CH10886M253 JOFOC for Posting.pdf

Attachment 2 .

JUSTIFICATION FOR OTHER·

THAN FULL AND OPEN COMPETITION (JOFOC) IN .

ACCORDANCE WITH FAR PART 6.302 ..3(a)(2)(ii) AND

. APPLICABLE DOE GUIDANCE

Attachment 2

JUSTIFICATION FOR OTHER

THAN FULL AND OPEN COMPETITION. (JOFOC) IN

ACCORDANCE WITH FAR6.302-3(a)(2)(ii)

1. Identification of the agency and the contracting activity and specific identification of the document as a "Justification for other than full and open.competition."

I recommend that negotiations be conducted by the Department of Energy (DOE) Office of Science's (SC) Contracting Activity, with Brookhaven Science Associates, LLC (BSA) for an extension of DOE Prime Contract DEwAC02 98CH10886 for the Management and Operation (M&O) of Brookhaven National Laboratory (BNL) for five years. This document sets forth the justification for the use of other than full and open competition allowed under the Competition in Contracting Act of '984, Title VII of Public Law 98-369.. The I.Jse of this statutory authority is necessary to maintain an essential research capability provided by a nonprofitinstitution operating a Federally Funded Research and Development Center (FFRDC).

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

The action to be approved is for the continued operation of BNL for an additional five-year period through January 4, 2015, using other than full and open competition. An M&O contract is an agreement under which the Department contracts for the operation, maintenance or support, on its behalf, of a Government-owned or controlled research, development, special production or testing establishment wholly or principally devoted to one or more major .

programs of the DOE. The statutory authority permitting other than full and open competition is 41 U.S.C. 253(c)(3)(B). The Department has the authority to noncompetitively extend M&O contracts considered necessary to the performance of the Department's energy research and development programs based on the Atomic Energy Act of 1954, as amended, the Eriergy Reorganization Act of 1974, and the Department of Energy Organization Act.

3. A description of the supplies or services required to meet the agency's needs (including the estimated value).

BNL is a premier FFRDCand a multidisciplinary laboratory that is recognized worldwide for its research into the nature of nuclear matter, materials, biomedical and climate sciences and for the design, construction, and operation of large scale, cutting edge research facilities. With a typical annual budget of approximately $600 million, and a staff of approximately 2,800, BNL is one of the largest employers in Eastern Long Island. Its 346 buifdings are located on about 5,300 acres on the western edge of Suffolk County's environmentally important Pine Barrens. Two BNL facilities, the Relativistic Heavy Ion Collider (RHIC) Alternating Gradient Synchrotron (AGS) complex and the National Synchrotron

Ught Source (NSLS) account for the majority of the 4,000 annual users who come to BNL to pursue their scientific quests. With the recently commissioned Center for Functional Nanomaterials (CFN) and the NSLS·II under construction, the number of users is expected to increase.

BNL's core competencies lie in five areas that map to the mission and history of the Laboratory. They are the cornerstones of curtent research that will ensure the future strength and uniqueness of BNL's major initiatives. They are:

1) Conceptualization, deSign, construction, and operation of advanced accelerator systems, detectors, magnets, and instrumentation;

2) Synchrotron radiation science and technology;

3) Imaging including radiotracer chemistry, biological structure, and instrumentation; .

4) Development and application of advanced software and computing facilities to high energy and nuclear physics research and development (R&D); and

5) Synthesis and characterization of complex nanostructured materials.

A key component of the DOE mission is to deliver the remarkable discoveries and scientific tools that will transform our understanding of energy and matter. In addition, these discoveries and tools will advance the energy, economic and national security of the United States. SC BNt is a provider of world·class science and scientific facilities that enable research and development that ensures our Nation's future. The Laboratory is in the process of updating its two largest user facilities, the NSLS and RHIC, so that these will continue to attract and support world-leading science. BNL is also aggressively pursuing a vision for scientific pre-eminenee in the following areas:

• Relativistic heavy ion and spin physics research to understand the essence of nuclear matter;

• Photon sciences for advanced characterization of functional nanomaterials for energy technology applications;

• Energy-related R&D to enable breakthroughs in the effective use of renewable energy through improved conversion, transmission, and storage;

• High-energy physics at the energy, precision, and cosmology frontiers, supported by theory and advanced accelerator R&D; and

• Understanding the impact of natural phenomena and human activity on climate, the environment, and local ecosystems, including the normal and pathological physiology of plants through imaging.

