JA SABER Ceiling USD 14.99M.pdf

Justification and Approval (J&A) for Other Than Full and Open Competition

CONTROLLED UNCLASSIFIED INFORMATION

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Was a J&A approved for the preceding acquisition where that acquisition required a J&A? Yes No

Is this a new or amended J&A Document? New Amended ( Prior to Award Only! )

Is this a Bridge Action as defined at AFFARS 5302.101? Yes No

Dollar Value of this Acquisition: < $750K > $750K and < $15M > $15M and < $100M > $100M

Contracting Activity: 765th Air Base Squadron/Contracting Flight

Purchase Request (if available) / Local ID Number: FA448621D0001

Program / Project (and PE, if applicable): Simplified Acquisition of Base Engineer Requirements (SABER)

Program Type (PEO, Enterprise, of Operational): Operational

Authority:

6.302-1 – 10 USC 3204(a)(1), Only One Responsible Source - No Other Supplies or Services Will Satisfy Agency Requirements Estimated Contract Cost (including options): $ 14,990,000 J&A Type: Class Individual

COORDINATION ( AFFARS 5306.304(a) ) Sign and Save Procedure

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Date

07 Feb 2023

Requiring Activity Susana Simoes

765 ABS/CEN / 314-535-3143

Signature

X

Date

13 Feb 2023

Contracting Officer Richard L. Walls

65 ABS/CONF/PKA / 314-535-1459

Signature

X

Date

13 Feb 2023

Local Legal Reviewer Maj Kathryn A. Watson

65 ABG/JA / 314-535-3546

Signature

X

Date

22 Feb 2023

Chief of the Contracting Office (COCO) Maj Jenny Walk

765 ABS/DO / 314-535-1405

Signature

X

APPROVAL ( AFFARS 5306.304(a) )

Date

15 Mar 2023

Competition Advocate Joseph F. Lyden

AFICC/KU / 314-480-2209

Signature

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I. Agency and Contracting Activity.

Department of the Air Force

USAFE

765th Air Base Squadron/Contracting Flight (765 ABS/CONF)

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

This Justification and Approval (J&A) requests the use of other than full and open competition under the authority of Federal Acquisition Regulation (FAR) 6.302-1 to modify the existing SABER Indefinite Delivery Indefinite Quantity (IDIQ) contract FA448621D0001. The modification is to increase the ceiling of $9.6M by an additional $5.39M to a total value of $14.99M.

The SABER IDIQ was competitively awarded on 31 March 2021, as a firm-fixed price single award contract, using full and open competition. The IDIQ has a base year plus four option periods. Option period 1 was executed on 31 March 2022.

To calculate the $9.6M ceiling, the 765 ABS' Engineering Flight utilized historical data and the previous IDIQ to value proposed projects.

At the time the SABER IDIQ was awarded with a $9.6M ceiling, only minor projects were forecast due to a reduced mission at Lajes Field. Since the acquisition process began, in 2020, the command has identified new requirements and potential new missions for the base, which shifted focus and increased demolition to renovation projections to a total around $5.39M.

With the lack of sufficient design capabilities on base, the SABER IDIQ has been used extensively, especially in larger/fast-action requiring projects, due to the minimum 35% design capability.

Also, with a 0% coefficient, the SABER IDIQ became a much more attractive contract vehicle and was used more extensively than projected.

Additionally, funding sources have increased drastically from other mission partners such as the 65th Air Base Squadron, Defense Logistics Agency, and European Defense Initiative.

III. Description of supplies/services required to meet agency needs.

The SABER IDIQ provides the capability to design and perform minor construction, facility repair, and real property maintenance projects using Operations and Maintenance - 3400 funding. The use a SABER Task Order (TO) allows for the execution of infrastructure repair and build-up of facilities. This contracting method is critical to the current mission and future mission sets at Lajes Field.

Since the inception of the current single award SABER IDIQ, the following amounts have been obligated:

FY21: $2.5M; FY22: $7M. The ceiling remaining for FY23 is $54K; however, for FY23, the 765 ABS Engineering Flight has identified the need for several project TOs to meet current mission needs, valued at $5.39M.

The methodology used to arrive at the requested amount was a 765 ABS/CEN survey of the expected

11 Jul 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 3 of 711 Jul 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 3 of 7 projects required for FY23 that can only be acquired through the SABER vehicle.

With the current pace of acquisition the reacquisition is expected to last one year.

Intellectual Property (IP) and IP rights are not being requested for this acquisition.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

Sub-section 1.

This modification is not a contract for the continued development or production of a major system or highly specialized equipment.

