JOFOC City of Atlanta (Sewer and Water).docx

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISOSN

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Water and Wastewater Utility Service USP Atlanta

Pursuant to the Federal Acquisition Regulation (FAR) Part 6.302-1(a) and 6.302-1(b)(3), and the Bureau of Prisons Acquisition Policy (BPAP) 4100.06 Part 6.304(c), the Federal Bureau of Prisons (FBOP) has determined that the procurement of water and wastewater utility service for the United States Penitentiary (USP) Atlanta located within the city limits of Atlanta, Georgia, meets the criteria established for other than full and open competition. It is further determined that only one responsible source and no other supplies and/or services will satisfy agency requirements. This limitation on competition is justified as supported by the following information in accordance with FAR Part 6.303-2:

(1) Identification of the Agency:

U.S. Department of Justice Federal Bureau of Prisons USP Atlanta 601 McDonough Blvd., S.E.

Atlanta, GA 30315

(2) Nature and/or description of action being approved:

This justification for other than full and open competition is for the acquisition the acquisition of water and wastewater utility services provided to the USP Atlanta, Federal Prison Camp (FPC), and the Federal Detention Center (FDC) located in Atlanta, GA, from the sole provider of such services in the Atlanta area. USP Atlanta has a present and continuing requirement for water and wastewater utility service for the proper operation of the facility.

(3) Description of supplies or services required to meet the agency needs:

The City of Atlanta (hereinafter referred to as “the City”) shall provide to the government facility at USP Atlanta, water and wastewater services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. The City shall provide services on an un-interruptible daily basis 365 days per year. The City will be responsible to maintain and/or repair all associated pipelines and equipment, including associated costs for such repair, up to the delivery point or meter of USP Atlanta. The City will be responsible to ensure that the pipelines and associated equipment, utilized to provide water and wastewater services will be maintained and operated in compliance with all rules and regulations set by the Georgia Department of Public Health, in accordance with all Federal, State, County, and local government for a safe and sanitary water and wastewater service. Pursuant to FAR Part 41.202, the City continues to provide the “entire water and wastewater utility service” (i.e., production, distribution, system operation and maintenance, collection, treatment, metering, billing, etc.).

The City shall provide water and wastewater utility services for the period from October 1, 2021, through September 30, 2022, for a twelve-month period, subject to funds availability (FAR Clause 52.232-18). The total estimated monthly amount for water and wastewater utility service is $320,000.00. The total estimated amount for a twelve-month period is $3,840,000.00.

(4) An identification of the statutory authority permitting other than full and open competition:

This justification to award as a sole source is prepared pursuant to the exception to full and open competition requirements in accordance with the statutory authority for these services that is found at 41 USC § 3304 (a)(1), when the supplies or services required by the agency are available from only one responsible source. The application which permits use of the cited statutory authority are stated at FAR Part 6.302-1(b)(3), “When acquiring utility services (see FAR 41.101), circumstances may dictate that only one supplier can furnish the service” (see FAR 41.202). When a public utility supplier refuses to execute a tendered contract the agency may proceed with the acquisition and pay for the utility service under the provisions of 31 USC § 1501(a)(8). Analysis of the market indicates that the City has proprietary rights up to the meter at USP Atlanta. In order for another provider to be capable of providing the service, significant capital improvements would be needed. The Bureau would be required to pay for the capital improvements, but it would not recover the costs of duplication of services, connection fees and infrastructure installation costs through competition. The current requirement is for follow-on services and does not include funding for capital improvements. In accordance with FAR 9.102(b), a contracting officer is not required to make a responsibility determination when awarding to a Foreign, State, or local government.

(5) A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited:

The City is the government-owned sole provider of water and wastewater utility service in the USP Atlanta service area. The City is an entity of the State of Georgia, the only agent authorized by rules and regulations to provide water and wastewater service in the Atlanta area. Having a single supplier of water and wastewater service for this area is the most efficient method of providing potable water and collecting and treating sewage. In accordance with Georgia Constitution [Art. IX, Section II, Paragraph III(a)]: Counties and Municipalities may exercise the following powers and provide the following services - (6) Storm water and sewage collection and disposal systems, and (7) Development, storage, treatment, purification, and distribution of water.