BNL also will continue to playa significant role helping other agencies, universities, and industry fulfill their missions through a well established work-for others program.

4. An identification of the statutory authority permitting other than full and open competition.

The statutory authority to noncompetitively extend M&O contracts necessary to the performance of DOE's energy research and development programs is found in the Atomic Energy Act of 1954, as amended, and the Federal Property & Administrative Services Act of 1949, including the amendments thereto by Public Law 98-369; specifically, Section 303(0)(3)(B), codified at 41 U.S.C. 253(c) (3) (6), which states that an executive agency may use procedures other than

. competitive procedures only when "... it Is necessary to award the contract to a particular source or sources in order ... (B) to establish or maintain an essential engineering, research or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center."

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

BNL was founded in 1947 to buildand operate major research facilities that were otherwise beyond the means of any university or commercial entity. From its inception, It has been and remains today a broadly diversified research institUtion with programs that span many disCiplines. Today, BNL conducts approximately $600 million of research per year, with major programs in nuclear and high energy physics, materials sciences, chemical sciences, environmental and energy science, neuroscience and medical imaging, structural biology.

nanoscience and nanotechnology, computational SCience, and national security.

BSA is a 110nprofit. limited liability corporation, organized in 1997 by the State University of New York (SUNY) at Stony Brook (via the SUNY Research Foundation LLC) and Battelle Memorial Institute in response to DOE's solicitation for anew M&O contractor to manage and operate BNL. BSA won the competitive contract and commenced operations in 1998. BSA is responsible for the successful operation of the unique national facilities at BNL on <behalf of DOE.

Since 1998, BSAhas brought the expertise and resources of its two princjpal corporate. partners to address many of the difficulties that existed at the Laboratory prior to their assuming the Laboratory's management and operations.

From theoutset,BSA has brought dramatic positive changes to BNl.

Below is an evaluation of 6SA's performance in the eight (8) areas assessed annually by DOE.

Goal 1.0 Mission Accomplishment: Delivering Science for the Nation

Over the past five years, DOE has consistently rated BSA as either excellent (a grade of at least B+) or outstanding (a grade of A) in this area. These ratings are based largely on independent peer and program reviews conducted at 3-year intervals by the SC programs that fund the. majority the BNL portfolio.

DOE finds that under BSA management BNL has demonstrated a consistent ability to produce high-quality, original, and creative results that advance science and technology; sustained scientific progress and impact: contributed to the Department and its customers' R&D goals; and received appropriate external recognition of its accomplishments. These successes, coupled with BSA's distinctive, strategic vision to further increase the Laboratory's scientific leadership and impact, provide the Department with confidence jn BSA's ability to provide the direction necessary to meet its vision in the future.

Under BSA's leadership, the quality and recognition ofBNL's contributions to the fields of materials and chemical sciences, atmospheric research, radiochemistry and instrumentation, and high energy and nuclear physics have greatly increased, such that they are now recognized nationally, internationally, and within the DOE community for their high impacts and leadership. This positive leadership trend is further eVidenced by the performance evaluations of BSA conducted by the Office of Science (SC) programs,other DOE customers, and the Department of Homeland Security (OHS) over the past few years.

DOE now anticipates that sciemific discoveries at Brookhaven will drive U.S.

competitiveness and develop and transform the technologies required to meet

. the Nation's energy needs. The Department has concurred with a long-term vision for the Laboratory developed by BSA that will focus the Laboratory on two prinCiple missions; the application of photon sciences and nanomaterials research to energy SCiences, and the advancement of fundamental research in nuclear and particle physics to gain a deeper understanding of matter, energy, space and time. In addition, a third mission area is beginning to take focus which will draw together components of BNL's life and environmental sciences programs to focus on global climate solutions, reducing green house gas emissions, and enhancing energy security. The Department finds these initiatives to be appropriate, rooted in BNL's core strengths. and believe they will enable BNL to continue to play significant roles in helping DOEand other agencies fulfill their missions. At this time, disruptions to these programs, caused by a competition and the leaming-curve associated with any possible transition, would create significant setbacks, and would undermine the Laboratory's ability to deliver the science and technology the country now needs to meet its pressing energy, enVironmental, national security and scientific challenges..

