Redacted_JA ML-25-29 Interior Finish_CEP200 209 Office Reno.pdf

DEPARTMENT OF THE NAVY

NAVAL FACILITIES ENGINEERING SYSTEMS COMMAND, MID-ATLANTIC

9324 VIRGINIA AVENUE

NORFOLK, VIRGINIA 23511-3095

J&A No. ML-25-29

JUSTIFICATION AND APPROVAL

FOR USE OF OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Activity.

The contracting activity is Naval Facilities Engineering Systems Command, Mid-Atlantic (NAVFAC ML) Public Works Department Norfolk, Building A-81, 9742 Maryland Avenue, Norfolk, Virginia 23511.

2. Description of the Action Being Approved.

NAVFAC ML requests Justification and Approval (J&A) for Other than Full and Open Competition to allow Contracting Officers to issue solicitations for construction contracts, where “brand name or equal” references are necessary to effectively communicate structural interior colors and finish selections to effectively communicate the design intent of the interior of the facility to ensure an aesthetically pleasing, professional environment. Specific brand name structural finish materials are listed within the construction documents on sheet IN601. A duplicate of this information is provided below in “Insert 1 - Finish Spreadsheet.”

3. Description of Supplies/Services.

The intent of solicitation N4008525R2622 for Building CEP-200/209 Office Renovation located in Norfolk, Virginia is to renovate approximately 8,477 square feet of office space on the first floor of buildings CEP 200 and CEP 209 to provide more project team work spaces to accommodate the growing workload.

This acquisition will solicit proposals as a Multiple Award Construction Contract (MACC) Task Order on the Small Business General Construction MACC for the Hampton Roads Area of Responsibility (AOR), as authorized by the approved DD2579 on 18 March 2025. 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 FY25 O&M, N funds. The work under this contract is required to be completed within 750 days after award.

In order to sufficiently define the scope of work to be performed by a general 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 generic descriptions. For example, it is not feasible to adequately describe a particular shade of paint color which must be used to provide a cohesive appearance for an aesthetically pleasing, professional environment;

however, the intended hue can be conveyed by referencing a particular manufacturer’s proprietary product, and that color can then be replicated in any brand of paint. Therefore, the use of brand name references is necessary to convey requirements to achieve the overall coordinated desired appearance but is not intended to restrict competition. The identified brand name items are intended to solely relay the BOD for the structural interior finishes. The specification for finish materials will include the manufacturer’s name, product line, model number, and any identifiable information specific to that material/finish accompanied by salient characteristics and generic technical specifications 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 intent of providing a BOD is to have standard stock products to be provided without having custom products manufactured specifically for this facility. During the design of the facility, the designer of record has verified the products using manufacturer brand names are not proprietary, and can be met by many established manufacturers.

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 of title 10, United States Code.

10 U.S.C § 3204(a)(1)(effective January 1, 2022) (formerly 10 U.S.C. § 2304(c)(1), amended by Pub. L.

No. 117-81, 135 Stat. 154), as 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.”

This justification applies only to the brand name or equal products describing structural interior finishes, as specified in the construction contract documents for project Building CEP-209 Bathroom Renovation located in Norfolk, Virginia.

5. Rationale Justifying Use of Cited Statutory Authority.

Background:

As a preliminary matter, this justification is formatted in accordance with 10 U.S.C. § 3204, but the intent of the government 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 National Defense Authorization Act (NDAA) (Pub.

This L. 114-328) 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 04. In accordance with Deputy Assistant Secretary of the Army for Procurement (DASA(P)) Alert 19-108, use of Brand Name or Equal references requires a J&A for Other than Full and Open Competition, and DoD subsequently issued a final rule effective 31 May 2019 that amended the DFARS to implement section 888 of the NDAA for FY2017 (Pub. L. 113-291).

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.

The design of this project was completed and signed on January 21, 2025. In accordance with Unified Facilities Criteria (UFC) 1-200-01 DOD Building Code, Chapter 1 paragraph 1-3.1 Implantation, Administration, and Enforcement, UFC 3-120-10 Interior Design is a requirement for this project design.

Although UFC 3-120-10 Interior Design, with Change 1, was released on 16 May 2018 and stated, “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.”, it was updated on 15 June 2021 with Change 2 to align with the amended DFARS which removed the direction to call out manufactures and brand names.

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.

Based on the above information, because the construction drawings were signed on January 21, 2025, this project was designed using UFC 3-120-10, Change 2.

The Structural Interior Design (SID) of a facility includes building-related design elements and components as part of the building construction to include but not limited to, paint, wall coverings, ceiling finishes, 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 required aesthetic, durability and maintenance qualities and characteristics applicable to each space within the facility. The SID is designed by a professional certified 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 for bidding. 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.

In addition, the UFC stipulates the use of the following disclaimer: (reference UFC 3-120-10 with Change 1, 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.

UFGS 09 06 00 Schedule for Finishes, Paragraph 2.1 states:

“The color schedule information provided in the following paragraphs lists the colors, patterns and textures required for exterior and interior finishes, including both factory applied and field applied colors. Where color is shown as being specific to one manufacturer, an equivalent color by another manufacturer may be submitted for approval. Manufacturers and materials specified are not intended to limit the selection of equal colors from other manufacturers.”

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 an industry standard by the construction contracting community for decades. 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 the facility’s 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 the Structural Interior Design (SID) for a design-bid-build contract and ensure an aesthetically, coordinated building interior. Utilizing a basis of design is a critical component of designing complete and coordinated structural interior design under the current UFC. It is not possible to fully design a coordinated system of interior materials and colors to meet technical requirements without assumptions of specific materials using manufacturer names and product information. The only potential alternative is to convert all solicitations into a design-build procurement without complete designs and require the effort of a professional, certified interior designer to meet the requirements set forth in UFC 3-120-10 Interior Design, after award to a Contractor. This alternative does not meet the government’s interests in providing a complete design for the facility since the government has determined a design-bid-build procurement for this facility 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 interior finishes, 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 10 March 2025 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 ML’s attention that the proposed language is having a limiting effect of 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.

Insert 1 -Finish Spreadsheet

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.

Date Project Manager

NAVFAC MIDLANT

LEGAL SUFFICIENCY REVIEW

I have determined this Justification is legally sufficient.

Date Assistant Counsel

NAVFAC MIDLANT

CONTRACTING OFFICER CERTIFICATION

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

Date Contracting Officer

NAVFAC MIDLANT

APPROVING OFFICIAL (NPGI 6.204) ECHELON IV CHIEF OF THE CONTRACTING

OFFICE CERTIFICATION

Upon the basis of the above justification, I hereby approve the solicitation of the proposed procurement described herein using other than full and open competition, pursuant to the authority of 10 U.S.C.

04 ( (1).

Date Chief of the Contracting Office

NAVFAC MIDLANT