JA DR-4404-CNMI 05-21-2020 Redacted.pdf

U.S. Department of Homeland Security Washington, DC 20472

02 May 2020

Justification &Approval (J&A) for Other Than Full and Open Competition due to Unusual and Compelling Urgency 41 U.S.C. 3304(a)(2), and pursuant to FAR 6.302-2 Unusual and Compelling Urgency

Pursuant to the requirements of the Competition in Contracting Act (CICA) as implemented by the Federal Acquisition Regulation (FAR) Subpart 6.3 and in accordance with the requirements of FAR 6.303-1, the justification for the use of the statutory authority under FAR Subpart 6.3 is justified by the following facts and rationale required under FAR 6.303-2 as follows:

1. Agency and Contracting Activity: The Federal Emergency Management Agency (FEMA), Office of the Chief Procurement Officer, proposes to enter into a contract on the basis of unusual and compelling urgency.

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

a. Type of Action: Contract modification to increase the scope of work under the Indefinite

Delivery-Indefinite (IDIQ) Quantity Contract 70FBR920D00000001, entitled Permanent Housing Construction (PHC) – Repairs to include Permanent Housing Construction – New Construction. This action is requested as a means of mitigating further delays in returning 175 survivors to their homes and to some resemblance of normalcy since being impacted by Super Typhoon Yutu in October of 2018. The current contractor continues to fall further behind in performance and schedule while these survivors continue to remain out of homes and living in tents.

b. Dollar Value: For this requirement the dollar value is estimated at

c. Period of Performance: Not Exceed 1 Year

d. Type of Funding: Disaster Relief Funding

e. Year of Funding: 2020

3. Description of the supplies or services required to meet the Agency need: Construction services to construct a total of 40 residential homes under disaster declaration DR-4404-CNMI in accordance with FEMA Individual Assistance (IA) Program for eligible applicants. The Local Construction Contractor, will follow all local laws and building codes, and standards for 1, 2, and 3- bedroom homes. The homes will be constructed utilizing construction methods: cast-in-place and/or concrete masonry units with government furnished specifications and designs. These homes will be constructed in Saipan and Tinian with the Local Contractor, an Indefinite Delivery / Indefinite Quantity (IDIQ) Holder for PHC -Repairs. In addition, the contract utilizes the Buy American Act and all applicable International Building Code requirements.

4. Indication of statutory authority permitting unusual and compelling urgency: The statutory authority permitting other than full and open competition is 41 U.S.C. 3304(a)(2) pursuant to FAR 6.302-2, Unusual and Compelling Urgency. This requirement is based on response and recovery from Super Typhoon Yutu, a major disaster DR-4404-CNMI declared by the President under Title IV and Title V of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Under the Stafford Act, the period of performance is limited to 150; therefore, a Determination and Finding will be executed for an additional 210 days. In accordance with authority FAR 6.302-2(d)(ii), which states:

the period of performance may not exceed one year, including all options allow the contracting officer to pursue the requested 360.

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

a. Background Information about the requirement: PHC-New Construction is an approved IA Program for the use of replacing applicants’ homes destroyed by Super Typhoon Yutu in October of 2018. The current contract was awarded September 10, 2019 for the construction of 20 new construction sites. The period of performance was for 180 calendar days, or from September 25, 2019 through March 22, 2020. The period of performance was extended to May 31, 2020 in response to a 120-day extension request from the contractor. The extension was granted based upon accepted delays due to weather, Government closure, permitting, and occupant move out. These were considered pre-construction delays which averaged about

33.75 days. However, there have also been construction delays directly attributable to the contractor’s performance requiring the contracting officer to issue a partial suspension of work which is associated with CMU block work. Existing contractor construction delays include: the contractor running out of the specified type of mortar; CMU cell alignment improper; mortar thickness not in accordance with specifications; less than ½ cell block cuts not in compliance with specifications; grouting issues due to lack of cell alignment; poor quality control and oversight; lack of proper planning, material procurement and shipment adequate to meet the schedule, and deviation from plans and specifications. These inexcusable construction delays amount to over 120 calendar days. Although the Government was planning to transition from the IA preposition contractor, delays caused a chain reaction to a second batch of 20 homes that were allocated to The task order proposal request for the second set of 20 homes for been canceled. Options were not included in the first new construction task order because the contracting officer was in the process of preparing to post a full and open solicitation to www.beta.SAM.gov in order to transition from the IA preposition contractor to local businesses.

b. Details covering events leading to the situation requiring use of unusual and compelling urgency procedures: Construction services are currently being provided under an IA prepositioned contract vehicle. However, the contractor has delayed construction progress by more than 120 calendar days with no effective mitigation procedures identified to resolve these delays. Homeowners with limited resources were given a timeline to have their homes rebuilt within 6 to 8 months. The delays are unacceptable and have impacted survivor’s ability to return to some sense of normalcy in a reasonable amount of time. In addition, the longer survivors are displaced the more the potential for risk to their health and safety conditions. A total of 175 new constructions homes are required. Of the 175 homes, the is in progress on 20, which leaves a balance of 155 remaining to construct. As mentioned previously, award was 10 Sept 2019, and none of the 20 properties have been completed or even at 50% completed to date which means 155 plus the current task order of 20 families are still displaced from the October 2018 Typhoon disaster. The intent of the J&A is to remove the second set of 20 homes which were allocated to and award to under their IDIQ contract. The period of performance is 180 calendar days for 20 homes. has proven they can accomplish repairs by performing at a competent performance level and they have established construction progress ahead of their repair completion schedule. has demonstrated the ability to expedite permitting, has very few discrepancies noted during performance, and has a robust supply chain for ordering and receiving supplies and materials required in accordance with contract specifications.

