JA for Brand Name or Equal- Union Street3_Redacted.pdf

JUSTIFICATION REVIEW DOCUMENT

FOR OTHER THAN FULL AND OPEN COMPETITION

Program/Equipment: Brand Name or Equal Products for Union Street Dam Fish Pass Authority: 10 U.S.C. 2304(c)(1 ) Amount:

Prepared by: Typed Name: Alec Higgins Date: 19-Mar-2020 Title: Civil Engineer Phone:

E-mail:

Contracting Officer:

Typed Name: MAJ Derek Gibson Date Reviewed:

Title: Contracting Officer Phone:

E-mail:

Technical Representative:

Typed Name: Phil Ross Date Reviewed:

Title: Chief Engineering and Construction Phone:

Requirements Representative:

Typed Name: Steve Check Date Reviewed:

Title: Project Manager Phone: (

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: Michelle Williams Phone: (312) 846-5565

WILLIAMS.MICHEL

Digitally signed by

Signature: Date:

Project Manager Typed Name: Steve Check

District Counsel Typed Name: Adam Wallace

LE.B.

CHECK.STEVEN.G

REGORY.1096027

Phone:

WALLACE.ADAM.

WILLIAMS.MICHELLE.B.

Date: 2020.03.25 08:52:30 -05'00'

Digitally signed by

CHECK.STEVEN.GREGORY.

027083 Date: 2020.03.24 07:48:53 -04'00'

Digitally signed by

WALLACE.ADAM.PAUL.1

Date: 2020.03.20 06:28:10 -04'00'

PAUL.

Phone:

JUSTIFICATION AND APPROVAL (J&A)

FOR OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Agency: USACE Detroit District

2. Description of the Action: Section 888(a) of the Fiscal Year 2017 National Defense Authorization Act 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) Alert 19-108, Brand Name or Equal requires justification for “or equal” descriptions. The use of brand-name or equal products in the Union Street Dam Fish Pass contract is justified for the reasons stated below.

3. Description of Supplies/Services or Nature of Construction: The Union Street Dam Fish Pass Project is a Firm-Fixed Price (FFP) construction contract which will require removal of the existing Union Street Dam, located in Traverse City, MI, and replacement with a labyrinth weir and adjacent fish sorting channel.

The construction is to be completed in three (3) phases.

Phase one (1) of the project involves construction of watermain utilities and abandonment/removal of existing watermain, followed by initial cofferdam construction, construction of the labyrinth weir and abbreviated headworks, demolition and removal of the auxiliary spillways (culverts) and related embankments, construction of temporary channel, and removal of existing building on south side.

Phase two (2) of the project entails relocation of the cofferdam to the north side, removal of the existing embankment and primary spillway culverts, continued construction of the headworks, upstream barrier and the research channel, and construction of the researcher building can also commence during this phase if suitable to the contractors site sequencing needs. Northern park features can also be constructed at the contractor’s convenience. Gates and stoplogs to be received and installed at this time.

Phase three (3) of the project will require removal of the cofferdam and construction of the final channel alignment, construction of the park features on the south side, and completion of the pedestrian bridge, site access walks, and the researcher building.

This contract action is to be solicited by method of negotiated acquisition utilizing the subjective best value tradeoff process, subject to FAR 15.101-1. Award shall be made to the offeror whose proposal provides best value to the government, considering price and non-price factors, while meeting the minimum requirements defined in the solicitation.

The design includes Brand-Nam which has an estimated value of identification for the prefabricated pedestrian bridge, or roughly 2.7% of the total cost of construction.

See attachment 1 for a complete list of items, manufacturer, and estimated cost of all items which have a Brand Name indicated.

4. Authority Cited: The statutory authority permitting other than full and open competition for this acquisition is 10 United States Code 2304(c)(1) as implemented by FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements, and Defense Federal Acquisition Regulation (DFARS) 206.302-1(c)(2) requiring a J&A for Brand-name or Equal descriptions.

e or Equal

5. Reason for Authority Cited:

a. Background.

The goal of the FFP construction project is to remove the existing Union Street dam and in its place construct a damming structure that will maintain a barrier against the upstream migration of invasive aquatic species while having the ability to selectively pass desirable aquatic species.