Goal 2.0 DeSign, Fabrication, Construction and OpeJations of Facilities

Over the past five years, DOE has consistently rated BSA as either excellent (a grade of at least B+) or outstanding (a grade of A) in this area. These ratings were determined based on a rigorous performance appraisal process that relies heavily on independent progress reviews of construction projects (also called Lehman reviews) and peer and program reviews of ongoing facility operations conducted at 3-year intervals by the SC program managers.

DOE found that BSA has established a strong track record in the effective and efficient strategic planning, fabrication, construction, and operation of Brookhaven's research facilities, as well for its responsiveness to the Laboratory's scientific user community. BNL's major scientific user facilities, most notably the National Synchrotron Light Source (NSLS), the Center for Functional Nanomaterials (CFN), and the Relativistic Heavy Ion Collider (RHIC), are operated exceptionally well.

BSA has made outstanding progress in· the design and management of construction projects. Of particular note is BSA's success in achieving Critical Decision.;.3 (approval to start construction) in January 2009 for NSLS-Il, a $912M new science faCility. Construction of the NSLS II Ring Building has begun, with the award of a $173 million construction contract in early 2009 and the anticipated award of a construction contract for up to five adjoined NSLS II Lab Office Buildings in late 2009. These accomplishments are particularly notable because the NSLS-Il project faced a funding shortfall during its initial design phase. BSA recently received additional funding for the project under the American Recovery and Reinvestment Act of 2009 (ARRA) and has successfully further accelerated the project sohedule. Other notable achievements in construction management include the the Center for Nanomaterials (CFN) and a Research Support Building (RSB). BSA successfully mitigated the impact of unanticipated material cost increases and managed to complete both. buildings within baseline scope, cost and schedule. The CFN project was awarded the' Secretary's Achievement Award in Project Management in 2009. Similarly, the strength of the BNL nuclear physics group is acknowledged nationally, internationally, and within the DOE community for its strength in designing, fabricating, constructing, and operating research facilities. The contractor's performance in this area has given the SC Office of Nuclear Physics (NP) confidence in the Laboratory's ability to define a future physics program with electron-heaVY-ion collisions, and an electron-ion collider facility (e-RHIC) to enable that program. Finally, the Laboratory's external user communities for faCilities sponsored by BER, BES and NP are strong, and competition for use of their facilities is high. This reflects the contractor's success in providing for efficient and effective operation of its facilities.

Goal 3.0 Science and Technology Program Management

Over the past five years, DOE has conSistently ratedBSA as either excellent (a grade of at least B+) or outstanding (a grade of A) in this area. These ratings are based largely on independent peer and program reviews conducted at 3-year intervals by the SC programs that fund the majority of the BNL portfolio.

SC particularly notes that. BSA demonstrated outstanding vision, leadership and judgment in dealing with the budget crisis of FY 2006 by averting the potential cancellation of the FY 2006 RHIC run. Earlier difficulties (2006) in managing portions of the ASCR and EERE portfolios have been corrected and both programs are now performing very well.

Goal 4 .0 Contractor Leadership/StewardshipNalue-added

DOE finds that BSA's leadership/management and contributions to the Laboratory rate an overall grade of outstanding (A-).

BSA has taken several actions in recent years to further strengthen the Laboratory management team with strategic hires and promotions. BSA selected outstanding leaders in key positions including the Associate Laboratory Director for Basic Energy Sciences, Assistant Laboratory Director for ESH&Q, Assistant Laboratory Director for Policy and Strategic Planning, Director of the Property and Procurement. Fiscal Officer, and numerous key hires to manage the NSLS-II project. The current leadership team has developed a sound 10 year laboratory strategy that is well aligned with the strategic direction Of SC, and has clearly defined and related the Laboratory's infrastructure resource requirements to this 10-year vision.

