MACC Justification Approval June 2024 V5_1 rlh FINAL.pdf

Justification and Approval (J&A) for Other Than Full and Open Competition

CONTROLLED UNCLASSIFIED INFORMATION

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 1 of 7

Was a J&A approved for the preceding acquisition where that acquisition required a J&A? Yes No

Is this a new or amended J&A Document? New Amended ( Prior to Award Only! )

Is this a Bridge Action as defined at DAFFARS 5302.101? Yes No

Dollar Value of this Acquisition: < $750K > $750K and < $15M > $15M and < $100M > $100M

Contracting Activity: 87th Contracting Squadron, Joint Base McGuire-Dix-Lakehurst, NJ 08641

Purchase Request (if available) / Local ID Number: FA448420D0001, FA448420D0002, FA448420D0003, FA448420D0004 & FA448420D0005

Program / Project (and PE, if applicable): Multiple Award Construction Contract (MACC) Indefinite Delivery Indefinite Quantity (IDIQ)

Program Type (PEO, Enterprise, of Operational): Operational

Authority:

6.302-1 – 10 USC 3204(a)(1), Only One Responsible Source - No Other Supplies or Services Will Satisfy Agency Requirements Estimated Contract Cost (including options): $ 25,000,000.00 J&A Type: Class Individual

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Date

17 Jul 2024

Project Lead / Program Mgr / Requiring Activity Everett D. Karpauskas

787 CES/CENM/ 609-7562-4013

Signature

X

Date

17 Jul 2024

Contracting Officer Dana M. Wright

87 CONS/PKB/ 609-784-5512

Signature

X

Date

17 Jul 2024

Local Legal Reviewer David S. Castro

87 ABW/JA/ 609-754-0416

Signature

X

Date

17 Jul 2024

Chief of the Contracting Office (COCO) Lt Col Jordan L. Siefkes

87 CONS/CC/ 609-754-5926

Signature

X

Date

17 Jul 2024

Competition Advocate Susan Madison, NH-IV, DAFC Deputy Director of Contracting, OL-AMC Air Force Installation Contracting Center (AFICC) Command Competition Advocate (AMC)

DSN 779-0267

Signature

X

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 2 of 7

APPROVAL ( DAFFARS 5306.304(a))

Date

09 Aug 2024

ROGER HARMS, SES, DAF

Deputy Director of Logistics, Engineering and Force Protection

Signature

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 3 of 7

I. Agency and Contracting Activity.

Agency:

Department of the Air Force Air Mobility Command 787th Civil Engineering Squadron 2401 Vandenberg Avenue Joint Base McGuire-Dix-Lakehurst (JB MDL), NJ 08641

Contracting Activity:

Air Mobility Command Department of the Air Force 87th Contracting Squadron 2402 Vandenberg Avenue Joint Base McGuire-Dix-Lakehurst (JB MDL), NJ 08641

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

The Government intends to raise the program ordering ceiling of the existing Firm Fix Price contract vehicle by $25M from $99M to $124M through bilateral contract modifications with the following five MACC IDIQ contractors:

FA448420D0001 - Sequoia Construction, Incorporated, 3000 Atrium Way Suite 200, Mount Laurel, NJ 08054. Total obligation as of 07 Jul 2024 is $17,276,962.10;

FA448420D0002 - Sheela, Inc. 471 Sykesville Rd, Wrightstown, NJ 08562. Total obligation as of 07 Jul 2024 is $26,605,614.91;

FA448420D0003 - Kaser Mechanical, LLC. 49 Folwell Station Road, Jobstown, NJ, 08041-2004. Total obligation as of 07 Jul 2024 is $24,171,619.88;

FA448420D0004 - M.E.R.I.T. Inc. 211 Warren Street Suite 224, Newark, NJ 07103-3568. Total obligation as of 07 Jul 2024 is $24,334,847.42; and

FA448420D0005 - Benaka Inc. 7 Lawrence Street, New Brunswick, NJ, 08901-3108. Total obligation as of 07 Jul 2024 is $11,712,538,24

Total Current Obligations: $104,101,582.55

A ceiling increase is required due to multiple factors such as unexpected increases in broad ranges of design-builds and construction projects, higher cost of product and labor from the Covid-19 pandemic, inflation rate increase of 5% average over the past three years (Bureau of Labor Statistics) and unforeseen site conditions on projects.

The increase of $25M was derived by looking at current orders that are unfunded, future requirements that have not yet be advertised for pricing, and additional room for new required projects. The current program ceiling (maximum value) across all contracts is $99,000,000.00 (includes 6-month EOS) with an estimated yearly total of $18,000,000.00. The performance period is one, twelve (12) month Base Year, plus four, 12-month option years and a six-month extension for a total contract period of performance (POP) of 5

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 4 of 7 years and 6 months, with an expiration date of 18 March 2025. Option 4 was exercised on 19 Mar 2024 and has already expended $11.1M. There are approximately $11M of projects ready for award, upon ceiling increase, for FY24, with approximately $2M more projected for the USAF Expeditionary Center.

