J A Gibbons Mediator-Signed.pdf

Justification for Other than Full and Open Competition

General Services Administration

Public Buildings Service - Acquisition Division Sam Gibbons Courthouse Construction Claim Mediation

1. IDENTIFICATION OF THE AGENCY AND THE CONTRACTING ACTIVITY.

General Services Administration, Public Building Service, Region 4 Acquisition Division

2. DESCRIPTION OF ACTION BEING APPROVED.

A sole source acquisition is needed to acquire the services of a neutral mediator to mediate the claim arising from the original construction of the Sam M. Gibbons US Courthouse located in

Tampa, Florida.

3. DESCRIPTION OF SERVICES REQUIRED.

The Government (GSA) is presently is involved in a prosecuting a claim against the original general contractor who constructed the Sam Gibbons Courthouse in Tampa, Florida for the costs associated with repairing latent defects in the curtain wall system. These defects have led to widespread water intrusion into the building as well as remediating the absence of fire stopping material required by the original construction contract which was found not to exist. The parties to the claim have mutually agreed to attempt to arrive at a settlement to this claim through mediation. This sole source procurement is for GSA’s share of the mediator’s fee.

4. STATUTORY AUTHORITY FOR OTHER THAN FULL AND OPEN COMPETITION.

41 U.S.C. 253(c)(3) and FAR 6.302-3(a) (2) (iii), Industrial mobilization; engineering, developmental, or research capability; or expert services. As further defined under FAR 6.302-

3,(B)(3)(i)(A)&(B).

6.302-3(a) Authority.

(1) Citations: 10 U.S.C. 2304(c)(3) or 41 U.S.C. 253(c)(3).

(2) Full and open competition need not be provided for when it is necessary to award the contract to a particular source or sources in order—

(iii) To acquire the services of an expert or neutral person for any current or anticipated litigation or dispute.

(b) Application.

(3) Use of the authority in paragraph (a)(2)(iii) of this subsection may be appropriate when it is necessary to acquire the services of either—

(i) An expert to use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Government in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, whether or not the expert is expected to testify. Examples of such services include, but are not limited to:

General Services Administration, Public Building Service - Acquisition Division

Sam Gibbons Courthouse, Tampa, Florida – Claim Mediation Services

(A) Assisting the Government in the analysis, presentation, or defense of any claim or request for adjustment to contract terms and conditions, whether asserted by a contractor or the Government, which is in litigation or dispute, or is anticipated to result in dispute or litigation before any court, administrative tribunal, or agency; or

(B) Participating in any part of an alternative dispute resolution process, including but not limited to evaluators, fact finders, or witnesses, regardless of whether the expert is expected to testify; or

(ii) A neutral person, e.g., mediators or arbitrators, to facilitate the resolution of issues in an alternative dispute resolution process.

5. DEMONSTRATION THAT THE ACQUISITION REQUIRES USE OF THE AUTHORITY

CITED.

Both parties to the claim have agreed to hire Antonio Piazza of Gregorio, Halderman, Piazza & Rotman to mediate this claim with the goal of reaching a mutually agreeable settlement. The authority cited above provides that competition need not be provided when the procurement is to engage the services of ―a neutral person, e.g., mediators or arbitrators, to facilitate the resolution of issues in an alternative dispute resolution process‖.

6. DESCRIPTION OF EFFORTS TO SOLICIT AS MANY POTENTIAL SOURCES AS

PRACTICABLE.

Because of the nature of mediation as an alternative dispute resolution process, both sides must mutually agree to engage the services of a single mediator. Various mediators were suggested by both sides however after much consideration, both sides have agreed to engage the services of

Mr. Piazza.

7. DETERMINATION THAT ANTICIPATED COST WILL BE FAIR AND REASONABLE.

Upon recommendation of GSA’s Attorneys, I have determined that GSA’s share of the mediator’s fee is fair and reasonable based upon a review of the mediator’s credentials, professional reputation, and track record of achieving mutually agreeable settlements of previous claims which he mediated.

8. DETERMINATION OF MARKET RESEARCH CONDUCTED AND RESULTS OR

STATEMENT OF REASON FOR NO MARKET RESEARCH.

Please see paragraph 6 above.

9. STATEMENT OF THE ACTIONS TAKEN TO REMOVE OR OVERCOME ANY

BARRIERS TO COMPETITION.

Due to the nature of mediation, and the natural requirement that the mediator be selected by agreement of the parties, barriers to competition are unlikely to be overcome.

General Services Administration, Public Building Service - Acquisition Division

Sam Gibbons Courthouse, Tampa, Florida – Claim Mediation Services

10. CONTRACTING OFFICER’S CERTIFICATIONS.

I hereby certify that the above information is accurate and complete to the best of my knowledge and belief and hereby request approval for negotiating noncompetitively for the work described in this justification.

Cathal Duffy Date

Contracting Officer (4PQA)

CathalDuffy TextBox 9/23/2011