A9_FBO_JOFOC_Elec_NG_W_ _WW_Utility_Service.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

PUBLIC UTILITY – ELECTRIC, NATURAL GAS, WATER AND WASTEWATER

SERVICES

FEDERAL CORRECTIONAL INSTITUTION TALLAHASSEE

TALLAHASSEE, FLORIDA

Contractor: City of Tallahassee

Period of Coverage: 7/1/2016 through 9/30/2016

Estimated Amount: $412,500.00

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Electric, Natural Gas, Water & Wastewater Utility Service FCI Tallahassee

Pursuant to the Federal Acquisition Regulation (FAR) Part 6.302-1(a) and 6.302-1(b)(3), and the Bureau of

Prisons Acquisition Policy (BPAP) Acquisition Guidance Document (AGD) 06-006, the Federal Bureau of

Prisons (FBOP) has determined that the procurement of Electric, Natural Gas, Water and Wastewater utility services for the Federal Correctional Institution (FCI) Tallahassee located in Tallahassee, Florida, 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:

(1) Identification of the Agency:

U.S. Department of Justice

Federal Bureau of Prisons

FCI Tallahassee

501 Capital Circle N.E.

Tallahassee, Florida 32301

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

This procurement action is for the acquisition of Electric, Natural Gas, Water and Wastewater utility services for the FCI Tallahassee located in Tallahassee, Florida, from the sole provider of such services in the FCI

Tallahassee area. FCI Tallahassee has a present and continuing requirement for electric, natural gas, water and wastewater utility services for the proper operation of the facility.

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

Pursuant to FAR Part 41.202, the City of Tallahassee continues to provide the “entire electric, natural gas, water and wastewater utility service” (i.e., distribution, transportation, collection, conveyance, system operation and maintenance, storage, treatment, metering, billing, etc.). The City of Tallahassee shall provide to the government facility at FCI Tallahassee, electric, natural gas, water and 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. The City of

Tallahassee shall provide services on an un-interruptible daily basis (365) days per year. The City of

Tallahassee will be responsible to maintain and/or repair all associated transmission lines, pipelines and equipment, including associated costs for such repair, up to the delivery point or meter of FCI Tallahassee.

The City of Tallahassee will be responsible to ensure that the transmission lines, pipelines and associated equipment, utilized to provide electric, natural gas, water and wastewater services will be maintained and operated in compliance with all rules and regulations set by the City of Tallahassee, in accordance with all

Federal, State, County, and local government for a safe electric, natural gas service and sanitary water, wastewater service.

The City of Tallahassee shall provide Electric, Natural Gas, Water and Wastewater utility services from July

1, 2016, through September 30, 2016, for a 3 month period, subject to funds availability (FAR Clause

52.232-18). The total estimated annual amount for Electric, Natural Gas, Water & Wastewater utility service is $412,500.00

JOFOC FCI TALLAHASSEE

Electric, Natural Gas, Water and Wastewater Utility Service

Contract Line Item Number Performance Period Estimated Annual Cost ($)

CLIN 0001 July 2016 $133,000.00

CLIN 0002 August 2016 $139,500.00

CLIN 0003 September 2016 $140,000.00

Total Estimated Cost: $412,500.00

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

This justification to award as a sole source is prepared pursuant to the exception to full and open competition requirements in accordance with the statutory authority for these services that 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).” Analysis of the market indicates that the City of Tallahassee has proprietary rights up to the meter at FCI Tallahassee. In order for another provider to be capable of providing the service, significant capital improvements would be needed. The Bureau would be required to pay for the capital improvements, but it would not recover the costs of duplication of services, connection fees and infrastructure installation costs through competition. The current requirement is for follow-on services and does not include funding for capital improvements. In accordance with FAR 9.102(b), a contracting officer is not required to make a responsibility determination when awarding to a Foreign, State, or local government.

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

The City of Tallahassee is the government-owned sole provider of electric, natural gas, water and wastewater utility service in the FCI Tallahassee service area. The City of Tallahassee is the only agent authorized by rules and regulations to provide electric, natural gas, water and wastewater service in the FCI Tallahassee area. Having a single provider of electric, natural gas, water and wastewater service for this area is the most efficient method of providing electric, natural gas, water and collecting and treating sewage.

(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.”

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

The estimated average monthly cost, which was based on invoice history, for electric, natural gas, water and wastewater utility service is $137,500. with a total estimated usage for a 3 month period of $412,500.00.

Utility rates are enacted by resolutions by the City of Tallahassee City Commission. The City, which is charged under Florida law to ensure that rates be just and reasonable. Based on the cost for services on the purchase order that expired September 30, 2015 and the City of Tallahassee website, there is sufficient data for the FBOP contracting officer, pursuant to FAR 15.402, Pricing Policy, to allow the ability to make a preliminary determination that such anticipated costs appear to be fair and reasonable. The City of

Tallahassee is a municipal corporation and operates under the guidelines of the Florida Public Service

Commission monitoring of safety, reliability, and service. 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]). The establishment of the current supply and delivery of services began when the original service connections were installed. As such, this Contracting Officer has determined the anticipated cost to the Government will be fair and reasonable.

