Class-Justification-Approval.pdf

DEPARTMENT OF THE NAVY

N AV AL U N D E R S E A W AR F AR E C E N TE R D I V I S I O N

6 1 0 DO WE L L S T R EE T

K E YP O R T, W AS HI N G TO N 983 4 5 - 76 10

J&A No. 23037 Code: 10

(CLASS) JUSTIFICATION AND APPROVAL

FOR USE OF OTHER THAN FULL AND OPEN COMPETITION

JUSTIFICATION

1. Contracting Activity.

The Naval Sea Systems Command (NAVSEA), Naval Undersea Warfare Center (NUWC) Division, Keyport, Contracts Department, Code 02.

2. Description of the Action Being Approved.

This Class Justification and Approval (J&A) is for Educational Service Agreements (ESA) in support of the Academic Development Program administrated by NUWC Division, Keyport Corporate Operations Department, Code 10.

Authority to act under this Class J&A expires on 30 Sep 2027.

3. Description of Supplies/Services.

The objective of the ESAs is to provide university or college educational services associated with an academic degree program or course authorized by NUWC Division, Keyport Directive NUWCDIVKPTINST 12410.3, Academic Development Program (ADP), in support of NUWC Division, Keyport. Selection under the ADP is defined in the directive as follows:

The ADP must primarily focus on addressing identified knowledge gaps and emerging educational requirements necessary to promote and improve NUWC Division, Keyport’s Mission, Strategic Plan, and technical/business priorities. The chosen academic degree program must be appropriate to the employee’s official position, duties, and responsibilities. The degree program selected should have a direct correlation to an employee’s demonstrated potential for increased responsibility and career advancement.

While ESAs are for an indefinite duration and remain in effect until terminated (DFARS 237.7203(a)), continued use of the ESAs

J&A No. 23037 which is not a contract, but is an ordering agreement under which the Government may order educational services. While the framework described in FAR subpart 16.7 for basic ordering agreements is instructive for ESAs, payments for educational services are not subject to full and open competition. The training authority is specifically exempted from the standards of 41 U.S.C. Public Contracts by the language in 5 U.S.C. 4105:

§ 4105. The head of the agency, without regard to section 6101(b) to (d) of title 41, may make agreements or other arrangements for the training of employees of the agency by, in, or through non- Government facilities under this chapter.

Section 6101(b) of title 41 addresses the requirement to advertise for proposals when making purchases, and sections (c) and (d) address the non-relevant topics of sales and wholly owned Government corporations. Further, the statutory and regulatory requirements for the Government to administer academic degree training inherently require exclusion from competition. 5 U.S.C. 4107 restricts such training to nationally accredited colleges and universities, and more specifically, those who offer degrees that meet certain specified agency needs (5 U.S.C. 4107(a)(1) and (3)).

Additionally, section 4107 and implementing regulations in 5 C.F.R. 410.308 dictate the process by which employees are selected to participate in the program, and by necessity of working with educational institutions, the college or university involved must be one where the employee has received admission.

None of these requirements comport with conducting full and open competition in relation to ESAs. Accordingly, the agency may enter into an ESA without regard for competition.

Background:

a. Authority for NUWC Division, Keyport’s ADP derives from:

Title 5 U.S.C. Sections 4105, 4107, and 4108, Academic degree training / employee agreements; service after training

Title 5 CFR Part 410, Training NUWCDIVKPTINST 12410.1 Workforce Development Program NAVSEA M-12410.12 NAVSEA Workforce Development Operation Manual

This authority is summarized as follows:

ADP employee-student applicants identify their preferred academic program and an educational institution in their ADP application. NUWC Division, Keyport’s Human Capital Strategy Governing Board evaluates employee-student ADP applications based on the following criteria:

Program/Educational institution alignment to Command’s strategic priorities, strategic plan, and mission

Employee’s preparedness for an educational program commitment and alignment to their career path

Quality of application materials (i.e. written presentation and communication)

Support from leadership (i.e. employee’s supervisor and department leadership)

Cost effectiveness / return on investment to NUWC Division, Keyport

7. Determination of Fair and Reasonable Cost.

As a condition of award, the Contracting Officer will determine the cost to the Government of the services covered by this J&A to be fair and reasonable. ESAs will be issued as basic ordering agreements and orders will be issued annually based on ADP requirements. Invoices for education services covered by an ESA may continue to be paid via GPC, though payments for educational service events that exceed $25,000 shall be processed by a warranted GPC holder. Payments for educational services ordered under ESAs will be made in accordance with DFARS 237.7201(b):

Educational service agreements provide for ordering educational services when—

(1) The Government pays normal tuition and fees for educational services provided to a student by the institution under its normal schedule of tuition and fees applicable to all students generally; and

(2) Enrollment is at the institution under the institution's normal rules and in courses and curricula which the institution offers to all students meeting admission requirements.

Cost analysis shall be done in accordance with NAVSEA policy:

Applicants must conduct a cost comparison of their proposed course of study against one or more institutions. The activity may establish the minimum number of comparisons required. In instances where the course of study is unique, the activity may waive the cost comparison. The activity has the right to challenge the institution selected on the grounds of extraneous program costs.8

8. Actions to Remove Barriers to Future Competition.

This section is not applicable for the reasons set forth above in section 5.

1 5 U.S.C. 4101(6)(C) and (F) “non-Government facility” means – a medical, scientific, technical, educational, research, or professional institution, foundation, or organization; and the services and property of any of the foregoing furnishing the training.

2 5 U.S.C. 4101(4) “training” means the process of providing for and making available to an employee, and placing or enrolling the employee in, a planned, prepared, and coordinated program, course, curriculum, subject, system, or routine of instruction or education, in scientific, professional, technical, mechanical, trade, clerical, fiscal, administrative, or other fields which will improve individual and organizational performance and assist in achieving the agency’s mission and performance goals.

3 DoDI 1400.25 “TE&PD event” [is] “an organization’s total TE&PD requirement for a single specific or recurring TE&PD service. For example, if an organization plans to send 10 people per month for 12 months to a course that is available to the general public and priced the same for everyone in the same category at a price of $1,000/student, the total price of the TE&PD event is $120,000; therefore, an educational service agreement as described in section 237.72 of [DFARS] or other similar contracting vehicle must be awarded by a contracting officer to facilitate this ordering agreement.”

Based on this definition from the DoDI, an educational service event is understood to mean the total NUWC Division, Keyport ADP annual educational service requirement for a single educational institution.

4 Kerr, E., & Wood, S. (2022, September). A Look at College Tuition Growth Over 20 Years. U.S. News & World Report. https://www.usnews.com/education/ best-colleges/paying-for-college/articles/ see-20-years-of-tuition-growth-at-national-universities

5 DoDI 1400.25, Volume 410, Enclosure 3. Program Procedures, paragraph 6.

Academic Degrees.

6 Estimated: students who dropped from the ADP are counted in these totals only once - for the fiscal year they started with the program.

7 Endorsement of a non-Federal entity, event, product, service, or enterprise may be neither stated nor implied by DoD or DoD employees in their official capacities and titles, positions, or organization names may not be used to suggest official endorsement or preferential treatment of any non-Federal entity except those listed in subsection 3-210 [exceptions are all military relief societies; no academic institutions are exceptions to this rule].

8 NAVSEA M-12410.2 NAVSEA Workforce Development Operation Manual (March 2022), Chapter 10 Academic Degree Programs, paragraph 1.c.