J A_CEMEX_Final_FOR_FBO_(1).pdf

JUSTIFICATION AND APPOVAL FOR OTHER THAN FULL AND OPEN

COMPETITION (J&A)

TO : USAID Agency Competition Advocate

THROUGH : Contracting Officer

FROM : Acting Chief OIEE

SUBJECT: Justification and Approval For Other Than Full and Open Competition

(J&A) For CEMEX Contract # AID-521-C-12-00005

1. This document sets forth the facts and rationale justifying the use of other than full and open competition, in accordance with AIDAR 706.302-70(b)5.

This document was prepared by the Office of Infrastructure Energy and Engineering (OIEE) at

USAID/Haiti in support of the permanent shelter program designed to respond to the urgent need for safe, affordable, modest housing which is a current need in the country of Haiti. This J&A specifically concerns contract # AID-521-C-12-00005 awarded to the contractor CEMEX to provide infrastructure and build 156 houses in the DLA 1.5 site in Port-au-Prince new settlement program.

2. The nature and/or description of the action being approved:

This is a request to approve a scope expansion modification of the CEMEX Contract # AID-521-

C-12-00005. This modification will also extend the contract completion date for an additional

45 days from May 15, 2013 to June 30, 2013. The current contract period of performance is

April 24, 2012 to May 15, 2013. The estimated cost increase of this contract amendment is

$511,044.62 and would bring the new total amount for this contract from $6,048,203.15 to a new total estimated cost (TEC) of $6,559,247.77.

This amendment is necessary due to the difficult topography of the project site which requires additional changes that were unforeseen when the project was designed. These changes include retaining walls, additional erosion control measures, and stairs. In addition to the changes related to the site topography, other changes are required to the water supply system that was changed from water kiosks to individual water connections based on a request from the GOH.

Other unforeseen additions in this amendment include, extending a road, additional sidewalks, curbs, and paving. Also, the Mission Environmental Officer required additional fencing and

- 2 -landscaping to improve safety, security and the site environment. The above mentioned changes will require the contractor to extend the duration of the design and quality control subcontract.

3. Description of the supplies or services required, including an estimated value:

Under this amendment CEMEX will undertake the following additional activities:

1) Additional retaining walls ($43,392.11);

2) Rip rap retaining walls ($18,087.30)

3) Additional erosion walls ($60,403.20)

4) Additional access stairs to 14 housing units ($13,860.00)

5) Additional water networks to improve water network by creating a loop in the water network of the first two block of houses ($46,379.03)

6) Water main and reduce footpaths ($31,671.83);

7) Water treatment building ($30,579.34)

8) Storm water retention drain ($8,857.20)

9) Additional trench drain ($1,516.83)

10) Extension of East 3 rd

Street ($6,890.40);

11) Additional sidewalks for the handicapped ($23,529.29)

12) Additional curbs and gutters ($38,753.31)

13) Additional paving ($2,846.25)

14) Additional chain link fence ($37,154.70)

15) Landscaping ($13,981.00)

16) Miyamoto design and quality control contract extension: Some of the changes in this amendment will require the extension of the Miyamoto design and quality control contract ($133,142.84)

Total estimated cost of this amendment: $511,044.62

4. Statutory authority permitting other than full and open competition:

This justification sets forth the facts and rationale justifying the use of other than full and open competition under AIDAR 706.302-70(b)(5). Pursuant to AIDAR 706.302-70(b)(5), the agency competition advocate is authorized to approve waivers of full and open competition for an award for the continued provision of highly specialized services when award to another resource would result in substantial additional costs to the government or would result in unacceptable delays.

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

As part of the USG strategy in Haiti after the January 2010 earthquake, a permanent shelter program was developed to address the issue of the displaced persons and to provide housing models for the Government of Haiti (GOH). The earthquake had produced devastation that the country had never seen or documented before in its history as a nation. Official GOH numbers reported over 300,000 deaths and more than 1.4 million people displaced and in camps. Twenty-two government buildings were destroyed and thousands of government employees killed. The

GOH was incapacitated as the nation transitioned in to recovery mode and the housing sector of the country was discovered to be lacking and deficient. The following are some of the constraints to reconstruction and resettlement that were identified:

The low income housing stock was estimated to have a deficit of some 400,000 dwelling units.

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There had been no official GOH housing agency to mobilize strategic support.

There was no official or adequate housing policy.

The social housing agency (EPPLS) was drastically understaffed, unaccustomed and inexperienced in managing formal structured housing communities particularly of the level or magnitude proposed by the donor community.

No official national construction code existed or was in effect.

The local municipal governments lacked capacity and experience in housing and community management.

The GOH had no experience in developing or administering a beneficiary identification or selection process.

As part of the USG permanent shelter program technical assistance was provided to certain municipalities and GOH agencies in an effort to help the GOH respond to these urgent and compelling matters. The GOH, with the help of USAID and other donors, has come a very long way while learning from experiences, making tremendous progress towards addressing the afore mentioned constraints and generating great momentum. Below are some recent events that illustrate GOH progress in responding to urgent and compelling needs.

The GOH has formally established a housing agency called the “Unite de Construction de

Logement et Batiment Public” UCLBP.