DOE finds that BSA's leadership of the Laboratory, with respect to both scientific and operational issues. has been exemplary. BSA has developed a baseline understanding of the laboratory's cost drivers against which to track the cost of doing business at the lab, and subsequently has begun to identify opportunities for savings and cost avoidances. As one illustration of this, Battelle's corporate purchase card agreement has been extended to BNL to leverage its purchasing power resulting in cost savings of approximately $80,000 annually.

BSA has strengthened its corporate assurance processes, and as part of this conducted a third party review that reported positive results. The lab now .

operates with certified Procurement, Property, and Human Resources systems.

During a period when clean audit opinions on financial systems are hard to .

secure, BSA recently received unqualified clean opinions from independent auditors and the DOE Office of Inspector General.

BSA has reorganized its Facilities & Operations directorate with well qualified staff and implemented a focused approach to facility planning and management.

The Science Laboratory Infrastructure (SU) projects milestones are being met and the program continues to show success and growth with the addition of new projects. Accomplishments include securing DOE approval of Critical Decision -3 (CD-3) for the Renovate Science Laboratory Phase I (RSl-l) project and the subsequent start of construction. BSA also secured DOE approval of CD-2Al3A for the Interdisciplinary Science Building (ISB) and has commenced site clearing construction preparation work. DOE granted CD'-1 approval for the Renovate Science labs Phase 1/ (RSL-II) project, an FY 2010 new start. BSA has started an Institutional General Plant Project (IGPP) program a year ahead of schedule that provides for the expansion of the Central Chilled Water Facility which is vital to continue to service the needs of a revitalized and changing Laboratory. In addition. BSA achieved certification ofUs Earned Value Management System (EVMS). Within the past several months, BSA secured CD-O for several key SC Major Items of Equipment (MIE) projects including the Accelerator Project Upgrade at LHC (APUl) and the Heavy Flavor Tracker (HFT) project which is an upgrade to the RHIC STAR detector. BSA's leadership in addressing long-term operational issues also has resulted in tangible and continuing improvements in areas including Project and Facility Management, Cyber Security, Emergency Management, Fire Protection, and the management ofinjuries at BNL.

Additional quantifiable benefits tliat accrue to the Laboratory and the Government by virtue of eSA's management include:

• BSA replaced their CIGNA indemnity medical plan with a PPO plan for employees and non-Medicare retirees. This resulted in annual estimated savings of $4,600,000. eSA also recompeted the Laboratory's benefits plans and improved benefits while decreasing costs;

• BSA has achieved an 11.6% decrease in energy use per gross square foot of building space between 2003 and 2008. This resulted in more than $22M in savings per year;

• BSA facilitated a special agreement with DOE and the New York State Power Authority to deliver electric power to BNL at a target rate of 6;5 cents per kilowatt. This is approximately half the local indUstrial rate, and resulted in cost savings in FY 2009 of approximately $19 million;

• eSA managed to implement an authorized release of material containing trace amounts of radionuclides for disposal at a RCRA Subtitle 0 landfill.

This is one of the few authorized releases that have obtained DOE approval,'and resulted in a cost avoidance of over $5,000,000 as compared with disposal as low-level radioactive waste; and

• BSA conceived and implemented construction of a central supply facility to consolidate receipt and warehouse functions, resulting in an estimated annual savings of $250,000.

In addition, and particularly valuable to the Department, has been the Laboratory Director and his leadership team's efforts to strengthen relationships within the New York State govemment. In 2009.• eSA successfully obtained a publically announced commitment from the Governor that New York State would provide, for the first time, a low cost hydro-electric power allocation to BNL. BSA has also worked with the Long Island Power Authority (UPA) and independent developers for the potential siting of a large, up to 37 MW, photovoltaic array at BNL. The array may provide low cost power to BNL, and also include a. small portion of the array for BNL utility-based research. Finally, BSA has also worked through its Stony Brook University (SBU) parent to access the first $10M of a potential $30M New York State contribution to the Joint Photon Sciences Institute (.IPSI)•. an important component of the NSLS-II project.