A follow-on acquisition is under active development with an anticipated award date in October 2023. This J&A and subsequent contract modification ensures continuity and contract capacity to support the forecasted requiring activity demand on Lajes Field.

Sub-section 2.

The current SABER contractor at Lajes has been performing projects under the IDIQ since 2021, and performed in the last known two SABER IDIQs. This contractor has the required design capabilities under the SABER and to include the required subscriptions and trained personnel in RS Means estimating software. This contractor can quickly submit proposals using the software to meet agency needs. In order to develop these capabilities, a new company will require a period to acquire, train, and perform at a level that is uncommon at this location.

Contractors are typically provided 30 days of solicitation time to analyze proposal packages, and a new contractor would have to rapidly adjust to produce the package and a proposal in the time required by the

SABER.

The current contractor has the manpower, the capability (design) and has been performing at a moment's notice, as demonstrated on the recent solicitation for project XYNJ 22-1800, Repair HVAC T-1115, from solicitation to delivery of package and proposal in 9 calendar days (7 business days, from 6 to 15 September 2022).

Due to increased operations, the amount of SABER Task Orders (TO) currently being performed is at an all-time high, with an unprecedented 15 active TOs. These are 15/37 of all active construction contracts and demonstrate the current importance and critical utilization of SABER at Lajes.

This scale is demonstrated by the FY22 new contracts numbers, with a projected yearly amount of $2.4M and an awarded total of $6.996M (a 290% increase), which further justifies the Government's need for the performing contractor to promptly address requirements with limited notice.

The current contractor has equipment and manpower in place and is ready to execute many active projects on short notice.

Sub-Section 3.

The 765 ABS/CEN program office has determined that award to any other source would result in unacceptable delays in fulfilling the agency's requirements.

“Job Order Contracting” (JOC) will require training to properly submit a proposal in accordance with

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SABER solicitation criteria. 765 ABS/CONF intends to promote training sessions to enable new contractors, as identified in a sources sought, to work not only with the US Government for the first time but also make them proficient in JOC. Training new potential contractors ill take an estimated 3 to 6 months to complete.

Also, at an estimated $25M, the new SABER contractor will have to mobilize for multiple, simultaneous task orders, and amassing this capability will also require time.

Adding to the regular acquisition process, it is estimated that the new contract will be in place by FY 24.

This means that, without this ceiling increase, Lajes Field will be without a SABER IDIQ for FY23, which it has relied heavily on for the last two fiscal years and is necessary to maintain current operations. With the reduced internal design capability, the Engineering Flight of the 765 ABS will not have capability to execute the required minor construction projects, which ultimately will hinder Lajes Field to project force, specifically by not having contingency lodging, AGE workshop (which is required to move to reallocate the facility to the US Navy), and a very necessary consolidation demolition project, among others.

Sub-section 4.

Accordingly, Meneses&McFadden, CARTOR, Victor Hugo Carvalho, Lda., is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing unacceptable delays in fulfilling its requirements.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

A request for information (RFI)/sources sought was issued on SAM.gov on 21 November 2022, with a due date of 5 December 2022. The RFI sought to assess the market's willingness and capability to propose on a larger magnitude SABER IDIQ.

By the closing date, six vendors demonstrated interest in the requirement. Of those six, only one has SABER experience, and one of them never worked with the US Government, albeit being one of the largest construction contractors on the island. These encompass all but one of the large construction contractors that potentially have the capability to perform a SABER of this magnitude, which is significant since some of those large construction contractors hadn't demonstrated interest with working with USAF previously.

Since these new contractors don't have SABER experience and the time it will take to train them on JOC is insufficient to meet the government's current needs the ceiling increase to the current vendor is necessary.

This acquisition will require a Notice of Proposed Contract Action (NOCA) IAW FAR 5.201.

As mentioned in Section IV, Sub-section 3, the 765th Contracting Flight will promote training sessions and meetings to capacitate local vendors on JOC in order to encourage proposal submittals when the requirement is solicited.

VI. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

In accordance with existing terms and conditions of the contract, and FAR 15.402, the Contracting Officer

11 Jul 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 5 of 711 Jul 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 5 of 7 shall ensure that all construction services ordered under the existing IDIQ are procured at a fair and reasonable price.

Pricing is established and published in the RS Means Guide, therefore the Government and Contractor negotiations are most focused on the required quantities of each work element applicable to each task order.

The Contracting Officer executes a Price Negotiation Memorandum on each task order noting how the final price was determined fair and reasonable.

