MRG_JOFOC_WW_Redacted.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

WASTEWATER UTILITY SERVICE FCI MORGANTOWN

Pursuant to Federal Acquisition Regulation (FAR) Subpart 6.302-1(a) and 6.302-1(b)(3), and the Bureau of Prisons Acquisition Policy (BPAP) 4100.06 Subpart 6.304(b), the Federal Bureau of Prisons (FBOP) has determined the procurement of wastewater utility service for the Federal Correctional Institution (FCI) Morgantown, meets the criteria established for other than full and open competition. It is further determined only one source exists and no other supplies or services will satisfy the agency’s need. This limitation on competition is justified as supported by thefollowing information:

1 Identification of the agency and contracting activity:

U. S. Department of Justice Federal Bureau of Prisons FCI Morgantown 446 Greenbag Road Morgantown, WV 26507-1000

2 Nature and/or description of action being approved:

This justification for other than full and open competition is for the acquisition of wastewater utility services provided to FCI Morgantown, from the original and sole provider of such services. FCI Morgantown has a present and continuing requirement for wastewater utility service for the proper operation of the facility.

3 A description of supplies or services required to meet the agency needs:

FCI Morgantown requires wastewater utility services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. Services shall be provided on an un-interruptible daily basis 365 days per year. The provider will be responsible to maintain and/or repair all associated wastewater lines and equipment, including associated costs for such repair, from the delivery point or meter of FCI Morgantown. Pursuant to FAR Part 41.202, the contractor is required to provide the “entire wastewater utility service” (i.e., distribution, treatment, testing, system operation and maintenance, metering, billing, etc.).

Wastewater utility services shall be provided from Effective Date of Award (EDOA) through twelve-months from EDOA, subject to funds availability (FAR Clause 52.232-18). The FBOP shall purchase Wastewater Utility Service for Government’s daily needs for the proper operation of the facility. The total estimated annual amount for wastewater utility service is $ . The enclosed RP document shows the IGE as based on past wastewater utility service usage record.

Contract Line Item Number Performance Period Estimated Annual Cost ($) CLIN 0001 October 2018 $24,858.25

Total Estimated Cost:

4 An Identification of statutory authority permitting other than full and open competition:

This justification to award as a sole source is prepared pursuant to the exception to full and open competition requirements in accordance with the statutory authority for these services that is found at 41 USC §3304(a)(1), when the supplies or services required by the agency are available from only one responsible source. The application which permits use of the cited statutory authority are stated at FAR Part 6.302-1(b)(3), when acquiring utility services (see 41.101), circumstances may dictate that only one supplier can furnish the service (see 41.202).

5 A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited:

The Morgantown Utility Board (MUB) is the sole provider of wastewater utility service in the FCI Morgantown service area. The MUB is regulated by the Public Service Commission created by the West Virginia Legislature. The PSC is the governing body that sets all rates and tariffs with the responsibility of wastewater utility services for the locale in which FCI Morgantown resides. Since the MUB is the entity of Morgantown, WV, and the only agent authorized by rules and regulations to provide wastewater service in the area of FCI Morgantown, this requirement cannot obtain by contracting directly with private sources.

6 A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable including whether or not a notice was or will be publicized as required by FAR Subpart 5.2:

As stated in FAR Part 5.202(a)(5), Exceptions to transmitting a notice to the Government Point of Entry(GPE), the contracting officer need not submit a notice when “the proposed contract action is for utility services other than telecommunications services and only one source is available.” There are no General Service Administration (GSA) area-wide or single point contracts for wastewater utility services in the FCI Morgantown, WV, area at this time.

7 A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable:

The estimated cost, based on invoice history, for the wastewater utility service is $ . The current rate offered by MUB are equal to the market price levied other commercial, industrial, and government users in the FCI Morgantown area. Utility rates are enacted by tariffs set by the West Virginia PSC, which is charged under West Virginia law to ensure that rates be just and reasonable. The MUB tariff has provided sufficient data to the FBOP contracting officer, pursuant to FAR 15.402, Pricing Policy, allowing the ability to make preliminary determination that such anticipated costs appear to be fair and reasonable. The MUB is a non-profit corporation operating pursuant to the right and power granted by Chapter 24, Article 2 of the West Virginia Code. A formal decision in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set pricing (See FAR 15.403-1 C(2) ) and the purchasing of supplies and services from a reasonable source is determined fair and reasonable. The established of the current supply and delivery of services began when the original service connections were installed and the meter set in 1968. As such, this Contracting Officer has determined the anticipated cost to the government will be fair and reasonable.

