JA_Brand_Name_Equal_Desc_REDACTED.pdf

Control Number: LRN-20-01

JUSTIFICATION REVIEW DOCUMENT

FOR OTHER THAN FULL AND OPEN COMPETITION

Program/Equipment: Cordell Hull Power Plant Excitation Rehabilitation Contract; Carthage, Tennessee Authority: 10 U.S.C. 2304(c)(1) Amount: $

Prepared by: Typed Name: Rob Holdsworth Title: Contract Specialist Phone: (615) 736-5538 E-mail: Robert.B.Holdsworth@usace.army.mil Contracting Officer:

Typed Name: Stacy Wiggins Title: Contracting Officer Phone: (615) 736-7944 E-mail: Stacy.S.Wiggins@usace.army.mil Technical Representative:

Typed Name: Allan Steele Title: Electrical Engineer Phone: (615) 736-7923 Requirements Representative:

Typed Name: Dana Sexton

Title: Project Manager Phone: (615) 736-7162

Signatures are required below.

I have reviewed this justification and find it adequate to support other than full and open competition.

District Small Business Specialist Typed Name: Susan Nicholson Phone: (615) 367-7569

Signature: Date:

Project Manager Typed Name: Dana Sexton Phone: (615) 736-7162

Deputy District Counsel Typed Name: Bonnie B. Jagoditz Phone: (615) 736-7638

NICHOLSON.SUSAN.L.104

2589680

Digitally signed by

NICHOLSON.SUSAN.L.1042589680

Date: 2020.04.16 15:17:19 -05'00'

JUSTIFICATION AND APPROVAL (J&A)

FOR OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Agency: United States Army Corps of Engineers (USACE), Nashville District

(LRN)

2. Description of the Action: Section 888(a) of the Fiscal Year 2017 (FY17) National Defense Authorization Act (NDAA) (Pub. L. 114-328) requires competition on Department of Defense contracts not be limited through the use of brand name or equal descriptions or proprietary specifications or standards, in solicitations, unless a justification is approved in accordance with 10 USC 2304(f). In accordance with DASA(P) Policy Alert 19-108, Brand Name or Equal requires justification for “or equal” descriptions. Approval is requested to indicate that the brand-name or equal products identified in solicitation W912P519R0001 are used as the basis of design on a new construction contract action to rehabilitate existing excitation systems are justified on a brand-name or equal basis. The firm-fixed-price construction project is funded through the Section 212 of Water Resources Development Act (WRDA) 2000 program, which uses funds generated by the sale of federal hydropower to rehabilitate aging infrastructure. The plans and specifications indicate the standard of quality required and the make and model used as basis of design and are only listed because it is necessary to complete a 100% construction designs necessary for a Design-Bid-Build solicitation.

3. Description of Supplies/Services or Nature of Construction: The construction contract requires replacing exciter equipment for Cordell Hull Power Plant located in Carthage, Tennessee. This includes removing three (3) existing excitation systems and installing three (3) new complete digital static excitation systems. The contract also provides for minor floor repair, including but not limited to: furnishing and installing wire, cable, bus, conduit, meters, switches, and all other required appurtenances.

The period of performance for this project is 730 calendar days. The construction contract estimate is approximately $ . The estimated value of equipment and materials with basis of design indicated is approximately $ .

LRN intends to award a Single Award Indefinite Delivery/Indefinite Quantity, Firm-Fixed-Price construction contract in accordance with Federal Acquisition Regulation (FAR) 16.504(b), as the Government anticipates recurring requirements but cannot predetermine, above a specified minimum, the precise quantities that the Government will require during the contract period. The Cordell Hull Power Plant Excitation Rehabilitation project is the prototype project task order for this Single Award Task Order Contract (SATOC). The SATOC will be solicited using a Request for Proposal, pursuant to FAR 15.101-1, utilizing the Best Value Trade Off (BVTO) process with award to the responsible Offeror whose offers represents the best value to the Government.

The design includes three (3) separate instances where Brand-Name or Equal identification is made, with an aggregate value of approximately $ . See Attachment 1 for a complete list of items, manufacturers, and estimated cost of all items that have a brand-name or approved equal indicated to provide Offerors insight to the quality of product expected for the design and to aid in understanding the features included for estimating cost bid items.

4. Authority Cited: The statutory authority permitting other than full and open competition for this acquisition is 10 USC 2304(c)(1), as implemented by FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements. In accordance with Defense Federal Acquisition Regulation Supplement (DFARS) 206.302-1(c)(2) and section 888(a) of the NDAA for FY17 (Pub. L. 114-328), this J&A is required in order to use brand name or equal descriptions.

5. Reason for Authority Cited:

a. Background. The Cordell Hull Power Plant was built in 1973. The aging equipment is beginning to experience more frequent outages and loss of efficiency. The objective of this procurement action is to improve the efficiency and reliability of excitation equipment by replacing it with a new, fully static, digital excitation system. This procurement will help LRN ensure the reliability, efficiency and availability of this valuable regional resource for the next 50 years and beyond. The new excitation system must not only reliably function as a system, but also fit within the existing building footprint and be compatible with existing equipment in the power plant without major modification.

b. Justification. The project plans and specifications for the Cordell Hull Power Plant

Excitation Rehabilitation were developed prior to DoD’s issuance of a final rule amending the DFARS to require the use of Brand Name or Equal descriptions in solicitations be justified and approved.

