JOFOC.doc

Justification for Other than Full and Open Competition

In accordance with Federal Acquisition Regulation (FAR) 6.303, the following justification provides the necessary data to support this recommendation for other than full and open competition.

1.

AGENCY IDENTIFICATION

This JOFOC is executed by the USDA, Agricultural Research Service, Facilities Division, Facilities Contracts Branch. The Contracting Officer is Barry Johnson, (301) 504-1173.

2.

DESCRIPTION OF ACTION

In accordance with FAR 6.302-1(a)(2), this justification approves a firm-fixed-price sole source acquisition to the Bernard Johnson Corporation for the purpose of providing necessary Architect-Engineering (A-E) design updates to their previously completed A-E design for the upgrade/modernization to the Eastern Regional Research Center (ERRC). The current A-E design is now out of date and must be reviewed and updated in order to comply with current Federal Codes and Regulations.

3.

DESCRIPTION OF REQUIREMENT

This is not a new requirement, but a prior existing requirement which was waiting for funding. The design for this project was completed and stored pending the availability of funds to initiate the construction process. As a result of the proposed American Recovery and Reinvestment Act (ARRA), FD has received funding to move forward with the construction of this project. Because the design was completed some time ago, approximately 4 to 5 years, it needs to be updated to make certain the design complies with current Federal Codes and Regulations. The estimated value of remaining A/E re-design work to be performed by Bernard Johnson Corporation (BJC) totals are for re-design only. Construction Management (CM) estimates will be negotiated and added later to the contract under a modification.

4.

STATUTORY AUTHORITY

41 U.S.C. 253 (c)(1), as implemented by FAR 6.302-1(a)(2). These authorities state that Full and Open Competition does not need to be provided when only one responsible source and no other supplies or services will satisfy agency requirements.

5.

DEMONSTRATION OF CONTRACTOR’S UNIQUE QUALIFICATIONS

The original engineering documents for the project were signed, sealed and dated by a professional engineer employed by BJC, who prepared and approved the documents. As such, BJC assumed liability for the design represented by the project engineering documents. In order to maintain a single source of liability, any corrections, revisions, or additions to be made to the project are required to be made by the professional engineer, or a representative within the company, who originally signed and sealed the documents.

In accordance with FAR 36.608, A-E contractors shall be responsible for the professional quality, technical accuracy and coordination of all services required under this contract, and is liable for construction costs that result from errors or deficiencies in their design. Further, FAR Part 36.609-2, “Redesign responsibility for design errors or deficiencies,” requires contractors to make necessary corrections at no additional cost to the Government when the designs, drawings, or specifications contain errors, deficiencies or inadequacies. If another A-E firm was contracted to update the design, or to manage it, the Government would not be able to enforce this liability and collect any amount due or enforce no-cost corrections. Consequently, it is unrealistic to expect a different A-E firm to assume the broad liabilities required by FAR Parts 36.608 and 36.609 stated above for both design and construction management.

BJC already possesses intimate knowledge of the Government’s requirement as they developed the original design documents. This knowledge will provide a higher quality product while reducing the period of performance and costs to the Government. Because they produced the original design for which liability is associated, BJC is the only responsible source for this requirement.

In accordance with American Recovery and Reinvestment Act (ARRA), agencies are required to take all necessary actions to mitigate the risks associated with schedule, cost and performance. Utilizing any other firm would increase these risks. Consequently, it is in the best interest of the Government to contract with the Bernard Johnson Corporation to perform this design update and the construction management due to the liability associated with A-E services.

6.

EFFORT TO ENSURE OFFERS ARE SOLICITED FROM AS MANY POTENTIAL

SOURCES AS PRACTIBLE

This procurement action will be awarded using the funds made available by the ARRA. As per the 2009 Recovery and Reinvestment Act this action was advertised on the FedBizOpps website on March 16, 2009 as a Notice of Intent to Contract on a Sole Source basis. As required by FAR 5.203(a) this posting was issued for 15 days with no responses being received as of March 31, 2009.

7.

DETERMINATION OF FAIR AND REASONABLE COST

The CO expects the cost to be fair and reasonable based on historical data for direct and indirect costs associated with this project, and as per their costs under a current A-E contract. Furthermore, costs savings will be achieved by contracting with Bernard Johnson Corporation by the reduction in the required level of effort because of their previous knowledge and experience with this project.

8.

MARKET SURVEY

No market survey was conducted for this acquisition for the reasons stated in Items 4 and 5 above.

9.

OTHER SUPPORTING FACTS

Not applicable.

10.

OTHER INTERESTED SOURCES

None Solicited. As previously stated in Item 6 above, this procurement action was synopsized in FedBizOpps in accordance with FAR 5.201 and no responses have been received to date.

11.

ACTIONS TAKEN TO REMOVE BARRIERS TO COMPETITION

This is not a new requirement, but a prior existing requirement which is waiting for funds. Because of the time lapse between design completion and construction funding, it is necessary to bring the existing design up to code. As such, there is only one responsible source for this particular requirement. No other action can be taken for competition of this task.

12. CERTIFICATIONS

Requirements/Program Office:

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

_____/s/________________________________(301) 504-1207____04/08/2009____

Frank King Phone Date

Engineering Project Manager Contracting Officer:

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

_____/s/________________________________(301) 504-1173____04/08/2009______

Barry Johnson Phone Date

Contract Specialist

REVIEW APPROVALS:

/s/ (301) 504-1171____04/08/2009_______

BRENDA A. WOOD Phone

Date

Chief, Facilities Contracts Branch

/s/ ____ (301) 504-1727 __04/14/2009_______

JOHN CHADWICK

Phone

Date Chief, APOB Competition Advocate