Justification for an Exception to Fair Opportunity_FE.pdf

DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

Justification for an Exception to Fair Opportunity

1. Identification of the agency and the contracting activity.

Federal Highway Administration (FHWA), Office of Acquisition and Grants Management, 1200 New Jersey Avenue, S.E., Washington, DC 20590.

2. Nature and/or description of the action being approved.

This is a justification for an exception to fair opportunity to award a task order to Nixon Peabody, LLP (Nixon) under FHWA Contract No. 693JJ318D000006. The task order associated with this justification will provide legal advisory services for a new TIFIA loan in connection with the North Carolina Turnpike Authority (“NCTA” or “Borrower”)’s Complete 540 project, Phase 2 (“Project”) under the Transporation Infrastructure Improvement and Innovation Act (TIFIA) Program. This justification is prepared in accordance with the content requirements in FAR 16.505(b)(2)(ii)(B) “Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.”

3. Description of the supplies or services required to meet the agency’s needs (including the estimated value).

The Build America Bureau (Bureau) administers the TIFIA program, which provides (secured) direct loans, loan guarantees, and standby lines of credit to borrowers seeking to develop major surface transporation infrastructure projects. For each credit assistance request, the Bureau retains external legal counsel to provide support in the areas of: general due diligence; loan drafting and negotiation; advising on collateral package; and closing of credit transactions.

The estimated value of this task order is $250,505, based on historical cost/prices paid and know level of effort to complete similar work.

4. Identification of the exception to fair opportunity (see 16.505(b)(2)) and the supporting rationale.

The exception to fair opportunity utilized for this proposed action is FAR 16.505 (b)(2)(i)(B) "Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.”

Nixon previously provided legal services for the Project under the original Task Order No.

693JJ318D000006 /693JJ319F200011, and also the subsequent Task Order No.

693JJ318D000006 /693JJ321F000036 in connection with NCTA’s Complete 540 project, Phase 1. The original Task Order was awarded on a competitive basis under the Bureau Legal Advisory Services IDIQ, and the subsequent Task Order was awarded on the sole source procurement basis. The due diligence tasks previously performed for the Phase 1 loan provide Nixon with significant knowledge of NCTA, its pledged revenues, and existing documentation relevant to the Project and Phase 1 loan. As such, Nixon has extensive knowledge of the structure and documentation supporting the new loan for the Project, which would result in significant time savings in respect of due diligence hours.

Nixon’s work on the loan agreement in connection with replacing the original TIFIA loan for Phase 1 was done less than a year ago. The Contractor’s recent experience with the loan and the Pase 1 of NCTA’s project, their familiarity with the documentation, negotiating history, and parties involved will reduce the time necessary to negotiate and document the new loan and to identify what, if any, related documentation needs to be amended in connection with the new financing agreement. These time savings would result in a lower cost associated with the negotiation task area under the new Task Order. A new contractor would require extensive time to understand the circumstances of the new loan which are nearly identical to those already analysed, and addressed through preparing draft documentation, by Nixon for the current task order.

5. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

The task order will be issued as a labor hour No Cost task order. As a No Cost task order, the applicant for credit assistance (or its affiliate) will directly make payment to the Contractor for services rendered under this Task Order in accordance with the terms of the sponsor payment letter/agreement executed by the applicant (or its affiliate) and the Contractor. The Government has no obligation to, and will not, pay any of the Contractor’s fees, costs and expenses incurred under this Task Order. The Government, however, will evaluate the cost against the Independent Government Cost Estimate and historical costs for similar services to ensure the amount is fair and reasonable.

6. 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.

Because the information and material are subject to attorney/client privilege, as well as other protections associated with sensitive information, there is no known action that the Government can take to remove or overcome the barrier that led to the exception to fair opportunity.

7. Certification and Approval

The evidence and any supporting data which form a basis for the justification is complete and accurate.

Alexandra Lancaster, COR

Senior Attorney Advisor Office of the General Counsel U.S. Department of Transportation

I certify that the information provided in this justification is accurate and complete to the best of my knowledge and belief. Based upon the preceding information, I hereby approve this Justification for an Exception to Fair Opportunity to award a new task order to Nixxon under FHWA contract No. 693JJ318D000006 for legal advisory services in connection with the subject project.

Megan Mavis Contracting Officer

Office of Acquisition and Grants Management Federal Highway Administration