EAST ORANGE JA SCO APPROVED.pdf

NAP 20-0001

After-the-Fact JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: East Orange Hospital ACF

AUTHORITY: 10 U.S.C. 2304 (C) (2) AMOUNT: $ 10,279,098.34

PREPARED BY:

CONTRACT SPECIALIST

NAME: Jamaal Edwards

PHONE: (215) 656-3241

DATE:22 April 2020

CONTRACTING OFFICER

NAME: Gregory Keaton

PHONE:(215) 656-3826

DATE:22 April 2020

TECHNICAL

NAME: Thomas Gibison

PHONE: (215) 656-6927

DATE:22 April 2020

REQUIREMENTS

NAME: Thomas Gibison

PHONE: (215) 656-6927

DATE: 22 April 2020

SIGNATURES ARE REQUIRED BELOW:

I have reviewed this J&A and find the justification adequate to support other than full and open competition.

DISTRICT SMALL BUSINESS SPECIALIST

SIGNATURE:

NAME: Rippert

DATE:

PHONE: (347) 370-4588

PROJECT MANAGER

SIGNATURE:

NAME: Thomas Gibison

DATE:

PHONE: (215) 656-6927

SIGNATURE:

NAME: John

DATE:

PHONE: (215) 656-6526

DISTRICT CONTRACTING CHIEF

SIGNATURE:

NAME: Nora Cherry

DATE:

PHONE: (215) 656-6770

COUNSEL TO SCO-ATLANTA SIGNATURE:

NAME: Tristan Brown

DATE:

PHONE: (202) 761-8541

SCO-ATLANTA/ALTERNATE

COMMAND ADVOCATE FOR

COMPETITION

SIGNATURE:

NAME: Laura Eichhorn

DATE:

PHONE: (404) 562-5051

Date: 2020.04.27 09:48:54 -04'00'

GIBISON.THOMAS.M.122

8940190

Digitally signed by

GIBISON.THOMAS.M.1228940190

Date: 2020.04.27 13:16:08 -04'00'

PRINCIPAL ASSISTANT DISTRICT

COUNSEL FOR PROCUREMENT

SKARBEK.JOHN.

A.1228953527

Digitally signed by

SKARBEK.JOHN.A.1228953527

Date: 2020.04.27 19:58:37 -04'00'

S0CT9LJE

Typewritten Text

SEE APPROVAL BLOCK

After-the-Fact Justification and Approval for Other than Full and Open Competition

1. CONTRACTING AGENCY: U.S. Army Corps of Engineers, Philadelphia District (CENAP), Contracting Division, Philadelphia, PA.

2. DESCRIPTION OF ACTION: In support of Presidential National Emergency Declaration Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, on 13 March 2020, approval is requested for a Justification and Approval (J&A) to award a two-phase design-build construction, firm fixed price (FFP) Letter Contract to Cutting Edge Group, LLC, 1810 State Route 9 STE B, Lake George, NY 12845-3727, on an other than full and open competition/sole-source basis. The action will be awarded as an Undefinitized Contract Action (UCA) and was ultimately definitized as a FFP “C-type” contract. The type of funds utilized will be Federal Emergency Management Administration (FEMA) Disaster Relief funds. There are no planned options identified for the contract.

3. DESCRIPTION OF SUPPLIES/SERVICES: The purpose of this contract was to provide design-build construction services in accordance with the Presidential National Emergency Declaration. Work effort consisted of the design and construction at East Orange Hospital Alternate Care Facility (ACF) to convert a Hospital to a 250 bed non-acute infectious COVID-19 patient care facility based on the requirements of NFPA 99 Space. This work is provided an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. This Justification is for East Orange Hospital ACF in New Jersey.

The total definitized contract is $10,279,098.34, based on the not-to-exceed (NTE) amount for the awarded UCA. The period of performance for the design-build contract was anticipated to be two (2) weeks in total and performance began immediately upon award of the UCA in order to meet this aggressive schedule.

4. AUTHORITY CITED: 10 U.S.C. § 2304(c)(2), as implemented by FAR 6.302-2, Unusual and Compelling Urgency.

5. REASON FOR AUTHORITY CITED: Consistent with Defense Federal Acquisition Regulation Supplement (DFARS) Procedures, Guidance and Information (PGI) 206.302- 2(b), “use of this [unusual and compelling urgency] authority may be appropriate . . . [for] construction needed at once because of fire, flood, explosion, or other disaster.” In support of the Presidential National Emergency Declaration, the agency’s need for this construction was of such an unusual and compelling urgency that the Government would have been seriously injured unless the agency was permitted to sole-source a contract to the single firm selected from the group of firms that were down-selected after Phase I of this two-phase design-build acquisition.

