Fully Executed Sole Source J and A CPI.pdf

JUSTIFICATION AND APPROVAL (J&A)

FOR OTHER THAN FULL AND OPEN COMPETITION

COMMERCIAL E-MARKETPLACE ACQUISITION

FAR 6.302-2

1. AGENCY AND CONTRACTING ACTIVITY:

U.S. General Services Administration (GSA)

Federal Acquisition Service (FAS)

General Supplies and Services (GSS)

1800 F St NW Washington, DC 20405

2. NATURE AND/OR DESCRIPTION OF THE ACTION BEING APPROVED:

41 United States Code (U.S.C.) 3304(a)(2) states, in relevant part:

(a) When Noncompetitive Procedures May Be Used.—An executive agency may use procedures other than competitive procedures only when—

2) the executive agency’s need for the property or services is of such an unusual and compelling urgency that the Federal Government would be seriously injured unless the executive agency is permitted to limit the number of sources from which it solicits bids or proposals;

The regulatory authority implementing 41 U.S.C. 3304 allowing for other than full and open competition is Federal Acquisition Regulation (FAR) subsection 6.302-2, Unusual and Compelling urgency.

Current Contract Contractor

47QSCC20C2001 Amazon.com Services, LLC

410 Terry Avenue North

Seattle, WA 98109-5210

47QSCC20C2002 Fisher Scientific Company LLC

300 Industry Drive

Pittsburgh, PA 15275

47QSCC20C2003 Overstock.com, Inc.

799 W Coliseum Way

Midvale, UT 84047-4867

As described below, the action being approved is for three sole source contracts, while the award is pending on the Commercial Platform re-compete. The sole sources are to cover the gap between the

DocuSign Envelope ID: EF012824-BC97-4FA7-A327-563371BF722C expiration of no-cost contracts 47QSCC20C2001, 47QSCC20C2002, and 47QSCC20C2003 until the re-compete contracts are awarded, expected in early 2024.

Contracts 47QSCC20C2001, 47QSCC20C2002, and 47QSCC20C2003 were awarded on June 25, 2020, with a one-year base ordering period and two one-year optional ordering periods. The second optional ordering period end date is June 24, 2023. The contract includes clause 52.217-8 which allows for an additional contract extension of up to 6 months. This optional period of performance has been exercised and the current period of performance is through December 24, 2023. There are no remaining optional periods of performance under this contract.

Under 47QSCC20C2001, 47QSCC20C2002, and 47QSCC20C2003 - Amazon, Fisher Scientific, and

Overstock are required to provide a wide range of general products and routine commercial items found on today’s commercial emarketplace platforms. Offerors operate marketplaces that are frequented by business consumers and typically fall under the consumer staples umbrella, where product demand patterns are more consistent and the purchases are less cyclical. These marketplaces should align with and support multiple categories of products as identified by the Category

Management Leadership Council and OMB in the government-wide category structure and the matched Product Service Codes (PSCs).

The purpose of this J&A is to document the justification for conducting sole source awards under FAR

6.302 and gain approval for follow-on contracts with Amazon, Fisher Scientific, and Overstock. GSA is following the guidelines set in FAR 6.302-2

Unusual and Compelling Urgency. ( 41 U.S.C. 3304(a)(2).

The follow-on contract will have a three-month period.

Extension Period: December 25, 2023 - March 25, 2024.

3. DESCRIPTION OF SUPPLIES OR SERVICES REQUIRED TO MEET

AGENCY’S NEEDS:

GSA requires Amazon, Fisher Scientific, and Overstock to provide commercial e-marketplace platforms that meet the objectives in Section 846 of the 2018 National Defense Authorization Act, Pub. L. 115-91, to the customers identified in each delivery order (DO) that is placed under the follow-on to a no-cost, outside the FAR contract. Additionally, GSA requires commercial e-marketplace platforms that provide business- to-business (B2B) delivery and processes orders made by various Federal entities via a Government Purchase Card (GPC). Amazon, Fisher Scientific, and

Overstock are currently performing this requirement under the aforementioned contracts

47QSCC20C2001, 47QSCC20C2002, and 47QSCC20C2003. As stated above, performance under these contracts ends on December 24, 2023.

GSA has an urgent and compelling requirement for contractors to provide commercial e-marketplace platforms that can provide business-to-business (B2B) e-commerce capabilities for Federal agencies using a GPC for the purchase of commercial off-the-shelf (COTS) items. This acquisition is based upon the authority in Section 846 of the 2018 National Defense Authorization Act (NDAA), Pub L.

