NAN_Final Phase 2 JA_COVID ACF_Westchester Community Center_ Haugland Energy Group.pdf

New York ACF Westchester County Center

Control # NAN 20-005

AFTER-THE-FACT JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: Limited Sources Phase II COVID19 ACF CONTROL NO: NAN 20-005

AUTHORITY: 10 U.S.C. 2304 (C) (2) AMOUNT: $50,000,000

PREPARED BY:

CONTRACT SPECIALIST

NAME: Alyssa Tornatore

PHONE: 917-790-8389

DATE:

CONTRACTING OFFICER

NAME: Nicholas Emanuel

PHONE: 917-790-8069

TECHNICAL

NAME: Matthew Emigholz

PHONE: 917-790-8248

REQUIREMENTS

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

PHONE: 917-790-8004

PROJECT MANAGER

DISTRICT COUNSEL

NAME: Lorraine Lee

PHONE: 917-790-8055

DISTRICT CONTRACTING

CHIEF

NAME: Francis Cashman

PHONE: 917 790-8173

SCO/HQ COUNSEL

NAME: Tristan Brown

PHONE: 202-761-8541

SCO ATLANTA/ALTERNATE

COMMAND ADVOCATE FOR

COMPETITION

NAME: Laura Eichhorn

PHONE: 404-562-5051

S0CT9LJE

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S0CT9LJE

Typewritten Text 15 April 2020

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Typewritten Text 15 April 2020

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Typewritten Text 15 April 2020

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 Haugland Energy Group

LLC, 11 Commercial Street Plainview, NY, 11803, 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 will be 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 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 at Westchester County Center to retrofit an Alternate Care Facility (ACF) to treat acute COVID patients with a total of 110 patient spaces. This work is providing an ACF meeting basic healthcare functions with an emphasis on patient isolation, infection control, fire protection, and life safety. This Justification is for the Westchester Community Center Alternative Care Facility (ACF) in New York. The estimated total value of the contract awarded under this J&A is $50,000,000, based on the not-to-exceed (NTE) amount for the awarded UCA. This amount is based upon the Government’s estimate for the project and the NTE for the awarded contract. The period of performance for the design-build contract is anticipated to be 3 weeks 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. The Government conducted its Phase I evaluation and down-selected to 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 Haugland Energy Group LLC for the particular requirements of the New York State

Westchester Community Center Alternative Care Facility (ACF).

Haugland Energy Group LLC was determined to be the highest qualified firm for the New York

State Westchester Community Center Alternative Care Facility (ACF) because of their demonstrated qualifications. Haugland Energy Group LLC identified that they had key subcontractors located in the area which allowed for technical representatives to respond in less than 48 hours for scoping efforts. Haugland Energy Group LLC identified that many of their team members and subcontractors previously performed medical facility projects. Haugland

Energy Group LLC also demonstrated local experience on construction projects where the firm had an existing infrastructure that could service the immediate project. These qualifications made them uniquely suited for the New York State Westchester Community Center Alternative Care

Facility (ACF) because Haugland is a local contractor on Long Island in the immediate vicinity of the project site. They had the local means and methods to quickly mobilize and begin work at

Westchester. Of the contractors considered, Haugland was best positioned to begin work immediately and be the first contractor on site at Westchester community Center.

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 the 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 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 3 weeks, 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 10 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 Haugland Energy Group LLC. 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 three weeks.

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: _______________________________

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 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: Nicholas Emanuel

Title: Contracting Officer 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: ___________________

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 the

Westchester Community Center Alternative Care Facility (ACF) in New York 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: _____________________________