The USACE’s involvement in the Union Street Fish Pass Project is authorized under the Interagency and International Services (IIS) program. The Great Lakes Fishery Commission (GLFC) U.S. Section and the USACE signed a Memorandum of Agreement (MOA) on 17 March 2017. The MOA allows the USACE to provide assistance to the GLFC U.S. Section in support of the sea lamprey control program authorized by the Convention on the Great Lakes Fisheries, as amended. Such assistance may involve but is not limited to; studies, program/project management, planning, environmental services, engineering or technical assistance, design, construction & construction management services (to include payment and change order reviews and Contracting Office Representative or Contracting Office Technical Representative support), procurement & contracting services, real estate services, operation & maintenance services, hydraulics & hydrology services, inspections, research, development & technology transfer services, and such other related services as may be agreed upon in the future.

The design and development of the construction plans and specifications is being funded by the GLFC. Private engineering firm AECOM has been contracted by the GLFC to deliver these services and is the designer of record.

The GLFC developed the project goals, criteria, and design features with significant coordination and cooperation with local and federal stakeholders, including the City of Traverse City, Grand Traverse County, State of Michigan agencies including Michigan DNR and EGLE, Tribal Partners including the Grand Traverse Band of Ottawa and Chippewa Indians, and federal agencies such as US FWS. GLFC and partners held several public hearings during planning and development stages. During these stages, different ideas and concepts were presented to garner feedback and public opinion. The public was allowed to vote on preferred concepts, which had influence on the final design decisions.

b. Justification.

A prefabricated pedestrian bridge manufactured by CONTECH Engineered Solutions, LLC was selected by the engineers as a suitable bridge to use as a basis of design. It is industry standard practice to select an example product to design around. Engineers needed to select a bridge with the dimension and load capacity to meet project needs. The project design included abutments and supports for the pedestrian bridge that are to be constructed in the field, and the design of these elements were dependent on the loading and spacing of the selected bridge.

Not only was it necessary to evaluate the dimensions and loading of the abutments and supports, but additionally the selection of the product influences site grading and access plans.

The prefabricated pedestrian bridge indicated by Brand Name or Equal is estimated to cast approximately .

In an attempt to increase competition, the engineers identified two additional manufacturers capable of providing a prefabricated pedestrian bridge that meets project needs and design criteria. The specifications list three “Pre-approved Manufacturers”: CONTECH Engineered Solutions, LLC; Excel Bridge Manufacturing; and Big R Bridge, and states that suppliers other than those listed above may be submitted to the Contracting Officer's Representative (COR) for review.

Competition is only limited to the extent necessary to meet the government legitimate needs of this project. Contractors are free submit alternate products which meets the government’s minimum needs. Whenever any product is specified by brand name and model number, such specifications shall be deemed to be used for the purpose of establishing a standard of quality and facilitating the description of the product desired. The term "or equal" shall be understood to indicate that the “or equal" product satisfies project requirements equally or better than the product named in the specifications in function, performance, reliability, quality, and general configuration. The Contractor may, in such cases, submit complete comparative data to the Contracting Officer's Representative for consideration of another product.

The Materials and Workmanship clause (FAR 52.236-5) reiterates this point: “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.

c. Alternatives.

The alternative would be to remove all instances of Brand Name or Equal and solicit the requirement based solely on performance specifications where the contractor would submit products for government review and approval. This would require the government to coordinate with the GLFC, who holds the A-E contract for the project design, and request that the A-E revise the specifications. Furthermore it increases efforts by the government to review Contractor’s proposed systems, including all components, to ensure that they are acceptable.

Another possible alternative would be for the brand name or equal products to be provided to the contractor as government furnished material. The non-federal sponsor could coordinate with Traverse City officials to pre-purchase the desired products and provide to the government as an in-kind contribution. The government would then provide the materials to the contractor after award. This alternative would require a substantial coordination effort and is more likely to cause conflicts and challenges during project performance. While USACE is managing construction, USACE does not have a direct contractual relationship to Traverse City. USACE’s involvement is through the GLFC, and the GLFC acts as the intermediate between the parties. If the government were responsible for providing the products as government furnished material, it would place the risk for these products delivery on the government and increase the likelihood of delays and/or claims. Furthermore, there is limited laydown and storage area for keeping the stockpile of products.

d. Impact.