8 A description of the market research conducted and the results or a statement of the reason market research was not conducted:

This documentation is in accordance with FAR Part 10, which describes the policies and procedures for conducting market research in a process of finding viable sources of goods and services to meet government requirements and to find the most suitable approach to acquiring, distributing, and supporting supplies and services. This report is submitted in support of an acquisition with an estimated value in excess of the simplified acquisition threshold. Below are the findings of the market research for the above referenced requirement.

I. Background: A review of the obligation reveals the following – FCI Morgantown has a current and continuing requirement for wastewater utility service.

1.Title: Wastewater Utility Service FCI Morgantown, to provide wastewater services for the FBOP, FCI Morgantown located in Morgantown, WV.

2.Product or Service Code: S- Utilities and Housekeeping Services – S119 Other Utilities.

3.North American Industry Classification System (NAICS): 221320 Sewage Treatment Facility

II. Potential Sources: MUB is the sole provider of wastewater utility service in the FCI Morgantown service area. FAR provides that a formal decision in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set pricing and the purchasing of supplies and services are determined fair and reasonable from a responsible source. I reviewed historical acquisition information, I applied personal knowledge in procuring supplies/services of this type, interaction with knowledgeable individuals in local and Federal Government regarding market capabilities to meet the requirements, reviewed Government and/or commercial databases for relevant information, searched FPDS- NG, searched the internet, and research of generally accessible literature available on-line were the techniques used in researching this procurement for a supply/services of this type. A review of West Virginia regulations determined that a wastewater utility service is not a deregulated utility. Deregulation would promote competition and private companies and Government entities, fall under the jurisdiction of the West Virginia Public Utility Commission. FCI Morgantown is located in Monongalia County Zoning District within Morgantown’s Utility Boards territories served.

III. Deliver / Performance time: Pursuant to FAR Part 41.202, MUB continues to provide the “entire wastewater utility service” (i.e., treatment, testing, system operation and maintenance, metering, billing, etc.). MUB shall provide to the government facility at FCI Morgantown, wastewater utility services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. MUB shall provide services on an un-interruptible daily basis 365 days per year. MUB will be responsible to maintain and/or repair all associated wastewater lines and equipment, including associated costs for such repair, from the delivery point or meter of FCI Morgantown. MUB shall provide wastewater utility services from Effective Date of Award (EDOA) through twelve- months from EDOA, subject to funds availability (FAR Clause 52.232-18).

IV. Commercial Item Determination: wastewater utility service is an item that is of a type customarily used by the general public and by non-governmental entities for purposes other than governmental purposes.

V. Market Analysis:

The results of market research have determined that the government’s need can be met by an item customarily available in the commercial marketplace.

The market research conducted by the contracting office and the Facilities Department staff determined that a GSA area-wide or a single point contract does not exist with Monongalia County. MUB is the wastewater service provider for FCI Morgantown and has serviced the facility for many years. A search of previous purchases of similar/identical acquisitions shows MUB is the current wastewater service provider for FCI Morgantown and has serviced the facility since dedication. Also, MUB is the only service supplier capable at this time of providing FCI Morgantown with wastewater services. No other company has presented itself with the capabilities nor the infrastructure to run wastewater lines to the current connection site as the territory is protected by tariff. MUB is the current wastewater utility service provider for FCI Morgantown and has continuously serviced the facility for many years. No other sources have been located that are currently capable or that could acquire the capability of meeting the Bureau’s requirement.

I have determined that the North American Industrial Classification System (NAICS) code is 221320 – Sewage Treatment Facility. The purchase order will be a firm-fixed price requirements type utility purchase order.

VI. Results:Based on the information provided by the sources detailed above, the following information outlines the conclusions and provides the basis for this procurement.

