FINAL - JA Exception to Fair Opportunity MNPS 4-month.pdf

JUSTIFICATION FOR AN EXCEPTION TO FAIR OPPORTUNITY

Acquisition Title: Market Notice Production Services (MNPS) Agency: Centers for Medicare and Medicaid Services (CMS) Acquisition Year: Fiscal Year 2024 Author(s): James Lee (Contract Specialist) and Jeremy Garvin (Contracting Officer)

1. Description of Action:

A. Nature ☐ New Requirement ☒ Follow-On Order ☐ Modification of Existing Purchase Order / Contract Number

B. Order Against HHSM-500-2016-00069I Multiple Award IDIQ Contract

C. Contract Type ☐ Firm-Fixed Price ☐ Time and Materials ☐ Cost Plus Fixed Fee (CPFF) ☐ Term ☐ Completion

☐ Cost Plus Award Fee (CPAF) ☒ Other: Labor-Hour (LH)

D. Projected Cost / Price of contract (Base & All Options): $1,027,391.43

E. The total estimated value of the proposed sole source action (for modifications only):

N/A – new Logical Follow-On order.

F. Funding Source (s): APP 240745 - Requisition: CCIIO-393-2024-0015 – funding source is project 013627.

G. Basis for Approval (Far 6.303-1(d))

☒ Individual Basis ☐ Class Basis

The Centers for Medicare and Medicaid Services (CMS) Strategic Partners Acquisition Readiness Contract (SPARC) IDIQ contract contains ordering procedures which are described in clause G.1 – Task Order Procedures. The procedures provide for sole source task orders conducted under the procedures described at FAR 16.505 (b), such as the order described in this justification.

2. Description of Supplies or Services:

Current contract/order number is HHSM-500-2016-00069I/75FCMC19F0001

i. Name of incumbent contractor: NewWave

ii. Period of Performance: November 20, 2018, through November 19, 2023

iii. Total dollar amount obligated to date: $18,248,073.36

iv. Subsequent award competed among select GSA 8(a) Multiple Award

Schedule vendors – awardee BLN LLC (DBA BLN24) of contract

47QRAA20D0071/75FCMC24F0008

CMS uses Adobe Experience Manager (AEM) technology and associated professional services to provide outreach and education for high priority Agency initiatives—such as the Health Insurance Marketplace related to the Affordable Care Act (ACA) and the American Recovery and Reinvestment Act (ARRA), enrollment of low-income beneficiaries, and interaction with state Departments of Insurance regarding marketing abuse.

The current product team on the contract supports all Marketplace notices produced by the Federally-Facilitated Marketplace (FFM). Support and services include the Issuer Onboarding application hosted on AEM that onboards new ACA Issuers, development and maintenance of dynamic and adaptive forms built using AEM Forms, and Ad Hoc Notice Generation application built and hosted on AEM. This support also includes working with CMS development and maintenance contractors, Marketplace Operations Center (XOC) operations, and the Marketplace System Integrator (MSI) contractors.

Since instituting the Adobe Experience Manager software in the CMS environments for the ACA projects, the Agency has the capability to inform consumers as part of crucial business operations for Marketplace Open Enrollment, QHP Eligibility Determination, Data Matching Issues, IRS Reconciliation Issue, and other critical communications (i.e., notices) to ensure that consumers are appropriately enrolled and receiving the correct tax credits and aid.

The current contract number/task order number under which the services described above are currently delivered is HHSM-500-2016-00069I/75FCMC19F0001. The overall period of performance for the current contract is November 20, 2018, through November 19, 2023. The total dollar value obligated to date is $18,248,073.36.

CMS has undertaken a fair opportunity acquisition to re-procure MNPS services. The MNPS re-procurement will be awarded under RFQ 240387, via Requisition CCIIO-393-2024-0021 in the amount of $4,354,454.50 for a Base Year period of performance from February 20, 2024, through February 19, 2025.

The justification contemplates the award of a logical follow-on task order to HHSM-500-2016- 00069I/75FCMC19F0001. The award will provide 4 months of logical follow-on (a Base Month, with three 1-month options) continuation of services. The period of performance will be from November 20, 2023, through March 19, 2024, in order to bridge services of the soon-to-expire existing contract (expires November 19, 2023). CMS is preemptively planning to address any post-award protest of the re-procurement and prevent a gap in service during Marketplace Open Enrollment. The new MNPS contract will be awarded November 17, 2023, with a start date of November 20, 2023. The new MNPS contract requires a 1-month Transition-In with contractor NewWave. NewWave’s current contract ended November 19, 2023. The LFO task order will allow for a Transition-In for the new contract awardee.