Listing acceptable products by reference of Brand Name or Equal limits competition by increasing the likelihood that the contractor acquires the brand name product referenced.

However, as noted in the specifications, the contractor is allowed to submit any other product which meets the government’s minimum characteristics and standards of quality.

Since multiple pre-approved manufacturers are provided, and the contractor has the option to propose alternatives, no significant impact to industry is expected.

6. Efforts to Obtain Competition: Effort was taken beyond listing the basis of design product to identify additional manufacturers that are capable of meeting project needs. The specifications list three “Pre-approved Manufacturers”, and states that suppliers other than those listed above may be submitted the Contracting Officer's Representative (COR) for review.

Competition is obtained to the maximum extent practical while meeting the agency’s requirements by utilizing a specific product only to the extent it is necessary, while allowing contractors to use the brand-named or any other product which meets the government’s minimum characteristics and standards of quality.

A Notice of Intent (NOI) will be posted to FBO by the District, stating the intent to utilize brand-name or equal requirements in the upcoming construction contract. The NOI includes a list of all products called out as Brand Name or Equal in the contract documents.

7. Actions to Increase Competition: There are no planned actions to increase competition for the requirement covered by this J&A. However, as stated in the specifications, the contractor will be allowed to submit alternatives other than the product listed for government consideration.

Alternative products will be evaluated without prejudice and will be deemed acceptable as long as the product meets the minimum characteristics and standards of quality.

8. Market Research: The brand name or equal products listed are intended to provide the Contractor an example of an acceptable product that meets minimum characteristics and standards of quality, including end user requirements. Any alternative products proposed by the Contractor will be fairly evaluated in accordance with contract requirements. Three separate potential manufacturers identified during market research as being capable to provide a product that meets project needs are listed in the specifications.

9. Interested Sources: At this time the District is not aware of any interested sources. In accordance with FAR Subpart 5.2, the NOI will be publicized to inform industry of the government’s intent to use brand name or equal descriptions in the acquisition. At this time the District is not aware of any interested sources.

10. Other Factors: The relationship between project stakeholders is an additional factor to consider. The design of the plans and specifications was completed by an A-E firm not under USACE contract. The GLFC holds the contract for the A-E design and has partnered with USACE for project management, engineering and technical services, contracting, and construction management. T

11. Technical Certification

I certify that the supporting data under my cognizance which are included in the justification are accurate and complete to the best of my knowledge and belief.

Name: Date:

Title: Signature:

Digitally signed

ROSS.PHILLIP.C.1

Date: 2020.03.25 14:45:26 -04'00'

12. Requirements Certification

13. Fair and Reasonable Price Determination

Title: Signature:

CHECK.STEVEN.GREGORY.

Date: 2020.03.25 15:13:53 -04'00' GORY.

I certify that the supporting data under my cognizance which are included in the justification are accurate and complete to the best of my knowledge and belief.

II hereby determine that the anticipated cost or price to the Government for this contract action will be fair and reasonable. This determination was made utilizing market research and independent government estimates.

Certified cost or pricing data is not required. The requirement is being met using FAR Part 15, Best Value Tradeoff procedures. It is anticipated that this solicitation will receive competition from two or more responsible bidders.

Approval Signature Block

MAJ Derek Gibso Contracting Officer

54:06

Signature: Title:

GIBSON.DEREK.SCOTT.12

.SCOTT.

MAJ Derek Gibso Contracting Officer

3.26 08:57:21

GIBSON.DEREK.SCOTT.1285

Based on the foregoing justification, I hereby approve the construction procurement of brand name or equal products, included in the Union Street Dam Fish Pass contract located in Traverse City, Michigan, estimated at $402,651 on an other than full and open competition basis pursuant to the authority of 10 U.S.C.2304(c)(1), subject to availability of funds, and provided that the services and property herein described have otherwise been authorized for acquisition.