(8) A description of the market research conducted:

This documentation is in accordance with FAR Part 10, which describes the policies and procedures for conducting market research in a process of finding viable sources of goods and services to meet government requirements and to find the most suitable approach to acquiring, distributing, and supporting supplies and services. This report is submitted in support of an acquisition with an estimated value in excess of the simplified acquisition threshold. Below are the findings of the market research for the above referenced requirement.

Background: A review of the obligation reveals the following – The Federal Correctional Institution

Tallahassee (hereinafter referred to as “FCI Tallahassee”) has a current and continuing requirement for electric, natural gas, water and wastewater utility service.

Title: Electric, Natural Gas, Water and Wastewater Utility Service FCI Tallahassee, to provide utility services for the FBOP, FCI Tallahassee in Tallahassee, Florida. FCC Tallahassee does not have an onsite electric, natural gas, water or wastewater facilities. Product Service Code for Electric, Natural Gas, Water and Wastewater: S- Utilities and Housekeeping Services; Federal Supply Codes – S112 Utilities-Electricity, S111 Utilities-Gas, S114 Utilities-Water, and S119 Other Utilities. North American Industry Classification

System (NAICS): 221122 Electric Power Distribution - This U.S. industry comprises electric power establishments primarily engaged in either (1) operating electric power distribution systems (i.e., consisting of lines, poles, meters, and wiring) or (2) operating as electric power brokers or agents that arrange the sale of electricity via power distribution systems operated by others. 221210 Natural Gas Distribution - This industry comprises: (1) establishments primarily engaged in operating gas distribution systems (e.g., mains, meters); (2) establishments known as gas marketers that buy gas from the well and sell it to a distribution system; (3) establishments known as gas brokers or agents that arrange the sale of gas over gas distribution systems operated by others; and (4) establishments primarily engaged in transmitting and distributing gas to final consumers. 221310 Water Supply and Irrigation Systems - This industry comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems. The water supply system may include pumping stations, aqueducts, and/or distribution mains. The water may be used for drinking, irrigation, or other uses. 221320 Sewage Treatment Facilities - this industry comprises establishments primarily engaged in operating water and waste water systems or sewage treatment facilities that collect, treat, and dispose of waste. Standard Industrial Classification (SIC) Code: 4911 Electric

Services; 4924 Gas Transmission and Distribution; 4941 Water Supply; and 4952 Sewerage Systems.

Potential Sources: The City of Tallahassee is the sole provider of electric, natural gas, water and wastewater utility service in the FCI Tallahassee service area. The City Commission of the City of Tallahassee is the governing body that approves all rates with the responsibility of electric, natural gas, water and wastewater services for the locale in which FCI Tallahassee resides. The FAR provides that 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 and the purchasing of supplies and services are determined fair and reasonable from a responsible source. I applied personal knowledge, interaction with knowledgeable individuals in local and

Federal Government regarding market capabilities to meet the requirements, and research of generally accessible literature available on-line were the techniques used in researching this procurement for a supply/services of this type. During construction of the institution, one contract was awarded for the installation and operation of the only electric, natural gas, water and wastewater service connections to the institution. In the case of utilities owned and operated by municipalities, the Florida Public Service

Commission does not have jurisdiction.

Deliver / Performance time: Pursuant to FAR Part 41.202, the City of Tallahassee continues to provide the

“entire electric, natural gas, water and wastewater utility service” (i.e., transmission, distribution, collection, treatment, testing, system operation and maintenance, metering, billing, etc.). The City of Tallahassee shall provide to the government facility at FCI Tallahassee, electric, natural gas, water and wastewater utility 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. The City of Tallahassee shall provide services on an un-interruptible daily basis (365) days per year. The City of

Tallahassee will be responsible to maintain and/or repair all associated electric, natural gas, water and wastewater lines and equipment, including associated costs for such repair, from the delivery point or meter of FCI Tallahassee.

Commercial Item Determination: Electric, Natural Gas, Water and Wasteater utility services is an item that is of a type customarily used by the general public and by non-governmental entities for purposes other than governmental purposes.

Market Analysis: The results of market research have determined that the government’s needs can be met by an item customarily available in the commercial marketplace.

The market research conducted by the contracting office and the Facilities Department staff determined that a GSA area-wide nor a single point contract with the City of Tallahassee is available in accordance with Title

31 USC § 1535. GSA is specifically authorized by law and regulation to purchase utility services on behalf of other agencies by providing an Assisted Acquisition. August 2010, in accordance with Title 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

Title 40 USC § 501(b)(1)(B). Search of previous purchases of similar/identical acquisitions shows the City of Tallahassee is the current electric, natural gas, water and wastewater service provider for FCI Tallahassee and has serviced the facility since dedication. Also, the City of Tallahassee is the only service supplier capable at this time of providing FCI Tallahassee with electric, natural gas, water and wastewater services.

