NAN_ACF Sole Source JA - StonyBrook University - Turner SPE SIGNED.PDF

New York ACF Stony Brook Control # NAN 20-006

JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: Limited Sources Phase II COVID19 ACF CONTROL NO: NAN 20-006

AUTHORITY: 10 U.S.C. 2304 (C) (2) AMOUNT: $200,000,000

PREPARED BY:

CONTRACT SPECIALIST

NAME: Alyssa Tornatore

PHONE: 917-790-8389

DATE:

CONTRACTING OFFICER

NAME: Nicholas Emanuel

PHONE: 917-790-8069

DATE:

TECHNICAL

NAME: Matthew Emigholz

PHONE: 917-790-8248

DATE:

REQUIREMENTS

NAME: Matthew Emigholz

PHONE: 917-790-8248

DATE:

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: Justin Helfman

DATE:

PHONE: 917-790-8004

PROJECT MANAGER

SIGNATURE:

NAME: Matthew Emigholz

DATE:

PHONE: 917-790-8248

DISTRICT COUNSEL

SIGNATURE:

NAME: Lorraine Lee

DATE:

PHONE: 917-790-8055

DISTRICT CONTRACTING

CHIEF

SIGNATURE:

NAME: Francis Cashman

DATE:

PHONE: 917 790-8173

SCO/HQ COUNSEL

SIGNATURE:

NAME: Barbara Hebel

DATE:

PHONE: 202-761-1259

SCO ATLANTA/ALTERNATE

COMMAND ADVOCATE FOR

COMPETITION

SIGNATURE:

NAME: Laura Eichhorn

DATE:

PHONE: 404-562-5051

USACE HEAD OF

CONTRACTING AGENCY

SIGNATURE:

NAME: Jill E. Stiglich

DATE:

PHONE: 202-761-8642

14 April 2020

HELFMAN.J

USTIN.1368

284110

Digitally signed by

HELFMAN.JUSTIN.1

368284110 Date: 2020.04.14 09:54:50 -04'00'

EMIGHOLZ.

MATTHEW.W

.1266892248

Digitally signed by

EMIGHOLZ.MATTHE

W.W.1266892248 Date: 2020.04.14 10:08:46 -04'00'

LEE.LORRAINE.

C.1228825367

Digitally signed by

LEE.LORRAINE.C.1228825

Date: 2020.04.14 10:29:23 -04'00'

CASHMAN.FRAN

CIS.1386668368

Digitally signed by

CASHMAN.FRANCIS.1386668368

Date: 2020.04.14 10:39:02 -04'00'

HEBEL.BARBARA

.N.1228746874

Digitally signed by

HEBEL.BARBARA.N.1228746874

Date: 2020.04.14 12:41:29 -04'00'

Digitally signed by

EICHHORN.LAURA.J.1026254783

Date: 2020.04.14 14:38:32 -04'00'

14 April 2020

14 April 2020

14 April 2020

14 April 2020

STIGLICH.JILL.

E.1093489817

Digitally signed by

STIGLICH.JILL.E.109348

Date: 2020.04.16 12:54:14 -04'00'

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

1. CONTRACTING AGENCY: U.S. Army Corps of Engineers (USACE), New York District (CENAN), Contracting Division, New York, NY

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 Turner Construction, 375 Hudson St FL 6 New York, NY, 10014, 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) on 26 March 2020 and will ultimately be definitized as a FFP “C-type” contract. The type of funds being utilized are Federal Emergency Management Administration (FEMA) Disaster Relief funds. There were no options identified for the contract.

3. DESCRIPTION OF SUPPLIES/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 of a free standing Alternate Care Facility (ACF) structure on the State University of New York (SUNY) Stony Brook Campus to provide treatment spaces for up to 1028 acute and non-acute COVID patients, along with the associated nurses’ stations and other appurtenant facilities. This work is providing an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. This J&A is for ACF at Stony Brook. The contract has not yet been definitized, but the estimated total value of the contract, once definitized as a FFP contract, is expected to be less than $200,000,000. This amount is based upon the Government’s independent cost estimates for the project and the Not-to-Exceed (NTE) amount for the awarded contract. The period of performance for the design-build contract is anticipated to be 21 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, CENAN conducted this procurement in accordance with the Two-Phase Design-Build Selection Procedures in FAR 36.3. To that end, CENAN issued a limited competition Phase I design-build request for proposals to a total of ten 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. Two firms withdrew from consideration. The Government conducted its Phase I evaluation and down-selected the eight firms that were determined to be the most highly qualified firms. CENAN continued sole-source negotiations as part of Phase II of the design-build acquisition only with Turner Construction for the particular requirement of Stony Brook.