The BSA partners, Stony Brook University (SBU) and Battelle Memorial Institute (BMI) have provided strong support to the Laboratory. SBU and BNL are collaborating on energy related research and development. and SBU has taken a lead role in developing the SBU-BNL-Cold Spring Harbor Laboratory research alliance initiated by the New York State Governor. SBU secured funding from New York State for the purchase of a super computer (NY Blue) and has secured non-DOE funding for the computer's operations. SBU and BNL are reducing DOE costs by sharing housing and libraries for researchers. SBU and BMI have initiated a relationship with Technical Ventures Corporation, a non-profit organization, to help establish venture capitalist relations with BNL. .

Having assumed responsibility for BNL under less than optimal conditions, BSA has restored the community's confidence in the Laboratory's management. The Laboratory now has established a reputation of trustworthiness with the local community as evidenced by positive recognition from civic groups, and a recent announcement from the U.S. Small Business Administration that BSA is the 2009 recipient of the Eisenhower Award, SBA's highest award, for extraordinary small

. business achievements. Last year, the Community Advisory Council, formed by BSA to advise the BNL Laboratory Director, was recognized by the Secretary for their invaluable support to BNL over the past ten years.

GoaIS.O Integrated Safety, Health, and Environmental Protection

OVer the past five years, DOE has consistently rated BSA as excellent (with grades of B- to B+) In this area.

BNL's safety performance has improved significantly in the 10 years that BSA has been the Laboratory's M&O contractor. BSA has also made good progress implementing its Integrated Safety Management (ISM) Plan, as evidenced by periodic DOE reviews and an August 2007 HSS Assessment of the lab's ES&H programs. Nevertheless, DOE has still felt that there was room for improvement.

In FY2006 and 2007 BSA commissioned an independent corporate review of the safety culture at BNl, in an effort to pinpoint the continuing sources of instability or lack of progress in encouraging a total safety culture at the Laboratory. As a result of this Work by the parent contractor and the Laboratory leadership, Injury investigations and causal analyses associated with injuries, categorization of injurfesand the reporting of events all improved, but DOE believes more attention is needed and lower level BSA managers and supervisors should be included in injury reviews to ensure effective corrective actions are taken. BSA's safety performance as measured by traditional metrics recently realized a 40% reduction from FY07 rates, and SC considers this performance to reflect that ofa Laboratory on the path to continuous improvement.

BSA has made dramatic progress in improving the Laboratory's waste management, minimization and pollution prevention praelices. Recently, BSA has made noteworthy progress reducing BNL's radiological footprint through the reduction of unneeded materials and chemicals, disposal of moratorium scrap metals, hot cell clean-out, and sealed source disposal/recycling. In FY 2008 BSA received a number of awards. including a DOE Pollution Prevention Award. the Office of Science "Best in Class" award for authorized release of sewage sludge to a Subtitle 0 landfill, several awards froin the U.S. EPA for exceptional accomplishments in the areas of pollution prevention and environmental clean-up activities, and a Long Island Commuter Choice Program Award for efforts to reduce vehicular air pollution.

Goal 6.0 Business Systems

Over the past five years, DOE has rated BSA as excellent to outstanding (with grades of B to Aw) in this area.

During its tenure, BSA has initiated a number of initiatives and reviews to overhaul and strengthen the Laboratory's business systems. SC finds that these efforts have been effective and that the Laboratory has made steady progress over the last few years in bringing all systems up to a level that meets SC's high standards for performance.

For example. BSA has obtained a clean, unqualified, opinion for the laboratory Rnancial Statements for FY's 2004 to 2007 from the Office of Inspector General (OIG), and an independent Hackett benchmarking exercise reported that BSA's financial system has characteristicsfound in world-class industrial organizations.

Earlier weaknesses with respect to requirements to obtain cash advances for proprietary use of user facilities, and controls on petty cash and other acquisition controls have been rectifled~ BSA also has made signifICant improvements in its use of information technology for tracking all purchases. These systems have enabled BSA to conduet 100% of all purchases electronically, utilizing the On-line Sale (Bid-for-Assets) system for property disposition, and to account for 100% of government furnished property held by Its 25 major subcontractors.