Furthermore, the ceiling has been exceeded by $4.1M for a total of $17.1M already identified in this ceiling increase. In addition, the following projects have authority to advertise with the potential of using the remaining $7.9M ceiling (after increase) for the following projects: airfield and outer fence repair, numerous dorm renovations, demolition of buildings, fire suppression systems and projects for the 23rd CABS which is a new squadron for JBMDL. Therefore, this requested $25M ceiling increase will allow the Government to have sufficient capacity to award required projects until the end of the contract ordering period of 18 March 2025.

The current contract is in Option Year 04, with expended funds in the amount of $104,101,582.55, which is over the current ceiling of $99,000,000. During the re-procurement phase, it was brought to 87 CONS attention that the current ceiling was exceeded by $4.1M. Each MACC awardees contract ceiling was inadvertently set at $99M at initial contract award, therefore, it was 87 CONS belief that the $99M ceiling was for each contract not the overall program when originally awarded. Therefore, the ceiling exceedance was not realized until brought to 87 CONS attention. However, the following measures have been put in place to ensure this does not occur again on current and the future MACC IDIQs. Tighter coordination with 87 CEG as to the priorities of future projects, MACC IDIQ ceiling level is tracked through KTFS and checked prior to any award and ensuring projects do not fall under any other IDIQ contracts already in place (i.e. roofing, paving, etc.).

III. Description of supplies/services required to meet agency needs.

Existing Contractors furnish all personnel, labor, equipment, tools, materials, supervision, and other items and services necessary to design, manage, and accomplish a broad range of repair, alteration, renovation, upgrade, maintenance, demolition and/or new construction work at various real property facilities. Task Orders are for projects with a magnitude between $2,000.00 and $5,000,000.00 in contract value. The tasks include, but not limited to the following: earth work, excavation, infrastructure, water distribution system, sanitary sewer, storm drain, electrical, telecommunications, cast-in-place concrete, masonry, structural steel, framing, roofing, carpentry, millwork, painting, plumbing, Heating-Ventilation-Air Conditioning, lead and lead based paint abatement/removal, asbestos abatement/removal, site work, Hazardous Material surveys and other specialties and general contracting work.

Every project supports the JB MDL to include other tenants and mission partners, such as, the Army Support Activity, Naval Air Warfare Center Aircraft Division and USAF Expeditionary Center. The projects improve the quality of life throughout the entire Joint Base.

Funds are provided on Task Orders written against the IDIQ contracts using the appropriation 3400, Operations and Maintenance and other color/pots of money.

Re-procurement of the follow-on contracts is in the solicitation phase and is anticipated to be awarded by January 2025 with performance to begin by March 2025.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

The current contractors are the only firms capable of providing the construction services described in Section II above without the U.S. Air Force experiencing unacceptable delays and substantial duplication

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 5 of 7 of costs in fulfilling urgent infrastructure requirements between now and end of the MACC IDIQ ordering period. The current contractors have already been vetted a by 87 CEG and have a proven track record of the ability to perform the required work and have access to JBMDL. No other contractors currently hold these unique qualifications. Furthermore, failing to raise the price ceiling on this IDIQ would negatively impact the mission of Joint Base McGuire-Dix-Lakehurst, as we would risk losing the capability to expeditiously execute current and future projects. For example, airfield and outer fence repair, numerous dorm renovations, demolition of buildings, fire suppression systems and projects for the new unit being stationed at JBMDL the 23rd CABS. All of which, if not executed, could substantially diminish base security, quality of life for the 40K plus personnel and airmen at JBMDL and protection of the equipment and life of base fire suppression systems.

With regard to unacceptable delays, acquisition lead time using any other method would add approximately 180 to 220 days per project to acquiring construction services, thus causing substantial unacceptable delays in the necessary repairs to multiple facilities across the installation.

With regard to substantial duplication of costs, 87 CEG has identified 27 possible projects for the current POP with 10 projects ready for award. If the 87 CONS were to procure these projects outside of the MACC IDIQ there is substantial duplication of costs of approximately $8M alone for administration, contractor vetting, mobilization etc., for each project. Awarding competitive task orders with the existing IDIQ saves the Government man hours that already includes vetting of new contractor personnel by Security Forces, mobilization/demobilization costs, and time/money lost due to the transition period of new Contractors.