115-91. In line with B2B e-commerce practices, items sold to Government agencies through the awarded contracts are to be provided at commercial B2B pricing or better.

The Government is in the process of recompeting this requirement using full-and-open competition.

As of the date of this J&A, the Request for Proposal for the competition has been published on

SAM.gov, under solicitation number 47QSCC23R0002. The RFP initially closed on February 3, 2023, with a pre-solicitation protest filed at the Court of Federal Claims with a resolution in May

2023. The Contracting Officer amended the solicitation and the new closing date was June 12, 2023.

The follow-on contracts for which this J&A is seeking approval will allow for an uninterrupted continuation of the services provided under this contract while the recompete is ongoing. It is anticipated that additional time will be needed to complete the award process. The additional three months will allow sufficient time for the acquisition team to award the recompete contracts.

If a follow-on contract is not awarded, then there is a risk of interruptions to our customer. The

Commercial Platforms Initiative (CPI) requirement has proven to be an important commercial platform option for Federal customers and an interruption would mean that customers would no longer have commercial B2B online shopping capabilities for GPC holders for the purchase of routine, commercial items. Customers have steadily come to rely on the CPI option for their routine, commercial items. The sales so far under the current contracts have exceeded $80 million.

Any interruption of service would impact the ability of customers to purchase routine commercial items. Prior to the commercial platforms program, Government purchases under the micro-purchase threshold were made at the discretion of individual purchasers and, historically, agencies had little insight into purchase trends and associated data.

Before the program, agencies had already taken steps to form ad hoc partnerships with online platform providers in order to improve the buying experience and gain visibility into buying behavior. While the benefits to an individual agency were clear, this resulted in fragmentation in the market, with each agency taking their own non-standardized approach to managing this spend.

GSA’s commercial platforms program is a Governmentwide offering and provides for a more consistent and singular Government experience, taking into account key areas, such as mandatory sources, supply chain risk management, Administration priorities, data integration and analysis, as well as other important buying areas.

CPI also captures transactional data in a manner consistent with other GSA programs. CPI platforms are required to provide monthly transactional data to GSA utilizing the Sales Reporting Portal (SRP).

This important data would not be collected if follow-on contracts are not awarded.

A key intended benefit of this program is to gain better insight into what is being purchased using

GPCs. To enable this benefit, GSA receives purchasing and spend data from the platform providers, both at the account level (for buyer’s use) as well as at the platform level (for GSA’s collection and dissemination out to agencies). This data is used to help agencies make informed buying decisions, as well as to get a better understanding of what is being introduced into their supply chain. All data is owned by the Government.

Without these contracts in place, the Government will not receive the aforementioned data and the

Government will lose the valuable oversight and control of the data CPI currently provides to ensure compliance with AbilityOne requirements, Section 889 prohibitions, or to identify environmentally green products.

The agency posted the recompete solicitation on December 12, 2022, with a deadline for proposals on February 3, 2023. A pre-solicitation protest was received on February 3, 2023 at the Court of

Federal Claims. In response to the protest filed by a coalition of plaintiffs led by National Industries for the Blind, GSA amended the solicitation and added an evaluation preference for companies that offer block and substitute or other means of preventing the sale of essentially the same “ETS” products. This action aligned with the core policy objectives of the Commercial Platforms program:

● Maintaining GSA’s strong support of the AbilityOne program, including promoting agency compliance with the JWOD Act;

● Carrying out Section 846 of the FY18 NDAA, which mandates the CP program procurement occur, to the maximum extent practicable, under the standard terms and conditions; and

● Continuing helping agencies better manage their open-market spend through improved visibility, new commercial features, and actionable data insights

GSA posted the amended solicitation on May 10, 2023 with a closing date of June 12, 2023.

The 3 ½ months GSA spent on the protest resulted in GSA not having sufficient time to award the re-compete contracts before the expiration of the current contracts on December 24, 2023.

4. STATUTORY AUTHORITY PERMITTING OTHER THAN FULL AND

OPEN COMPETITION:

The statutory authority permitting other than full and open competition is 41 U.S.C. 3304. The regulatory authority implementing 41 U.S.C. 3304(a)(2) allowing for other than full and open competition is FAR Subpart 6.302-2. GSA has determined there is an unusual and compelling urgency to extend the current contracts another three months to complete the recompete process and make the awards by March 25, 2024.

