FTG233 JA 25-58 REA Support.pdf

Control No. POA 25-58

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. CONTRACTING AGENCY: U.S. Army Engineer District, Alaska, Contracting Division, P.O. Box 6898, JBER, Alaska 99506-0898.

2. DESCRIPTION OF ACTION: This is a Justification and Approval (J&A) for Other than Full and Open competition as required by FAR 6.302-3(c), to obtain litigation support services from an expert consultant to support the Government’s response to disputed contract and schedule delay claims that may result in reasonably foreseeable litigation. This will be a firm-fixed price purchase order to be awarded with FY25 O&M S&A construction funds.

3. DESCRIPTION OF SUPPLIES/SERVICES: The Alaska District Office of Counsel requires the expertise of Ankura Consulting Group, to provide claim and schedule analysis services of Davis Constructors & Engineers, Inc. submitted Request for Equitable Adjustment (REA) arising out of disputes pertaining to the procurement and construction of W911KB21C0012, FTG233, Fort Greely Communications Center, Fort Greely, Alaska. The estimated cost . Approval authority for this Limited Source Justification is the Procuring Contracting Officer. Specific services required include the following tasks:

Task 1: Review the Contemporaneous Record and determine data gaps.

i. Review the FTG233 REA and all supporting materials, particularly the P6 schedules developed by the Contractor for its delay analysis and updates prepared during course of the project and accepted by the Government. This work will commence as soon as practicable after contract authorization. All documents will be provided by the Government in file sharing service.

ii. Orally brief the Government on Phase 1 progress. Identify needs and data gaps to be able to complete Task 2 and Task 3 work below.

Task 2: Review the Contractor’s Delay Analysis and prepare a report with your findings.

i. Evaluate the Contractor’s delay analysis for adequacy in determining and apportioning delay on the project. Review the Contractor’s methodology, assumptions, alleged impacts and logic against the contemporaneous record including the contract requirements and industry standards, i.e. Technical Specification 01 32 01.04 10 and AACE 29R-03. Identify any problem areas discovered and the overall effect on the delay analysis.

ii. Participate in a conference call with the Government to discuss your findings.

iii. Prepare a final report incorporating the Government’s comments from the draft report.

The final report shall be provided to the Government no later than 60 calendar days from

NTP.

Task 3: Prepare a forensic delay analysis; prepare a draft and final report with your findings.

i. Prepare an independent delay analysis using the FTG233 accepted schedules and other contemporaneous records for source documents. The analysis must identify the critical path activities responsible for the delay. Work with the Government team to determine the root causes of the delay. By the end of the analysis, all delay must be apportioned between the Government, Contractor or as Concurrent Delay.

ii. Orally brief the Government of your findings after your initial delay analysis has been completed.

iii. Prepare a final report incorporating the Government’s comments from the draft report.

The final report shall be provided to the Government no later than 120 calendar days from

NTP.

4. AUTHORITY CITED: Other than Full and Open Competition is authorized pursuant to 10 U.S. 2304(c)(3) as implemented by FAR 6.302-3(b)(3)(i)(A), for acquisition of an expert for current or anticipated litigation.

5. REASON FOR AUTHORITY CITED:

a. Background: The U.S. Army Corps of Engineers contracted with Davis Constructors & Engineers, Inc. (Contractor) for the Design Bid Build construction of a Communications Center equal or greater than 11,500 square feet and associated site development at Fort Greely, Alaska. On June 30, 2025, the Contractor submitted a REA to the Government. Of this amount, the Contractor alleged it was owed for extended general conditions due to Government-caused delay on the project.

b. Justification: The Government requires a knowledgeable and experienced schedule expert to evaluate the Contractor’s REA to determine if it meets the burden of proof necessary for this type of delay claim. It was determined the Contractor’s delay analysis contained in the REA had a significant degree of complexity and required expertise to evaluate beyond what the Government has available inhouse. The issues at hand included the following:

a. Numerous complicated schedule revisions.

b. Extensive timeframe the REA and project encompassed.

c. Personnel changes since the onset of the issue.

d. Unknown scale of documentation available.

e. Overall project being several years behind schedule.

f. Need to respond to the REA as timely as possible.

g. Increased potential for litigation.

Based on the above factors, and the consideration of time impact delays claimed by the Contractor, it was decided that in order for the Government to prepare an appropriate response to the REA, an expert consulting firm, specializing in independent time impact and delay analysis, would need to be secured.

As a result, the Construction Support Office identified Ankura, an experienced scheduling consultant, as the singular resource capable of providing a reliable analysis of the FTG233 REA claims, as well as alternative interpretations of the relevant facts to determine sources of liability. Ankura has a proven track record of delivering comprehensive and skilled analysis of multifaceted delay analysis, along with substantial experience in claims litigation related to construction delays, should the FTG233 REA evolve into a formal claim.

Ankura has previously supported the Alaska District on purchase order W911KB24P0008 in support of a scheduling expert for a claim on FTG192 IDT Switchgear Facility, Fort Greely, AK. This support enabled swift settlement of the Contractor’s claims in that matter.

c. Impact: The Government is obligated to provide a timely review of the Contractor’s REA to determine merit and provide a Contracting Officer’s Decision. The REA submitted by the contractor requires specialized expertise to help establish the Government’s defensive position and evaluate litigation risk. Failure to secure Ankura’s services, may result in the Government having to use personnel that are not “qualified as experts” for the REA review, which will increase the risk of litigation and reduce the Government’s credibility in any future litigation. It is crucial that Ankura assist the Government to meet its deadline requirements in providing the Contracting Officer’s Decision response to the REA.

d. Alternatives: There are no alternatives as the Alaska District does not have the in-house expertise to thoroughly evaluate the scheduling and delay aspects of this claim.

6. EFFORTS TO OBTAIN COMPETITION: Synopsis of proposed contract action is not required under FAR 5.202(a)(14) and competition is not required under FAR 6.302-3(a)(2)(iii) where the proposed contract action is to acquire the services of an expert in support of the contracting officer’s decision and any future litigation. A national search of an expert meeting the needs of this claim resulted one other consultant. However, this consultant did not have capacity to support this requirement within the time frame required.

7. ACTIONS TO INCREASE COMPETITION: Synopsis of proposed contract action is not required under FAR 5.202(a)(14) and competition is not required under FAR 6.302- 3(a)(2)(iii) where the proposed contract action is to acquire the services of an expert in support of construction claims and possible litigation. It is incumbent upon CEPOA-OC to obtain the highest quality support possible for the Government’s REA response.. The Construction Support Office has considered other expert support services recently acquired by the Alaska District and has determined that Ankura offered the best qualifications and experience for purposes of the Davis Constructors & Engineers, Inc. REA. Other firms will be considered should future litigation support requirements arise under other contracts.

8. MARKET SURVEY: Due to ongoing claims and litigation with Davis Constructors & Engineers, Inc. on the FTG233 project, abbreviated market research was conducted by the Alaska District Construction Office by review of readily available historical and commercial information of firms (Ankura) specializing in schedule analysis and litigation support.

Personnel experts at Ankura possess the credentials required by the Alaska District for purposes of this requirement.

9. INTERESTED SOURCE: No other potential sources were deemed appropriate for this requirement.

10. OTHER FACTORS:

a. Procurement History: None.

b. Acquisition Data Availability: Not applicable.

c. Unusual and Compelling Urgency: Not applicable.

d. Subcontracting Competition: No subcontracting opportunities exist as all services are performed in-house by Ankura. Additionally, this contract is in support of litigation against the Governmnet and any subcontractors must be approved prior to use.