c. Impact to the mission that would result if the J&A is not approved: This would impact FEMA’s mission to the safety of survivors and cause a financially impact to taxpayers. The need for construction service is such an unusual and compelling urgency for the survivors because of the unknowns associated with the potential of another natural disaster impacting their lives http://www.beta.sam.gov/ while currently displaced. This possibility is heightened as this Region enters 2020 Typhoon season and the potential for increased disaster events. Furthermore, with each passing day, time is loss from the scheduled delivery of a home to a survivor, and the financial burden to FEMA increases. However, the additional time displacing the survivor cannot be measured or calculated by any monetary amount. Limiting the source to the proven contractor identified in this document will facilitate the response to and recovery from a natural disaster of approximately 175 households. Moreover, actions are being taken by the contracting officer to solicit the remaining requirement through full and open competition. The use of IDIQ contract will provide continued PHC-New Construction support for the CNMI until responsive offerors are fully vetted and award is made in response to Solicitation 70FBR920R00000007 competed on www.beta.SAM.gov. The phased time period of 180 calendar days for 20 home s is considered an adequate amount of time to perform vertical residential construct. Considering the projected development and maturity of the chosen contractor’s supply chain and familiarity with the plans and specifications, the total of 40 (in sets of 20) homes are seen as furthering the overall goal of making up lost time and getting survivors in homes sooner. Additionally, the construction of homes takes approximately 60 days to complete preliminary construction and 120 days to complete vertical construction.

Some of the overall construction tasks consist of mobilization, permitting, land surveys, geotechnical analysis, utility evaluation, environmental evaluation, site designs, demolition and vertical construction.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable: The Agency is currently pursuing local construction companies under the Robert T.

Stafford Act for local area set-aside in accordance with FAR Subpart 26.202-1.

7. Description of market research: Market Research was conducted in 2018, and again in 2019 for

PHC repairs and new construction which resulted in a minimum of three (3) local construction companies with potential bonding capacity and potential labor force to manage the number of homes and the complexity of the repair or new construction requirements. During 2019 market research, the contracting officer assessed whether local conditions had improved, in addition to reviewing the DHS Strategic Sourcing Contracts. Local economic conditions had changed from 2018’s initial market research which resulted in a competitive solicitation being posted to www.fbo.gov in 2019 and the award of an IDIQ contract to In addition, the contracting officer requested approval to use the however, the contracting officer of the program disapproved the use of those contracts due to the heavy usage by the . The source contractor ( recommended under this J&A has the skillset, labor force, professional, technical personnel, and proven capability to take on the PHC- New Construction requirements. is a local small business with construction offices located in both Saipan and Tinian. has exceeded the Government’s expectation under the repair task order and continues to demonstrate their ability to design roofing systems that meet the International Building Codes for high winds at 195 miles per hour. s current task order has a period of performance of 180 calendar days after issuance of the Notice to Proceed for the first 20 houses; however, it is anticipated that will finish 20 Permanent Housing Construction- Repairs much sooner than the 180 calendar day performance schedules. In addition, working directly with the local contractor benefits the Government by eliminating travel costs and professional management office costs that have been associated with the IA Prepositioned Contract which has not performed nearly as well as the local contractor.

8. Any other facts supporting the use of unusual and compelling urgency: Limited construction resources located in the CNMI. A PHC synopsis was posted on the www.fbo.gov in 2019 requesting parties to submit capability statements to demonstrate their capability and availability to requirements of the PHC mission by responding to the contracting officer. Only 3 contractors presented responsible / responsive capability statements. During the solicitation process, 5 local http://www.beta.sam.gov/ http://www.fbo.gov/ http://www.fbo.gov/ contractors responded; however, only 1 submitted an acceptable technical proposal. was the only contractor awarded an IDIQ contract. However, market research is ongoing, and the contracting officer is currently soliciting offerors in response to Solicitation 70FBR920R00000007 competed on www.beta.SAM.gov. The solicitation was posted on 30 April 2020 and award is projected for 27 July 2020.

9. A statement of the actions, if any, the Agency may take to remove or overcome any barriers to overcome competition before any subsequent acquisitions for supplies or services: There are existing barriers to the agency due to the remoteness of Saipan and resources. These resources are limited in terms of the number of construction contractors with the technical resources or bonding capacity to perform PHC- New Construction. In addition, Covid-19 has impacted travel and potential resources to the CNMI. During last year’s competitive solicitation, 5 contractors responded;

however, only one contractor was selected via the source selection process. Many of the unsuccessful offerors submitted unacceptable technical proposals and demonstrated unfamiliarity with the formal acquisition process. The Government will continue to outreach for contractors as mentioned earlier in this document, there are still approximately 170 new construction homes to be built in Saipan and Tinian. The use of the IDIQ contract will provide continued PHC-New Construction support for the CNMI until responsive offerors are fully vetted and award is made in response to Solicitation 70FBR920R00000007 competed on www.beta.SAM.gov, which will be the longer term solution to PHC New Construction.

10. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable: The Contracting Officer determines that the anticipated prices will be fair and reasonable based on utilizing local resources,

11. Contracting Officer’s Certification. I certify that the data supporting the recommended use of authority: unusual and compelling urgency is accurate and complete to the best of my knowledge and belief.

12.

APPROVAL