The GOH completed the official national building code for the country and is preparing to publish it.

The GOH has drafted(with broad based inputs) an official Housing Policy. It is also being readied for publication.

EPPLS has benefitted from USG technical assistance resulting in the methods, bylaws and structures for providing and managing community management committees.

Technical assistance was provided to local municipalities so that they know how to properly respond to community needs such as human waste, solid waste and sanitation.

A formal beneficiary selection process has been developed and adopted by the GOH with the participation of numerous local stakeholders.

To build on this momentum and to continue to address huge housing deficits the GOH is continuously seeking ways in which to accelerate the housing construction efforts. The GOH, with the tremendous help and effort of many donors, has made more than significant headway through the unusual and compelling situation that was left from the vast destruction and devastation of the January 12, 2010 earthquake. A break in this momentum would cause unacceptable delays to the GOH and the USG alike. If the current contract is not extended and full and open competition procedures are followed, USAID would not complete important components of the project, causing considerable delays to the process of delivering the homes to the selected Haitian beneficiaries.

If we do not modify the CEMEX Contract, and tender this modification, the current estimated project completion date of June 30, 2012 will be substantially delayed. Keeping in mind that a full and open definitive contract action could require an estimated lead time of 245 days (General

Policy Notice M/OAA/OD 1/21/2009), complying with full and open competition procedures would impair this portion of the USG foreign assistance objective in the following manner:

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1) In addition to the delay in delivering badly needed housing to Internally Displaced

Persons (IDP)s, a delay in the project completion date would also delay a number of very important post construction programs in which USAID has partnered with other donors such as the International Federation of the Red Cross (IFRC) These activities include beneficiary selection and establishing a community management association and coordinating all the utilities and services with the relevant GOE entities. Any significant delay in the construction completion date of June 30, 2013 and thus the date in which residents can move in to the site — will undermine the work already completed by IFRC

(selection of 121 households to-date) and may jeopardize the entire partnership; IFRC is investing nearly $400,000 of its own resources in this project, but their funds are only available for a limited amount of time. Delay could prevent them from completing the planned support to the community, and thus make the entire program unviable.

Procurement of a new contractor would also delay the date of delivery of the houses to the IDPs. This delay would be viewed as unacceptable during this time of intense pressure from both the GOH and the USG to provide this housing more than three years after the January 2010 earthquake

2) GOH agencies and the beneficiary selection committees alike are making plans and schedules for re-settlement and community management of these new developments based on the current construction timelines. A delay in the housing construction timelines would break the momentum and enthusiasm already generated and put all the tremendous progress that the USG, GOH entities, municipal leaders and stakeholders along with other donor agencies have done to establish an accepted beneficiary selection process at risk of stalling.

3) If a new award is procured, the new contractor must mobilize. This mobilization cost and other related startup expenses would be additional cost incurred by the USG for this purpose (estimate of new start-up cost: $45,000).

Therefore procuring for an award to another resource would result in substantial additional costs to the government and would result in unacceptable delays to the USG and its foreign assistance strategy.

6. Description of the efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by Federal Acquisition Regulation (FAR) 5.202(b) [AIDAR 705.002].

In accordance with FAR 5.202(b) and AIDAR 705.002 a notice will be posted on www.fbo.gov.

7. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable:

The government estimate for this activity was prepared using some of the existing unit prices from the initial contract award. At the time of award these costs were analyzed and found to be reasonable by the evaluation team and the Cognizant Contracting Officer. OAA will negotiate the cost of the extension based on the IGE.

8. Description of the market research conducted, and the results or a statement of the reasons market research was not conducted:

http://www.fbo.gov/

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The USAID/Haiti Mission is well aware of the market for the construction services required through having performed several full and open procurements in the engineering and construction field. However, the current conditions would not allow the Haiti Mission sufficient time to bring in a new contractor through a competitive process without creating a gap in the delivery of services. Extending the existing award to perform these services will prevent the

Government from serious injury to the USG strategy in Haiti.

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

As noted above procuring a new award would lead to substantial additional costs to the USG that would not be recovered through competition. Furthermore, competitive procurement of the required services would lead to a disruption in the delivery of services, increased cost in the implementation, unacceptable delays and would risk compromising the expected accomplishments of the USG strategy.

10. Sources, if any, that expressed an interest, in writing, in the acquisition:

The contracting officer will consider any offers from responsive contractors in response to the notice per FAR 5.202.

11. The actions the Agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required:

USAID/Haiti Mission intends to use full and open competition for all other projects related to the program. This project will be completed on June 30, 2013, with no other follow-on activities contemplated. No other barriers to competition are foreseen at this time.

12. Technical or requirement personnel certification:

In accordance with AIDAR 706.302-70(b)(5), I hereby certify that the technical statements included above and which form a basis for the justification are complement and accurate.

Acting OIEE Chief Date

13. Contracting Officer Certifications:

I hereby certify that the justification is accurate and complete to the best of my knowledge and belief.

Contracting Officer Date

14. Approved/Disapproved

Agency Competition Advocate Date

Clearance

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____Approved by Email__________ ______________________

Legal Counsel Date