JA Exception to Fair Opportunity - Logical Follow-On_4.13.2023.pdf

FEDERAL BUREAU OF INVESTIGATION

FINANCE AND FACILITIES DIVISION I PROCUREMENT

SECTION

JUSTIFICATION AND APPROVAL (J&A) FOR EXCEPTION TO FAIR

OPPORTUNITy

JUSTIFICATION FOR EXCEPTION TO FAIR OPPORTUNITY IN ACCORDANCE WITH 41 U.S.C. §4106(C)(3)

Requisition Number: DJF-23-2100-PR-0001014

Date: 05 April 2023

Estimated Contract Dollar Value: $5,500,000

1. Identification of the agency and contracting activity.

The U.S. Department of Justice, Federal Bureau of Investigation (FBI), Facilities Acquisition Unit, has prepared this justification for exception to the fair opportunity process for Emergency Piping and Plumbing Leak Repair and Prevention on behalf of the Planning, Leasing, and Construction Unit, Finance and Facilities Division.

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

It is the intent of the Facilities Acquisition Unit (FAU), Facilities and Finance Division, to acquire a firm-fixed-price contract for Emergency Piping and Plumbing Leak Repair and Prevention at the J. Edgar Hoover FBI Building (JEH), Washington, DC. This order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the FBI Regional Multiple Award Construction Contract (RMACC), for which all awardees were given a fair opportunity to be considered for the original order. The Government has a critical need in completing this requirement with economy and efficiency due to measurable harm to the FBI if repair services are not completed by September 19, 2023. The requirement will be issued as a sole source firm-fixed-price modification to Hensel Phelps Construction Company, Inc., on their existing task order for Piping and Plumbing Systems Repair and Improvement (WP-1) Project at JEH. This expedited procurement method will insulate the Government from substantial mission impact resulting from significant delays and associated costs

3. A description of the supplies or services required to meet the agency’s needs.

The requirement is to provide Emergency Piping and Plumbing Leak Repair and Prevention construction services required for the for the J. Edgar Hoover FBI Building (JEH) Piping and Plumbing Systems Repair and Improvement (WP-1) Project. The awarded WP-1 requirement consists of repairing and replacing the mechanical piping and plumbing systems generally within the mechanical rooms, penthouse, garage levels, and distribution shafts (“back of house”) that support the heating, cooling, and plumbing systems within the facility. The proposed Emergency Leak Repair and Prevention work herein consists of repairing and replacing the mechanical piping and plumbing systems generally within occupied spaces, or “front of house.” These Emergency Leak Repair and Prevention services are required to sustain continuity of critical facility operations while supporting Bureau mission needs.

The estimated total cost is $5,500,000 with a period of performance of ending on September 19, 2023. The FBI has already paid approximately $550,000 in emergency leak repairs in JEH due to this issue. These smaller leaks required approximately 2,400 linear feet (if) in mechanical piping and 1,300 hours in labor. By comparison, the Emergency Leak Repair and Prevention work requires replacement of over 10,000 if of piping and over 6,000 labor hours. Therefore, the Government estimates requiring $5,500,000 to accomplish these repairs. The completion of this effort will advance the Facilities and Finance Division’s mission of modernizing the dated and failing infrastructure within the FBI Headquarters building.

4. Identification of the exception to fair opportunity and the supporting rationale.

The statutory authority permitting other an exception to fair opportunity is 41 U.S.C. 94106(c)(3) as implemented by the Federal Acquisition Regulation (FAR) paragraph 16.505(b)(2)(i)(C) entitled, “The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.”

This follow-on modification is required in the interest of economy and efficiency as the contractor has onsite personnel that can expeditiously respond and begin emergency repairs that will allow continuity of operations at the JEH building. The FBI Headquarters building provides locations for staffing and critical mission support services located in “front of house” spaces that cannot be interrupted by damage or repair of internal flooding damage. Examples of front-of-house functions include hardcopy filing of classified materials which cannot be replaced, offices of agents and intelligence analysts dedicated to working active cases, and offices of executives and professional staff providing critical mission oversight and support. Procuring these services separately will cause harm to the Government in the estimated amount of $50,000,000. This figure is based on estimates of damage to equipment and furnishings, loss of productivity from personnel displaced from damaged spaces, damage to critical FBI files and records, and operational impacts. First, the estimated cost of repair or replacement of technology and furnishings is $22,000,000. 1f this work is not performed and leaks are allowed to continue without prevention, upwards of $22,000,000 in damage to equipment could occur. Second, over the course of nine months (discussed below), the FBI would lose a tremendous level of productivity from displaced personnel who work in damaged spaces. This loss is estimated at

$10,000,000. The Government also expects potential impacts to hard copies of files and records critical to investigations. The spaces in which these records are stored were not originally protected against internal flooding. In a worst-case scenario, recovery of these records could cost up to $5,000,000. Finally, the most harmful impact to the Government from not performing preventative maintenance involves operational impacts. The FBI estimates approximately $13,000,000 in damages to various mission support services and executive oversight functions if immediate repairs are not performed. For these reasons, the total estimated harm to the FBI is $50,000,000.