Background/Selection of Sole Source Contractor: As discussed in Paragraph 8, Market Research, CENAN conducted this procurement in accordance with the Two-Phase Design-Build Selection Procedures in FAR 36.3. To that end, CENAN issued a limited competition Phase I design-build request for proposals to a total of ten (10) firms (supported by a J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020), and adequate competition was obtained in Phase I. The Government conducted its Phase I evaluation and down-selected eight (8) firms that were determined to be the most highly qualified firms.

CENAP selected Cutting Edge Group, LLC from CENAN list of qualified firms at the recommendation of NAN and commenced sole-source negotiations as part of Phase II of the design-build acquisition with Cutting Edge Group, LLC for the particular requirements for East Orange Hospital ACF.

Based on the SSEB report and CPARs ratings Cutting Edge Group, LLC determined to be highly qualified to perform the East Orange Hospital ACF project. Their qualifications demonstrated they could perform and complete medium size projects successfully such as East Orange Hospital. Cutting Edge Group, LLC submitted projects considered very relevant to the East Orange Hospital requirement. Specifically, Cutting Edge Group, LLC demonstrated successful past performance/experience that was relevant to emergency operation projects and medical construction. The substantial confidence past performance/experience rating based on strengths that resulted in a reasonable expectation that this firm would successfully perform the required effort. Further, Cutting Edge Group, LLC identified their relationship with design subcontractor Tetra Tech who has extensive experience working on temporary structures. In addition, Cutting Edge Group, LLC used Arch Stone Builders LLC as their primary subcontractor who has shown great ability to complete and retrofit to the necessary requirements of East Orange Hospital.

Cutting Edge Group, LLC was considered uniquely suited for the East Orange ACF project because their team members and subcontractors have previously performed medical facility projects of this size and magnitude.

Justification: The President declared a national emergency on 13 March 2020. FEMA assigned USACE to support Emergency Support Function (ESF) #3 “Public Works and Engineering.” On 27 March 2020, FEMA assigned the CENAP a mission assignment that included the above referenced ACF work. The nature of this work was of such an unusual and compelling urgency that work had to commence immediately. As described by the President, “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems. As of March 12, 2020, 1,645 people from 47 States have been infected with the virus that causes COVID-19. It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability.”

USACE has been requested to provide design and construction support to increase the capacity of our Nation’s healthcare system and needed to undertake design and construction as quickly as possible, to provide the necessary surge capacity.

Without limiting the number of sources from which the Government solicited a Phase II proposal to a single firm, the Government would have been unable to undertake construction quickly enough to meet the immediate need for additional ACF capacity in this area and would not have met the necessary delivery schedule to provide additional capacity as close to the projected surge date as possible. A traditional design-build project acquired in accordance with the requirement for full and open competition under the Competition in Contracting Act (CICA) could take upwards of 6-9 months to award based upon historical averages of contracts of this dollar amount.

The time savings achieved through use of other than full and open competition was 6-9 months, as this entire two phase process took little more than three days. This time savings was critical in order for construction to begin as quickly as possible, supporting the unusual and compelling nature of the urgency of this procurement and the national emergency.

Alternatives: CENAP examined several alternatives for fulfilling these requirements, but no other alternative would have allowed for performance to begin immediately. The only viable alternative was to select a single firm from the group of firms that were down-selected after Phase I of this two-phase design-build acquisition with whom the Government negotiated, in conjunction with utilizing a UCA or letter contract to allow the contractor to begin performance immediately and definitize the contract at a later date. A Determination and Findings to award an UCA that was ultimately definitized as a FFP “C-type” contract was approved by the Senior Contracting Official on 7 April 2020.

Impact: As determined by the President, the current COVID-19 outbreak presents a public health crisis and constitutes a national emergency. Because of the magnitude and gravity of the emergency, the President declared that hospitals must be prepared to surge capacity and capability, and that additional measures are needed to successfully contain and combat the virus in the United States. USACE is the only entity with the capacity to build the infrastructure needed to support response to this emergency, but could only do so if certain exceptions to full and open competition were implemented. Failure to select a single firm from the group of firms down-selected after Phase 1 of this two-phase design-build acquisition, utilize a letter contract, undertake construction immediately, and complete within two (2) weeks, would have resulted in delays in design and construction of medical infrastructure required to adequately respond to the COVID-19 outbreak and would have had severe adverse impacts on the safety and the public health of the United States. This J&A enabled CENAP to expedite award for urgently needed design and construction services identified above in Paragraph 3.

