23R2851 Q1344U Interior Finishes Brand Name or Equal JA _Redacted.pdf

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING SYSTEMS COMMAND, MID-ATLANTIC

9324 VIRGINIA AVENUE

NORFOLK, VIRGINIA 23511-3095

J&A No. ML-23-87

JUSTIFICATION AND APPROVAL

FOR USE OF OTHER THAN FULL AND OPEN COMPETITION FOR

STURCTUAL INTERIOR DESIGN (SID) FINISHES

1. Contracting Activity.

The contracting activity is Naval Facilities Engineering Systems Command, Mid-Atlantic (NAVFAC MIDLANT), Norfolk, Virginia.

2. Description of the Action Being Approved.

This Justification and Approval (J&A) authorizes the use of “brand name or equal” references in construction solicitations where it is necessary to effectively communicate interior color and finish selections. Specific brand name or equal finish and description are listed in Attachment 1 below and are specific to solicitation N40085-23-R-2851 and the resulting contract.

3. Description of Supplies/Services.

The intent of solicitation N40085-23-R-2851for Q-1344U, SOF Owls Creek Boat Maintenance Shop, located in Virginia Beach, Virginia, is to construct a new pre-engineered metal building to support boat maintenance activities at the Owls Creek compound.

This acquisition will solicit proposals utilizing 8(a) competition, as authorized by the approved DD2579 on 27 July 2023. The estimated value of the work included in this construction solicitation is and the estimated value of the brand name materials subject to this J&A is . The project will be funded by FY24 MILCON funds for construction and finishes. The work under this contract is required to be completed within 532 days after award.

In order to sufficiently define the scope of work to be performed by a construction contractor, a Basis of Design (BOD) is prepared to document the principles, assumptions, rationale, criteria, and considerations used for calculations and decisions required during design. When preparing a BOD for a construction project, it is not practicable to convey the required finishes to potential offerors using mere descriptions. For example, it is not feasible to adequately describe a particular shade of paint color that must be used in order to provide aesthetic compatibility within the buildings; however, the intended hue can be conveyed by referencing a particular manufacturer’s proprietary color, and that color can then be replicated in any brand of paint.

Therefore, the use of brand name references is necessary to convey requirements, but is not intended to restrict competition. The identified brand name items or proprietary specifications are intended to solely relay the BOD for the interior finishes. The specification for a certain interior finish will include the manufacturer’s name, product line, model number, etc. along with

J&A No. ML-23-87 all salient characteristics necessary for “equal” products to meet contract performance requirements. While it is possible for many manufacturers to produce finishes that are functionally equivalent to these designated finishes, the finish descriptions themselves are nonetheless proprietary specifications unique to particular manufacturers. The contract performance requirements are not proprietary, and can be met by many established manufacturers. Manufacturer(s) and product line(s) are identified only to establish a color and aesthetic BOD.

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

The National Defense Authorization Act for Fiscal Year 2017, 114 P.L. 328 (December 23, 2016) states under Section 888, “[t]he Secretary of Defense shall ensure that competition in Department of Defense contracts is not limited through the use of specifying brand names or brand-name or equivalent descriptions, or proprietary specifications or standards, in solicitations unless a justification for such specification is provided and approved in accordance with section 2304(f) of title 10, United States Code. Title 10, Section 2304 has been repealed, modified, and recodified at 10 U.S.C. § 3204 (effective January 1, 2022, amended by Pub. L. No. 117-81, 135 Stat. 154), and implemented by FAR 6.302-1(c), and DFARS 206.302-1(c)(2) and (S-70) (Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements).

5. Rationale Justifying Use of Cited Statutory Authority.

As a preliminary matter, this justification is formatted in accordance with 10 U.S.C. § 3204, but the intent of the source selection authority is not to limit competition based on the use of brand names or equal purchase descriptions in the solicitation. This justification is merely meant to document compliance with section 888 of the 2017 NDAA. Section 888(a) of the FY17 NDAA requires that competition on Department of Defense (DoD) contracts not be limited through the use of brand name or equal descriptions or proprietary specifications or standards, in solicitations, unless a justification is approved in accordance with 10 USC 2304(f). In accordance with DFARS 206.302-1(c)(2), DFARS 211.104, and DFARS 213.501(a)(ii), use of Brand Name or Equal references requires a J&A for Other than Full and Open Competition.

To put things simply, paint colors and interior finishes of a building can easily be color-matched by a variety of manufacturers and suppliers. It is common in the industry for colors and finishes to be identified by a particular brand or manufacturer and that brand’s name or identifier for the product. The government has a legitimate need in this case for specific interior paint colors and building finishes, but does not seek to limit the source of those materials to a specific brand or manufacturer.

UFC 3-120-10 Interior Design, with Change 1 is the applicable criteria for this project in accordance with Unified Facilities Criteria (UFC) 1-200-01 DOD Building Code, Chapter 1 paragraph 1-3.1 Implantation, Administration, and Enforcement because the level of design had preceded beyond 35%.

UFC are effective upon issuance for projects as follows:

• Design-Bid-Build projects that have not proceeded beyond 35% design completion.