Furthermore, the contractor's coefficient applied to each task order was determined to be fair and reasonable at the time this IDIQ was competitively awarded. Therefore, the anticipated cost to the Government will continue to be fair and reasonable for all future work under this IDIQ.

It is vital to note that this contract's coefficient is 0%. Under the current, and foreseeable volatile economic markets, a coefficient this low is highly unlikely to be obtained. It was negotiated at a time that off-base construction volume was very low and the contractors depended on Government work to stay in business (this has since reverted to a high in demand with a tourism boost driving construction on the island);

materials were significantly cheaper (and the contractor could benefit on a surplus amount from the prices states on the RS Means database); competition was at an all-time high with 5 large contractors competing for awards; design expenses weren't really meaningful since the previous Air Force Contracting Construction Guide prior to the 1 October 2019 edition capped design at 35%, and the new 1 October 2019 edition states 35% is the minimum, and the Engineering Flight is taking advantage of moving this task to the contractor.

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

Construction contracting is the main activity at the 765 ABS Contracting Flight. Market research on construction is an ongoing effort by the flight since constructions awards are executed frequently, using various vehicles, and awarding to multiple contractors. Terceira Island is a very limited market since only 4 active larger construction contractors propose regularly on solicitations, down 2 from the previous solicitation, but more are being targeted to potentially start working with the Government at Lajes Field.

As mentioned in Section V, a request for information was issued in order to assess the market's capability and willingness to propose on such a high magnitude and complexity of the acquisition process (JOC vs.

full and open competed single awards).

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

FA448621D0001 was awarded in FY21 and was expected to last until FY26, with one base year and four option periods. The fact that it was rapidly used and practically depleted in Q3 and Q4 of FY22, the first option year, meant that the contract's program manager had to scramble to prepare a new package for the projected workload, visible from the current standpoint in a very fluid and rapidly changing Lajes Field footprint.

SABER is a simplified acquisition process on the operational end. However, it's implementation is very complex for new users, and to promote truly full and open competition vendors need training in job order contracting procedures and IDIQ proposal submission, which will require resources and time. This was

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IX. List of any sources that expressed, in writing, an interest in the acquisition.

Solicitation FA448621R0003, issued on 22 Sep 2020 on SAM.gov, had only two vendors proposing, the awardee and the other local larger constructor contractor, Andre Toste & Joao Paulino, Lda., with a proposed coefficient of 1% (an estimated $96,000.00 difference, for the total award of $9.6M)

For the follow-on acquisition, a RFI was posted on 21 November 2022, to which the six following companies demonstrated interest (in alphabetical order):

- Arkel International (non-local - CONUS-based)

- Andre Toste & Joao Paulino Lda.

- CITEL, Lda.

- Marques, S.A.

- Meneses&McFadden, CARTOR, Vitor Hugo Carvalho Lda. (incumbent)

- Transjet, Lda.

The local vendors are 5 of the 6 largest constructions contractors on the island. Efforts are being directed at engaging the interest of the other large contractor.

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

As mentioned in Section VIII, to overcome the barriers posed by the unique approach to job order contracting, the 765th Contracting Flight will be promoting training sessions on both JOC and IDIQ proposal submission, to remove barriers to competition, especially since this is the only such contract on the island and the incumbent has been performing the SABER IDIQ for the last 20+ years.

The multi-functional acquisition team is also considering going multiple awards for the follow-on SABER IDIQ, especially with the 150% increase from the current award, in order to further promote competition.

XI. Certification by the Contracting Officer.

As evidenced by my signature above, I certify that this justification is accurate and complete to the best of my knowledge and belief.

XII. Certification by the technical/requirements personnel.

As evidenced by my (our) signature(s) above, I (we) certify that any supporting data contained herein, which is my (our) responsibility, is both accurate and complete.

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Remove the Guidance pages below. Remove the IACR pages below.

11 Jul 2022 Page of International Agreement Competitive Restrictions (IACR) Page of 13 May 2022 Was a J&A approved for the preceding acquisition where that acquisition required a J&A?

!! Attach the preceding J&A in the staff package for this J&A. The preceding J&A will be used as a reference document.

Is this a new or amended J&A Document?

Is this a Bridge Action as defined at AFFARS 5302.101?

Dollar Value of this Acquisition:

J&A Type:

!! Provide estimated cost of all contracts.

COORDINATION ( AFFARS 5306.304(a)) ** The text in the signature blocks below is editable, including the title.

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APPROVAL ( AFFARS 5306.304(a)) NOTE 1: A signature block will appear here (replacing these notes) based on the "Dollar Value of this Acquisition" selected above. Since most digital signatures that include date/time-stamps are redacted before they are made publicly available, always insert the date in the “Date” cell when affixing a digital signature to this document.

