CUI_Riley JA 2024_82 REDACTED_Redacted.pdf

Control No.: MICC 2024-82

FAR Part 6 Justification and Approval for Other than Full and Open Competition

1. Contracting Activity: U.S. Army Mission and Installation Contracting Command (MICC)-Fort Riley, 1792 12 Street, Fort Riley, Kansas 66442-4160.

2. Description of Action: The Fort Riley Logistics Readiness Center requests an extension of the ordering period for the fifth bridge Firm-Fixed-Price (FFP) contract with the Kansas Department for Children and Families (KDFCF) / State Licensing Agency (SLA), 555 S. Kansas Ave., Topeka, KS 66603. The Government projects award of the extension prior to 1 September 2024 and fiscal year 2024 Operations and Maintenance, Army funds will be used. An acquisition plan is not required because this procurement does not meet the threshold at Defense Federal Acquisition Regulation Supplement 207.103(d)(i)(B).

3. Description of Supplies/Services: The contract will provide Dining Facility Attendant (DFA) services for Fort Riley. The contract supports the installation's 16,000 Soldiers by providing DFA services for four dining facilities, kiosk, and mobile food truck.

The total estimated dollar value of this is $5,224,331.00 over 12 months.

Ordering Period Extension: 01 SEP 2024 to 31 AUG 2025 Value: $5,224,331.00

4. Authority Cited: Title 10, United States Code, Section 3204(a)(1) as implemented by Federal Acquisition Regulation Part 6.302-1, Only One Responsible Source.

5. Reason for Authority Cited: As described at FAR 6.302-1, When the supplies or services required by the agency are available from only one responsible source, or, for DoD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements, full and open competition need not be provided for.

a. Background: The fifth Bridge Contract was awarded on 01 March 2021 thru 31 August 2024. This action will be an extension to the current base contract due to no legal decision being made between Department of the Army and the Department of Education, who owns the Randolph-Sheppard Act. A critical need still exists to allow the Army Sustainment Command (ASC) to continue use of Kansas Department for Children and Families for all food service requirements, including DFA services, until the competing legal challenges can be resolved.

On 15 March 2019, a U.S. District Court (USDC) of the Eastern District of Virginia, Alexandria, Virginia, ruled in favor of the Plaintiffs, SourceAmerica (a Central Non-Profit Agency of AbilityOne), in a declaratory judgement suit, SourceAmerica brought in 2017 after an arbitration panel convened by the Department of Education (ED) under the Randolph-Sheppard Act (R-SA) held on a 2-1 panel majority that the Army violated the R-SA by attempting to award the DFA services contract to a SourceAmerica Non-Profit

Activity (NPA) under the Committee for Purchase Act (formerly known as Javits-Wagner -O�Day Act) after the AbilityOne Commission, as the Committee for Purchase, had added these services to the mandatory Procurement List (PL) on 22 January 2016.

In 2015, the Kansas SLA filed a preliminary suit for injunction to stop the Army from proceeding to place the services with AbilityOne, and even after the Final Rule issuance on 22 January 2016 by AbilityOne, the USDC in Kansas, on 26 February 2016 issued a Preliminary Injunction (PI) in favor of the Kansas SLA. Upon intervention by SourceAmerica, the Court (Judge Crabtree) amended his earlier Order but continued the PI on 22 March 2016, pending arbitration under the R-SA. The arbitration was conducted in January 2017 and on 9 May 2017, a two-person majority issued the arbitration decision finding that the Army not only violated the R-SA by refusing to procure the DFA services under the R-SA, but also violated the 2007 John D. Warner National Defense Authorization Act by allowing the AbilityOne Commission to place the requirement on the mandatory PL.

