Justification and Approval - Out-of-Scope Redacted.pdf

Department of MEMORANDUM Veterans Affairs

Date: 7 May 2026

From: Contracting Officers Representative

Subj: Contract: 36C77623C0149 “EHRM Infrastructure Upgrades” - West Palm Beach VA Medical Center Justification and Approval – Out-of-Scope Modification – Other Than Full and Open Competition (FAR 6.302)

Thru: Contracting Officer

To: Contract File

1. Contracting Activity:

U.S. Department of Veterans Affairs, Veterans Health Administration (VHA), Program Contracting Activity Central (PCAC), 6100 Oak Tree Boulevard, Suite 490, Independence, OH 44131.

2. Nature and/or Description of the Action Being Processed:

The contracting activity plans to award an out-of-scope bi-lateral modification to existing firm-fixed price contract number 36C77623C0149 for the subject contract in accordance with VAAR 819.7004, 819.7005 and 819.7008 as interpreted by GAO Decision RCG of North Carolina, B- 419691 which states:

“There is nothing in section 8127 of the Veterans Benefits Act that requires a contracting officer to make award to an SDVOSB on a competitive basis, rather than on a sole-source basis, where the same objective (i.e., award to an SDVOSB) will be met in either instance…”

3. Description of Supplies/Services Required to Meet the Agency’s Needs:

This modification covers the work needed to move the existing job trailers, material storage areas, and the fencing around them to the new laydown location identified by the COR. The contractor will disconnect and reconnect all necessary temporary utilities, including power, water, and IT, so the trailers remain fully operational after the move. Before relocation begins, the contractor will work with the COR to confirm the layout and boundaries of the new area. The relocation is required to maintain site access and support ongoing VA construction activities for the adjacent Fisher House project that cannot proceed until the current laydown footprint is cleared.

4. Statutory Authority Permitting Other than Full and Open Competition:

41 USC § 3304(a)(5), 38 U.S. Code § 8127 and VAAR 806.302-570 provides the express authority to use other than competitive procedures for sole source awards to verified veteran-owned small businesses. COs may use the non-competitive (sole source) procedures authorized by VAAR 819.7008 or 819.7009 for actions not to exceed $5,000,000. As prescribed in VAAR 806.302-570(a), full and open competition need not be provided for when awarding a sole source contract to a verified SDVOSB in accordance with 819.7008, as authorized. Further, a determination that only one SDVOSB can meet the requirement is not required.

5. Demonstration that the Contractor’s Unique Qualifications or Nature of the Acquisition Requires the Use of the Authority Cited Above (applicability of authority):

TPG is the most appropriate contractor to perform this relocation due to its direct responsibility under the base contract for maintaining the job trailers, laydown areas, and associated fencing.

TPG is already mobilized on site, controls the areas requiring relocation, and possesses established familiarity with current phasing, logistics routes, safety controls, and temporary utility configurations. Engaging a new contractor would introduce significant schedule and safety risks by adding a second workforce into active construction zones and requiring remobilization, duplicate site supervision, and re-establishment of temporary utilities. Since TPG controls and operates the facilities that need to be moved, they are the only contractor positioned to complete the relocation in a manner that preserves site sequencing and avoids disruption to ongoing VA construction operations.

6. Description of Efforts Made to ensure that offers are solicited from as many potential sources as deemed practicable:

The incumbent contractor is positioned to mitigate significant risk to the VISN 8 EHRM budget.

The overall project would face increased costs in terms of a duplicate baseline acquisition for another contract, and ultimately the adjacent Fisher House construction cannot proceed until the current laydown area is turned over. The station has been notified, that delays to start of the Fisher House project would result in its termination.

Requesting proposals from additional contractors is not practical for this work. The areas that need to be relocated are currently under TPG’s control, and introducing another contractor into an active construction zone would create safety and access challenges. The relocation must happen quickly to prevent delays to other VA projects that rely on clearing this portion of the site. A new contractor would also need time to mobilize and learn the site, resulting in duplicated effort and higher overall cost. For these reasons, assigning the relocation to TPG is the most efficient and lowest-risk approach.

