LRN_COVID ACF PH2 Sole Source JA_Music City Ctr (redacted)_Redacted.pdf

LRN-20-03

After-the-Fact JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: W912P520C0004, Convert Music City Center into an ACF CONTROL NO:

AUTHORITY: 10 U.S.C. 2304 (c) (2) AMOUNT: $26,758,000

PREPARED BY:

CONTRACT SPECIALIST

DATE: 17 Apr 20

CONTRACTING OFFICER

TECHNICAL

REQUIREMENTS

SIGNATURES ARE REQUIRED BELOW:

I have reviewed this J&A and find the justification adequate to support other than full and open competition.

DISTRICT SMALL BUSINESS SPECIALIST

DATE:

PHONE:

PROJECT MANAGER

ASSISTANT DISTRICT COUNSEL

DISTRICT CONTRACTING CHIEF

COUNSEL TO SCO-ATLANTA DATE:

SCO-ATLANTA/ALTERNATE

COMMAND ADVOCATE FOR

COMPETITION

23 April 2020

After-the-Fact Justification and Approval for

Other than Full and Open Competition

1. CONTRACTING AGENCY: U.S. Army Corps of Engineers (USACE), Nashville District (CELRN), Contracting Division, Nashville, TN

2. DESCRIPTION OF ACTION: In support of Presidential National Emergency Declaration Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, dated 13 March 2020, after-the-fact approval is requested for a Justification and Approval (J&A) for a two-phase design-build construction, firm fixed price (FFP) Letter Contract awarded to AECOM Technical Services doing business as AECOM, 300 S. Grand Ave. Ste 1100, Los Angeles, CA 90071-3171, on an other than full and open competition/sole-source basis under circumstances of Unusual and Compelling Urgency. The action was awarded as an Undefinitized Contract Action (UCA) and will be definitized as a FFP “C-type” contract. This UCA was terminated for convenience before the contract was definitized. The type of funds utilized are Federal Emergency Management Administration (FEMA) Disaster Relief funds. There were no options identified for the contract.

3. DESCRIPTION OF SUPPLIES/SERVICES: The purpose of this contract was to provide design-build construction services in accordance with the Presidential National Emergency Declaration. Work effort consisted of the design and construction to convert Music City Center (MCC) exhibit hall located in Nashville, TN to an Alternate Care Facility (ACF) to provide 1,334 patient care spaces to treat 1,226 non-acute and 108 acute COVID-19 patients, as well as temporary/portable facilities to support patients and medical staff. This work was to provide an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. This Justification is for the conversion of MCC into an ACF in Nashville, TN. The estimated total value of the contract to be awarded under this J&A was $26,758,000, based on the not-to-exceed (NTE) amount for the awarded UCA. This amount is based upon the Government’s estimate for the project and the NTE for the awarded contract.

The period of performance for the design-build contract was anticipated to be twenty-four (24) calendar days and performance began immediately upon award of the UCA in order to meet this aggressive schedule. However, after the State of Tennessee re-assessed the number patient care spaces needed for the pandemic, it was decided not to complete the conversion of MCC into an ACF. Instead, the contract was terminated for convenience five (5) calendar days from issuance of the UCA.

4. AUTHORITY CITED: 10 U.S.C. § 2304(c)(2), as implemented by Federal Acquisition Regulation (FAR) 6.302-2, Unusual and Compelling Urgency.

5. REASON FOR AUTHORITY CITED: Consistent with Defense Federal Acquisition Regulation Supplement (DFARS) Procedures, Guidance and Information (PGI) 206.302- 2(b), “use of this [unusual and compelling urgency] authority may be appropriate . . . [for] construction needed at once because of fire, flood, explosion, or other disaster.” In support of the Presidential National Emergency Declaration, the agency’s need for this construction was of such an unusual and compelling urgency that the Government would have been seriously injured unless the agency was permitted to sole-source a contract to the single firm selected from the group of firms that were down-selected after Phase I of this two-phase design-build acquisition.

Negotiations for the termination settlement are ongoing.

Background/Selection of Sole Source Contractor: As discussed in Paragraph 8, Market Research, LRN conducted this procurement in accordance with the Two-Phase Design-Build Selection Procedures in FAR 36.3. To that end, Louisville District (CELRL) on behalf of Great Lakes and Ohio River Division (CELRD) issued a limited competition Phase I design-build request for proposals to a total of twenty-eight (28) firms (supported by a J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020), and adequate competition was obtained in Phase I. The Government conducted its Phase I evaluation and down-selected to seventeen (17) firms that were determined to be the most highly qualified firms. CELRN continued sole-source negotiations as part of Phase II of the design-build acquisition only with AECOM for the particular requirements of converting MCC into an ACF.