It is this Contracting Officers determination there is a source available that is capable of providing the required services. The procurement will be conducted in accordance with the procedures as outlined in FAR Part 6, 12, 13, and 41. A Performance-Based Acquisition (PBA) method will not be used for this procurement as it is determined not applicable. A PBA relies on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

One potential source is a local entity, the incumbent MUB, which appears able to satisfy the requirement and is regulated by the P.U.C. of West Virginia. MUB is other than small business.

The provision of wastewater utility service is essential for the orderly operation of FCI Morgantown. The specifications/description requirements documents shall specify needs using market research in a manner designed to promote full and open competition and only include provisions or conditions to the extent necessary to satisfy the needs of the FBOP or as authorized by law. However, the West Virginia P.U.C.

regulations state that in order to provide economical and efficient service to a community, the state of West Virginia grants waste companies the right to provide their service within a specific geographic area. History shows and economics dictate that the construction of facilities by multiple utilities in the same location would be extremely costly and disruptive to communities. The utility is regulated by state or local government to assure fair rates for safe and adequate service. The ratemaking process ensures the lowest reasonable rate for consumers while maintaining the financial stability of the utility. Under the law, the utility is entitled to recovery of its reasonable incurred expenses.

This requirement will not be posted to Fedbizopps as a combined synopsis solicitation to promote competition, broaden industry participation, and assist small business concerns in obtaining contracts for FCI Morgantown, West Virginia. This requirement meets the exemption at FAR 5.202(a)(5) the proposed contract action is for utility services other than telecommunications services and only one source is available. MUB is the sole provider of wastewater utility service in the FCI Morgantown service area.

MUB is an entity in Monongalia County, the only agent authorized by rules and regulations to provide wastewater service in the Monongalia County area. Having a single supplier of wastewater service for this area is the most efficient method of supplying wastewater.

The Bureau does not have the state and local approval or the resources to provide the funding for another company to install wastewater lines and no other contractor can provide wastewater service through MUB pipelines.

I also make the determination that this procurement action “NOT” be set-aside for small business. The Small Business Procurement Review for the purchase of utility services has been granted a waiver by the Office of Small and Disadvantaged Business Utilization to the FBOP for submitting routine procurements to the Office of Small and Disadvantaged Business Utilization for review in accordance with PGD 09-02.

VII. Recommendation: The Government contemplates the single award of a firm-fixed price requirements type wastewater utility service contract. The estimated date of award will be made approximately October 1, 2018.

Comments: The conclusions from this market research will be incorporated into the agreement document for providing wastewater Utility Service for FCI Morgantown.

9 Any other facts supporting the use of other than full and open competition:

None.

10 A listing of the sources, if any, that expressed, in writing, an interest in the acquisition:

On August 18, 2017, an open and continuous sources sought notice was posted on www.fbo.gov. No sources expressed an interest in this acquisition.

11 A statement of the actions, if any, the agency may take to remove or overcomebarriers to competition before any subsequent acquisition for the servicesrequired:

Contracting and requirement staff continues to conduct appropriate market research to determine if sources capable of satisfying the agency’s requirement exist and to overcome competition barriers. Deregulation laws are presently nonexistent and no alternative source of service is currently available. A review of FPDS-NG shows only the FBOP is issuing orders to MUB for wastewater utility requirements. FCI Morgantown is a consumer of services from the public utility. If another potential source emerges, the agency will assess whether competition for future requirements is feasible.

12 Contracting Officer’s Certification:

I hereby certify that this request for Justification and Approval of Other than Full and Open Competition is made in good faith, the supporting data and information are accurate and complete to the best of my knowledge and belief and I would not be making this request if it were feasible to fully compete this requirement. I further certify that this request is not the result of lack of advanced planning or a desire to expend funds while those funds are still available.

07/06/2018

7/10/2018

Bonnie Bueter

Digitally signed by Bonnie Bueter DN: cn=Bonnie Bueter, o, ou, email=bbueter@bop.gov, c=US Date: 2018.07.06 14:29:23 -05'00'

Digitally signed by ALFRED RAUSCHUBER DN: c=US, o=U.S. Government, ou=Dept of Justice, ou=BOP, cn=ALFRED RAUSCHUBER, 0.9.2342.19200300.100.1.1=15001000663620 Date: 2018.07.10 08:56:16 -05'00'