3. Authority and Rationale:

The Contracting Officer shall give every awardee a fair opportunity to be considered for a delivery/task order exceeding $3,500 unless one of the following statutory exceptions applies.

FAR 16.505(b)(2). Mark the applicable exception:

☐ The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays [FAR 16.505(b)(2)(i)(A)];

☐ Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services are unique or highly specialized [FAR 16.505(b)(2)(i)(B)];

☒ 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 [FAR 16.505(b)(2)(i)(C)]; or

Open enrollment is from November 1, 2023, through January 15, 2024. During this time, CMS cannot accept the risks caused by the loss of contractor support to a critical system. Therefore, we must ensure uninterrupted services throughout open enrollment as we begin any transition to a new contractor.

It is more economical and efficient to award a logical follow-on to contractor NewWave to permit them to complete the transition-out services rather than to compete and award a new task order. It would not be logical to compete a task order for the completion of specific contractor’s (NewWave) services to hand the work off to the newly selected contractor.

Furthermore, if CMS receives a protest of the new award, a stop-work of the new award would be enacted, while the protest goes through the resolution process. In the event of a stop-work, CMS requires the LFO to continue to provide services, while the protest is resolved. The incumbent contract cannot be extended because it has reached the 5-year limit.

It would not be economical in that it would be highly unlikely that competition would result in cost savings for a new contractor to perform the required hand-off. It would not be efficient because the government would have to solicit and evaluate proposals and select a winning contractor where it is not reasonable to believe any source other than the incumbent would be determined best value. This would create unnecessary burden on CMS resources. Additionally, the competitive procurement would require approximately 105 days from release of the solicitation to award (based on current CMS procurement lead-time standards). CMS competitively awarded the existing task order providing a fair opportunity to all eligible SPARC awardees. It is not reasonable to believe that any potential source other than the incumbent would be selected as the awardee in any fair opportunity/competitive acquisition given the additional cost, time and performance risk associated with such a source selection.

☐ It is necessary to place the order to satisfy a minimum guarantee [FAR

16.505(b)(2)(i)(D)].

☒ A statute expressly authorizes or requires that the purchase be made from a specified source.

[FAR 16.505(b)(2)(i)(E)].

4. Provide 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:

None, because CMS already removed barriers for fair opportunity and competed the new MNPS procurement for the required services.

5. State any other facts supporting the justification:

None

Approvals:

1. Program Office Certification. This is to certify that portions of this justification have been developed by the undersigned program office personnel, including supporting information and/or data verifying the Government’s minimum needs, schedule requirements and other rationale for Exceptions to Fair Opportunity, which form the basis for this justification.

Contracting Officer Representative (COR) / Date

Program/Project Manager (P/PM) / Date

2. Contracting Officer Certification and Best Value Determination:

This is to certify that the justification for the proposed acquisition has been reviewed and that to the best of my knowledge and belief, the information and/or data provided to support the rationale and recommendation for approval, is accurate and complete.

By my signature below, after review of the relevant documents, I have determined that the order subject to this Justification represents the best value for the Government as set forth in FAR 16.505(b)(2)(ii)(B)(5) and constitutes a fair and reasonable price. The basis for my determination is as follows:

The total Labor Hour price amount of $1,027,391.43 for the four (4) month period was determined by using the actual prices paid against recent monthly invoices submitted by NewWave under the current MNPS Task Order. The total estimated cost for this sole source Task Order fall in line with historical costs incurred for the same effort. The Contracting Officer and Contract Specialist will use price analysis to verify that the overall price offered is

RXQN

Stamp fair and reasonable.

Contracting Officer / Date

3. CMS Competition Advocate Approval I have reviewed this Exception to Fair Opportunity and find that it adequately supports other than full and open competition.

Name / Date

4. Head of Contracting Activity (HCA) Approval I hereby confirm that the circumstances described above apply and approve this Justification for Exception to Fair Opportunity.

__N/A________________________________________________ HCA Name / Date

5. Office of Small and Disadvantaged Business Utilization

__N/A_________________________________________________

6. OGC Legal Review

7. HHS Competition Advocate Approval

8. Senior Procurement Executive (SPE) Approval Based on the foregoing justification, I hereby confirm the circumstances described above apply and approve the Justification for Exceptions to Fair Opportunity.

__N/A_______________________________________________ SPE Name / Date

__N/A_______________________________________________