JOFOC SEFC Parcel I Remediation fully signed.pdf

GENERAL SERVICES ADMINISTRATION

Public Buildings Service - National Capital Region

Southeast Federal Center Remediation Project

Justification for Other Than Full & Open

Competition

1. Nature and or Description of the Item Being Approved

This justification is seeking approval to proceed with one phase of a multi-phase, sole-source environmental remediation action to be performed by GSA's contract developer at the former "Southeast Federal Center."

This is a multi-phase project whereby the Government's 42-acre property was divided into parcels (through an extensive process of Master Planning) for disposal in fee or under long-term ground lease in accordance with the authorities provided by Public Law 106-407, the Southeast Federal Center Public-Private

Development Act of 2000 (the "SEFC Act"). Although competition is not required for disposal actions, GSA sought competitive bids and entered into a contract in the form of a Development Agreement (DA) with

Forest City Realty Trust, which was later acquired by Brookfield Properties (“Brookfield”). The SEFC Act states: “The Administrator of General Services may enter into agreements (including leases, contracts, cooperative agreements, limited partnerships, joint ventures, trusts, and limited liability company agreements) with a private entity to provide for the acquisition, construction, rehabilitation, operation, maintenance, or use of the Southeast Federal Center, including improvements thereon, or such other activities related to the Southeast Federal Center as the Administrator considers appropriate.” Under the terms of the DA, GSA has the obligation for the remediation of the contaminated soil at SEFC and the DA provides for Brookfield to act as the government’s Remediation Agent. Approval is requested to contract with Brookfield for the soil remediation on the parcel identified as “Parcel I” under the DA, who will then enter into another contract with a general contractor to complete the work.

2. Description of Supplies or Services Required

The services being acquired through this action are for the physical removal of contaminated soil at SEFC

Parcel I in accordance with the negotiated terms of the DA. The soil remediation is required under the

Administrative Order of Consent, through the EPA 7003, between the U.S. General Services Administration

(GSA) and the Environmental Protection Agency, as a condition on the Government for any development of the site.

3. Identification or Statutory Authority

Procedures for other than full and open competition are being utilized pursuant to authority granted under

41 U.S.C. 3304 (a)(1). Only one responsible source and no other supplies or services will satisfy agency requirements.

4. Demonstration that the Acquisition Requires Use of the Authority Cited

FAR Section 6.302-1(b)(1) explains that contracting on a sole source basis is justified when there is a reasonable basis to conclude that the agency's minimum needs can only be satisfied by “unique supplies or services available from only one source or only one supplier with unique capabilities.”

At the time of the execution of the DA, it was envisioned that GSA and Brookfield would use the methodology of Brookfield acting as the Government’s Remediation Agent. The DA between GSA and

Brookfield for this legislatively enabled Public-Private Partnership includes negotiated terms for GSA to utilize Brookfield as its Remediation Agent to complete the government’s contractual (through the attached

DA) and regulatory (through the attached EPA 7003) obligation for remediation of the contamination at the

SEFC site. The terms of the DA at Section 7.8.5 allow Brookfield to complete the remediation work concurrently with the work of excavation at the site that they would have otherwise needed to complete.

GSA pays for only the portion of the excavation that requires remediation, with Brookfield required to cover the costs associated with their portion of the excavation. This methodology reduces the risk to GSA and the overall redevelopment by coordinating the efforts through one general contractor. GSA has also entered into a Remediation Agreement with Brookfield that formally designates them as the government

Remediation Agent. To date, GSA and Brookfield have used this methodology for every previous

DocuSign Envelope ID: B3B26BD5-280C-4B13-ADF5-1972F5C8EC64 remediation action at the SEFC which includes more than 5 other projects at SEFC. While GSA believes that the original SEFC legislation was broad enough to include the remediation requirement as part of the DA without the need for further competition, in light of the passage of time, and to ensure the current market is informed of the basis of this action, GSA has decided to formalize a justification for this and future Parcels as they are disposed or developed in accordance with the DA.