AECOM was determined to be the highest qualified firm for the specific requirement to convert MCC into an ACF because of their demonstrated qualifications. AECOM’s qualifications during the Phase I evaluation conducted by CELRL demonstrated very relevant past performance on the six (6) projects submitted for this requirement. Specifically, AECOM demonstrated successful past performance with design-build construction projects along with experience in constructing ACFs, hospitals, and other medical related facilities. They also displayed extensive experience in Stafford Act emergency response. Furthermore, AECOM represented their ability to respond to mission assignment task orders in one (1) day and begin construction by day three (3), as well as providing bonding capacity of $1.5 billion for a single project and $10 billion aggregate total.

Additionally, AECOM submitted an extensive list of subcontractors for each state and identified a skilled on-site staff that has medical and/or ACF experience. They also had measures in place to reduce the risk of COVID-19 for their workforce. AECOM demonstrated its ability to adapt to instances of insufficient infrastructure and provided examples of previous timely responsiveness.

These qualifications made them uniquely suited for the conversion of MCC into an ACF based upon relevant experience with ACFs, extensive experience with the design-build requirements, and performance of work related to the Stafford Act. AECOM had favorable CPARS ratings and demonstrated its ability to provide a Project Manager, onsite staff, and safety officer with medical and/or ACF experience. AECOM was best suited for this project since they were postured to respond to MCC’s emergent requirement within 24-hours from issuance of Notice to Proceed and begin construction by day three (3). The magnitude of MCC’s design for over 1,000 patient care spaces required AECOM’s extensive experience in design-build. From CELRL’s down-selected pool, five (5) prospective contractors stated they were willing to support the State of Tennessee. Additionally, AECOM provided a list of subcontractors in Tennessee with whom they had an established relationship, at least one (1) of which was in the local Nashville area.

Justification: The President declared a national emergency on 13 March 2020. FEMA assigned USACE to support Emergency Support Function (ESF) #3 “Public Works and Engineering.” On 4 April 2020, FEMA assigned CELRN a mission assignment that included the above referenced ACF work. The nature of this work was of such an unusual and compelling urgency that work had to commence immediately. As described by the President, “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems.

As of March 12, 2020, 1,645 people from 47 States have been infected with the virus that causes

COVID-19. It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability.” USACE has been requested to provide design and construction support to increase the capacity of our Nation’s healthcare system and needed to undertake design and construction as quickly as possible, to provide the necessary surge capacity.

Without limiting the number of sources from which the Government solicited a Phase II proposal to a single firm, the Government would have been unable to undertake construction quickly enough to meet the immediate need for additional ACF capacity in this area and would not have met the necessary delivery schedule to provide additional capacity as close to the projected surge date as possible. A traditional design-build project acquired in accordance with the requirement for full and open competition under the Competition in Contracting Act (CICA) could take upwards of 6-9 months to award based upon historical averages of contracts of this dollar amount.

The time savings achieved through use of other than full and open competition was 6-9 months, as this entire two phase process took little more than three days. This time savings was critical in order for construction to begin as quickly as possible, supporting the unusual and compelling nature of the urgency of this procurement and the national emergency.

Alternatives: CELRN examined several alternatives for fulfilling these requirements, but no other alternative would have allowed for performance to begin immediately. The only viable alternative was to select a single firm from the group of firms that were down-selected after Phase I of this two-phase design-build acquisition with whom the Government negotiated, in conjunction with utilizing a UCA or letter contract to allow the contractor to begin performance immediately and definitize the contract at a later date. A Determination and Findings to award an UCA that will ultimately be definitized as a FFP “C-type” contract was approved by the Senior Contracting Official on 4 April 2020.

Impact: As determined by the President, the current COVID-19 outbreak presents a public health crisis and constitutes a national emergency. Because of the magnitude and gravity of the emergency, the President declared that hospitals must be prepared to surge capacity and capability, and that additional measures are needed to successfully contain and combat the virus in the United States. USACE is the only entity with the capacity to build the infrastructure needed to support response to this emergency, but could only do so if certain exceptions to full and open competition were implemented. Failure to select a single firm from the group of firms down-selected after Phase 1 of this two-phase design-build acquisition, utilize a letter contract, undertake construction immediately, and complete within twenty-four (24) calendar days, would have resulted in delays in design and construction of medical infrastructure required to adequately respond to the COVID-19 outbreak and would have had severe adverse impacts on the safety and the public health of the United States. This J&A enabled CELRN to expedite award for urgently needed design and construction services identified above in Paragraph 3.

