A9_FBO_MRG_JOFOC_Water_FY16.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN

COMPETITION

PUBLIC UTILITY – WATER UTILITY SERVICE

FEDERAL CORRECTIONAL INSTITUTION MORGANTOWN

MORGANTOWN, WEST VIRGINIA

Contractor: Morgantown Utility Board

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

Estimated Amount: $144,495.00

Source Selection Information See FAR 2.101 & 3.104

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Water Utility Service FCI Morgantown

6.303-2(a) Pursuant to the Federal Acquisition Regulation (FAR) Part 6.302-1(a)(1) 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 water utility service for the Federal

Correctional Institution (FCI) Morgantown, 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 Morgantown

446 Greenbag Road

Morgantown, WV 26501

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

This justification for other than full and open competition is for the acquisition of water utility services provided to FCI Morgantown, from the original and sole provider of such services. FCI Morgantown has a present and continuing requirement for water utility 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, the Morgantown Utility Board (MUB) continues to provide the “entire water utility service” (i.e., generation, production, treatment, testing, system operation and maintenance, metering, billing, etc.). The MUB shall provide to the government facility at FCI Morgantown, water 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 MUB shall provide services on an un-interruptible daily basis through the performance period. The MUB will be responsible to maintain and/or repair all associated water lines and equipment, including associated costs for such repair, up to the delivery point or meter of FCI Morgantown.

The MUB shall provide water utility services from November 1, 2015, through September 30, 2016, subject to funds availability (FAR Clause 52.232-18). The total estimated annual amount for water utility service is $144,795.00. The accompanying RP document shows the IGE and is based on past water utility service usage records.

Contract Line Item

Number

Performance Period Estimated Annual Cost

CLIN 0001 October 2015 $13,100.00

CLIN 0002 November 2015 $11,150.00

CLIN 0003 December 2015 $13,175.00

CLIN 0004 January 2016 $13,800.00

CLIN 0005 February 2016 $12,225.00

JOFOC FCI MORGANTOWN

Water Utility Services

CLIN 0006 March 2016 $12,550.00

CLIN 0007 April 2016 $11,900.00

CLIN 0008 May 2016 $11,590.00

CLIN 0009 June 2016 $12,325.00

CLIN 0010 July 2016 $10,800.00

CLIN 0011 August 2016 $11,880.00

CLIN 0012 September 2016 $10,000.00

Total Estimated Cost: $144,495.00

(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 U.S.C. 1501(a)(8). Analysis of the market indicates that the MUB has proprietary rights up to the meter at FCI Morgantown. 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.

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

The MUB is the sole provider of water utility service in the FCI Morgantown, WV area. The MUB is regulated by the Public Service Commission created by the West Virginia Legislature. The PSC is the governing body that sets all rates and tariffs with the responsibility of water utility service for the locale in which FCI Morgantown resides. Since the MUB is an entity of Morgantown, WV, and the only agent authorized by rules and regulations to provide water service in the area of FCI Morgantown, 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 or single point contracts for water utility services in the FCI

Morgantown, WV, area at this time.

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

The estimated cost, which was based on invoice history, for the water utility service is $144,495.00. The current rates offered by the MUB are equal to the market price levied other commercial, industrial, and government users in the FCI Morgantown 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. The MUB 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. The MUB 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 meter set in 1968. 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 U.S.C. 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 Title 40 U.S.C. 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 U.S.C. 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

Morgantown’s schedule, performance, and delivery requirements. The MUB is the current water utility service provider for FCI Morgantown and has serviced the facility since 1968. The MUB controls the water generating capacity in the service area of FCI Morgantown, as well as the water transmission lines.

No other sources are capable or that could acquire the capability of meeting the bureau’s requirement. The

MUB sells water utility service to 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 generate and deliver water to meet FCI Morgantown’s water utility service requirements. FCI Morgantown has no reasonable expectation(s) that the MUB would entertain entering into a contractual relationship at this time.

A letter was sent to the MUB asking if they were willing to enter into a formal contract for the provision of water and sewer utility services, and they declined. A check of the System for Award Management (SAM) provided information that the MUB does not have an active exclusion nor are they delinquent on any federal debt.

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

The provision of water utility service is essential for the orderly operation of FCI Morgantown, which has a rated capacity of 1305 inmates. The institution’s primary mission is confining federal offenders in a controlled environment of prison that is safe, humane, cost-efficient, and appropriately secure. The current rates offered by the MUB are documented in the current published tariff, and are recognized by the Public

Service Commission of West Virginia.

(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 requirement 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// 9/22/2015

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.

//Signed// 9/22/2015

David Harris, Facilities Manager Date

FCI Morgantown

Approved:

//Signed// 11/23/2015

Al Rauschuber, Jr., Section Chief Date

Field Acquisition Office