N103-23-P-2118 JA.pdf

J&A No. N103-23-P-2118

JUSTIFICATION AND APPROVAL (J&A) FOR USE OF OTHER THAN

FULL AND OPEN COMPETITION

1. Contracting Activity.

Department of the Navy, Military Sealift Command (MSC), Ship Charter Contracts Division (N103).

2. Description of the Action Being Approved.

Award of an extension to contract N3220523P2118 on a sole-source basis to the incumbent contractor, Sealift, Inc. of Delaware for the time charter of the U.S. flag, cargo vessel M/V

SAGAMORE.

The purpose of this J&A is to obtain approval to execute an extension of services under FAR 52.217- 8, Option to Extend Services. The clause was included in the contract at the time of award; however, the value of the additional services was not competitively evaluated. The proposed action permits up to six months of service under the clause.

The period of performance of this contract consists of a 97-day charter period from 04 June through 09 September 2023. The requested 29-day period of performance extension is to support projected Presidential Drawdown Authority (PDA) requirements.

3. Description of the Supplies/Services.

The contract provides for one, U.S. flag, cargo vessel (M/V SAGAMORE) under a MSC dry cargo time charter. It allows for worldwide use of the vessel to meet current and emergent missions.

MSC Operations notified the contracting office of this potential urgent requirement on 28 July 2023; on 28 July 2023, based on PDA requirements, the decision was made to continue use of the SAGAMORE under the current contract for an additional 29 days until on or about 08 October 2023, pursuant to FAR 6.302-2, unusual and compelling urgency. This extension encompasses the current requirement for AS-31 (900 TEUs) that delivered in MOTSU and will now be redelivered in Nordenham as well as the requirement for EMED G (250 TEUs), which will deliver in Souda Bay and redeliver in Nordenham. This will extend the current contract from a 97-day charter period to a 126-day charter period.

The total estimated value of this 29-day contract extension is $3,424,866.84, which include charter hire in the amount of $1,305,000.00 (CLIN 0061); fuel in the amount of $845,886.84 (CLIN 0062);

redelivery bonus in the amount of $900,000.00 (CLIN 0063); and port charges in the amount of $373,980.00 (CLIN 0064). In accordance with FAR clause 52.217-8, the current period fixed charter hire rate ($45,000.00) is to be used for the extension of the contract.

4. Statutory Authority Permitting Other Than Full and Open Competition.

10 U.S.C. § 3204(a)(2), as implemented by FAR 6.302-2, Unusual and Compelling Urgency

5. Rationale Justifying Use of Cited Statutory Authority.

This J&A permits an extension of services provided under FAR 52.217-8 Option to Extend Services, for continued performance of the current M/V SAGAMORE charter contract. A FAR 52.217-8 clause only requires a J&A for execution if the rates were not evaluated at the time of contract award (see FAR 17.207(f)), as is the instant case. However, the FAR 52.217- 8 clause was still included at time of award; therefore, the Government is justified in its execution of the clause. For this and the following reasons, this J&A uses FAR 6.302-2, unusual and compelling urgency, as its justification.

In accordance with FAR 6.302-2(b), unusual and compelling urgency statutory authority applies when 1) an unusual and compelling urgency precludes full and open competition; and

2) delay in award of a contract would result in serious injury, financial or other, to the Government.

Additionally, FAR 6.302-2(c)(2) states that use of this statutory authority requires agencies request offers from as many potential sources as is practicable under the circumstances.

The prompt requirement to send munitions from MOTSU to our partners in Nordenham precluded the normal contracting timeline of 75 days to secure a vessel of this type. That 75 days is comprised of 30 for a simplified acquisition procedure of commercial services days plus an additional 45 days to complete the diplomatic clearance for the port of Nordenham, Germany. Additionally, the Contracting Officer knew of no other U.S. flag vessels in the vicinity, which could have provided the needed service, as the availability of ammunition capable commercial vessels are limited. As detailed in section 3, supra, this mission sustains fulfillment of PDA requirements. Extending the current time charter contract is therefore the only current acquisition strategy available to support this effort and prevent a delay in award which eliminates potential mission failure. Mission failure is a serious injury to the United States. Performance on the contract is necessary to ensure strategic military cargo is delivered on time to support combat operations world-wide.