6. EFFORTS TO OBTAIN COMPETITION: CELRL on behalf of CELRD solicited from as many firms as was practicable for Phase I. A limited sources J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020, supported other than full and open competition for Phase I. It was necessary to negotiate a contract with a single source selected from the group of firms down-selected after Phase I of this two-phase design-build acquisition. As discussed in Paragraph 5, “Alternatives,” no other alternative would have allowed performance to begin immediately. The notice required at FAR 5.201 will not be published based on the exception at FAR 5.202(a)(2), Unusual and Compelling Urgency.

7. ACTIONS TO INCREASE COMPETITION: CELRL on behalf of CELRD is mindful of the requirement in FAR 6.302-2 to request offers from as many potential sources as is practicable under the circumstances, and therefore did perform a limited competition for Phase I of the design-build procurement. Understanding the latitudes afforded under FAR 6.302-2, CELRL did not want to completely divest itself of a competitive environment and issued a limited competition Phase I design-build request for proposal to twenty-eight (28) firms. The Government conducted its Phase I evaluation and down-selected to the most highly qualified firms, and only then undertook sole-source negotiations as part of Phase II with AECOM. It was not practicable to request an offer from more than one source under Phase II of a design-build procurement, because without issuing a UCA letter contract on a sole-source basis, CELRN would have been unable to undertake construction immediately and would not be able to meet the delivery schedule of twenty-four (24) calendar days.

8. MARKET RESEARCH: Based upon the Presidential National Emergency Declaration, CELRL on behalf of CELRD determined the most expeditious tool available to fulfill this urgent and compelling COVID-19 requirement. Immediately, a review of existing contract vehicles was conducted. CELRL identified firms from prior experience which were known to have capacity to complete the ACF Mission. CELRL also utilized other sources of market research, including qualifications submitted to USACE by firms volunteering to help with the COVID mission, to the extent practical within the time constraints of the emergency. Across the ACF mission, the Government attempted to maximize competition to the greatest extent practicable in accordance with FAR Part 6, and provided opportunities to locally based contractors. Market research was conducted as part of the Phase I process, and the Phase II process was limited to only consideration of those firms down-selected after Phase I.

9. INTERESTED SOURCES: In this instance, the need to undertake construction as soon as possible was of such an unusual and compelling urgency that the Government and the public would have been seriously injured unless CELRN was able to limit the number of sources from which it solicited a Phase II proposal to one.

10. OTHER FACTS: After award and Notice to Proceed, this contract was terminated for the convenience of the government. The effort to respond to COVID-19 pandemic was dynamic, with information rapidly changing by the day and even the hour. Efforts to forecast the need for increased hospital capacity even weeks in advance was an estimation based on the best available information from state and federal experts at that time. As projections of infection rates and hospital capacity changed, FEMA and the State of Tennessee ultimately determined that the situation evolved to the point that this facility was no longer necessary, and it was in the best interest of the government to discontinue its construction. While the there is no longer an urgent need for this facility, there was, at the time of award, an unusual and compelling urgency to this requirement based on the understanding of the facilities necessary to respond to the COVID-19 pandemic at that time.

11. TECHNICAL CERTIFICATION: I certify 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.

Name:

Title: Program Manager Signature: _ _ ___________ (date in electronic signature)

12. REQUIREMENT CERTIFICATION: I certify 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.

Name:

Title: Deputy District Signature: __________ ____ Engineer (date in electronic signature)

13. FAIR AND REASONABLE COST DETERMINATION:

I hereby determine that the anticipated cost or price to the Government for this contract action will be fair and reasonable.

This will be determined by conducting a detailed cost and price analysis of the offeror’s definitization proposal, taking into consideration all pertinent information including field pricing assistance, audit reports and technical analysis, fact-finding results, independent Government cost estimates, and price histories. The contractor will be required to submit their price/cost proposal in accordance with FAR Part 15, and Certified Cost or Pricing Data will be required in accordance with FAR 15.403-4.

Title: Contracting Officer Signature: _ (date in electronic signature)

14. CONTRACTING OFFICER CERTIFICATION: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Title: Contracting Officer Signature:

(date in electronic signature)

APPROVAL

Based on the foregoing justification, I hereby approve after-the-fact this contract to provide design-build construction services in support of the Alternate Care Facilities effort for Music City Center in Nashville, TN on an other than full and open competition basis pursuant to the authority of 10 U.S.C. § 2304(c)(2), Unusual and Compelling Urgency, subject to the availability of funds, and provided the work herein described was otherwise authorized for acquisition.

Title: Head of the Contracting Activity Signature: __ ______ (date in electronic signature)