NOTE 2: Some types of acquisitions awarded under circumstances where full and open competition is not required by statute do not have to be supported by a written justification and approval. See 10 U.S.C. § 3204(e)(7); FAR 6.302-5(c)(2). For Class J&As, all contracts within the class must fall within the same statutory authority.

NOTE 3: Users of this template are directed to SAF/AQC Policy Memo 22-C-02 (when it's published), or latest issuance, which provides detailed instructions on how to complete each section of a J&A. The memo will be posted at the following location:

https://usaf.dps.mil/sites/AFCC/KnowledgeCenter/Documents/Contracting_Memos/Policy/22-C-02.pdf (See "Specific Guidance for Completing this Template" after item XII below.)

I. Agency and Contracting Activity.

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

III. Description of supplies/services required to meet agency needs.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

VI. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

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

XI. Certification by the Contracting Officer.

XII. Certification by the technical/requirements personnel.

Specific Guidance for Completing this Template I. Agency and Contracting Activity. (FAR 6.303-2(b)(1)) Self-explanatory II. Nature and description of the action being processed. (FAR 6.303-2(b)(2)) An individual J&A is for a single contract. State whether the action is a new contract or a modification to an existing contract (identify contract number) and identify the contract type(s) planned (e.g., firm-fixed-price, cost-plus-incentive-fee). If exception 2 is cited (unusual or compelling urgency), include the date of UCA/contract/modification issuance and amount.

An individual J&A cannot be used to support more than one contract action irrespective of the quantities or the dollar value stated therein. If a proposed contract will contain unpriced options (including NTE prices), those options must be supported by a separate J&A prior to option exercise. Stoehner Security Services, Inc., 248077.3, Oct. 27, 1992, 92-2 CPD ¶ 286 at 6. This principle applies with equal force and effect whenever a contracting officer seeks to exercise FAR 52.217-8 (Option to Extend Services) if the contract that incorporated that clause by reference is not a Service Contract Labor Standards-covered contract, as such contracts do not include wage determinations that establish “prevailing labor rates provided by the Secretary of Labor.” FAR 52.217-8. See Major Contracting Services, Inc., B-401472, Sep. 14, 2009, 2009 CPD ¶ 170 at 6, mot. for reconsid. den., Department of the Army --Reconsideration, B-401472.2, Dec. 7. 2009, 2009 CPD ¶ 250 at 5-6. In the alternative, the J&A supporting the basic contract must be a Class J&A. Although a Class J&A may be written for multiple awards to a single source, or multiple awards to various sources, it must describe each proposed contract action separately so it is clear that each such action is within scope of that Class J&A. FAR 6.303-1(d).

III. Description of the supplies/services required to meet agency needs. (FAR 6.303-2(b)(3)) Describe the supplies, services, or supplies and services to be acquired. Identify the quantities of each item, the estimated delivery dates/periods of performance, the type of appropriation(s) that will acquire those supplies/services, the total estimated value of the acquisition (including options), and the methodology used to arrive at that total estimated value. Provide sufficient information to demonstrate to the approving official that the acquisition of intellectual property (IP) and associated IP rights will satisfy the program's requirements, acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan.

The program's requirements for IP and IP rights in the Request for Proposals (RFP) must be consistent with the program's acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan. Accordingly, approving officials will ensure this section of the J&A:

(1) States whether the CLIN structure will include separately-priced CLINs for intellectual property (IP) and IP rights. Once the DFARS is revised to implement 10 U.S.C. § 4236, Air Force contracting officers will be required to negotiate a fair and reasonable price for IP and associated IP rights. Air Force contracting officers must start thinking now how they will do so during sole-source and competitive negotiations and how the resulting contract will reflect the results of those negotiations. Otherwise, they may be caught flat-footed if the RFP did not include such separately-priced CLINs and the Director of Defense Pricing and Contracting issues the final rule implementing 10 U.S.C. § 4236 --the effective date of which occurs one day prior to the award date. See also FAR 7.105(b)(14)(iii) and DFARS 215.470(a);

(2) Lists the titles of all such IP (including digital models) to be to be acquired contained in Exhibits A-N of the draft Request for Proposals; and

(3) Identifies the type of IP rights to be acquired to those deliverables (including the IP rights to be acquired to contract administration information since the standard DFARS clauses do not grant the Air Force any license rights to that type of IP).

Mission-focused business leaders are encouraged to engage early in the acquisition life-cycle with industry regarding the subjects of IP and IP rights. They are also encouraged to consult with approving officials, designees, or both, regarding those subjects well in advance of submitting a draft J&A to the appropriate approving official.