(6) A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable including whether or not a notice was or will be publicized as required by FAR Subpart. 5.2:

As stated in FAR Part 5.202(a)(5), Exceptions to transmitting a notice to the Governmentwide Point of Entry (GPE), the contracting officer need not submit a notice when “the proposed contract action is for utility services other than telecommunications services and only one source is available.”

(7) A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable:

The estimated average monthly cost, which was based on invoice history, for the water and wastewater utility service is $320,000.00 with a total estimated usage for a twelve-month period of $3,840,000.00. Utility rates are enacted by resolutions by the City Council. The City, which is charged under State of Georgia law to ensure that rates be just and reasonable. The State of Georgia, City of Atlanta, and the Department of Watershed Management websites have provided sufficient data to the FBOP contracting officer, pursuant to FAR 15.402, Pricing Policy, allowing the ability to make a preliminary determination that such anticipated costs appear to be fair and reasonable. The City of Atlanta is a municipal corporation and operates under the guidelines of the State of Georgia Charter. A formal decision in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set pricing (see FAR 15.403-1[c][2]). The establishment of the current supply and delivery of services began when the original service connections were installed. As such, this Contracting Officer has determined the anticipated cost to the Government will be fair and reasonable.

(8) A description of the market research conducted:

This documentation is in accordance with FAR Part 10, which describes the policies and procedures for conducting market research in a process of finding viable sources of goods and services to meet government requirements and to find the most suitable approach to acquiring, distributing, and supporting supplies and services. The amount of market research will vary, depending on such factors as urgency, estimated dollar value, complexity, and past experience. Market research involves obtaining information specific to the item being acquired. This report is submitted in support of an acquisition with an estimated value in excess of the simplified acquisition threshold. Below are the findings of the market research for the above referenced requirement.

It is this Contracting Officers determination there is a source available that is capable of providing the required services. The requirement will be awarded to the City as a single award of a firm-fixed price requirements type water and wastewater utility purchase order utilizing FAR Part 6, 12, 13, and 41. A Performance-Based Acquisition (PBA) method will not be used for this procurement as it is determined not applicable. A PBA relies on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

The City is the sole provider of water and wastewater utility service in the USP Atlanta service area. The City Council of Atlanta is the governing body that approves all rates with the responsibility of water and wastewater services for the locale in which USP Atlanta resides. I applied personal knowledge, interaction with knowledgeable individuals in local and Federal Government regarding market capabilities to meet the requirements, and research of generally accessible literature available on-line were the techniques used in researching this procurement for a supply/services of this type. During construction of the institution, one contract was awarded for the installation and operation of one water and one wastewater pipeline leading to and from the institution. A review of State of Georgia regulations determined that a water and a wastewater utility service is not a deregulated utility. Deregulation would promote competition. In the case of utilities owned and operated by municipalities, the Georgia Public Service Commission does not have jurisdiction. USP Atlanta is within the City of Atlanta Zoning District. The City is other than small business.

Search of previous purchases of similar/identical acquisitions shows the City is the current water and wastewater service provider for USP Atlanta and has serviced the facility since dedication. Also, the City is the only service supplier capable at this time of providing USP Atlanta with water and wastewater services. No other company has presented itself with the capabilities nor the infrastructure to run water and wastewater lines to the current connection site. No other sources have been located that are currently capable or that could acquire the capability of meeting the Bureau’s requirement. The Bureau does not have the state and local approval or the resources to provide the funding for another company to install a new water and wastewater system at the institution, other pipelines are not available, and no other contractor can provide water and wastewater service through the City pipelines.

(9) Any other facts supporting the use of other than full and open competition:

None

(10) A listing of the sources, if any, that expressed, in writing, an interest in the acquisition:

A sources sought notice was published to the Governmentwide Point of Entry on May 28, 2021, no sources expressed an interest in this procurement. There were no other sources, which expressed an interest in this acquisition.

(11) A statement of the actions, if any, the agency may take to remove or overcome barriers to competition before any subsequent acquisition for the supplies or services required:

Contracting and requirement staff continue to conduct appropriate market research to determine if sources capable of satisfying the agency’s requirement exist and to overcome competition barriers. Deregulation laws are presently nonexistent and no alternative source of service is currently available. A review of government procurement databases shows only the FBOP, GSA, and National Archives and Records Administration are issuing orders to the City for water and wastewater utility requirements. USP Atlanta is a consumer of services from the public utility. If another potential source emerges, the agency will assess whether competition for future requirements is feasible.