No other company or municipality has presented itself with the capabilities or the infrastructure to run electric, natural gas, water and wastewater lines to the current connection site. The amount compensated for the construction of the electric, natural gas, water and wastewater infrastructure systems currently being used at FCI Tallahassee is not available. No other sources have been located that are currently capable or that could acquire the capability of meeting the Bureau’s requirement.

Results: Based on the information provided by the sources detailed above, the following information outlines the conclusions and provides the basis for this procurement.

It is this Contracting Officers determination there is a source available that is capable of providing the required services. The procurement will be conducted in accordance with the procedures as outlined in FAR

Part 6, 12, 13, and 41. A Performance-Based Acquisition method will not be used for this procurement as it is determined not applicable. A PBA relies on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

One potential source is a local entity, the incumbent, which appears able to satisfy the requirement and is regulated by the City Commission of the City of Tallahassee. The City recognizes Ordinances as an avenue through which local law is adopted. The City of Tallahassee is other than small business.

The provision of electric, natural gas, water and wastewater utility service is essential for the orderly operation of FCI Tallahassee. The specifications/description requirements documents shall specify needs using market research in a manner designed to promote full and open competition and only include provisions or conditions to the extent necessary to satisfy the needs of the FBOP or as authorized by law.

History shows and economics dictate that the construction of infrastructure facilities by multiple utilities in the same location would be extremely costly and disruptive to communities. The utility is regulated by local government to assure fair rates for safe and adequate service. The ratemaking process ensures the lowest reasonable rate for consumers while maintaining the financial stability of the utility. Under the law, the utility is entitled to recovery of its reasonable incurred expenses.

This requirement will not be posted to Fedbizopps as a combined synopsis solicitation to promote competition, broaden industry participation, and assist small business concerns in obtaining contracts for FCI

Tallahassee, Florida. This requirement meets the exemption at FAR 5.202(5) the proposed contract action is for utility services other than telecommunications services and only one source is available. The City of

Tallahassee is the government-owned sole provider of electric, natural gas, water and wastewater utility service in the FCI Tallahassee service area. The City of Tallahassee is an entity of Tallahassee, Florida, the only agent authorized by rules and regulations to provide electric, natural gas, water and wastewater service in the Tallahassee area. Having a single supplier of electric, natural gas, water and wastewater service for this area is the most efficient method of providing these services.

The Bureau does not have the state and local approval or the resources to provide the funding for another company or municipality to install the services required, other service lines are not available, and no other contractor or municipality can provide electric, natural gas, water and wastewater service through the City of

Tallahassee lines.

The U.S. General Services Administration has issued a Delegation of Contracting Authority to the U.S.

Department of Justice, Federal Bureau of Prisons to negotiate and execute utility service contracts. This includes the provision of electric, natural gas, water and wastewater service for FCI Tallahassee.

I also make the determination that this procurement action “NOT” be set-aside for small business. The

Small Business Procurement Review for the purchase of utility services has been granted a waiver by the

Office of Small and Disadvantaged Business Utilization to the FBOP for submitting routine procurements to the Office of Small and Disadvantaged Business Utilization for review in accordance with PGD 09-02.

Recommendation: The Government contemplates the single award of a firm-fixed price requirements type electric, natural gas, water and wastewater utility service purchase order resulting from this requirement.

Comments: The conclusions from this market research will be incorporated into the document for providing

Electric, Natural Gas, Water and Wastewater Utility Services for FCI Tallahassee.

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

The provision of electric, natural gas, water and wastewater utility service is essential for the orderly operation of FCI and FDC Tallahassee, which is designed to collectively house with a rated capacity of approximately 821 inmates. The Tallahassee complex consists of a FCI low security female facility and the

FDC is an administrative security jail unit male facility. State and county regulations and ordinances limit the providers of this service to only one.

(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 or that would be able to provide the service to meet the minimum requirements of the government.

(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:

Contracting and requirement staff should 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. A review of government procurement database shows only the FBOP is currently issuing orders to the City of

Tallahassee for electric, natural gas, water and wastewater utility requirements. FCI Tallahassee is a consumer of services from the public utility. If another potential source emerges, the agency will assess whether competition for future requirements is feasible. FCI Tallahassee will continue to monitor the trends in the utility industry to see if competition or sources that may be able to meet the minimum needs of the government and its utility requirements. Should opportunities arise in the future FCI Tallahassee will take appropriate action.

(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// 10/21/2015

Dennis Dempsey, Contract Specialist Date

Field Acquisition Office

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.

//Signed// 10/21/2015

Roger Hays, Facilities Manager Date

FCI Tallahassee

Concurrence:

//Signed// for 10/21/2015

T. A. Jones, Warden Date

FCI Tallahassee

Approved:

//Signed// 10/28/2015

Jill D. Ryan, Chief Date

Field Acquisition Office