For Class J&As, identify each contract action (contract, modification) to be authorized by the proposed J&A for each potential offeror. If the same information applies to more than one contract, it need only be stated once.

For ID/IQ or requirements contracts, use the maximum dollar value of the total estimated orders as the total estimated value of the acquisition.

IV. Demonstration that the contractor's unique qualifications or nature of the acquisition requires the use of the authority cited above. (FAR 6.303-2(b)(5)) Provide detailed facts sufficient to justify the use of the particular authority cited. Contracting without providing for full and open competition shall not be justified on the basis of a lack of advance planning or concerns relating to the amount of funds available (e.g., expiring funds). (FAR 6.301(c)).

Check the applicable box below. Checking a box will display the text for that section.

In the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, the rationale must first justify the supplies/services as either associated with a “major system” or “highly specialized equipment”. It must then justify either “substantial duplication of cost to the Government that is not expected to be recovered through competition” or “unacceptable delays in fulfilling the agency's requirements”, whichever situation applies. If both of those situations apply, the rationale can be based upon either or both of those two situations. This authority shall not be used when any of the other authorities apply.

Sub-subsection 1. FAR 6.302-1(a)(2)(ii) and (iii) require that the J&A demonstrate that specific conditions have been satisfied. Therefore, this sub-section must deconstruct the specific words in those provisions and demonstrate to the appropriate approving official how the proposed acquisition satisfies those words.

For example, this sub-subsection must demonstrate the proposed acquisition is a “follow-on contract” by identifying the current contract number of the contract the intended awardee of that “follow-on contract” is currently performing, the basis of award for that contract (competitive, sole-source), the purpose of that contract, the date of contract award, and the date that contract will expire. PTC, Inc., B-416863, Dec. 20, 2018, 2019 CPD ¶ 48 at 6-7. This subsection must also demonstrate the proposed acquisition will continue “development” or “production” of a “major system” or “highly specialized equipment, including major components thereof” or provide “highly specialized services.” In the case of the former, this subsection must either identify the ACAT I or II program --since the legal definition of a “major system” includes ACAT I and II programs --or explain why the equipment sought to be acquired is “highly specialized” for which the proposed acquisition will “continue[ ] development or production”. In the alternative, this subsection must explain why the services sought to be acquired are “highly specialized”.

If the planned acquisition will result in a “bridge” contract that contains options, this subsection must explain why options are necessary. If significant lead time is required prior to approval of the J&A in order to acquire the supplies or services described in Section III, this subsection should mention that fact and explain why that is the case.

Next, this sub-subsection should add a concluding sentence to the end of this subsection, suitably tailored; e.g., “Therefore, this acquisition will be a follow-on contract for the continued development of a major system.”

“Therefore, this acquisition will be a follow-on contract for the continued production of a major system.”, “Therefore, this acquisition will be a follow-on contract for the continued development of highly specialized equipment.”

“Therefore this acquisition will be a follow-on contract for the continued production of highly specialized equipment.”

“Therefore, this acquisition will be a follow-on contract for the continued provision of highly specialized services.”

The purpose of that sentence is to bring the approving official back to the regulatory requirements the preceding paragraphs of this section of the J&A have discussed to demonstrate the J&A satisfies those requirements.

Sub-subsection 2. Thoroughly describe the contractor's unique/highly specialized capabilities and qualifications (e.g., facilities, personnel, special tooling acquired), (FAR 6.303-2(b)(5)), and why no other type of supplies or services will satisfy the agency requirements.

Sub-subsection 3. This subsection should begin with the following sentence, suitably tailored:

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition.”

“The __[insert program office name]__ has determined that award to any other source would result in unacceptable delays in fulfilling the agency's requirements.”

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition and unacceptable delays in fulfilling the Government's requirements.”

The purpose of this opening sentence is to direct the approving official's attention to which specific words in FAR 6.302-1(a)(2)(ii) and (iii) will be the basis for going sole-source.

Next, when the rationale for going sole-source is based upon substantial duplication of cost, this sub-subsection must include an estimate of the amount of cost that would be duplicated (e.g., training required so that another source could acquire the skills necessary to perform the work, equipment, facilities) less the estimated cost to run a competition. (For example, the development costs the Government incurred under the existing contract or similar programs may provide insight into the amount of cost duplication were the proposed acquisition to be competed.) This sub-subsection should also identify the organization(s) that/who performed the analyses that supports those estimates, and describe the analysis that/those organization(s) performed to arrive at both estimates. The methodology must account for inflation during the projected remaining life cycle of the acquisition. (FAR 6.302-1(a)(2)(ii)(A) and (iii)(A); FAR 6.303-2(b)(9)(ii)).