It is industry standard practice, while designing intricate mechanical and electrical systems, to base design around products that meet the needs of the project based on the standard of quality required and the make and model used as basis of design. As all the components of a system must work together and function as a system, the basis of design of each individual component may change based on substitution. The standard of quality must remain the same as the USACE design.

In addition to a functional system, the products used as the basis of design for the subject project also fit within a specific footprint and are compatible with existing equipment systems in the power plant without major modification, as previously discussed.

Competition is only limited to the extent necessary to meet the Government’s legitimate needs of this project. Contractors are free to use any product which meets the Government’s minimum needs. As indicated in the clause FAR 52.236-5, Material and Workmanship, “References in the drawings and specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition .” The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is determined to be equal through formal evaluation comparison against the specified salient characteristics as provided by the written specifications for each piece of equipment, material, article or process.

Because each manufacturer’s product has slightly different specifications, to achieve a 100% design, it is necessary to identify one (1) product (in each of the three (3) Brand-Name or Equal instances) as the basis of design. This is because to achieve a complete design, several factors must be considered, like enclosure dimensions and compatibility with existing electrical systems in the plant. While similar, these elements vary among manufactures and not utilizing one (1) component as the basis of design would leave such ambiguities in the design that it would not have sufficient detail necessary to compete a Design-Bid-Build contract.

Significant effort was undertaken by the Government to research and identify the individual components needed to design a complex integrated instrumentation system capable of meeting the Cordell Hull Power Plant Excitation Rehabilitation project’s needs and standards.

Providing prospective offerors with examples of brand name products that meet the acceptable project criteria saves the contractor the need to research and design an equivalent system based only off of salient characteristics included in the contract documents. Withholding this information from prospective contractors would, in effect, require the Government to pay for offerors to re-accomplish this work.

Additionally, revising the plans and specifications to remove all instances of Brand Name or Equal would require a considerable amount of time and effort. It is estimated that the coordination and effort required to revise the specifications would delay the procurement by at least two (2) months. Such delay is not limited to the Cordell Hull Power Plant Excitation Rehabilitation project, as future task orders against the SATOC would also be delayed.

Due to the circumstances at the time the specifications were developed, prior to the issuing of the DFARS 206.302-1(c)(2) requiring a J&A for Brand-name or Equal descriptions, it is in the best interest of the Government to proceed with awarding the contract utilizing Brand Name or Equal descriptions. Future task order specifications will be written to avoid the use of Brand Name or Equal except where absolutely necessary, justified, and approved.

c. Alternatives. One potential alternative would be to convert the procurement into a design-build procurement without complete designs. Utilizing a basis of design as assumptions is a critical component of designing complete, functional mechanical and electrical systems. It is impossible to fully design a system to meet requirements without assumptions of specific equipment specifications. The alternative to providing assumptions of equipment and the make and model of the basis of design is to solely list the standard of quality and all characteristics whereby the Contractor can design their own system.

Another alternative would be to remove all instances of Brand Name or Equal and, instead, define requirements by salient and performance characteristics. As explained above, this would delay contract award by at least two (2) months. Use of salient and performance characteristics, as opposed to Brand Name or Equal, increases the likelihood an offeror will propose components or an instrumentation system that does not meet the needs of the project.

Similarly, any errors or omissions in defining the salient and performance characteristics could result in a component or the system failing to function as intended.

d. Impact. Listing acceptable instrumentation and metering apparatus products by reference of Brand Name or Equal limits competition by increasing the likelihood the Contractor acquires the brand name products referenced. However, as noted in the specifications, the Contractor is allow to submit any other product that meets the Government’s minimum characteristics and standards of quality. Due to the specialized equipment, integrated nature of the total system, and relatively low cost of individual components, listing the products by Brand Name or Equal is not expected to have a significant impact on competition.

6. Efforts to Obtain Competition. Competition is obtained to the maximum extent practical while meeting the Government’s requirements by utilizing a specific product only to the extent it is necessary to complete the 100% design, while allowing Contractors to use the brand-named or any other product that meets the Government’s minimum characteristics and standards of quality. Notice of Intent (NOI) to Sole Source was posted to Federal Business Opportunities (www.fbo.gov) on 5 September 2019 which stated the intent to utilize brand-name or equal requirements as the basis of design. The NOI included a list of all products called out as brand name or equal in the plans and specifications. No responses were received from industry pertaining to the brand name or equal items.

7. Actions to Increase Competition: This J&A supports a discrete requirement that will end when the project is complete. Therefore, there are no planned actions to increase competition for the requirement covered by this J&A. However, LRN is now aware of the justification requirement for brand name or equal descriptions and will not expend effort to identify compliant brand name products unless doing so is necessary for the project involved. Instead, LRN will focus on the salient characteristics of the products or on a desired outcome.

8. Market Research: A NOI to sole source brand name or equal was posted to FBO on 5 September 2019, without comment by industry. Based on involvement of experts in the field, knowledge of the market, review of product availability, and discussion with multiple manufacturers, there is more than sufficient products available to meet project needs. Items

Attachment 1 – Complete List of ‘Brand Name or Equal’ Items

Item Specification Manufacturer Estimated Cost Network and Wireless Devices

Section 01 35 70, Paragraph 1.3.14

Cisco $

Ammeter Section 26 05 00, Paragraph 2.8.1

Weschler Type K, Series 241 meter

Voltmeter Section 26 05 00, Paragraph 2.8.2

Weschler Type K, Series 241 meter

Total Cost $