Turner Construction was determined to be the highest qualified firm for the specific requirement at Stony Brook because of their demonstrated ability to complete similar work on-time or early, and very relevant experience performing the construction of temporary structures in emergency operations. Turner Construction submitted several projects in their proposal of which multiple ones were considered very relevant to this requirement. Turner Construction’s past performance rating was based on strengths that resulted in a high expectation that Turner will successfully perform the required effort. Turner has completed over 130 healthcare projects over the past five years within New York State with elements similar to the project. Further, Turner Construction identified that they have key subcontractors located in the area which allowed for technical representatives to respond in less than 48 hours for scoping efforts. Turner Construction also identified that many of their team members and subcontractors have previously performed medical facility projects. Turner Construction also demonstrated local experience on construction projects where the firm has an existing infrastructure that could service the immediate project. Turner is very familiar with what needs to be done and has subcontractors ready to complete the effort, they were ready to mobilize immediately. Turner has a strong group of local trades capable of providing the resources required to successfully execute this project, which they identified in their Request for Proposal (RFP) Letter response. Their capacity and ability to immediately mobilize to the project site made them best suited for this project.

Justification: The President declared a national emergency on 13 March 2020. FEMA assigned USACE to support Emergency Support Function (ESF) #3 “Public Works and Engineering.” On 22 March 2020, FEMA assigned CENAN 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: CENAN 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 Undefinitized Contract Action (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 will ultimately be definitized as a FFP “C-type” contract was approved by the Senior Contracting Official on 26 March 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 21 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 CENAN to expedite award for urgently needed design and construction services identified above in Paragraph 3.

6. EFFORTS TO OBTAIN COMPETITION: CENAN solicited from as many firms as was practicable for Phase I. A limited sources J&A approved by the Senior Procurement Executive, Control No. CENAN 20-003, 26 March 2020, supported other than full and open competition for Phase I. It was necessary to negotiate a contract with a single source selected from the group of firms down-selected after Phase I of this two-phase design-build acquisition. As discussed in Paragraph 5, “Alternatives,” no other alternative would have allowed 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: CENAN 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, CENAN did not want to completely divest itself of a competitive environment and issued a limited competition Phase I design-build request for proposal to ten 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 Turner Construction. 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, CENAN would have been unable to undertake construction immediately and would not be able to meet the delivery schedule of 21 days.

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

CENAN identified firms from prior experience which were known to have capacity to complete the ACF Mission. CENAN 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 CENAN 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: Matthew Emigholz Title: Program Manager 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: Matthew Emigholz Title: Program Manager Signature: _______________________________ (date in electronic signature)

EMIGHOLZ.MATTH

EW.W.1266892248

Digitally signed by

EMIGHOLZ.MATTHEW.W.1266892248

Date: 2020.04.14 10:10:00 -04'00'

EMIGHOLZ.MATTH

EW.W.1266892248

Digitally signed by

EMIGHOLZ.MATTHEW.W.1266892

Date: 2020.04.14 10:10:14 -04'00'

13. FAIR AND REASONABLE COST DETERMINATION:

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

This will be determined by conducting a detailed cost/price analysis of the contractor’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 (IAW) FAR Part 15, and Certified Cost or Pricing Data will be required IAW FAR 15.403-4.

Name: Nicholas Emanuel 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: Nicholas Emanuel Title: Contracting Officer Signature: ___________________

(date in electronic signature)

EMANUEL.NICHO

LAS.1298804880

Digitally signed by

EMANUEL.NICHOLAS.129880488

Date: 2020.04.14 09:39:56 -04'00'

EMANUEL.NICHOLA

S.1298804880

Digitally signed by

EMANUEL.NICHOLAS.1298804880

Date: 2020.04.14 09:41:29 -04'00'