When, however, the rationale for going sole-source is based upon unacceptable delay, this sub-subsection must state how long it would take someone else to obtain this capability (in months/years) and why, and provide a detailed explanation of the impact or problem caused by the delay. When describing the impact or problem caused by the delay, the rationale must identify all nodes on the critical path between the failure to acquire the supplies and services described in Section III and the delivery date(s)/period(s) of performance identified in that section, and the reduction (or frustration) of the warfighter's ability to accomplish specific missions. The explanation provided must be commensurate with the delivery date(s)/period(s) of performance identified in Section III (e.g., longer delivery date(s)/period(s) of performance necessitate a more detailed explanation). (FAR 6.302-1(a)(2)(ii)(B) & (iii)(B)).

Although the existence of IP rights retained by the developer make the supplies and services available from only once source, the mere existence of such rights does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Therefore, if the program office will use that rationale to justify going sole-source, this sub-subsection must demonstrate the program office performed sufficient due diligence to validate the developer retains such IP rights that require the use of this authority to acquire the supplies and services described in Section III. Specifically, this sub-subsection must explain:

(1) What IP rights the Government acquired to what IP deliverables under predecessor contracts described in Subsection 1 of this section and why those rights are insufficient to compete acquisition of the supplies or services described in Section III;

(2) What IP clauses (include the month/year of issuance) or applicable commercial computer software licenses were included into all of those predecessor contracts described in Subsection 1 of this section;

(3) Whether those predecessor contracts included the Deferred Ordering clause (DFARS 252.227-7027) and if so, why the program office did not exercise its rights to acquire needed IP deliverables by exercising its rights under that clause;

(4) Why the Government did not acquire sufficient IP deliverables and IP rights under that/those predecessor contract(s) that would have precluded the need to go sole-source for the proposed acquisition (e.g., acquisition strategies for those predecessor contracts were based upon the Total System Performance Responsibility (TSPR) initiative);

(5) What IP deliverables did the program office acquire under that/those predecessor contract(s) and what restrictive markings did the developer affix to those deliverables;

(6) What pre-challenge requests for information or formal challenges the program office initiated in response to a developer's assertions of development at private expense (DFARS 252.227-7019, DFARS 252.227-7037) and what analysis the program office performed of the information it received in response to that request or formal challenge;

(7) What investigation the program office conducted to determine whether the IP deliverables provided under that/those predecessor contract(s) was/were developed in whole or in part at Government expense (e.g., reviewing the developer's IR&D project approvals and accounting records, reviewing earned value management data and integrated program management reports);

(8) Assuming the results of that investigation validate the developer's assertion of development at private expense, what if any steps did the contracting officer take to request the developer propose a price to furnish the IP deliverables and IP licenses needed to compete the proposed acquisition; and

(9) The extent to which the program office considered reverse engineering any subsystems or components of the end item described in Section III (and summarize the estimated cost to reverse engineer those subsystems or components and the time it would take to complete such reverse engineering activities); or considered use of a modular open system approach to acquire those subsystems or components consistent with the program's capability development document, acquisition strategy, and system engineering plan. (DFARS 207.106(S-72)(2)(v); DFARS 227.7103-5(d)(2)(iii)).

Although the control of basic raw material makes the supplies or services available from only once source, the mere existence of such rights or circumstances does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Under such circumstances, this sub-section must identify how the intended source acquired a monopoly on those raw materials.

When acquiring utility services, circumstances may dictate that only one supplier can furnish the service, or when the contemplated contract is for construction of a part of a utility system and the utility company itself is the only source available to work on the system. (FAR 6.302-1(b)(3)).

When the agency head has determined in accordance with the agency's standardization program that only specified makes and models of technical equipment and parts will satisfy the agency's needs for additional units or replacement items and only one source is available, (FAR 6.302-1(b)(4)), this sub-section must identify the relevant standardization program.

Notwithstanding FAR 6.302-1(c)(2), a justification and approval is required in order to use brand name or equal descriptions or the use of proprietary specifications or standards. (DFARS 206.302-1(c)(2) and (S-70)).

Sub-subsection 4. When using the rationale described in sub-subsection 3 above, conclude this subsection by including one of the following sentences, as applicable:

“Accordingly, ___[insert company name]___ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be recovered through competition.”, “Accordingly, __[insert company name]__ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing unacceptable delays in fulfilling its requirements.”