BSA also has demonstrated significant leadership by taking aggressive action to protect the Department from the rising costs of employee benefits. In 2007, BSA chose to compete the laboratory's extraordinary medical claims insurance, and thus avoided a premium increase of $18% annually. A similar decision to compete BSA's contract for consulting services in the area of employee benefits resulted in improved services and cost savings.

Finally, technology transfer has also Improved Significantly during BSA's tenure and now demonstrates excellent results in the filing of patent applications and patent issuances. The number of licenses issued is sizable as well.

Goal 7.0 Facilities and Infrastructure

Over the past five years, DOE has rated BSA as excellent to outstanding (with grades Of B+ to A-) in this area.

BSA has brought a focused, strategic approach to facility planning and management. They have effectively reorganized the Facility and Operation directorate and hired several highly competent professionals. The performance of this team was evidenced by BSA'ssuccess in arguing for and obtaining approval for the Interdisciplinary Science Building Phase I infrastructure project.

It was one of only four infrastructure projects selected by SC from a pool of more than a dozen proposed projects for a start in FY 2009. In addition BSA completed construction on a Research Support Building (RSB) and a Center for Functional Nanomaterials facility. Both projects were completed on time and within budget. BSA also demonstrated significant leadership in this area by identifying cost savings throughout the Laboratory and using these to deliver on' institutional commitments to supplement and extend the funds provided by SC for Infrastructure moderniZation.

SC recognizes that recently the Laboratory has experienced some difficulties managing decontamination and decommissioning projects for the DOE Office of Environmental Management (EM). Increased upper management attention and project management changes were implemented by BSA that are addressing the EM project management difficulties.

GoaIS.O Security and Emergency Management

Over the past five years, DOE has rated BSA as good to excellent (With grades of C- to B+) in this area. It should be noted that the C- rating was assigned inFY 2006; however, since then BSA has received B+ ratings.

BSA has a strong track record managing special nuclear materials, classified matter and property, as well as classified and sensitive information. In September 2007, BNL's Safeguards and Security Division and its Classified and Sensitive Information program both underwent reviews by the SC Chicago Office Safeguards and Security Services. Both programs received satisfactory ratings.

Of note, there have been no reportable incidents involving classified or sensitive information during the three most recent annual performance periods.

Another area of notable BSA performance is in the area of cyber security protections. Although no information had been compromised, external reviews in 2006 identified a series ofweaknesses in the Laboratory's systems. In response, BSA leadership took exemplary action, bringing in experts from across the DOE laboratory community to help BNl develop bestdn-class systems appropriate for BNL, and ensure that all members of the staff were fluent in the risks and best practices attendant with cyber security.

6. A deSCription of efforts made to ensure that offers are solicited from as many potential sources as is practicable, Including whether a notice was or' will be publicized as required by Subpart 5.2 and, if not, which exception under 5.202 applies.

Expressions of Interest announcement was posted by DOE on the FedBizOpps website; as well as DOE's Industry InteraCtive Procurement System. on October 30, 2008 for a competitive contract with a potential duration of up to twenty (20)

. years. Based upon the facts contained in this justification, offers have not been solicited from other sources for this five (5) year extension. FAR 5.202 (a)(10) provides that the contracting officer need not submit notice of the proposed contract action as required by FAR 5.201 when the contracting officer determines that the contract action is made under conditions as described in FAR 6.302·3.

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

The antiCipated dollar value of this action is approximately $600 mjJIion~ An M&O .

contract establishes a close working relationship between DOE and the M&O contractor. It is not possible to establish a fixed price co'ntract for this research and development work, nor is the type of work conducive to establishing a fixed long-term "contract cost." The DOE, In association with the M&O contractor, establishes an annual operating and capital expenditure budget for performance at a prescribed level of activity to fulfill its mission requirements. Contractor obligations, commitments and expenditures are limited to specific funding levels established by DOE and are controlled through issuance of approved funding programs to the contractor. DOE continually monitors performance and costs.

Annual scientifIC, business, and Environment, Safety and Health (ES&H) reviews, appraisals, and performance-based evaluations are conduCted in accordance with contractual requirements and annually negotiated performance measures under the established performance-based contract. The DOE budget process and the performance-based contract provide the necessary controls to assure that expenditures (costs) to support the required levels of authorized activity are fair and reasonable and that performance remains at acceptable levels in all areas;

The contractor's financial management system is an integrated accounting system that is linked to DOE's accounts through the use of reciprocal accounts. ' The contractor is also required to conduct an annual internal audit and examination satisfactory to DOE of the records, operations, expenses, and the transactions with respect to costs claimed to be allowable under this contract.

