JEFO_SIGNED.pdf

Justification for an Exception to Fair Opportunity Purchase Request No. NB130000-25-00853

I. Contracting Activity.

U.S. Department of Commerce National Institute of Standard and Technology (NIST) Office of Acquisition and Agreements Management Acquisition Management Division 100 Bureau Drive MS 1640 Gaithersburg, MD 20899

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

Sections 9902 and 9906 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (NDAA) authorized semiconductor manufacturing and research and development activities (the CHIPS Program).

The U.S. Department of Commerce (DOC), National Institute of Standards and Technology (NIST), Office of General Counsel (OGC), Office of the Chief Counsel for Semiconductor Incentives (OCCSI) requires programmatic legal support services to continue to advise and assist OGC on legal aspects of the CHIPS Program. This document sets forth the basis for a noncompetitive logical follow-on task order for the continued provision of the identified programmatic legal support services.

III. A description of the supplies or services required to meet the agency’s needs (including the estimated value).

The contractor shall render advice concerning, and prepare, the primary CHIPS forms to be used in direct funding transactions with for-profit recipients, including but not limited to the principal form of Direct Funding Agreement for an award to a recipient under the Section 9902 program. The contractor shall render advice concerning and update, revise, and maintain ancillary form transaction documents for direct funding transactions, including but not limited to the principal form of equity contribution agreement, guarantee agreement, legal opinions, and disbursement requests. Also, the contractor shall render advice and assistance on material, policy, legal and/or Department-specific issues that may arise in the course of the CHIPS Program and such other matters concerning the interpretation or implementation of Section 9902 of the 2021 NDAA and the CHIPS Act of 2022, as may be requested by OGC.

The period of performance is for a base period of six months starting at the date of award and an option period of twelve months.

The estimated cost of this requirement is $400,000, including options.

IV. Identification of the exception to fair opportunity FAR 16.505(b)(2) and the supporting rationale, including a demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the exception cited.

Authority: FAR 16.505(b)(2)(i)(C), “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.”

Supporting Rationale: The NIST competitively awarded Contract No. 1333ND23DNB130004, Task Order No. 1333ND23FNB130079 to Allen & Overy LLP using FAR Subpart 16.505 procedures. Allen & Overy has successfully and satisfactorily provided OGC with an extensive array of critical legal services and advice needed to implement Section 9902 of the CHIPS Act and to issue CHIPS awards, including but not limited to preparation of the form transaction documents used in CHIPS direct funding transactions and other related ongoing programmatic legal support. Allen & Overy’s extensive work performed under Task Order No.

1333ND23FNB130079 to prepare the initial form transaction documents means that the firm has significant institutional knowledge on the implementation of Section 9902 awards, in particular with respect to CHIPS direct funding awards, which is knowledge that any other contractor would lack. The work required under the new task order involves providing advice as well as modifying, as necessary, form transaction documents that Allen & Overy has already advised upon or prepared. The work to revise or modify documents is a logical follow-on to the work originally preformed under Task Order No. 1333ND23FNB130079.

CHIPS awards are unique in their complexity to comport with relevant statutory requirements, as well as the structures of the Federal Financing Bank. Such institutional knowledge includes Allen & Overy’s in-depth familiarity with the legal, policy, and institutional considerations and risks of the Department with respect to CHIPS direct funding awards, which must be addressed in the preparation of form transaction documents. To facilitate the transition to a new contractor, OGC expects it would need to dedicate considerable time instructing and providing guidance to the new contractor to bring the contractor up to speed, which time and effort would not be needed if the task order is issued to the incumbent contractor. Therefore, selecting a new contractor would create considerable inefficiencies. In addition, the transition of knowledge from the incumbent to a new contractor would likely lead to unnecessary delays in the making of new CHIPS awards.

In the interest of economy and efficiency, it is in the Governments best interest to issue a logical follow-on for this work to Allen & Overy.

V. A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.

The resulting task order is a labor-hour type of order. The Contracting Officer has already determined the hourly rates under the IDIQ Contract No. 1333ND23DNB130004 to be fair and reasonable. Therefore, the Contracting Officer hereby determines that the anticipated cost to the Government will be fair and reasonable.

VI. Any other facts supporting the justification.

None.

VII. 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.

The Acquisition Management Division will closely scrutinize any subsequent requests for acquisition of the required services and will ensure that any restrictions to competition are adequately supported and documented.

VIII. The contracting officer’s certification that the justification is accurate and complete to the best of the contracting officer’s knowledge and belief.

The Contracting Officer certifies, by signing this justification, that this justification is accurate and complete to the best of the Contracting Officer’s knowledge and belief.

IX. 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 signature of the Contracting Officer Representative at the bottom of this document is evidence of their certification that the basis for this justification is accurate and complete.

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

Signatures

Adriana DiRocco Contracting Officer’s Representative, NIST

Monica H. Brown Contracting Officer, NIST