5. SUPPORTING INFORMATION THAT THE NATURE OF THE

ACQUISITION REQUIRES THE USE OF THE AUTHORITY CITED:

Amazon, Fisher Scientific, and Overstock currently have the appropriate staffing and institutional knowledge of this requirement, as well as the capability to provide the seamless platform requirements needed by CPI, and therefore are able to fill the three-month gap that the Government requires in order to award new, competitive contract(s). Amazon, Fisher Scientific, and Overstock are currently performing at full operational capability and are in a position to perform the tasks required for an additional three-month period.

Amazon, Fisher Scientific, and Overstock possess unique knowledge of the services required and experience in performing the requirements. They can immediately provide Federal buyers access to, and facilitate sales through, a commercially available e-commerce platform that meets the requirements outlined in the Statement of Objectives (SOO). This contract is complex in its nature and requirements, as the performing contractor must comply with commercial terms and conditions to the maximum extent practicable, in accordance with Section 846 of the 2018 NDAA. The platforms are providing GSA with all services associated with their B2B platform in accordance with their commercial practices. This includes any benefits related to expedited shipping and handling, product warranties, enhanced customer service, and/or other purchasing benefits. For all of these reasons Amazon, Fisher Scientific, and Overstock are the only suppliers with the unique capabilities required to deliver these supplies and services during the competition process.

6. DESCRIPTION OF EFFORTS MADE TO ENSURE THAT OFFERS

ARE SOLICITED FROM AS MANY SOURCES AS PRACTICABLE:

As mentioned, GSA is actively working to evaluate the recompete for this requirement. Interest received from industry for this requirement appears to be high. However, successfully recompeting this new requirement and ramping up a new contract is not be possible before the current contracts expire on December 24, 2023. Under FAR 5.202(a)(2), the contracting officer need not submit the notice as would normally be required by FAR 5.201 when the proposed contract action is made under the conditions described in 6.302-2. The contracting officer has determined 6.302-2 applies. However, ample competition is expected during the new requirement currently being evaluated under

47QSCC23R0002 and a competitive award is anticipated to be made by March 25, 2024.

7. DETERMINATION THAT THE ANTICIPATED COST TO THE

GOVERNMENT WILL BE FAIR AND REASONABLE:

The commercial e-commerce marketplace platform contracts awarded under this requirement will be no-cost contracts. Funding requirements and cost constraints are not applicable. GSA expects to receive a fee of 0.75% for each individual order placed via the e-commerce platform. The commercial platform Contracting Officer has determined the costs are fair and reasonable as they are $0, due to these being no-cost contracts.

8. DESCRIPTION OF MARKET RESEARCH CONDUCTED

No other potential offerors would be able to support CPI for the next three months, other than the existing contract holders that have been ramped up with Federal agencies GPC holders to the commercial platforms. Based on experience on the first iteration contracts, GSA knows it will take a minimum 90-120 days to ramp up agencies to new commercial platforms.

As such, GSA did not conduct separate market research for the three sole source contracts.

However, market research was conducted for the predecessor contracts through various methods, including valuable industry and customer feedback through RFIs and, in the past, Industry Days.

An RFI was posted to SAM.gov with a high level of response from industry. Throughout the program’s implementation over the last 2 years, the CP team has collected a significant amount of customer research through its Customer Experience framework. This feedback serves as the foundation for the future program requirements and the follow-on acquisition. Additionally, the program has remained open to feedback from industry through a variety of means to include the

CP program Interact page, speaking engagements, industry meetings and other communication channels. As referenced previously, the CP program most recently posted an RFI for industry feedback. The RFI closed on April 15, 2022, with more than two dozen responses. The information gathered in this RFI shows that the commercial market can meet the needs of the

Government based on the requirements laid out in the RFI. Based on other forms of market research related to those requirements currently in place (i.e., technical knowledge of individuals within the Government regarding similar requirements that have recently been implemented), it has been determined that a new contractor who is not currently performing the contract would need approximately 120 days to fully ramp up after a new follow-on contract is awarded.

9. ANY OTHER FACTS SUPPORTING THE USE OF OTHER THAN FULL

AND OPEN COMPETITION

(i) The GSS acquisition team does not have technical data packages, specifications, engineering descriptions, statements of work or purchase descriptions suitable for full and open competition for the sole source extensions, due to the team needing more time time to continue with its evaluation on the commercial platform recompete that was posted as an full and open solicitation on SAM.gov.

(ii) The acquisition estimates it would cost the government $700,000 in employee salaries in order to spend the effort and time to perform another acquisition until the current evaluation is completed.

