities, FEMA has the lead responsibility to support U.S.

Department of Health and Human Services in responding to all State and local needs related to the COVID-19 response. As the demand for supplies and services increases across the states, FEMA continues to complete contract actions related but not limited to the health, logistic, and custodian needs such as personal protective equipment, ventilators, facility sanitation, health trends and modeling services, information technology support, deployable/mobile hospitals, Community Base Testing Site set up and sustainment, healthcare support services, etc.

4. Identification of statutory authority permitting other than full and open competition.

The statutory authority permitting other than full and open competition is "Unusual and Compelling Urgency", 41 U.S.C. § 3304(a)(2 ), (“the executive agency’s need for the property or services is of such an unusual and compelling urgency that the Federal Government would be seriously injured unless the executive agency is permitted to limit the number of sources from which it solicits bids or proposals (see also 48 C.F.R. § 6.302-2)).

This Justification and Approval shall also cover limiting sources for orders awarded under Multiple Award Schedules (see 41 U.S.C. § 152(3), Competitive Procedures; 40 U.S.C.

§ 501; and see 48 C.F.R. § 8.405-6(c)(1)); and exceptions to the fair opportunity process on orders awarded from other indefinite delivery/indefinite quantity contracts (see 41 U.S. Code § 4103(c) and see 48 C.F.R § 16.505(b)(2)(i)(A)).

5. Demonstration that the nature of the acquisition require use of the authority cited.

Any delay in providing critical support and medical supplies, services and equipment could cause serious injury to FEMA’s response effort under the National Emergency Declaration and related Major Disaster Declarations. Delays in acquiring these supplies and services

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition Office of the Chief Procurement Officer Version 3.1

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While FEMA has many advance disaster contracts to support response and recovery efforts for major disasters, it does not have contracts in place to cover the scope, magnitude and complexity of a nationwide pandemic of this unprecedented impact. The actions for this class J&A are not a result of poor planning. Actions taken under the authority of this class J&A shall include documentation of market research performed and prospective sources of supply and services. Additionally, actions taken under the authority of this class J&A shall include evidence of the urgent and compelling nature of the particular action, reviewed and approved at a level above the contracting officer. Further, actions taken under the authority of this J&A shall include documentation of the contractor’s qualifications and ability to perform the work as part of the contracting officer’s responsibility determination.

Specific contract requirements are fluid and increasing in demand as state and local entities continue to submit their own disaster support requests. Therefore, the magnitude is unknown.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as is practicable.

This justification will only be used when a competitive award is not possible. Contracting officers are required to award competitive actions to the maximum extent practicable while balancing the urgency of the requirement. Such actions include reduced solicitation periods and/or a reduction in the number of sources solicited. Actions taken under the authority of this class justification shall include documentation of the extent of competition undertaken.

The contract file will include this class J&A, all required documentation, and also include documentation of the CO decision inclusive of FEMA Policy and legal counsel concurrence that the procurements falls within the scope of this class J&A. Internal FEMA processes are being developed to manage procurements under this authority.

7. Determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.

The contracting officer will use appropriate and available information to review proposed prices and determine that they are fair and reasonable, and such documentation shall be included in the contract file. The contracting officer will review the offerors’ published commercial price, price lists for various government-wide acquisition vehicles and pricing data contained in the GSA Acquisition Gateway Pricing Portal. The contracting officer will also request other cost data and an explanation of market conditions from the offeror in the event that proposed prices exceed published commercial prices. Other information that may be used include the Independent Government Cost Estimate (IGCE), historical information, contractor invoice payments and commercial pricing that has been determined to be fair and

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition Office of the Chief Procurement Officer Version 3.1

- 4 -reasonable. If required, certified cost or pricing data or information other than certified cost or pricing data will be documented in the contract file. Contract files for actions taken under the authority of this class justification shall include documentation of the price/cost analysis conducted and that the proposed price is fair and reasonable.

8. Description of market research.

Actions taken under the authority of this class J&A shall include documentation of market research performed and prospective sources of supply and services.

9. Any other facts supporting the use of other than full and open competition.

None.

10. A listing of the sources, if any that expressed, in writing, an interest in the acquisition.

FEMA has received multiple interest and vendor capability information as a result of COVID-19 response. The Agency will ensure some form of communication with vendors that they should continue to monitor beta.sam.gov for potential competitive requirements.

The Agency will also use the Industry Liaison Vendor List as a form of Market Research and analysis when requirements are identified to understand what sources have expressed interest.

11. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for supplies or services required.

This class J&A shall remain in effect from March 31, 2020 to April 29, 2020. However, FEMA contracting officers will, to the maximum extent possible, compete requirements.

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition Office of the Chief Procurement Officer Version 3.1

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12. Contracting Officer’s Certification. I certify that the data supporting the recommended use of other than full and open competition is accurate and complete to the best of my knowledge and belief.

Contracting Officer Date

13. Technical/Requirements Personnel Certification. I certify this requirement meets the

Government’s minimum need and that the supporting data, which forms a basis for this justification, is complete and accurate.

FEMA Technical Representative Date

14. Legal Counsel Review. I reviewed this Justification and Approval for Other Than Full and

Open Competition in accordance with HSAM 3006.304-70 and find it legally sufficient.

Legal Counsel Date

FRANK J VILLAMIZAR Digitally signed by FRANK J VILLAMIZAR Date: 2020.04.01 15:11:57 -04'00'

RAFAEL LARA JR. Digitally signed by RAFAEL LARA JR.

Date: 2020.04.01 15:31:05 -04'00'

DARRELL S RANSOM Digitally signed by DARRELL S RANSOM Date: 2020.04.02 09:27:31 -04'00'

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition Office of the Chief Procurement Officer Version 3.1

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APPROVAL:

Contracting Officer: Not exceeding $700K Date And any determination and justification for a contract awarded under FAR 6.302-7, Public Interest, regardless of dollar amount.

Procuring Activity Advocate for Competition Date $700K to not exceeding $13.5 mil

6.302-7, Public Interest, regardless of dollar amount.

Head of Contracting Activity Date $13.5 mil to not exceeding $68 mil

HCA approval in addition to that of the Component Competition Advocate is not necessary if the Component Competition Advocate meets either of the criteria at FAR 6.304(a)(3)(i) or (ii), except for any determination and justification for a contract awarded under FAR 6.302-7, Public Interest, regardless of dollar amount, and exceptional circumstances applying to actions above the simplified acquisition threshold that cite FAR 6.302-2 as the authority.

Chief Procurement Officer: Over $68 mil Date

6.302-7, Public Interest, regardless of dollar amount

FRANK J VILLAMIZAR Digitally signed by FRANK J VILLAMIZAR Date: 2020.04.01 15:13:24 -04'00'

Digitally signed by TYUANA L

BAILEY

Date: 2020.04.02 15:10:20 -04'00'

BOBBY J MCCANE Digitally signed by BOBBY J MCCANE Date: 2020.04.03 08:30:08 -04'00'

SORAYA CORREA Digitally signed by SORAYA CORREA Date: 2020.04.07 17:23:47 -04'00'