“Accordingly, __[insert company name]__, is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be expected to be recovered through competition and unacceptable delays in fulfilling its requirements.”

The purpose of this sentence is to restate for the approving official's benefit which rationale(s) is/are the basis for going sole-source, thereby sensitizing them to the fact the author will now turn to discussing a different topic.

Contracting Officers must notify SAF/AQC as soon as practicable when contemplating the use of this authority for a J&A requiring SPE approval.

Provide an explanation why the supplies or services are needed at once due to, e.g., fire, flood, explosion, other disaster, emergency) or essential equipment or repairs to that equipment are needed at once to facilitate meeting critical mission needs of the Government. Identify the nature of the urgency, the reasons for it occurring, and the extent of the anticipated serious injury to the Government -- thereby demonstrating why the Government's need for the supplies or services described in Section III is of “unusual and compelling urgency” to preclude adverse impact to military readiness. (FAR 6.303-2(b)(9)(iii)). In other words, identify all nodes on the critical path between the failure to acquire the supplies or services described in Section III and the reduction (or elimination) of the warfighter's ability to accomplish specific missions. Merely citing a Joint Urgent Operational Need (JUON), Force Activity Designator (FAD) rating, Program Management Directive (PMD)/Program Action Directive (PAD) guidance, or DX priority rating is not in and of itself sufficient reason to use this exception from the requirement to obtain full and open competition. Note that only the minimum quantity required to satisfy the unusual and compelling urgency qualifies for this exception. In addition, the period of performance CANNOT exceed one year, including all options unless the head of the agency determines that exceptional circumstances apply (FAR 6.302-2(d)(ii)); thus, the inclusion of options when using this authority is not advised.

Note: This statutory authority requires that agencies request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-2(c)(2)).

Justifications citing this authority must demonstrate the need to maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization; to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; or to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute. If the proposed contract will require the contractor to keep vital facilities or suppliers in business or make them available in the event of a national emergency, train a supplier in the furnishing of critical supplies or services, prevent the loss of a supplier's ability and employees' skills, or maintain active engineering, research, or development work, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, or continue in production where there would otherwise be a break in production, or divide current production requirements among two or more contractors, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(1)). If the proposed contract will establish or maintain an essential engineering, research, or development capability to be provided by an education or other nonprofit institution or a federally funded research and development center for theoretical analyses, exploratory studies, experiments in any field of science of technology, or engineering or development work calling for the practical application of investigative findings and theories of a scientific or technical nature, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(a)(2)(ii) and (b)(2)). If the proposed contract will acquire the services of an expert to use in any litigation, dispute, or alternative dispute resolution proceedings involving the Government, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(3)).

Identify the applicable statute explicitly authorizing other than full and open competition. (FAR 6.302-5(b); DFARS 206.302-5(b)). The following is a non-exclusive list of statutes lifted from FAR 6.302-5(b) that authorize acquiring supplies and services from specified sources or through another agency:

(1) Federal Prison Industries (UNICOR) (18 U.S.C. § 4124 (see FAR Subpart 8.6).

(2) Qualified nonprofit agencies for the blind or other severely disabled (41 U.S.C. Chapter 85) Committee for Purchase From People Who Are Blind or Severely Disabled (see FAR Subpart 8.7).

(3) Government Printing and Binding (44 U.S.C. §§ 501-504, 1121 (see FAR Subpart 8.8)).

(4) Sole source awards under the 8(a) Program (15 U.S.C. § 637), but see FAR 6.303 for requirements for justification and approval of sole-source 8(a) awards over $25 million. (See FAR Subpart 19.8).

(5) Sole source awards under the HUBZone Act of 1997 (15 U.S.C. § 657a)(see FAR 19.1306).

(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. § 657f).

(7) Sole source awards under the WOSB Program (15 U.S.C. § 637(m)(see FAR 19.1506).

Note: Some statutes do not require a written J&A.

Full and open competition need not be provided for when the disclosure of the agency's needs would compromise the national security (e.g., would violate security requirements) unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. Accordingly, if this authority is used, this section shall explain how these conditions are satisfied.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by FAR 5.2 and, if not, indicate which exception under FAR 5.202 applies. (FAR 6.303-2(b)(6); FAR 6.303-2(b)(8); FAR 6.303-2(b)(10)) The contracting officer shall issue a sources sought synopsis or an RFI, provide the date the synopsis was issued, the synopsis number, and a brief description of its content. Identify the number of responses received, the names of the respondents, the results of the screening process, and the rationale for determining the unacceptability of any respondents, unless exempted by the MAJCOM SCO or Operating Location SCO with rank of GO or SES, otherwise approval by the HCA is required. (FAR 6.302-1(d)(2); DFARS 206.302-1(d); DFARS PGI 206.302-1(d); AFFARS 6306.302-1(d); AFFARS MP5301.601(a)(i)).