Additionally, and in accordance with VAAR 819.7008(b), Sole Source Awards to a Verified Service-Disabled Veteran-Owned Small Business, the Contracting Officer’s determination whether to make a sole source award is a business decision wholly within the discretion of the Contracting Officer. For the reasons stated herein, and specifically in reference to Paragraph 9, the undersigned Contracting Officer, has determined that TPG is a qualified SDVOSB. The Justification and Approval (J&A) document will be posted within 14 days after award in accordance with FAR Subpart 6.305 and the award synopsis will be posted to Contract Opportunities in accordance with FAR Subpart 5.301(a)(2).

7. Determination by the Contracting Officer (CO) that the Anticipated Cost to the

Government will be Fair and Reasonable:

The government will issue an RFP to the existing construction contractor for the change after developing the SOW and the IGE.

When received the proposal will be evaluated by the COR and the proposal and its data will be the subject of rigorous analysis. The government’s prenegotiation position will be based on current market pricing using RS Means Facilities Construction Cost Data (adjusted for inflation) and technical analysis of the proposal itself.

Also, in accordance with FAR 15.406, FAR 15.403-5, and FAR 52.243-1;(Alt III) a price reasonableness determination will be made before modification award based on cost and/or price analysis and negotiation.

8. Description of the Market Research Conducted and the Results, or a Statement of the

Reasons Market Research Was Not Conducted:

Market research was conducted prior to award of the contract. The final market research documents were signed on 1 May 2023, indicating that an adequate number of SDVOSB concerns had been obtained to comply with the rule of two. Due to the emergent nature of the requirement and tight coordination to avoid major construction disruption which could cause significant delay for both the EHRM and Fisher House projects, additional market research at this time would not be beneficial.

9. Any Other Facts Supporting the Use of Other than Full and Open Competition:

GAO Decision RCG of North Carolina, B-419691 states:

“There is nothing in section 8127 of the Veterans Benefits Act that requires a contracting officer to make award to an SDVOSB on a competitive basis, rather than on a sole-source basis, where the same objective (i.e., award to an SDVOSB) will be met in either instance…” The decision references VAAR 819.7004, 819.7005 and 819.7007 which provide the VA with independent authority to award contracts using other than full and open competition (including set-aside procurements and sole-source awards) in certain circumstances.

Specifically:

(a) A contracting officer may award contracts to SDVOSB concerns on a sole source basis provided:

(1) The anticipated award price of the contract (including options) will not exceed $5 million;

(2) The requirement is synopsized in accordance with FAR part 5;

(3) The SDVOSB concern has been determined to be a responsible contractor with respect to performance; and

(4) Award can be made at a fair and reasonable price.

Assuming that the Contracting Officer can make a determination that the price ultimately negotiated with the contractor is fair and reasonable, there is no barrier to awarding this work to the incumbent on a sole source basis since the incumbent is a responsible SDVOSB, and the change will be synopsized in accordance with FAR part 5, and the requirement is less than $5M.

10. Listing of Sources that Expressed, in Writing, an Interest in the Acquisition:

N/A

11. 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:

This J&A represents an effort by the VA to mitigate project timing and coordination issues which had previously resulted in issuing a statement of work that, while actionable, resulted in greater costs and increased schedule risk to the government. The base award was competitively awarded to a SDVOSB, and the work that is the subject of this modification will also be awarded to an SDVOSB.

12. Requirements Certification:

I certify that the requirement outlined in this justification is a Bona Fide Need of the Department of Veterans Affairs and that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

13. Approvals in accordance with FAR 6.304

a. Contracting Officer's or Designee’s Certification (required): I certify that the foregoing justification is accurate and complete to the best of my knowledge and belief.