•Design-Build projects that have not proceeded beyond date of Request for Proposal (RFP) issuance. When an RFP is issued in multiple phases or steps use the date of the last phase of the RFP issuance.

•Projects that have a delay, either planned or unintentional, of more than 18 months between design completion and the solicitation of offers for construction must be re-evaluated to determine if any design revision is necessary due to changes in criteria (including codes and standards) or site infrastructure (for example, water supply for fixed fire suppression systems, water for hose stream allowances, or fire department vehicle access). Note: The evaluation must also include retroactive requirements that have been included in the new editions of the criteria.

The Structural Interior Design (SID) of a facility includes building-related design elements and components as part of the building construction, such as wall paint or coverings, ceiling paint or finish, floor coverings (e.g. tile, carpet, etc.), primary window treatments (e.g. blinds, shades and drapery hardware, etc.), signage and built-in casework. The interior designer must determine the desired interior finish materials based on the respective aesthetic, durability and maintenance qualities, and characteristics applicable to each space within the facility. The SID is designed by a qualified interior designer in accordance with Unified Facilities Criteria (UFC) 3-120-10 Interior Design, Chapter 2 paragraph “Interior Designer Qualifications.”

It is necessary for the government to include brand names or proprietary specifications for finishes to have a complete design that can be properly conveyed to the construction contractor.

UFC Requirements: (reference UFC 3-120-10 with Change 1, paragraph 4-5.1).

The interior designer must provide all finish and color selections including finish code, manufacturer’s materials, textures, patterns, color names and numbers for all interior finishes and specialties which will be exposed to view in the finished construction. The Government will direct which of the following methods to use.

It is noted that the UFC stipulates use of the following disclaimer: (reference paragraph 4-5.1.2):

The Government prohibits the use of proprietary materials, finishes and colors. A disclaimer must be used on the drawings or in the specifications indicating materials and colors are shown for reference only. However, it is important to use specific manufacturer, finish and color information to establish a frame of reference in the development of the [Structural Interior Design] SID. Reference UFGS 09 06 00 Schedules for Finishes for the appropriate disclaimer to use that addresses this issue when developing the SID.

For construction contracts, FAR 52.236-5, Materials and Workmanship, addresses any potential competition concerns associated with including a basis of design on the plans or in the specifications and has been well defined and well-understood by the construction contracting community for decades. The contract that follows this solicitation will include this provision. In part, this clause states: “References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract.”

The identified brand/manufacturer items or proprietary specifications are intended to be examples for the basis of interior design to help ensure visual integrity of the building’s interior finishes. Interior finishes will be procured and installed as part of firm-fixed-price, design-bid-build construction contracts and will be solicited in accordance with all applicable policies, procedures, guidance, and laws related to competition.

There is no alternative method to complete a 100% design suitable for those requirements that require a design-bid-build contract. Utilizing a basis of design is a critical component of designing complete and coordinated with the Installation Design Guide under the current UFC. It is impossible to fully design a system to meet requirements without assumptions of material specifications, especially given the numerous individual subcontractors supplying their respective items. The only potential alternative is to convert all solicitations into a design-build procurement without complete designs. This alternative does not meet the government’s interests in providing complete designs for facilities where the government has determined a design-bid-build procurement is in the best interests of the government pursuant to FAR Part 36 “Construction and Architect-Engineer Contracts” and Engineer Regulations (ER)1180-1-9.

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

The government is not attempting to limit competition or the supply of these materials to one source. No efforts were made to identify multiple sources of ceiling tiles, paint, wall finishes or flooring, because the solicitation will not limit the ultimate contractor to providing materials from only one or a limited number of brands or manufacturers. The Notice of Intent was published on Sam.gov on 07 July 2023 detailing the intent of the brand name or equal specifications, and no responses were received. A solicitation will both be publicized on SAM.gov and PIEE. The approved J&A will also be made publicly available as required by FAR 6.305 with the solicitation.

7. Determination of Fair and Reasonable Cost.

The Contracting Officer will determine that the price for this acquisition is fair and reasonable in accordance with FAR Part 15 prior to contract award. Analysis will be performed by one or more of the following techniques: (1) Comparison of proposed prices received in response to the RFP; (2) Comparison of proposed prices with the Independent Government Cost Estimate (IGCE); (3) Comparison of proposed prices with available historical information; and/or (4) Comparison of market survey results. The fair and reasonable determination will be made based on the total price of the project. These brand name or equal items are not individual line item prices in the solicitation.

8. Actions to Remove Barriers to Future Competition.

This solicitation does not limit competition. If it comes to NAVFAC MIDLANT’s attention that the proposed language is having a limiting effect on competition or the selection of alternate sources of material within the scope of this justification, the contracting officer will seek counsel and make efforts to take remedial measures.

Attachment 1

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.

LEGAL SUFFICIENCY REVIEW

I have determined this Justification is legally sufficient.

CONTRACTING OFFICER CERTIFICATION

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

APPROVING OFFICAL (NPGI 6.304) - ECHELON IV CHIEF OF THE

CONTRACTING OFFICE CERTIFICATION

Upon the basis of the above Justification, I hereby approve the use of the brand name or equal items in the subject solicitation described herein using other than full and open competition, pursuant to the authority of 10 U.S.C. 3204(a)(1).