Allowing the contract developer to simultaneously perform the soil remediation significantly reduces execution risk, to almost zero, for the remediation work to be completed. The soil remediation needs to occur at the same time as the excavation of the site. Separation of the remediation work from the construction related excavation would result in duplication of effort, significant increase of cost and would significantly increase GSA’s risk in coordinating completion of the work. Brookfield is the only source that can fulfill the terms of the DA, prevent the duplication of effort, and assure that the remediation work and construction work are completed efficiently, in tandem. Moreover, as contract developer, Brookfield is the only source who has an equally high stake to ensure that the soil is properly remediated before it proceeds with its construction on the site.

5. Description of Efforts to Solicit as Many Offers as Practicable

While this is proposed as a sole source, the project team will require Brookfield to acquire competitive bidding from three different vendors to accomplish the scope of the remediation. GSA will require

Brookfield to select the lowest priced and technically acceptable subcontractor to complete the work.

6. Demonstration that the Anticipated Cost will be Fair and Reasonable

The scope of the work was determined through the completion of a Corrective Measures Implementation

(CMI) Workplan. That CMI Workplan was completed in accordance with the EPA 7003 guidelines and once completed was approved by EPA. This will serve as the scope of work which will be used to solicit the three bids to complete the work. Because the price will be competed, it is assumed to be Fair Market Value. In addition, the Government will compare the pricing to an Independent Government Estimate.

7. Description of the Market Survey

N/A. Brookfield will perform the market survey to identify three reputable vendors who have capability to perform these specialized services.

8. List any other facts supporting the use of other than full and open competition

This SEFC redevelopment is a very unique project and Public Private Partnership for GSA. GSA has been working with its contract developer since May 2005 to complete this redevelopment effort. That legislation gave GSA special authority to enter into any and all contracts it deemed necessary for the redevelopment of the SEFC without the need for competition. The DA that resulted from that legislation provides for the contract developer to do the required soil remediation.

9. List of Sources that Expressed Interest in the Acquisition

N/A.

10. Statement of Actions to Overcome Barriers to Competition

Although there are no systemic barriers to competition to overcome, this action is a result of the unique nature of the SEFC redevelopment project, a Public Private Partnership. Thus, an indefinite delivery indefinite quantity vehicle may be pursued in the future to streamline the remediation of these parcels.

Certification:

Technical/Requirements Personnel: I certify the requirement meets the Government’s minimum need and that the facts, representations, and data included in this justification are complete and accurate.

Brett M. Banks February 12, 2021

Signature (Project Officer/Contracting Officer’s Representative) Date

Name: Brett Banks

Title: Capital Investment Officer/Project Executive

Contracting Officer: I certify that the data supporting the recommended use of other than full and open competition is accurate and complete to the best of my knowledge and belief.

Signature Date

Name: Kenneth Gipson

Title: Branch Chief/Contracting Officer

Concurrence:

Concur: One-Above the Contracting Officer

Name: Ursula Holmes

Title: Director, Special Programs Division

Concur: Office of General Counsel

Name: ____________________________

Title: _____________________________

Approved: Competition Advocate (Approval $750K thru $15M)

Name: Miranda Webster

Title: Acting Director, Office of Acquisition

Digitally signed by KENNETH GIPSON DN: C=US, O=U.S. Government, OU=General Services Administration, CN=KENNETH GIPSON +

OID.0.9.2342.19200300.100.1.1=47001000379054

Reason: I am the author of this document Location: your signing location here Date: 2021-02-17 12:21:52 Foxit PhantomPDF Version: 10.0.0

KENNETH

GIPSON

URSULA HOLMES Digitally signed by URSULA HOLMES

Date: 2021.02.17 15:10:38 -05'00'

2/22/2021

Edith Toms Deputy Regional Counsel

2/22/2021