Therefore, with the current vehicle over the ceiling of $99M, the $25M increase would allow for current and future repairs to be awarded and would allow for any EOY Fallout funds to go towards infrastructure requirements without the delay or duplication of cost incurred by having to execute individual purchase orders.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

IAW DFARS PGI 206.303-2(b)(i) a sources sought was posted to sam.gov for the MACC IDIQ increase from 12 July 2024 to 16 July 2024 and received no responses. The J&A will be posted IAW FAR 6.305(d), `Availability of Justification'.

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

Competition at the task order level will continue to be accomplished along with Technical Evaluation and Price analysis IAW the MACC IDIQ ordering guide to ensure a technically acceptable proposal at a fair and reasonable price. To avoid costly project delays, CONS will ensure that contractors have the ability to complete their projects within the projected timeline and adhere to budgetary requirements. Lastly, contractors will be required to provide Payment and Performance bonds as an additional security for the completion of projects.

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 6 of 7

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

The MACC IDIQ was solicited as a 100% Small Business set-aside under North American Industry Classification System code 236220 for Commercial and Institutional Building Construction. 27 proposals were received in response to the solicitation. Pricing for the Base and Option Years were determined to be fair and reasonable based on competitive proposals. On 19 March 2020, to ensure a robust pool of contractors throughout the contract period, the contract was awarded to the five small businesses as a Firm Fixed Price (FFP) multiple individual IDIQ type contracts.

The current contract holders were contacted via email, and they responded with having no concern with the raising of the ceiling and would not affect their ability to provide the services required. Also, IAW DFARS PGI 206.303-2(b)(i) a sources sought was posted to sam.gov for the MACC IDIQ increase from 12 July to 16 July to determine if there are any companies with interest and received no responses.

An RFI for the current re-procurement of the MACC was issued on 21 Mar 24. The response date for the Sources Sought was 12 Apr 24. The Government requested for companies to provide information demonstrating their abilities to perform the MACC requirement with 19 small businesses responding indicating that we will have competition and interest in the re-procurement. Therefore, the Contracting team as well as the Mission Partner have determined it to be in the government's best interest to enter a sole-source MACC ceiling increase.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

Increasing of the ceiling to the current contract holders will ensure that crucial project for the mission on JBMDL will continue without any delays. For the re-procurement 87 CONS will ensure a higher contract ceiling to reduce any possible requirement to raise the ceiling.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

All 5 current contractors were contacted regarding the ceiling increase all 5 listed below are capable and have the capacity to support the $25M increase:

- Sequoia Construction, Incorporated, 3000 Atrium Way Suite 200, Mount Laurel, NJ 08054;

- Sheela, Inc. 471 Sykesville Rd, Wrightstown, NJ 08562;

- Kaser Mechanical, LLC. 49 Folwell Station Road, Jobstown, NJ, 08041-2004;

- M.E.R.I.T. Inc. 211 Warren Street Suite 224, Newark, NJ 07103-3568 and

- Benaka Inc. 7 Lawrence Street, New Brunswick, NJ, 08901-3108.

X. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisitions for the supplies or services required.

Acquisition planning actions are currently being processed to reprocure the MACC IDIQ program with a target award in January 2025. Based on historical experience and previous market research, there is an expectation that a sufficient number of qualified small business firms will compete for inclusion in this program. The follow-on acquisition strategy will review historical and programmed workload volume to develop a more realistic program ceiling to minimize potential future actions of this type. 87 CONS with

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 7 of 7 consultation with 87 CEG will ensure a more accurate ceiling is used for the new MACC.

XI. Certification by the Contracting Officer.

As evidenced by my signature above, I certify that this justification is accurate and complete to the best of my knowledge and belief.

XII. Certification by the technical/requirements personnel.

As evidenced by my signature above, I certify that any supporting data contained herein, which is my responsibility, is both accurate and complete.

Remove the Guidance pages below.

August 2023 Page of International Agreement Competitive Restrictions (IACR) Page of 13 May 2022 Was a J&A approved for the preceding acquisition where that acquisition required a J&A?

!! Attach the preceding J&A in the staff package for this J&A. The preceding J&A will be used as a reference document.

Is this a new or amended J&A Document?

Is this a Bridge Action as defined at DAFFARS 5302.101?

Dollar Value of this Acquisition:

J&A Type:

!! Provide estimated cost of all contracts.

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APPROVAL ( DAFFARS 5306.304(a)) NOTE 1: A signature block will appear here (replacing these notes) based on the "Dollar Value of this Acquisition" selected above. Since most digital signatures that include date/time-stamps are redacted before they are made publicly available, always insert the date in the “Date” cell when affixing a digital signature to this document.

NOTE 2: Some types of acquisitions awarded under circumstances where full and open competition is not required by statute do not have to be supported by a written justification and approval. See 10 U.S.C. § 3204(e)(7); FAR 6.302-5(c)(2). For Class J&As, all contracts within the class must fall within the same statutory authority.