(iii) The acquisition team estimates it would take a year and half to issue a full and open solicitation to meet the needs of these three contracts expiring on December 24, 2023. Government agencies are replying on these contracts to continue with their micro-purchase orders while also receiving data analytics the program provides on its spend history

10. LIST OF SOURCES EXPRESSING WRITTEN INTEREST IN THIS

ACQUISITION, IF ANY:

None. No other known sources are available in the marketplace that can immediately meet this requirement.

11. A STATEMENT OF THE ACTIONS, IF ANY, THE AGENCY MAY TAKE TO

REMOVE OR OVERCOME ANY BARRIERS TO COMPETITION BEFORE

MAKING ANY SUBSEQUENT ACQUISITION FOR THE SUPPLIES OR

SERVICES REQUIRED:

As described above GSA is actively recompeting this requirement. Ample competition is expected.

12. APPROVALS

TECHNICAL REQUIREMENTS PERSONNEL CERTIFICATION:

I hereby certify that any supporting data (e.g., verifying the Government’s minimum needs or scheduled requirements or other rationale for other than full and open competition), which form a basis for this justification, are complete and accurate.

Keil Todd Date

Technical Evaluation Team

Chair

CONTRACTING OFFICER CERTIFICATION:

By signing this justification the Contracting Officer certifies that the facts and statements made are accurate and complete.

Valeriya Orlova Date

Contracting Officer

GSS Office of Acquisition Management, Internal Acquisition Branch (QSABB)

APPROVALS:

Dominic Lackey Date

Branch Director, Internal Acquisition Branch (QSABB)

Stephen Smith Date

Director, GSS Acquisition Management (QSA)

Theresa Ramos Date

Competition Advocate

12/15/2023

12/15/2023

12/15/2023

12/18/2023

12/19/2023

Jeff Thurston Date

Director of GSS Contract Operations

HEAD OF CONTRACTING ACTIVITY (HCA)

I certify to the accuracy and completeness of this justification to the best of my knowledge.

Erv Koehler Date

Assistant Commissioner

GSA FAS General Supplies and Services

DocuSign Envelope ID: EF012824-BC97-4FA7-A327-563371BF722C

12/15/23, 2:25 PM GSA.gov Mail - Re: Document shared with you: "J&A for CPI" https://mail.google.com/mail/u/0/?ik=0c8b6180c8&view=pt&search=all&permmsgid=msg-f:1785091563791602334&simpl=msg-f:17850915637916023… 1/2

Dominic Lackey - QSCBB <dominic.lackey@gsa.gov>

Re: Document shared with you: "J&A for CPI" Marie Cochran - LP <marie.cochran@gsa.gov> Tue, Dec 12, 2023 at 10:45 AM To: Dominic Lackey - QSCBB <dominic.lackey@gsa.gov> Cc: stephan.polsdofer@gsa.gov

Dominic

The revised J&A is legally sufficient.

Marie Cochran Senior Assistant General Counsel, Personal Property Division U.S. General Services Administration Office of the General Counsel 1800 F Street, NW Washington, DC 20405-0002

(202) 465-6139

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On Fri, Dec 1, 2023 at 7:50 PM Marie Cochran - LP <marie.cochran@gsa.gov> wrote:

Dominic

Stephan and I have reviewed. The justification being used (6.302-1, only one responsible source) is not the right one to use here because you have three responsible sources and are working on awarding to a whole lot more. However, 6.302-2, unusual and compelling urgency, should work, especially since you can show that the AB1 protest slowed down your reprocurement planning while the current contracts were running out. Please revise the memo accordingly.

Marie Cochran Senior Assistant General Counsel, Personal Property Division U.S. General Services Administration Office of the General Counsel 1800 F Street, NW Washington, DC 20405-0002

(202) 465-6139

CONFIDENTIALITY NOTICE:

This email message and any attachments to this email message may contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity to whom it is addressed. Please do not forward this message without permission. If you are not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone or return email and delete and destroy the original email message, any attachments thereto and all copies thereof.

On Tue, Nov 28, 2023 at 9:36 PM Dominic Lackey - QSCBB (via Google Docs) <drive-shares-dm-noreply@ google.com> wrote:

12/15/23, 2:25 PM GSA.gov Mail - Re: Document shared with you: "J&A for CPI" https://mail.google.com/mail/u/0/?ik=0c8b6180c8&view=pt&search=all&permmsgid=msg-f:1785091563791602334&simpl=msg-f:17850915637916023… 2/2

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