Specify whether this acquisition will require a Notice of proposed Contract Action (NOCA) IAW FAR 5.201 and if not, provide the exception IAW FAR 5.202. If a NOCA was or will be publicized provide the dates or expected dates of publication of the NOCA. Address any other actions taken or planned to facilitate competition for this acquisition.

When using the authority granted by FAR 6.302-1, an RFI or Sources Sought Synopsis is mandatory. (DFARS PGI 206.303-2(b)(i)).

When using the authority granted by FAR 6.302-2, agencies must request offers from as many potential sources as is practicable under the circumstances unless the Government would be seriously injured if the agency complied with the time periods specified in FAR 5.203. (FAR. 5.202(a)(2); FAR 603.2-2(b)(2)).

When using the authority granted by FAR 6.302-3, no synopsis is required if the proposed contract action is for utility services other that telecommunications services and only one source is available. (FAR 5.202(a)(5)).

When using the authority granted by FAR 6.302-5, no synopsis is required if the proposed contract action results from acceptance of a proposal under the Small Business Innovative Research (SBIR) program. (FAR 5.202(a)(7)).

When using the authority granted by FAR 6.302-6, agencies must request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-6(c)(3)). The fact that a proposed solicitation or contact action contains classified information, or that access to classified information may be necessary to submit a proposal or perform the contract does not, in itself exempt that proposed contract action from the synopsis requirement. (FAR 52.202(a)(1)). Under such circumstances, this section must identify what alternatives the program office used to compete this requirement (e.g., accessing the National Reconnaissance Office's (NRO) Acquisition Research Center's Central Contractor Registry database or the National Security Agency's (NSA) Acquisition Resource Center's Business Registry database to identify potential cleared offerors and summarize what outreach the program office conducted with those potential cleared offerors to determine their interest in the proposed acquisition).

If qualifying country sources have expressed interest, but will be excluded, provide supporting rationale.

VI. Determination by the contracting officer that the anticipated cost to the government will be fair and reasonable. (FAR 6.303-2(b)(7)) Include the following text, suitably tailored: “Based upon (1) certified cost or pricing data provided in the offeror's proposal, (2) the program office's technical analysis of the offeror's Basis of Estimates (BOE), and (3) inputs from the Defense Contract Management Agency, including from the Administrative Contracting Officer, the contracting officer expects they will be able to determine that the anticipated cost to the Government will be fair and reasonable.”

VII. Description of the market research conducted and the results, or explain why market research was not conducted. (FAR 6.303-2(b)(8)) Discuss any market research conducted pursuant to FAR Part 10 (in addition to any actions described in Section VI above) and describe the results of that research. When other exceptions from the requirement to obtain full and open competition are relied upon, the market research might be limited to an examination of the acquisition history and experience with the marketplace under previous acquisitions for the same or similar items. Discuss what relevant documentation the contracting officer provided to respondents in a bidders library (e.g., capability development document, system engineering plan, system requirements document, statement of work/performance work statement, technical data package, compliance documents). Discuss how the contracting officer shared the Government's analysis of each respondent's response with that respondent.

If market research was not conducted, so state and provide the rationale.

VIII. Any other facts supporting the use of Other Than Full and Open Competition. (FAR 6.303-2(b)(9)(i)) Provide any other facts supporting the use of other than full and open competition, including an explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available. (FAR 6.303-2(b)(9)(i)).

IX. List of sources, if any, that expressed interest in the acquisition. (FAR 6.303-2(b)(10)) If all interested sources are identified in Section V, it is acceptable to state, “See Section V above.”

X. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before making subsequent acquisitions for the supplies or services required. (FAR 6.303-2(b)(11)) Describe any actions taken or to be taken to foster competition for future acquisitions of the supplies or services being acquired. Describe potential actions the program office will take to remove existing barriers to competition identified in the justification and include a milestone schedule for accomplishing those actions. For example, if the barrier to competing acquisition of the supplies and services described in Section III is the lack of IP deliverables or sufficient IP rights to those deliverables, identify and analyze what possible steps could be taken to:

(a) Acquire those IP deliverables and associated IP rights,

(b) Implement a modular open system approach consistent with the program's capability development document, acquisition strategy, and system engineering plan (10 U.S.C. §§ 4401-4403), or

(c) Reverse engineer subsystems or components of the end items described in Section III.

IAW DFARS PGI…