NOTE 3: Users of this template are directed to SAF/AQC Policy Memo 22-C-02, or latest issuance, which provides detailed instructions on how to complete each section of a J&A. The memo will be posted at the following location:

https://usaf.dps.mil/sites/AFCC/KnowledgeCenter/Documents/Contracting_Memos/Policy/22-C-02.pdf (See "Specific Guidance for Completing this Template" after item XII below.)

I. Agency and Contracting Activity.

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

III. Description of supplies/services required to meet agency needs.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

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

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

X. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisitions for the supplies or services required.

XI. Certification by the Contracting Officer.

XII. Certification by the technical/requirements personnel.

Specific Guidance for Completing this Template I. Agency and Contracting Activity. (FAR 6.303-2(b)(1)) Self-explanatory II. Nature and description of the action being processed. (FAR 6.303-2(b)(2)) An individual J&A is for a single contract. State whether the action is a new contract or a modification to an existing contract (identify contract number) and identify the contract type(s) planned (e.g., firm-fixed-price, cost-plus-incentive-fee). If exception 2 is cited (unusual or compelling urgency), include the date of UCA/contract/modification issuance and amount.

An individual J&A cannot be used to support more than one contract action irrespective of the quantities or the dollar value stated therein. If a proposed contract will contain unpriced options (including NTE prices), those options must be supported by a separate J&A prior to option exercise. Stoehner Security Services, Inc., 248077.3, Oct. 27, 1992, 92-2 CPD ¶ 286 at 6. This principle applies with equal force and effect whenever a contracting officer seeks to exercise FAR 52.217-8 (Option to Extend Services) if the contract that incorporated that clause by reference is not a Service Contract Labor Standards-covered contract, as such contracts do not include wage determinations that establish “prevailing labor rates provided by the Secretary of Labor.” FAR 52.217-8. See Major Contracting Services, Inc., B-401472, Sep. 14, 2009, 2009 CPD ¶ 170 at 6, mot. for reconsid. den., Department of the Army --Reconsideration, B-401472.2, Dec. 7. 2009, 2009 CPD ¶ 250 at 5-6. In the alternative, the J&A supporting the basic contract must be a Class J&A. Although a Class J&A may be written for multiple awards to a single source, or multiple awards to various sources, it must describe each proposed contract action separately so it is clear that each such action is within scope of that Class J&A. FAR 6.303-1(d).

III. Description of the supplies/services required to meet agency needs. (FAR 6.303-2(b)(3)) Describe the supplies, services, or supplies and services to be acquired. Identify the quantities of each item, the estimated delivery dates/periods of performance, the type of appropriation(s) that will acquire those supplies/services, the total estimated value of the acquisition (including options), and the methodology used to arrive at that total estimated value. Provide sufficient information to demonstrate to the approving official that the acquisition of intellectual property (IP) and associated IP rights will satisfy the program's requirements, acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan.

The program's requirements for IP and IP rights in the Request for Proposals (RFP) must be consistent with the program's acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan. Accordingly, approving officials will ensure this section of the J&A:

(1) States whether the CLIN structure will include separately-priced CLINs for intellectual property (IP) and IP rights. Once the DFARS is revised to implement 10 U.S.C. § 4236, Air Force contracting officers will be required to negotiate a fair and reasonable price for IP and associated IP rights. Air Force contracting officers must start thinking now how they will do so during sole-source and competitive negotiations and how the resulting contract will reflect the results of those negotiations. Otherwise, they may be caught flat-footed if the RFP did not include such separately-priced CLINs and the Director of Defense Pricing and Contracting issues the final rule implementing 10 U.S.C. § 4236 --the effective date of which occurs one day prior to the award date. See also FAR 7.105(b)(14)(iii) and DFARS 215.470(a);

(2) Lists the titles of all such IP (including digital models) to be to be acquired contained in Exhibits A-N of the draft Request for Proposals; and

(3) Identifies the type of IP rights to be acquired to those deliverables (including the IP rights to be acquired to contract administration information since the standard DFARS clauses do not grant the Air Force any license rights to that type of IP).

Mission-focused business leaders are encouraged to engage early in the acquisition life-cycle with industry regarding the subjects of IP and IP rights. They are also encouraged to consult with approving officials, designees, or both, regarding those subjects well in advance of submitting a draft J&A to the appropriate approving official.

For Class J&As, identify each contract action (contract, modification) to be authorized by the proposed J&A for each potential offeror. If the same information applies to more than one contract, it need only be stated once.

For ID/IQ or requirements contracts, use the maximum dollar value of the total estimated orders as the total estimated value of the acquisition.

