A9_FBO_GIL_JOFOC_Wastewater_Utility_Service_FY16.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN

COMPETITION

PUBLIC UTILITY – WASTEWATER SERVICE

FEDERAL CORRECTIONAL INSTITUTION GILMER

GLENVILLE, WEST VIRGINIA

Contractor: Glenville Utility, Inc.

Period of Coverage: 10/1/2015 through 9/30/2016

Estimated Amount: $498,000.00

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Wastewater Utility Service FCI Gilmer

(a) Pursuant to the Federal Acquisition Regulation (FAR) Part 6.302-1(b)(3), and the Bureau of Prisons Acquisition Policy (BPAP) Part 6.304(c), the Federal Bureau of Prisons (FBOP) has determined that the procurement of wastewater utility service for the Federal Correctional Institution (FCI) Gilmer, Glenville, West Virginia, meets the criteria established for other than full and open competition.

It is further determined that only one responsible source and no other supplies and/or services will satisfy agency requirements. This limitation on competition is justified as supported by the following information in accordance with FAR Part 6.303-2:

(b)(1) Identification of the Agency:

U.S. Department of Justice Federal Bureau of Prisons FCI Gilmer 201 FCI Lane Glenville, WV 26351

(b)(2) Nature and/or description of action being approved:

This justification for other than full and open competition is for the acquisition of wastewater utility services supplied to FCI Gilmer, from the original and sole provider of such services. FCI Gilmer has a present and continuing requirement for wastewater service for the proper operation of the facility.

(b)(3) Description of supplies or services required to meet the agency needs:

Pursuant to FAR Part 41.202, Glenville Utility, Inc. continues to provide the “entire wastewater utility service” (i.e., disposal, treatment, system operation and maintenance, metering, billing, etc.). Glenville Utility, Inc.

shall provide to the government facility at FCI Gilmer with wastewater services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. Glenville Utility, Inc. shall provide services on an un-interruptible daily basis (365) days per year.

Glenville Utility, Inc. will be responsible to maintain and/or repair all associated wastewater lines and equipment, including associated costs for such repair, up to the connection point or meter of FCI Gilmer.

Glenville Utility, Inc. shall provide wastewater utility services for the period from Effective Date of Award (EDOA) through 12 months from EDOA, subject to funds availability (FAR Clause 52.232-18). The total estimated annual amount for wastewater utility service is $498,000. The accompanying RP document shows the IGE and is based on past wastewater usage records.

JOFOC FCI GILMER

Wastewater Utility Services

(b)(4) An identification of the statutory authority permitting other than full and open competition:

The statutory authority for these services is found at 41 USC § 253 (c)(1), when the supplies or services required by the agency are available from only one responsible source. The application which permits use of the cited statutory authority are stated at FAR Part 6.302-1(b)(3), “When acquiring utility services (see 41.101), circumstances may dictate that only one supplier can furnish the service (see 41.202).” When a public utility supplier refuses to execute a tendered contract the agency may proceed with the acquisition and pay for the utility service under the provisions of 31 USC § 1501(a)(8). In accordance with 31 USC § 6303 an executive agency shall acquire property or service for its direct benefit or use by establishing a relationship with a State, a local government, or other recipient.

(b)(5) A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited:

Glenville Utility, Inc. is the government-owned sole provider of wastewater utility service in the County of Gilmer. Glenville Utility, Inc., is regulated by a Public Service Commission created by the West Virginia Legislature. The Commission is the governing body that sets all rates and tariffs with the responsibility of wastewater utility service for the locale in which FCI Gilmer resides. Since Glenville Utility, Inc., is an entity of Gilmer County and the only agent authorized by rules and regulations to provide wastewater service in the area of FCI Gilmer, this requirement cannot be obtained by contracting directly with a private source.

(b)(6) A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable including whether or not a notice was or will be publicized as required by FAR Subpart. 5.2:

As stated in FAR Part 5.202, exceptions to transmitting a notice to the Government Point of Entry(GPE) at (a)(5), the contracting officer need not submit a notice when ‘the proposed contract action is for utility services other than telecommunications services and only one source is available.’

There are no General Services Administration (GSA) area-wide nor a single point contract for wastewater utility services in the FCI Gilmer area is available at this time. A Sources Sought Notice was posted via the Fedbizopps database in order to seek competition. No replies were received in response to this notice.

(b)(7) A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable:

The estimated yearly cost, which was based on invoice history, for the wastewater utility service is $498,000.00. The current rates offered by Glenville Utility, Inc. are equal to the market price levied other commercial, industrial, and government users in the FCI Gilmer area. Utility rates are enacted by tariffs set by the West Virginia Public Service Commission, which is charged under West Virginia law to ensure that rates be just and reasonable.

