Logical_Follow-On_Justification_MBTA_Mod_0001-signed.pdf

Justification for an Exception to Fair

Opportunity Office of Acquisition and Grants Management

1200 New Jersey Ave. SE Washington, D.C. 20590

Subject: Justification for an Exception to Fair Opportunity

Contract Number: DTFH61-12-D-00026

Task Order Number: 0213

Modification Number: 0001

Date: December 12, 2017

Authority: This is a justification for an exception to fair opportunity prepared pursuant to the requirement for documentation at Federal Acquisition Regulation (FAR) Part 16.505(b)(2)(ii).

JUSTIFICATION

A) Nature and/or description of the action being approved

This is a justification for an exception to fair opportunity, for a modification to raise the ceiling of the subject task order.

B) Description of the supplies or services required to meet the agency’s needs (including the estimated value)

The additional services required consist of legal services, specifically continuation of the “negotiation” tasking described in the task order. The estimated value of the additional services is $152,250.

C) Identification of the exception to fair opportunity (see FAR 16.505(b)(2)) and the supporting rationale.

The exception to fair opportunity is that cited at FAR 16.505(b)(2)(i)(C): “The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.”

Rationale: This modification is a logical follow-on to the base task order, because it is to continue legal services connected to ongoing negotiations between the Government and other parties, in connection with the “Massachusetts Bay Transportation Authority (MBTA) Positive Train Control” TIFIA/RRIF credit project. The scope of work remains identical to that of the base task order, however a ceiling increase is necessary because the extent and duration of the negotiations required to complete the work effort are at this point estimated to substantially exceed that initially anticipated under the task order (as modified). Additional unanticipated effort has resulted from factors including the following:

1. The transaction structure – both a TIFIA and RRIF credit using a single negotiated loan agreement -- required the Contractor to participate in additional conference calls and email correspondence with the Government in excess of what it reasonably anticipated at the time of submitting its proposal.

2. Changes made by the borrower to the proposed finance structure during the period of performance of the task order necessitated additional revisions to documents and comments drafted by the contractor based on their original understanding of the transaction.

3. The timing for closing of the TIFIA/RRIF Loan was pushed back by approximately five months for reasons that were not anticipated by either the Contractor or the Government and were beyond the control of either. The extended period of performance necessitated additional work on the part of the Contractor, for example for additional status calls.

It is in the interest of economy and efficiency for the same contractor to complete the negotiations work under this task order; introducing another contractor to the effort would have a detrimental effect from an economy and efficiency perspective. Through its work to date on the base task order, this contractor is the only offeror with the knowledge essential to properly document the transaction and ensure the Government’s interests are adequately protected and accurately documented. At this point in the Task Order, it would be extremely disadvantageous to the Government to competitively source a legal advisor to complete the remaining work. The Contractor has an intimate knowledge of the history and scope of the negotiation process and all of the documentation related to this transaction, including the initial drafts of the loan agreements and ancillary documents, and all of the diligence document regarding the borrower and the transaction structure.

The Contractor’s knowledge of the commercial agreements made (and not made) in principal and not yet documented is essential in properly documenting the transaction and ensuring the Government’s interests are adequately protected and accurately documented.

All awardees were given a fair opportunity to be considered for the original order.

D) Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable

The anticipated cost to the Government for this modification, $152,250 is considered fair and reasonable. This modification impacts the labor-hour component of the task order, and the anticipated cost corresponds to an expected increase in labor-hours (in various categories) multiplied by the labor rates in effect under the task order. These labor rates were approved at time of award as fair and reasonable. The proposed/accepted labor rates were achieved in a highly competitive environment—all seven awardees under the set of IDIQ contracts were given a fair opportunity to compete.

E) Any other facts supporting the justification

There are no other relevant facts supporting the justification, not otherwise included above.

F) A statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made.

For subsequent acquisitions of legal advisory services under this set of IDIQ contracts, the Agency may consider providing ranges of labor hours as an advisory to the offerors, for the negotiations tasking. Experience has revealed that the nature of the negotiations work is often more protracted than initially expected/proposed by the contractors. Considering special factors (complexity, political sensitivity) that might warrant higher initial estimates/award ceilings would lessen the need for subsequent modifications using this logical follow-on justification.

G) The contracting officer’s certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief.

Certification: _________________________________________

Samantha Reizes, Contracting Officer Date

H) Evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or requirements or other rationale for an exception to fair opportunity) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel.

The Contracting Officer’s Representative, Ms. Jessica Pettrone, asked that the program office she supports prepare an approved Procurement Request to the contracting activity, including a certification of funding availability for the value of the modification. The Procurement Request also included a document fully justifying the rationale for the modification, from a technical requirements perspective.

Certification:____________________________________________________________

Jessica Pettrone, Contracting Officer’s Representative Date

DETERMINATION

Based on the foregoing information, I hereby determine that the circumstances in FAR 16.505(b)(2)(i)(C) applies to the subject modification.

Samantha Reizes Date Contracting Officer Office of Acquisition and Grants Management Federal Highway Administration

APPROVAL

Pursuant to FAR 16.505(b)(2)(ii)(C),The ordering activity contracting officer’s certification that the justification is accurate and complete to the best of the ordering activity contracting officer’s knowledge and belief will serve as approval. No higher approval level is established in accordance with agency procedures. Therefore, see section (G) of this justification, above.