IV. Demonstration that the contractor's unique qualifications or nature of the acquisition requires the use of the authority cited above. (FAR 6.303-2(b)(5)) Provide detailed facts sufficient to justify the use of the particular authority cited. Contracting without providing for full and open competition shall not be justified on the basis of a lack of advance planning or concerns relating to the amount of funds available (e.g., expiring funds). (FAR 6.301(c)).

Check the applicable box below. Checking a box will display the text for that section.

In the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, the rationale must first justify the supplies/services as either associated with a “major system” or “highly specialized equipment”. It must then justify either “substantial duplication of cost to the Government that is not expected to be recovered through competition” or “unacceptable delays in fulfilling the agency's requirements”, whichever situation applies. If both of those situations apply, the rationale can be based upon either or both of those two situations. This authority shall not be used when any of the other authorities apply.

Sub-subsection 1. FAR 6.302-1(a)(2)(ii) and (iii) require that the J&A demonstrate that specific conditions have been satisfied. Therefore, this sub-section must deconstruct the specific words in those provisions and demonstrate to the appropriate approving official how the proposed acquisition satisfies those words.

For example, this sub-subsection must demonstrate the proposed acquisition is a “follow-on contract” by identifying the current contract number of the contract the intended awardee of that “follow-on contract” is currently performing, the basis of award for that contract (competitive, sole-source), the purpose of that contract, the date of contract award, and the date that contract will expire. PTC, Inc., B-416863, Dec. 20, 2018, 2019 CPD ¶ 48 at 6-7. This subsection must also demonstrate the proposed acquisition will continue “development” or “production” of a “major system” or “highly specialized equipment, including major components thereof” or provide “highly specialized services.” In the case of the former, this subsection must either identify the ACAT I or II program --since the legal definition of a “major system” includes ACAT I and II programs --or explain why the equipment sought to be acquired is “highly specialized” for which the proposed acquisition will “continue[ ] development or production”. In the alternative, this subsection must explain why the services sought to be acquired are “highly specialized”.

If the planned acquisition will result in a “bridge” contract that contains options, this subsection must explain why options are necessary. If significant lead time is required prior to approval of the J&A in order to acquire the supplies or services described in Section III, this subsection should mention that fact and explain why that is the case.

Next, this sub-subsection should add a concluding sentence to the end of this subsection, suitably tailored; e.g., “Therefore, this acquisition will be a follow-on contract for the continued development of a major system.”

“Therefore, this acquisition will be a follow-on contract for the continued production of a major system.”, “Therefore, this acquisition will be a follow-on contract for the continued development of highly specialized equipment.”

“Therefore this acquisition will be a follow-on contract for the continued production of highly specialized equipment.”

“Therefore, this acquisition will be a follow-on contract for the continued provision of highly specialized services.”

The purpose of that sentence is to bring the approving official back to the regulatory requirements the preceding paragraphs of this section of the J&A have discussed to demonstrate the J&A satisfies those requirements.

Sub-subsection 2. Thoroughly describe the contractor's unique/highly specialized capabilities and qualifications (e.g., facilities, personnel, special tooling acquired), (FAR 6.303-2(b)(5)), and why no other type of supplies or services will satisfy the agency requirements.

Sub-subsection 3. This subsection should begin with the following sentence, suitably tailored:

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition.”

“The __[insert program office name]__ has determined that award to any other source would result in unacceptable delays in fulfilling the agency's requirements.”

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition and unacceptable delays in fulfilling the Government's requirements.”

The purpose of this opening sentence is to direct the approving official's attention to which specific words in FAR 6.302-1(a)(2)(ii) and (iii) will be the basis for going sole-source.

Next, when the rationale for going sole-source is based upon substantial duplication of cost, this sub-subsection must include an estimate of the amount of cost that would be duplicated (e.g., training required so that another source could acquire the skills necessary to perform the work, equipment, facilities) less the estimated cost to run a competition. (For example, the development costs the Government incurred under the existing contract or similar programs may provide insight into the amount of cost duplication were the proposed acquisition to be competed.) This sub-subsection should also identify the organization(s) that/who performed the analyses that supports those estimates, and describe the analysis that/those organization(s) performed to arrive at both estimates. The methodology must account for inflation during the projected remaining life cycle of the acquisition. (FAR 6.302-1(a)(2)(ii)(A) and (iii)(A); FAR 6.303-2(b)(9)(ii)).