Subsequent to this arbitration panel decision, SourceAmerica, as discussed above, commenced its proceeding against the ED, Department of Defense, and Department of the Army, and in 2018, the USDC allowed the Kansas SLA to intervene as a Defendant. After multiple hearings and pleadings, the USDC for the Eastern District of Virginia, Alexandria Division, ruled that the arbitration panel decision was erroneous as a matter of law and set it aside. It also held that the R-SA did not apply to DFA service procurements, and that the Army correctly determined it did not have to so procure these services. It also held that the placement of the requirement on the PL in January 2016 was lawful and did not violate statute. However, the USDC also held that the Army had violated one portion of the R-SA by failing to consult with the ED prior to determining in 2015 that it no longer required Full Food Service at Fort Riley, but rather only DFA services.

The Defendants appealed the decision to the U.S. Court of Appeals for the Fourth Circuit (4th Cir. CA) in 2019 and SourceAmerica cross-appealed as well, with the Government, the Court�s decision regarding consultation with the ED. On 22 September 2020, the 4th Circ. CA, in an unsigned �per curium� decision of the three-judge panel, vacated the USDC decision and remanded the case for the USDC to determine whether the Army had, in fact, violated the R-SA with respect to the consultation requirement.

On 1 December 2020, Judge T.S. Ellis, USDC, remanded the case to the Army ��so that the Army may properly comply with the Review Requirement of the Randolph-Sheppard Vending Facility Act pursuant to the mandate of the United State Court of Appeals for the Fourth Circuit.� As of 7 February 2023, the Department of Justice and Headquarters, Department of the Army have not yet implemented this �requirement� with the ED and the matter remains unresolved. Since the USDC vacated its decision on 1 December 2020, there is no binding legal decision to determine whether the R-SA does or does not apply to DFA services requirement (at least within the Fourth Circuit area of judicial responsibility and, by implication, in the Tenth Circuit where Fort Riley, Kansas, is located).

b. Due to protracted litigation, beginning on 23 February 2016, and in succession, contracts W911RX-16-D-0006, W911RX-17-D-0004, W911RX-18-D-0004, W911RX- 20-D-0003, and W911RX-21-D-0004 have been awarded to the KDFCF / SLA under the R-SA to provide DFA Services at Fort Riley, KS. The most recent bridge contract, W911RX-21-D-0004, will expire on 31 August 2024. A contract extension action is necessary to provide for the continuation of essential services. The incumbent, KDFCF, is the only source possessing the trained personnel assets, management team, equipment, and other resources to ensure uninterrupted and continued services.

c. Alternatives: There are four possible alternatives, three of which would not satisfy the need underlying the requested award. Only the fourth alternative, a sole source award to the current contractor under Other than Full and Open Competition, fully meets the need and is the most beneficial to the Government.

1) Suspension of Services: Currently, DFA services are conducted 100% by the contracted workforce. Inability to provide these services would negatively impact the mission of all Soldiers assigned to the 1st Infantry Division because DFA services in the installation Dining Facilities (DFAC) would cease. The Army no longer uses soldiers to perform �kitchen police (KP)� duties akin to DFA services.

2) Use of In-House Resources: Fort Riley does not have the existing personnel, equipment, and facilities necessary to perform the required services at any level. Again, the Army does not use soldiers to perform these duties.

3) Award a Short-term Competitive Contract: It is neither cost effective nor realistic to expect another contractor to perform services at the level currently being provided by the incumbent contractor for the short period for which the sole source award is being requested. A new competition would take a minimum of six months to complete, during which time the existing contract would expire. It would also contradict the explicit directions received from the Department of Justice and would result in Fort Riley being unable to provide these essential food service operations.

4) Award an extension to the current Bridge Contract to the Incumbent Contractor: The incumbent contractor is performing DFA services consistent with the requirement and already possesses the personnel, equipment, and capital necessary to continue providing these services over the abbreviated period of performance without incurring start-up costs or additional costs to maintain this performance.

d. Impact if not approved: The incumbent contractor, KDFCF, is the only logical source to perform the services and has the labor force, equipment, and subcontractors in place ready to perform all the required services without disruption or delay. No other firm could mobilize and interface with the LRC in the time remaining under the existing contract. Without this sole source award, food service operations at Fort Riley would not continue.