The current Design-Build Contractor (DBC) team is uniquely qualified due to extensive firsthand knowledge of the requirements. The DBC has approximately 18 months of experience with all drawings, both digital and physical, of current building systems, the most important of which are the mechanical and plumbing systems. The team also has firsthand knowledge of and experience with JEH as-builts, which allows Hensel Phelps to make pathway suggestions leading to improvements to JEH systems. It would take several months for a different DBC team to become as familiar with this information as Hensel Phelps, which would result in an unacceptable time and cost impact to the Government. The FBI estimates it would take at least two months for a different DBC team to gain the level of familiarity needed to perform this requirement with economy and efficiency. In addition to the time required for a new DBC team to become familiar with the large amount of JEH design materials, even more time would be required to grant badge access for new contractor employees on site. The onsite DBC personnel are currently badged to operate within the facility. Procuring a new team that does not have currently badged individuals would cause harm to the Government quantified by approximately three months, as evidenced by the time taken for Hensel Phelps to fully staff the work site with badged employees. The government uses strained personnel resources to investigate all workforce candidates. Utilizing an existing contract with badged staff already on-site places less burden on the government both financially and operationally. Finally, the time needed for procurement of a different DBC team would cause unacceptable operational damage to the FBI. The procurement lead time for this requirement is estimated at four months. For all the above reasons, the total time lost by not awarding this work to the incumbent contractor is approximately nine months. Due to the badly deteriorated state of the existing piping, it is impossible to estimate the number of leaks that could occur in this time. However, the time and repair cost are estimated at a total of $50,000,000. This detrimental cost to the FBI is due to the risk of flooding damage to occupied spaces. Occupied spaces in JEH provide critical mission support and are not built to withstand internal flooding. For all the above reasons, the Government would not be acting in the interest of economy or efficiency by separately procuring Emergency Piping and Plumbing Leak Repair and Prevention services.

5. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

An independent government estimate was prepared by the Architectural and Engineering Services Unit’s (AESU) cost engineer. The anticipated cost is $5,500,000. The estimate was based on knowledge of the initial acquisition process, scheduled activities and durations provided by the construction contractor in their project schedule and time-tested hourly billing rates used for this type of work in the Washington Metropolitan Area. Based on the expertise with which this estimate was prepared, in addition to comparison of historical prices paid for similar services, the Contracting Officer has determined this estimated price to be fair and reasonable.

6. Any other facts supporting the justification.

The requirements for Emergency Piping and Plumbing Leak Repair and Prevention cannot be modified to increase competition. The need for emergency repairs is urgent and directly related to the work already completed on the WP-1 project. These emergency repair services are needed immediately to avoid the harm to the FBI as described above, with an estimated financial loss of $50,000,000. This risk means that immediate repair work must be ordered as a logical follow-on to the WP-1 requirement for economy and efficiency. The Government subsequently identified Hensel Phelps as the uniquely qualified source for avoiding these damages.

7. A statement of the actions, if any, the agency may take to remove or overcome any barriers that led to the exception to fair opportunity before any subsequent acquisition for the supplies or services is made.

Acquisition strategy for future design and construction requirements involving mechanical piping and plumbing systems will provide for earlier consideration of downstream system conditions.

Downstream systems in a deteriorated condition shall be considered for replacement concurrently with upstream system replacement. To provide for competItion in the future, such requirements will be advertised upfront on the FBI’s multiple award construction IDIQ vehicle as a known requirement. Furthermore, an earlier contract could be solicited using the FBI’s multiple award Architect-Engineer IDIQ vehicle to conduct investigation and prepare documents. This method would result in an even more accurate scope for these complex JEH building systems.

DBC firms would have more information available to provide accurate price proposals, thereby Increasing competition.

8. Evidence that any supporting data that is the responsibility of technical or requirements personnel (e.g., verifying the Government’s minimum needs or requirements or other rationale for an exception to fair opportunity) and which form a basis for the justification have been certified as complete and accurate by the technical or requirements personnel.

The technical program certifies that the information within this justification is complete and accurate.

9. A written determination by the approving official that one of the circumstances in paragraphs (b)(2)(i)(A) through (E) and (G) of this section applies to the order.

The undersigned FBI Competition Advocate has determined that the circumstance in FAR 16.505(b)(2)(i)(C) applies to this order.

Reviews and Approvals (Between $750K and $15M)

Requestor:

I certify that the facts and representations under my cognizance, which are included in this justification, and which form a basis for this justification, are complete and accurate.

W/CS/za% Date

Contracting Officer:

I certify that this justification is accurate and complete to the best of my knowledge and belief.

04/05/2023 Date

\I Signatur

Advocate for Competition:

Signature Date