When, however, the rationale for going sole-source is based upon unacceptable delay, this sub-subsection must state how long it would take someone else to obtain this capability (in months/years) and why, and provide a detailed explanation of the impact or problem caused by the delay. When describing the impact or problem caused by the delay, the rationale must identify all nodes on the critical path between the failure to acquire the supplies and services described in Section III and the delivery date(s)/period(s) of performance identified in that section, and the reduction (or frustration) of the warfighter's ability to accomplish specific missions. The explanation provided must be commensurate with the delivery date(s)/period(s) of performance identified in Section III (e.g., longer delivery date(s)/period(s) of performance necessitate a more detailed explanation). (FAR 6.302-1(a)(2)(ii)(B) & (iii)(B)).

Although the existence of IP rights retained by the developer make the supplies and services available from only once source, the mere existence of such rights does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Therefore, if the program office will use that rationale to justify going sole-source, this sub-subsection must demonstrate the program office performed sufficient due diligence to validate the developer retains such IP rights that require the use of this authority to acquire the supplies and services described in Section III. Specifically, this sub-subsection must explain:

(1) What IP rights the Government acquired to what IP deliverables under predecessor contracts described in Subsection 1 of this section and why those rights are insufficient to compete acquisition of the supplies or services described in Section III;

(2) What IP clauses (include the month/year of issuance) or applicable commercial computer software licenses were included into all of those predecessor contracts described in Subsection 1 of this section;

(3) Whether those predecessor contracts included the Deferred Ordering clause (DFARS 252.227-7027) and if so, why the program office did not exercise its rights to acquire needed IP deliverables by exercising its rights under that clause;

(4) Why the Government did not acquire sufficient IP deliverables and IP rights under that/those predecessor contract(s) that would have precluded the need to go sole-source for the proposed acquisition (e.g., acquisition strategies for those predecessor contracts were based upon the Total System Performance Responsibility (TSPR) initiative);

(5) What IP deliverables did the program office acquire under that/those predecessor contract(s) and what restrictive markings did the developer affix to those deliverables;

(6) What pre-challenge requests for information or formal challenges the program office initiated in response to a developer's assertions of development at private expense (DFARS 252.227-7019, DFARS 252.227-7037) and what analysis the program office performed of the information it received in response to that request or formal challenge;

(7) What investigation the program office conducted to determine whether the IP deliverables provided under that/those predecessor contract(s) was/were developed in whole or in part at Government expense (e.g., reviewing the developer's IR&D project approvals and accounting records, reviewing earned value management data and integrated program management reports);

(8) Assuming the results of that investigation validate the developer's assertion of development at private expense, what if any steps did the contracting officer take to request the developer propose a price to furnish the IP deliverables and IP licenses needed to compete the proposed acquisition; and

(9) The extent to which the program office considered reverse engineering any subsystems or components of the end item described in Section III (and summarize the estimated cost to reverse engineer those subsystems or components and the time it would take to complete such reverse engineering activities); or considered use of a modular open system approach to acquire those subsystems or components consistent with the program's capability development document, acquisition strategy, and system engineering plan. (DFARS 207.106(S-72)(2)(v); DFARS 227.7103-5(d)(2)(iii)).

Although the control of basic raw material makes the supplies or services available from only once source, the mere existence of such rights or circumstances does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Under such circumstances, this sub-section must identify how the intended source acquired a monopoly on those raw materials.

When acquiring utility services, circumstances may dictate that only one supplier can furnish the service, or when the contemplated contract is for construction of a part of a utility system and the utility company itself is the only source available to work on the system. (FAR 6.302-1(b)(3)).

When the agency head has determined in accordance with the agency's standardization program that only specified makes and models of technical equipment and parts will satisfy the agency's needs for additional units or replacement items and only one source is available, (FAR 6.302-1(b)(4)), this sub-section must identify the relevant standardization program.

Notwithstanding FAR 6.302-1(c)(2), a justification and approval is required in order to use brand name or equal descriptions or the use of proprietary specifications or standards. (DFARS 206.302-1(c)(2) and (S-70)).

Sub-subsection 4. When using the rationale described in sub-subsection 3 above, conclude this subsection by including one of the following sentences, as applicable:

“Accordingly, ___[insert company name]___ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be recovered through competition.”, “Accordingly, __[insert company name]__ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing unacceptable delays in fulfilling its requirements.”

“Accordingly, __[insert company name]__, is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be expected to be recovered through competition and unacceptable delays in fulfilling its requirements.”

The purpose of this sentence is to restate for the approving official's benefit which rationale(s) is/are the basis for going sole-source, thereby sensitizing them to the fact the author will now turn to discussing a different topic.

Contracting Officers must notify SAF/AQC as soon as practicable when contemplating the use of this authority for a J&A requiring SPE approval.