The contractor also prepares and submits annually a Cost Statement for the total of net expenditures accrued which is certified subject to penalty provisions for unallowable costs. DOE, after audit and appropriate adjustment, approves such Cost Statement. DOE's approval constitutes an acknowledgement by DOE that the net costs incurred are allowable under the contract and that they have been recorded in the accounts maintained by the contractor, but does not relieve the contractor of responsibility for DOE assets in its care, for appropriate subsequent adjustments, or for errors DOE is informed of/discovers subsequently.

The maximum fee which can be eamed under the contract is about one and a half (1.5%) percent of the BNL annual operating budget. The fee is an "at risk" performance based fee.

8. A description of the market research conducted and the results or a statement of the reason market research was not conducted.

Formal market research has not been conducted for the planned five-year extension of the current contract. Since 2005, DOE has conducted six competitions for the management and operation of the SC national laboratories.

Over the past several years, the Department has issued competitive solicitations for the management and operation of Lawrence Berkeley National Laboratory, Thomas Jefferson National Accelerator Facility, Argonne National Laboratory, 'FERMI National Accelerator La . and

In each of these competitions, efforts were made to solicit as much competition as possible. These efforts included issuing draft solicitations; holding comment workshops, one-on-one meetings, and pre-proposal conferences; and maintaining websites to provide information to interested parties.

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

As setforth in FAR 17.605, replacement of an M&O contractor is usually based largely upon an expectation of meanil19ful improvement in performance or cost.

Considering the exemplary performance of the current contractor, DOE has no expectation of meaningful improvement in performance or cost as a result of a competition of this contract at this time. In fact, BSA has implemented changes and managed the Laboratory to effect significant improvements to Laboratory

. performance. It is highly unlikely that a competition will result in improved performance, or benefit the Government because of the disruption, cost of transition, and loss of productivity. A competition at this. time may jeopardize the improvements realized to date and the successful construction of the NSLS II, the cornerstone of the scientific future of the Laboratory. Other potential negative impacts from a competition at this time include potential delays in the negotiations for reduced electricity rates from the State of New York and erosion of the hard-earned community trust.

In accordance with Department of Energy Acquisition Regulation 970.1706-1, any extension to continue a contract beyond the basic contract term, including any exercised options, with the Incumbent contractor shall only occur when such extension can be justified under one of the statutory authorities identified in 48 CFR 6.302 and when authorized by the Head of the Agency. The statutory authority permitting other than full and open competition for this five-year contract extension Is.41 U.S.C. 253(c)(3)(8).

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

Two other potentially Viable sources, University Research Associates (UM) and URS Corporation, Washington Division each submitted an expression of interest in response to the Request for Expres~ion of Interest issued on October 3D, 2008. -rhese Expressions of Interest were non-binding and were for a contract of up to twenty (20) years in duration at ·BNL.

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 the supplies or services required.

the SC national laboratory their n'>.....""'• .:......t:>nt performance fee-based contract structure and the performance of incumbents could be factors hindering meaningful competition. There may well be other issues or barriers to competition for an SC laboratory. During the five-year contract extension, consideration will be given to identify barriers to competition, as well what actions may be taken and overcome these barriers to meaningful competition for SC laboratory management and operation contracts before any subsequent acquisition action for the management and operation of BNL is required.

Certification

The Information contained In this h Justification For Other Than Full and Open Competition for Brookhaven National Laboratory (BNL)" Is certified accurate and complete to the best of my knowledge and belief.

~tJ.~ AcqUisition Initiator Michael 0; Holland

Contracting Officer ~~ Robert P. Gordon Date

Reviews and Approvals

Program Senior Official

Cloture Contracting Activity Legal Counsel ~I£.JfMI /oM~

Alan I. t"&n werker ............ Date I

Head of Contract Activity

Date

Senior Procurement Executive

Edward R. Simpson Date