MVM_COVID ACF Ph2 JA MVM Commercial Appeal Building.pdf

MVM 20-001

After-the-Fact JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: Commercial Appeal Building Alternate Care Facility CONTROL NO: MVM 20-001

AUTHORITY: 10 U.S.C. 2304 (C) (2) AMOUNT: $51,326,283

PREPARED BY:

CONTRACT SPECIALIST

NAME: Christopher White

PHONE: 901-544-3343

DATE: 3 May 2020

CONTRACTING OFFICER

NAME: Priscilla Sweeney

PHONE: 901-544-3117

DATE: 3 May 2020

TECHNICAL

NAME: Tanya Wells

PHONE: 901-544-0897

DATE: 3 May 2020

REQUIREMENTS

NAME: Steven Barry

PHONE: 901-544-3401

DATE: 3 May 2020

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

SIGNATURE:

NAME: Thomas Mercer

DATE:

PHONE: 901-544-4146

PROJECT MANAGER

SIGNATURE:

NAME: Donald Callahan

DATE:

PHONE: 901-544-3665

DEPUTY DISTRICT COUNSEL

SIGNATURE:

NAME: Ann Bruck

DATE:

PHONE: 901-544-3775

DISTRICT CONTRACTING CHIEF

SIGNATURE:

NAME: Priscilla Sweeney

DATE:

PHONE: 901-544-3117

COUNSEL TO SCO-ATLANTA SIGNATURE:

NAME: Tristan Brown

DATE:

PHONE: 202-761-8541

SCO-ATLANTA/ALTERNATE

COMMAND ADVOCATE FOR

COMPETITION

SIGNATURE:

NAME: Laura Eichhorn

DATE:

PHONE: 404-562-5051

CALLAHAN.DONALD.S.

1241443180

Digitally signed by

CALLAHAN.DONALD.S.1241443180

Date: 2020.05.04 08:41:48 -05'00'

BRUCK.ANN.M.1269

987975

Digitally signed by

BRUCK.ANN.M.1269987975

Date: 2020.05.04 11:18:15 -05'00'

S0CT9LJE

Typewritten Text 6 May 2020

S0CT9LJE

Typewritten Text 6 May 2020

After-the-Fact Justification and Approval for Other than Full and Open Competition

1. CONTRACTING AGENCY: U.S. Army Corps of Engineers, Memphis District (CEMVM), Contracting Division, Memphis, Tennessee (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, Inc. (AECOM), 300 S. Grand Avenue, Suite 1100, Los Angeles, CA 90071-3173, 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 was definitized as a FFP “C-type” contract. 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 CONSTRUCTION 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 retrofit the Commercial Appeal Building (CA) into an Alternate Care Facility (ACF) to serve patients ranging from Non-Acute Non-COVID patients up to critical-care COVID patients with 450 patient care spaces as well as nurses stations, isolation boundary, demolition of non-load bearing walls as needed to improve patient care space layout efficiency, and modification of existing elevators for patient transport. This work provided an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. The action was awarded on 6 APR 2020 as an UCA, Contract No. W912EQ-20-C-0004 to provide design-build construction services at the Gateway Shopping Center (Gateway). On 8 APR 2020, FEMA, TEMA, and the State of Tennessee decided to relocate the Memphis-area ACF to a larger site at the Commercial Appeal Building and to suspend all work at the Gateway Site. The CA complex is located closer to a major medical center (Regional One Health) and interstate egress/ingress; can accommodate approximately 100 more beds; and is a wholly contained, isolated complex with unshared parking facilities capable of ensuring greater isolation of infected patients if COVID-19 ACF facilities are required. A D&F for modification of the location was approved on 15 APR 2020. On 13 APR 2020, the UCA place of performance was modified to relocate the project site to the CA. This Justification is for the CA ACF in Memphis, Tennessee. The total definitized contract amount is $51,326,283. The period of performance for the design-build contract is 28 days in total and performance began immediately upon award of the UCA in order to meet this aggressive schedule.

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.

Background/Selection of Sole Source Contractor: As discussed in Paragraph 8, Market Research, CEMVM conducted this procurement in accordance with the Two-Phase Design-Build Selection Procedures in FAR 36.3. To that end, CEMVM relied on a Louisville District limited competition Phase I design-build solicitation issued to a total of 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 13 firms that were determined to be the most highly qualified firms. CEMVM continued sole-source negotiations as part of Phase II of the design-build acquisition only with AECOM for the particular requirements of the CA ACF.

AECOM was determined to be the highest qualified firm for the CA ACF because of their demonstrated qualifications. AECOM had recent and relevant past healthcare facility construction including six (6) relevant healthcare projects, outstanding ratings on six (6) of the eight (8) COVID-19 ACF technical questions, and extensive design-build construction and Stafford Act experience. These qualifications made them uniquely suited for the CA ACF because AECOM could mobilize within 24-hours of notice of award and had an extensive base of available subcontractors in Tennessee. They were also awarded the Music City Center ACF in Nashville, Tennessee; therefore, AECOM already had a presence in the region doing similar work.

Justification: The President declared a national emergency on 13 MAR 2020. FEMA assigned USACE to support Emergency Support Function (ESF) #3 “Public Works and Engineering.” On 5 APR 2020, FEMA assigned the CEMVM 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: CEMVM 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 was definitized as a FFP “C-type” contract was approved by the Senior Contracting Official on 6 APR 2020 and the Determination and Finding for the modification was approved on 13 APR 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 28 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 CEMVM to expedite award for urgently needed design and construction services identified above in Paragraph 3.

6. EFFORTS TO OBTAIN COMPETITION: CEMVM relied on a Louisville District solicitation, which was solicited from as many firms as was practicable for Phase I. A limited sources J&A approved by the Senior Procurement Executive on 26 MAR 2020, Control No.

NAN 20-003, supported other than full and open competition for Phase 1. It is now necessary to negotiate a contract with a single source selected from the group of firms down-selected into Phase II of this two-phase design-build acquisition. As discussed in Paragraph 5, Alternative, no other alternative will allow 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: CEMVM 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, CEMVM did not want to completely divest itself of a competitive environment and used the Louisville District’s limited competition Phase I design-build request for proposal to 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, CEMVM would have been unable to undertake construction immediately and would not be able to meet the delivery schedule of 28 days.

8. MARKET RESEARCH: Based upon the Presidential National Emergency Declaration, CEMVM determined the most expeditious tool available to fulfill this urgent and compelling COVID-19 requirement. Immediately, a review of existing contract vehicles was conducted.

CEMVM identified firms from prior experience which were known to have capacity to complete the ACF Mission. CEMVM 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 CEMVM was able to limit the number of sources from which it solicited a Phase II proposal to one.

10. OTHER FACTS: NA

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: Tanya Wells Title: Structural Engineer 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: Steven Barry Title: Emergency Manager Signature: _______________________________ (date in electronic signature)

WELLS.TANYA.L.106

1423857

Digitally signed by

WELLS.TANYA.L.1061423857

Date: 2020.05.04 13:05:23 -05'00'

13. FAIR AND REASONABLE COST DETERMINATION:

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

This was 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.

Name: Priscilla Sweeney 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.

Name: Priscilla Sweeney 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 CA ACF in Memphis, Tennessee 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.

Name: Ms. Jill E. Stiglich, SES Title: Head of the Contracting Activity Signature: _____________________________ (date in electronic signature)