6. Efforts to Obtain Competition: The protracted litigation has resulted in significant delays in determining which statutory scheme prevails; R-SA or Committee for Purchase from People Who are Blind or Severely Disabled, and given that the extant contract expires on 31 August 2024, there is no time to resolve this and conduct proper market research. MICC-Fort Riley will keep the status quo (voluntary stay) until all legal decisions are complete in the Eastern District of Virginia case. MICC-Fort Riley has agreed to the voluntary stay.

a. Effective Competition: Because this is a sole source action, effective competition is not applicable.

b. Subcontracting Competition. Kansas DCF has an approved subcontracting plan that has been updated on an annual basis since the start of the current contract.

The plan will be updated for the extension period and achievement will continue to be evaluated via submission of semiannual eSRS reports. Kansas DCF established purchasing procedures to include stringent guidelines for competing subcontracts.

The contractor will be required to select subcontracts on a competitive basis and small businesses will have the maximum practicable opportunity to participate in subcontracting opportunities. Any requirements that they deem to be sole source will be justified and approved by the Government prior to issuance of the subcontract.

7. Actions to Increase Competition: As indicated above, this is a bridge contract to ensure uninterrupted DFA services performance for Fort Riley Dining Facilities. Until the extant legal issues can be fully resolved, the Department of Justice has specifically requested the Army not to take any action to disrupt the status quo of the current contractual arrangement.

8. Market Research: A Sources Sought was conducted on 16 August 2024 on SAM.gov with the results listed below.

a. Nine companies replied to the Sources Sought posted on SAM.gov. Out of the companies that responded, eight re Small Businesses and have the NAICS Code on file of 722310, four are 8(a) Certified, three are HUBZone and WOSB, and two are SBVOSB and EDWOSB

b. One of the companies in considered to be Other than Small Business

9. Interested Sources: The KDFCF, the incumbent contractor, is the only known source capable of satisfactorily providing services at the required full performance level for the performance period for which this award is being requested.

10. Other Facts:

a. Procurement History.

Contract Number: W911RX-21-D-0004 Vendor: DKFCF / SLA Award Date: 27 FEB 2021 Competitive Status: Other than Full and Open Authority Cited: FAR 6.302-1

Contract number: W911RX-20-D-0003 Vendor: KDFCF / SLA Award date: 27 FEB 2020 Competitive Status: Other than Full and Open Authority cited: FAR 6.302-1

Contract number: W911RX-18-D-0004 Vendor: KDFCF / SLA Award date: 12 FEB 2018 Competitive Status: Other than Full and Open Authority cited: FAR 6.302-1

Contract number: W911RX-17-D-0004 Vendor: KDFCF / SLA Award date: 23 FEB 2017 Competitive Status: Other than Full and Open Authority cited: FAR 6.302-1

Contract number: W911RX-16-D-0006 Vendor: KDFCF / SLA Award date: 01 MAR 2016 Competitive Status: Other than Full and Open Authority cited: FAR 6.302-1

Contract number: W911RX-11-D-0006 Vendor: Social and Rehabilitation Services, Kansas Award date: 11 AUG 2011 Competitive Status: Awarded applying the priorities of Randolph-Sheppard Act

b. The following deployments schedule illustrates the continued need for DFA services to support Dining Facilities that will be understaffed of Army personnel this coming year. As prescribed in Army Regulation 30-22 Section 3-42(c)(1) when 92G staffing levels fall below 75%, then supplemental services are allowed to be sought through contracting actions. Recent changes to deployments, training requirements, and personnel change-in-station requirements, indicate the staffing of 92G Soldiers is expected to be reduced throughout the Army.

Approval

Based on the foregoing justification, I hereby approve the procurement of Dining Facility Attendant services at Fort Riley, Kansas on an other than full and open competition basis pursuant to the authority of Title 10 United States Code Section 3204(a)(1) � Only One Responsible Source. The estimated value of the ordering period extension is $5.2 million for a period from 1 September 2024 through 31 August 2025. The approval is subject to availability of funds, and provided that the services or property herein described have otherwise been authorized for acquisition.

Alternate Advocate for Competition U.S. Army Mission and Installation Contracting Command, JBSA Fort Sam Houston, TX