J_and_A_FLINT_MI_redacted_final.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304(a) (2)

Pursuant to the requirements of the Competition in Contracting Act (CICA), as implemented by

FAR 6.3 and in accordance with the requirements of FAR 6.303-1, the justification for the use of the statutory authority under FAR 6.3 is justified by the following facts and rationale required under FAR 6.302-2: Unusual and Compelling Urgency, 41 U.S.C. 3304(a)(2).

1. Agency and Contracting Activity.

The Department of Homeland Security (DHS), Federal Emergency Management Agency

(FEMA), Office of the Chief Procurement Officer (OCPO), Acquisition Operations Division

(AOD) entered into a contract on a basis other than full and open competition on the behalf of: DHS, FEMA, Logistics Management Division (LMD). Per FAR Part 6.3, this justification is being made and approved after contract award, as preparation and approval prior to award would have unreasonably delayed the acquisition.

2. Nature and/or description of the action being approved.

The purpose of this Justification for Other than Full and Open Competition, Unusual and

Compelling Urgency, is to approve the non-competitive procurement of Brita® Filter replacement cartridges and Brita Advanced Faucet Systems in response to Emergency

Declaration 3375 for Water Contamination Response, in Flint, MI. Accordingly, post-award approval is sought for awards to The Home Depot, 2455 Paces Ferry Road, Atlanta, Georgia

30339 and to The Clorox Sales Company, 1221 Broadway FL 13, Oakland, California

94612. These sole source contracts awarded to The Home Depot and The Clorox Sales

Company served to rapidly provide the State of Michigan with the following commodities:

Brita White and Chrome Faucet Replacement Filters (1 Count, 2 Count and 4 Count) and

Brita Advanced Faucet Systems (White, Base, and Chrome).

a) Types of action: Firm-Fixed Price Purchase Orders summarized as follows:

Contract Number Contractor Commodities Total

Quantity

Total Contract

Value

HSFE70-16-P-

The Home Depot

Brita Faucet

Replacement Filters 23,768 $322,352.08

HSFE70-16-P-

The Home Depot

Brita Faucet

23,226

$933,805.30

Brita Advanced

Faucet Systems

30,000

HSFE70-16-P-

The Clorox Sales

Company

Brita Faucet

16,848 $162,077.76

b) Type of Funding: Fund 06, Disaster Relief Fund (DRF)

c) Year of funding: Fiscal Year (FY) 2016

d) Other brief descriptive words and phrases: These sole source contracts will serve to provide the State of Michigan with Brita Faucet Replacement Filters and Brita

Advanced Faucet Systems in response to the areas affected by contaminated water.

3. Description of supplies/services.

a) A total quantity of 93,842 commodities for a total value of $1,418,235.14 comprised of various quantities of Brita Faucet Replacement Filters and Brita Advanced Faucet

Systems.

b) The awards to The Home Depot and The Clorox Sales Company will facilitate the response to the declared emergency in the State of Michigan. The Brita Faucet

Replacement Filters and Brita Advanced Faucet Systems will be used to reduce contaminants and impurities such as lead from the drinking water in the State of

Michigan in the areas where the water has been contaminated.

4. Identification of 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(a)

(2) implemented by FAR 6.302-2: Unusual and Compelling Urgency. These sole source actions will facilitate the response to the water crisis in the State of Michigan. The emergency declaration limits the emergency assistance to a period of no more than 90 days.

5. Demonstration that the nature of the acquisition requires use of the authority cited.

a) Background information about the requirement:

On January 16, 2016, DHS, FEMA announced that federal emergency aid has been made available to the State of Michigan to supplement state and local response efforts in the area affected by contaminated water beginning on April 25, 2014, and continuing.

The President's action, Disaster Declaration - Michigan Contaminated Water (EM-

3375), authorizes FEMA to coordinate all disaster relief efforts that have the purpose of alleviating the hardship and suffering caused by the emergency on the local population, and to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in Genesee

County.

Specifically, FEMA is authorized to identify, mobilize, and provide at its discretion, equipment and resources necessary to alleviate the impacts of the emergency. This emergency assistance is to provide water, water filters, water filter cartridges, water test kits, and other necessary related items for a period of no more than 90 days. The urgency of this requirement and funds being expended are because the current water system is not safe for use.

b) Details covering what events lead to the situation requiring use of other than full and open competition procedures: An emergency declaration was announced after contaminants and toxins were detected in the drinking water in areas of Flint, Michigan to include Genesee County. FEMA Region V partnered with the State of

Michigan to identify the water filter requirements for the affected areas. FEMA identified that the use of FAR 6.302-2: Unusual and Compelling Urgency is warranted in order to expedite the response and to provide a means for the community to have safe, drinkable water.