6. Description of Efforts Made to Solicit Offers from as Many Offerors as Practicable.

MSC issued a sources sought notice (N32205-SS-N321-23-102) that was posted on the SAM.gov website on 20 July 2023 with responses due 26 July 2023. One large business, indicating a U.S. flag vessel, responded to the sources sought notice. The response was assessed, and was found capable of performing the requirement. However, brokers have indicated that the vessel's owners desire to complete installation of sprinklers in all holds to increase the vessel's capacity to carry Hazardous class 1 cargo. That installation poses significant risk to the vessel’s availability for the mission due to the likelihood that the sprinkler installation would not be completed on time which would render the vessel unavailable to meet the layday requirement. Additionally, a diplomatic clearance would also be required for this new vessel for Nordenham, Germany, which would take an additional 45 days beyond an acquisition timeline to process. There is therefore not enough time to issue a solicitation, evaluate proposals, and provide a vessel name to the area command for diplomatic clearance in order to meet this mission. Notwithstanding, the Contracting Officer knew of no other U.S. flag vessels in the vicinity, which could have provided the needed service by the time required of the mission.

Moreover, the continued use of M/V SAGAMORE is in keeping in the spirit of Cargo Preference Laws.

This requested extension is exempt from the synopsis requirement by FAR 5.202(a)(2) ("unusual and compelling urgency precludes competition to the maximum extent practicable") because the Government would be seriously injured if the agency complies with the time periods in FAR 5.203.

There is not enough time to solicit and complete a 30-day Simplified acquisition PALT and an additional 45 day diplomatic clearance process, which would require a successfully-procured vessel name to be provided to the area command by 07 August 2023 in order to meet the original required layday of 20 September 2023.

7. Determination of Fair and Reasonable Cost.

The Contracting Officer signed below, has determined the anticipated cost to the Government of the services covered by this J&A will be fair and reasonable in accordance with FAR 13.106-3(a) (2) (ii)-comparison to prices found reasonable on previous purchases and FAR 13.106-3(a)(2)(i)-market research. As stated above, the FAR 52.217-8 option rates are the same rates as the existing charter for the M/V SAGAMORE. The Contracting Officer found these rates fair and reasonable at the time of contract award on 25 May 2023.

There has been no change in the market situation or to MSC's requirement that would cause a significant change in this rate. The M/V SAGAMORE has been on steady employment with MSC for the past 36 months with consistent rates, accounting for inflation and evolving requirements.

8. Actions to Remove Barriers to Future Competition.

To the maximum extent practicable, MSC intends to continue to solicit on a full and open basis with the amount of time required to complete the actions and competitively award charters for cargo vessels supporting missions worldwide.

CERTIFICATIONS AND APPROVAL

TECHNICAL/REQUIREMENTS CERTIFICATION

I certify that the facts and representations under my cognizance which are included in this Justification and its supporting acquisition planning documents, except as noted herein are complete and accurate to the best of my knowledge and belief. I certify that the supporting data that forms the basis for this justification is complete and accurate.

Technical/Requirements Cognizance.

Reynaldo Macawili 757-443-5682 Signature Name (Printed) Phone No. Date

LEGAL SUFFICIENCY REVIEW

I have determined this Justification is legally sufficient.

_____________________ Thomas Cloud 757-443-2379 __________

CONTRACTING OFFICER CERTIFICATION

I certify that this Justification is accurate and complete to the best of my knowledge and belief.

_____________________ Leon Hazley 757-443-5886 __________

DIRECTOR, CONTRACTS AND BUSINESS MANAGEMENT, MILITARY SEALIFT

COMMAND

Upon the basis of the following justification, I, hereby approve, as Competition Advocate, Military Sealift Command, the contract action described herein using other than full and open completion, pursuant to the authority of 10 U.S.C. 3204(a)(1):

__________________ Julian Krogh 757-443-2472

Signature Name (Printed) Phone No. Date