J A ARI Gibbons Claim Support-Signed.pdf

Justification for Other than Full and Open Competition

General Services Administration

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

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 provide engineering assistance on 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. American

Restoration, Inc. (ARI) was hired under three design/build contracts and one study to assess and correct both the water intrusion and firestopping issues in the building. The water intrusion and remediation work is currently ongoing. This procurement is to obtain additional services from

ARI outside of their current contracts to assist the Government in prosecuting our claim against the general contractor as it currently relates to water intrusion and firestopping as well as any other basis for claim discovered in the future. The additional services include:

a. Providing engineering assistance to the GSA-obtained (obtained under a separate contract) curtain wall and fire protection experts on the work ARI performed at the building. The experts will be performing a detailed review and analysis of the original contract documents for the construction of the Sam M. Gibbons US Courthouse, all reports related to the water intrusion and fire stopping investigations, the contract documents for the repair work and other potential claim issues. After the review of these documents the experts will be issuing a formal opinion regarding the extent to which the defects and deficiencies that have been identified in the building were the results of the original general constructor failing to construct the building in accordance with the contract documents.

b. Detailed review of the original general contractor’s technical response to GSA’s claim associated with engineering work performed by ARI under the design-build contract.

The engineers shall draft a formal response to the general contractor’s report for GSA’s claim team.

General Services Administration, Public Building Service - Acquisition Division

Sam Gibbons Courthouse, Tampa, Florida – Claim Support Services

c. Attend a settlement meeting between GSA’s claim team and the original general contractor. At this meeting the engineers shall make a technical presentation of their findings during their investigative work as it relates to the ARI design-build work, and the design solutions used for the repairs.

d. Providing general technical support to the GSA claim team on technical issues and questions that arise during the process that are not directly related to the tasks outlined above. These may include incorporating or analyzing other work and/or designs from the original project team members and other responses or analyses received from other parties GSA deems significant during the course of the claim.

e. Attending various claim team coordination meetings.

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:

(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.

Sam Gibbons Courthouse, Tampa, Florida – Claim Support Services

5. DEMONSTRATION THAT THE ACQUISITION REQUIRES USE OF THE AUTHORITY

CITED.

ARI is the design-build contractor for both the water intrusion remediation and the fire stopping remediation projects. ARI has been working in the building since the remediation projects started and has institutional knowledge of all the issues that form the basis for the claim against the building’s original general contractor. This knowledge was gained from a number of studies completed and firsthand experiences in discovering and remediating the defects which are the basis of the claim. It would be impossible to duplicate their knowledge base with another general contractor who has not been involved in the remediation projects. As part of their scope under this award, ARI will provide engineering assistance to the GSA obtained curtain wall and fire protection experts on the work they performed at the building. The experts will be performing a detailed review and analysis of the original contract documents for the construction of the Sam

M. Gibbons US Courthouse, all subsequent reports related to the water intrusion and fire stopping investigations, as well as the contract documents for the repair work. After the review of these documents the experts will be issuing a formal opinion regarding the extent to which the defects and deficiencies that have been identified in the building were the results of the original constructor failing to construct the building in accordance with the contract documents.

In addition, ARI will provide a detailed review of the original general contractor’s technical response to GSA’s claim as it relates to the engineering work performed by ARI under the design-build contract. The engineers shall draft a formal response to the general contractor’s report for GSA’s claim team and will attend an informal settlement meeting between GSA’s claim team and the original general contractor. At this meeting the engineers shall make a technical presentation of their findings during their investigative work as it relates to the design-build contract, and the design solution used for the repairs as well as attend a formal mediation session between GSA’s claim team and the original general contractor. At this meeting the engineers shall make a technical presentation of their findings during their investigative work as it relates to the design-build work, and the design solution used for the repairs.

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

PRACTICABLE.

Because the scope of this work is to assist GSA in prosecuting a claim against the building’s original general contractor, and ARI’s direct knowledge as the design-build contractor hired to remediate the work, which is the basis of the claim, there are no other sources that could provide this service to the Government.

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

A detailed Independent Government Estimate was created for the ARI listing the man hours and estimated rates for each discipline needed to complete this work. In addition upon receipt of the proposal from ARI, a technical evaluation will be completed to ensure the price will be fair and reasonable.

8. DETERMINATION OF MARKET RESEARCH CONDUCTED AND RESULTS OR

STATEMENT OF REASON FOR NO MARKET RESEARCH.

Please see paragraph 6 above.

Sam Gibbons Courthouse, Tampa, Florida – Claim Support Services

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

BARRIERS TO COMPETITION.

Due to the nature of this work in support of a claim, there is little that can be done to overcome barriers to competition. It is recommended that should a similar situation arise in the future, claim support be considered for inclusion in the scope of the Design-Build remediation contract at the onset of the work thereby providing competition at that point if feasible. However it is noted that this approach is not always feasible, as was the case at hand, as a decision on whether or not to proceed with a claim was not made until after the remediation work was underway.

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 9/22/2011