Provide an explanation why the supplies or services are needed at once due to, e.g., fire, flood, explosion, other disaster, emergency) or essential equipment or repairs to that equipment are needed at once to facilitate meeting critical mission needs of the Government. Identify the nature of the urgency, the reasons for it occurring, and the extent of the anticipated serious injury to the Government -- thereby demonstrating why the Government's need for the supplies or services described in Section III is of “unusual and compelling urgency” to preclude adverse impact to military readiness. (FAR 6.303-2(b)(9)(iii)). In other words, identify all nodes on the critical path between the failure to acquire the supplies or services described in Section III and the reduction (or elimination) of the warfighter's ability to accomplish specific missions. Merely citing a Joint Urgent Operational Need (JUON), Force Activity Designator (FAD) rating, Program Management Directive (PMD)/Program Action Directive (PAD) guidance, or DX priority rating is not in and of itself sufficient reason to use this exception from the requirement to obtain full and open competition. Note that only the minimum quantity required to satisfy the unusual and compelling urgency qualifies for this exception. In addition, the period of performance CANNOT exceed one year, including all options unless the head of the agency determines that exceptional circumstances apply (FAR 6.302-2(d)(ii)); thus, the inclusion of options when using this authority is not advised.

Note: This statutory authority requires that agencies request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-2(c)(2)).

Justifications citing this authority must demonstrate the need to maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization; to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; or to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute. If the proposed contract will require the contractor to keep vital facilities or suppliers in business or make them available in the event of a national emergency, train a supplier in the furnishing of critical supplies or services, prevent the loss of a supplier's ability and employees' skills, or maintain active engineering, research, or development work, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, or continue in production where there would otherwise be a break in production, or divide current production requirements among two or more contractors, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(1)). If the proposed contract will establish or maintain an essential engineering, research, or development capability to be provided by an education or other nonprofit institution or a federally funded research and development center for theoretical analyses, exploratory studies, experiments in any field of science of technology, or engineering or development work calling for the practical application of investigative findings and theories of a scientific or technical nature, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(a)(2)(ii) and (b)(2)). If the proposed contract will acquire the services of an expert to use in any litigation, dispute, or alternative dispute resolution proceedings involving the Government, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(3)).

Identify the applicable statute explicitly authorizing other than full and open competition. (FAR 6.302-5(b); DFARS 206.302-5(b)). The following is a non-exclusive list of statutes lifted from FAR 6.302-5(b) that authorize acquiring supplies and services from specified sources or through another agency:

(1) Federal Prison Industries (UNICOR) (18 U.S.C. § 4124 (see FAR Subpart 8.6).

(2) Qualified nonprofit agencies for the blind or other severely disabled (41 U.S.C. Chapter 85) Committee for Purchase From People Who Are Blind or Severely Disabled (see FAR Subpart 8.7).

(3) Government Printing and Binding (44 U.S.C. §§ 501-504, 1121 (see FAR Subpart 8.8)).

(4) Sole source awards under the 8(a) Program (15 U.S.C. § 637), but see FAR 6.303 for requirements for justification and approval of sole-source 8(a) awards over $25 million. (See FAR Subpart 19.8).

(5) Sole source awards under the HUBZone Act of 1997 (15 U.S.C. § 657a)(see FAR 19.1306).

(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. § 657f).

(7) Sole source awards under the WOSB Program (15 U.S.C. § 637(m)(see FAR 19.1506).

Note: Some statutes do not require a written J&A.

Full and open competition need not be provided for when the disclosure of the agency's needs would compromise the national security (e.g., would violate security requirements) unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. Accordingly, if this authority is used, this section shall explain how these conditions are satisfied.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by FAR 5.2 and, if not, indicate which exception under FAR 5.202 applies. (FAR 6.303-2(b)(6); FAR 6.303-2(b)(8); FAR 6.303-2(b)(10)) The contracting officer shall issue a sources sought synopsis or an RFI, provide the date the synopsis was issued, the synopsis number, and a brief description of its content. Identify the number of responses received, the names of the respondents, the results of the screening process, and the rationale for determining the unacceptability of any respondents, unless exempted by the MAJCOM SCO or Operating Location SCO with rank of GO or SES, otherwise approval by the HCA is required. (FAR 6.302-1(d)(2); DFARS 206.302-1(d); DFARS PGI 206.302-1(d); AFFARS 6306.302-1(d); AFFARS MP5301.601(a)(i)).

Specify whether this acquisition will require a Notice of proposed Contract Action (NOCA) IAW FAR 5.201 and if not, provide the exception IAW FAR 5.202. If a NOCA was or will be publicized provide the dates or expected dates of publication of the NOCA. Address any other actions taken or planned to facilitate competition for this acquisition.

When using the authority granted by FAR 6.302-1, an RFI or Sources Sought Synopsis is mandatory. (DFARS PGI 206.303-2(b)(i)).