6. EFFORTS TO OBTAIN COMPETITION: CENAN solicited from as many firms as was practicable for Phase I. A limited sources J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020, supported other than full and open competition for Phase I. It was necessary to negotiate a contract with a single source selected from the group of firms down-selected after Phase I of this two-phase design-build acquisition. As discussed in Paragraph 5, “Alternatives,” no other alternative would have allowed performance to begin immediately. The notice required at FAR 5.201 will not be published based on the exception at FAR 5.202(a)(2), Unusual and Compelling Urgency.

7. ACTIONS TO INCREASE COMPETITION: CENAN is mindful of the requirement in FAR 6.302-2 to request offers from as many potential sources as is practicable under the circumstances, and therefore did perform a limited competition for Phase I of the design-build procurement. Understanding the latitudes afforded under FAR 6.302-2, CENAN did not want to completely divest itself of a competitive environment and issued a limited competition Phase I design-build request for proposal to ten (10) firms. The Government conducted its Phase I evaluation and down-selected to the most highly qualified firms, and only then undertook sole-source negotiations as part of Phase II with Cutting Edge Group, LLC. It was not practicable to request an offer from more than one source under Phase II of a design-build procurement, because without issuing a UCA letter contract on a sole-source basis, CENAP would have been unable to undertake construction immediately and would not be able to meet the delivery schedule of two (2) weeks.

8. MARKET RESEARCH: Based upon the Presidential National Emergency Declaration, CENAN determined the most expeditious tool available to fulfill this urgent and compelling COVID-19 requirement. Immediately, a review of existing contract vehicles was conducted.

CENAN identified firms from prior experience which were known to have capacity to complete the ACF Mission. CENAN also utilized other sources of market research, including qualifications submitted to USACE by firms volunteering to help with the COVID mission, to the extent practical within the time constraints of the emergency. Across the ACF mission, the Government attempted to maximize competition to the greatest extent practicable in accordance with FAR Part 6, and provided opportunities to locally based contractors. Market research was conducted as part of the Phase I process, and the Phase II process was limited to only consideration of those firms down-selected after Phase I.

9. INTERESTED SOURCES: In this instance, the need to undertake construction as soon as possible was of such an unusual and compelling urgency that the Government and the public would have been seriously injured unless CENAP was able to limit the number of sources from which it solicited a Phase II proposal to one.

10. OTHER FACTS: N/A

11. TECHNICAL CERTIFICATION: I certify that the supporting data under my cognizance, which are included in the justification are accurate and complete to the best of my knowledge and belief.

GIBISON.THOMA Digitally signed by

Name: Thomas Gibison S.M.1228940190 GIBISON.THOMAS.M.1228940190 Date: 2020.04.22 07:29:52 -04'00'

Title: Program Manager Signature:

(date in electronic signature)

12. REQUIREMENT CERTIFICATION: I certify that the supporting data under my cognizance, which are included in the justification are accurate and complete to the best of my knowledge and belief.

Name: Curtis Heckelman HECKELMAN.CURTIS. Digitally signed by HECKELMAN.CURTIS.A.1230155760

Title: Deputy for Program Signature: A.1230155760 Management (date in electronic signature)

13. FAIR AND REASONABLE COST DETERMINATION:

Date: 2020.04.22 09:42:18 -04'00'

FFORD.SR.1407151026

"I hereby determine that the anticipated cost or price to the Government for this contract action was be fair and reasonable."

This was determined by conducting a detailed cost/price analysis of the offeror’s proposal, taking into consideration all pertinent information including field pricing assistance, audit reports and technical analysis, fact-finding results, independent Government cost estimates and price histories. The contractor will be required to submit their price/cost proposal IAW FAR Part 15, and Certified Cost or Pricing Data will be required IAW FAR 15.403-4.

Name: Gregory Keaton KEATON.GREGORY.CLI Digitally signed by

KEATON.GREGORY.CLIFFORD.SR.

1407151026

Title: Contracting Officer Signature: Date: 2020.04.22 13:52:31 -04'00'

(date in electronic signature)

14. CONTRACTING OFFICER CERTIFICATION: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Name: Gregory Keaton Title: Contracting Officer Signature:

Digitally signed by

KEATON.GREGORY.CLIFFORD.SR.14

07151026 Date: 2020.04.22 13:53:19 -04'00'

(date in electronic signature)

APPROVAL

Based on the foregoing justification, I hereby approve after-the-fact this contract to provide design-build construction services in support of the Alternate Care Facilities effort for East Orange Hospital in New Jersey on an other than full and open competition basis pursuant to the authority of 10 U.S.C. § 2304(c)(2), Unusual and Compelling Urgency, subject to the availability of funds, and provided the work herein described was otherwise authorized for acquisition.

Name: Ms. Laura Eichorn Title: Senior Contracting Official

Signature:

Atlanta (date in electronic signature)

KEATON.GREGORY.CLI

FFORD.SR.1407151026

S0CT9LJE

Typewritten Text 1 May 2020