Glenville Utility, Inc.’s published tariff has provided sufficient data to the FBOP contracting officer, pursuant to FAR 15.402, Pricing Policy, allowing the ability to make a preliminary determination that such anticipated costs appear to be fair and reasonable. Glenville Utility, Inc. is a non-profit corporation operating pursuant to the right and power granted by Chapter 24, Article 2 of the West Virginia Code. A formal decision in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set pricing (see FAR 15.403-1[c][2]) and the purchasing of supplies and services from a responsible source is determined fair and reasonable. The establishment of the current supply and delivery of services began when the original service connections were installed and the meters set in 2002. As such, this contracting officer has determined the anticipated cost to the Government will be fair and reasonable.

(b)(8) A description of the market research conducted:

The market research conducted by the contracting office and Facility Department personnel determined that a GSA area-wide or single point contract is not available in accordance with Title 31 USC § 1535. No Interagency Agreement is available for use either. GSA is specifically authorized by law and regulation to purchase utility services on behalf of other agencies by providing an Assisted Acquisition. In August 2010, in accordance with 40 USC 121 § (d), GSA issued the FBOP a Delegation of Authority for nationwide authority to negotiate and execute utility service contracts at Federal facilities under the control and direction of the FBOP in accordance with 40 USC 501 § (b)(1)(B)for a 10 year period. The FBOP, as the requiring agency, must make a determination of the best procurement approach that satisfies FCI Gilmer’s schedule, performance, and delivery requirements. Glenville Utility, Inc. is the current wastewater utility service provider for FCI Gilmer and has serviced the facility since 2002. Glenville Utility, Inc., controls the wastewater treatment capacity in the service area of FCI Gilmer, as well as the wastewater transmission piping. No other sources are capable or could acquire the capability of meeting the Bureau’s requirement. Glenville Utility, Inc., treats wastewater for all sectors of the market (public, private, and government). No other source could be expected to make the capital investments or meet the regulatory approvals to accept and treat wastewater to meet FCI Gilmer’s sewage disposal requirements. FCI Gilmer has no reasonable expectation(s) that Glenville Utility, Inc. would entertain entering into a contractual relationship at this time. An attempt to confirm Glenville Utility, Inc.’s position regarding this subject resulted in a negative response. A check of the System of Award Management (SAM) database has provided information that Glenville Utility, Inc., does not have an active exclusion nor are they delinquent on Federal Debt.

(b)(9) Any other facts supporting the use of other than full and open competition:

The provision of wastewater utility services is essential for the orderly operation of FCI Gilmer, which was designed with a rated capacity to collectively house approximately 1280 inmates. The institution’s primary mission is confining federal offenders in the controlled environments of prison that are safe, humane, cost-efficient, and appropriately secure.

Utility requirements do not require follow-on acquisition actions.

Therefore, 6.302-1(a)(2)(ii) is not applicable.

(b)(10) A listing of the sources, if any, that expressed, in writing, an interest in the acquisition:

There were no other sources which expressed an interest in this acquisition.

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

At the present time, full and open competition is not available for this requirement. GSA has been unable to pursue an area-wide or single point contract, pursuant to FAR Part 41. Contracting and requirements staff continue to conduct appropriate market research to determine if sources capable of satisfying the agency’s requirement exist and to overcome competition barriers. Deregulation laws are presently nonexistent and no alternative source of service is currently available. If another potential source emerges, the agency will assess whether competition for future requirements is feasible.

(b)(12) Contracting Officer’s Certification:

I hereby certify that this request for Justification and Approval of other than Full and Open Competition is made in good faith, that the supporting data and information are accurate and complete to the best of my knowledge and belief, and that I would not be making this request if it were feasible to fully compete this requirement. I further certify that this request is not the result of lack of advance planning or a desire to expend funds while those funds are still available.

//Signed// 8/19/2015

Dennis Dempsey, Contract Specialist Date

Field Acquisition Office

(c) I hereby certify that the supporting data provided by the technical and requirements personnel which form the basis for this justification is complete and accurate to the best of my knowledge and belief.

//Singned// 8/10/2015

Joseph Flack, Acting Facility Manager Date

FCI Gilmer

Concurrence of:

//Signed// 8/11/2015

C. Williams, Warden Date

FCI Gilmer

Approved:

//Signed// 8/20/2015

Jill D. Ryan, Chief Date

Field Acquisition Office