c) Why considered alternatives would not work: FEMA considered procuring services utilizing the General Services Administration (GSA) Multiple Award Schedules

(MAS) and FAR 8.4 procedures. FEMA found numerous vendors who carry the

Brita water filters and Brita faucet systems with the specifications required by the

State of Michigan. However, time constraints inherent with competition would delay and not allow FEMA to provide immediate water filter solutions to the affected communities in a timely manner. Additional telephonic market research was conducted with responses that did not indicate the sources could fulfill the required capability.

d) Which authority applies and why: FAR 6.302-2: Unusual and Compelling Urgency, applies because the affected communities have a shortage of drinkable, safe water to consume. The contaminated drinking water needs to be filtered to remove the toxins and contaminants until the overarching water crisis is resolved and clean, potable water is again made available to the public. The State of Michigan has approved the use of Brita water faucet filter systems and their respective replacement cartridges.

e) Explain the impact to the mission that would result if the J&A is not approved and, consequently, the product or service not provided: Failure to obtain approval to proceed with the sole source contract award would have delayed FEMA in providing response efforts to the affected communities. There would have been a direct impact on FEMA’s mission to alleviate the hardship and suffering on the local population caused by the emergency.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as is practicable.

Market research was conducted to determine if GSA MAS vendors had the capacity to deliver to the State of Michigan’s water filter specifications. The Contracting Officer determined that the proposed contract actions should be made under the conditions described in 6.302-2 and the Government would be seriously injured if the agency complies with the time periods specified in FAR 5.203.

The State of Michigan approved the use of Brita water faucet filter systems and their respective replacement cartridges. The Brita water faucet filter systems meet the standards required by the Michigan Department of Environmental Quality to remove the parts per billion of lead that is required to be removed and thus be safe.

7. Determination by the contracting officer that the anticipated cost to the government will be fair and reasonable.

The Contracting Officer determined the anticipated pricing to be fair and reasonable based on comparison with GSA MAS Schedules in which the unit costs were previously determined to be fair and reasonable at the GSA MAS Schedule level. The Contracting Officer also determined that the anticipated pricing is expected to be fair and reasonable based on the

Independent Government Cost Estimate (IGCE).

8. Description of Market Research.

Market Research found that awards to The Home Depot and The Clorox Sales Company would best provide the expedited fulfillment of the Government’s requirement.

9. Any other facts supporting the use of other than full and open competition.

The requirement cannot be modified to enhance competition due to time constraints and the need to provide an expedited solution that will provide potable water to the affected communities.

10. A listing of the sources, if any, that expressed, in writing, an interest in the acquisition.

Not applicable.

11. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for required supplies or services.

Once the initial immediate needs were answered through these awards, FEMA has since competed award of like items; solicitations can be found on FBO.GOV.

EMA

12. Contracting Officer’s Certification. I certify that the data supporting the recommended use of other than full and open competition is accurate and complete to the best of my knowledge and belief.

02/12/2016

Contracting Officer Date

13. Technical/Requirements Personnel Certification. I certify this requirement meets the

Government’s minimum need and that the supporting data, which forms a basis for this justification, is complete and accurate.

CHRIS A

FERGUSON

Digitally signed by CHRIS A FERGUSON DN: c=US, o=U.S. Government, ou=Department of Homeland Security, ou=FEMA, ou=People, cn=CHRIS A FERGUSON, 0.9.2342.19200300.100.1.1=0881336408.FEMA

Date: 2016.02.16 05:21:53 -05'00'

Technical Representative Date

APPROVALS:

KIMBERLY

Digitally signed by KIMBERLY A COAKLEY DN: c=US, o=U.S. Government, ou=Department of Homeland Security, ou=FEMA, ou=People, cn=KIMBERLY A

COAKLEY,

A COAKLEY 0.9.2342.19200300.100.1.1=0136065856.F

Date: 2016.02.16 08:42:09 -05'00'

Contracting Officer Date

Digitally signed by ERIK CLAUDIO DN: c=US, o=U.S. Government, ou=Department of Homeland Security, ou=FEMA, ou=People, cn=ERIK CLAUDIO, 0.9.2342.19200300.100.1.1=0043216518.FEMA

Date: 2016.02.16 10:43:24 -05'00'

Office of Chief Counsel Date

DAVID R

MACKENDRICK

Digitally signed by DAVID R MACKENDRICK DN: c=US, o=U.S. Government, ou=Department of Homeland Security, ou=FEMA, ou=People, cn=DAVID R

MACKENDRICK,

0.9.2342.19200300.100.1.1=0945523577.FEMA

Date: 2016.02.16 13:46:12 -05'00'

Competition Advocate Date

KIMBERLY

ERIK CLAUDIO