When using the authority granted by FAR 6.302-2, agencies must request offers from as many potential sources as is practicable under the circumstances unless the Government would be seriously injured if the agency complied with the time periods specified in FAR 5.203. (FAR. 5.202(a)(2); FAR 603.2-2(b)(2)).

When using the authority granted by FAR 6.302-3, no synopsis is required if the proposed contract action is for utility services other that telecommunications services and only one source is available. (FAR 5.202(a)(5)).

When using the authority granted by FAR 6.302-5, no synopsis is required if the proposed contract action results from acceptance of a proposal under the Small Business Innovative Research (SBIR) program. (FAR 5.202(a)(7)).

When using the authority granted by FAR 6.302-6, agencies must request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-6(c)(3)). The fact that a proposed solicitation or contact action contains classified information, or that access to classified information may be necessary to submit a proposal or perform the contract does not, in itself exempt that proposed contract action from the synopsis requirement. (FAR 52.202(a)(1)). Under such circumstances, this section must identify what alternatives the program office used to compete this requirement (e.g., accessing the National Reconnaissance Office's (NRO) Acquisition Research Center's Central Contractor Registry database or the National Security Agency's (NSA) Acquisition Resource Center's Business Registry database to identify potential cleared offerors and summarize what outreach the program office conducted with those potential cleared offerors to determine their interest in the proposed acquisition).

If qualifying country sources have expressed interest, but will be excluded, provide supporting rationale.

VI. Determination by the contracting officer that the anticipated cost to the government will be fair and reasonable. (FAR 6.303-2(b)(7)) Include the following text, suitably tailored: “Based upon (1) certified cost or pricing data provided in the offeror's proposal, (2) the program office's technical analysis of the offeror's Basis of Estimates (BOE), and (3) inputs from the Defense Contract Management Agency, including from the Administrative Contracting Officer, the contracting officer expects they will be able to determine that the anticipated cost to the Government will be fair and reasonable.”

VII. Description of the market research conducted and the results, or explain why market research was not conducted. (FAR 6.303-2(b)(8)) Discuss any market research conducted pursuant to FAR Part 10 (in addition to any actions described in Section VI above) and describe the results of that research. When other exceptions from the requirement to obtain full and open competition are relied upon, the market research might be limited to an examination of the acquisition history and experience with the marketplace under previous acquisitions for the same or similar items. Discuss what relevant documentation the contracting officer provided to respondents in a bidders library (e.g., capability development document, system engineering plan, system requirements document, statement of work/performance work statement, technical data package, compliance documents). Discuss how the contracting officer shared the Government's analysis of each respondent's response with that respondent.

If market research was not conducted, so state and provide the rationale.

VIII. Any other facts supporting the use of Other Than Full and Open Competition. (FAR 6.303-2(b)(9)(i)) Provide any other facts supporting the use of other than full and open competition, including an explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available. (FAR 6.303-2(b)(9)(i)).

IX. List of sources, if any, that expressed interest in the acquisition. (FAR 6.303-2(b)(10)) If all interested sources are identified in Section V, it is acceptable to state, “See Section V above.”

X. 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. (FAR 6.303-2(b)(11)) Describe any actions taken or to be taken to foster competition for future acquisitions of the supplies or services being acquired. Describe potential actions the program office will take to remove existing barriers to competition identified in the justification and include a milestone schedule for accomplishing those actions. For example, if the barrier to competing acquisition of the supplies and services described in Section III is the lack of IP deliverables or sufficient IP rights to those deliverables, identify and analyze what possible steps could be taken to:

(a) Acquire those IP deliverables and associated IP rights,

(b) Implement a modular open system approach consistent with the program's capability development document, acquisition strategy, and system engineering plan (10 U.S.C. §§ 4401-4403), or

(c) Reverse engineer subsystems or components of the end items described in Section III.

IAW DFARS PGI 206.304(a)(S-70)(ii), for a non-competitive follow-on acquisition to a previous award for the same supply or service supported by a J&A citing the authority at FAR 6.302-1, include a copy of the previous J&A and include a discussion of the actions planned to overcome barriers to competition established in the previous justification, the status of those actions, and the results of those actions. The approval authority shall determine whether the planned actions were completed. If the planned actions were not completed, the justification for the follow-on acquisition shall be approved by the approval authority one-level above the approval authority for the previous justification. If the Senior Procurement Executive (SPE) approved the previous justification, the approval remains at the SPE level.

XI. Certification by the Contracting Officer. (FAR 6.303-2(b)(12)) As evidenced by their signature, the contracting officer certifies that this justification is accurate and complete to the best of their knowledge and belief.

XII. Certification by the technical/requirements personnel. (FAR 6.303-2(c)) As evidenced by their signatures, the technical and/or requirements personnel have certified that any supporting data contained herein, which is their…