NAN-FY23-002 _JA Extend Period of Performance South Shore Staten Island.pdf

CUI Control Number: NAN-FY23-002

Justification for other than CUI South Shore of Staten Island, Full and Open Competition Richmond County, NY

JUSTIFICATION REVIEW DOCUMENT

OTHER THAN FULL AND OPEN COMPETITION

PROJECT/EQUIPMENT: South Shore of Staten Island, Richmond County, NY Coastal Risk Management Project CONTROL NO: NAN-FY23-002 AUTHORITY: 10 U.S.C. 3204(a)(1) AMOUNT: $25,000,000

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

NAME: Frank Verga

PHONE: (917) 790-8212

DISTRICT COUNSEL

NAME: Lorraine Lee

PHONE: (917) 790-8055

DISTRICT CONTRACTING CHIEF

NAME: Francis Cashman

PHONE: (917) 790-8173

SCO COUNSEL

NAME: Alexandria P. Tramel

PHONE: (817) 229-0971

SCO ATLANTA/ALTERNATE

DATE:

ADVOCATE FOR COMPETITION

NAME: Laura Eichhorn PHONE: (404) 562-5051

HQs Counsel

PHONE:

PREPARED BY:

CONTRACT SPECIALIST

NAME: Monica Chahary

PHONE: (917) 790-8182

DATE: 19 December 2022

CONTRACTING OFFICER

NAME: Francis Cashman

PHONE: (917) 790-8173

TECHNICAL

NAME: Robert Gerrits

PHONE: (917) 790-8288

REQUIREMENTS

NAME: Robert Gerrits

PHONE: (917) 790-8288

S0CT9LJE

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Justification for other than CUI South Shore of Staten Island, JUSTIFICATION FOR OTHER THAN

FULL AND OPEN COMPETITION

J&A Log No. NAN-FY23-002

1. CONTRACTING AGENCY: The contracting agency responsible for this action is U.S. Army Corps of Engineers (USACE), New York District (District).

2. DESCRIPTION OF ACTION: Approval is requested to modify contract number

W912DS18D0001 in order to extend the ordering period. This single award Indefinite Delivery, Indefinite Quantity (IDIQ) Contract was awarded to Moffatt & Nichol-AECOM J/V to provide Architect-Engineering (A-E) services. It is noted that this is a subsequent justification and approval (J&A) that follows a previous J&A, Control No. NAN-20-011, that increased the contract capacity. The source of funding is Public Law 113-2, the Disaster Relief Appropriations Act of 2013, and Sponsor contributed funds.

3. DESCRIPTION OF SUPPLIES/SERVICES OR NATURE OF

CONSTRUCTION: The South Shore of Staten Island (SSSI) is a Coastal Storm Risk Management (CSRM) project in Staten Island, New York (NY).

The construction project has an estimated cost of $2,000,000,000. SSSI is a single project with many project features and multiple construction contracts.

The existing single award IDIQ was awarded on 22 Dec 2017 with a total capacity not to exceed $30,000,000 and a maximum contract length of 60 months. The contract was awarded competitively in accordance with the Brooks Act to support the design of the construction contracts and provide engineering support during construction. It provides architect and engineering services primarily for the South Shore of Staten Island, Fort Wadsworth to Oakwood Beach, NY Coastal Storm Risk Management (CSRM) project and other coastal storm and flood risk management projects within New York City (NYC) boundaries. (Although the contract’s scope included the possibility of work in NYC beyond SSSI all task orders, both planned and currently awarded, are for SSSI.) This includes, but is not limited to, preparation of studies, reports, engineering analyses and design, design documents, plans, specifications, cost estimates, operation and maintenance manuals, and construction phase services. As stated above, J&A Control No. NAN-20-011, which was approved on 13 Aug 2020, authorized that the capacity of the contract be increased from $30,000,000, by $25,000,000, to a total of $55,000,000. This previous J&A did not change the period of performance from the original 60 months. However, since that J&A was approved, the District has not been able to award the projected task orders and utilize the additional $25,000,000 because the North Atlantic Division (Division) and Headquarters USACE (HQUSACE) determined that a Validation Study/Report should be initiated to evaluate cost saving measures due to significant increases in project costs. Therefore, this J&A requests that the period of performance be increased from the original 60 months to 72 months with no additional increase in the dollar capacity of the contract. This J&A does not

Justification for other than CUI South Shore of Staten Island, change the scope of the A-E IDIQ contract.

Anticipated services required include the following: bring the current project design which is approximately 75% complete to 100% complete; risk assessment in accordance with Engineering and Construction Bulletin (ECB) 2019-15; preparation of the project operation and maintenance manual, review of shop drawings and submittals prepared by the General Construction Contractor for conformance with the construction contract requirements, site visits during construction for meeting attendance, observation of construction work in progress, evaluation of quality control mock-ups and observation of factory acceptance testing, answering Requests for Information (RFIs) submitted by the General Construction Contractor, technical support for the levee system evaluation in accordance with ECB 2019-11, other technical support activities during the construction phase, including consultation by phone, teleconference or video conferencing during technical meetings, and discussions with the Government team and the General Construction Contractor's representatives and on-site representation support during construction.

The basic contract’s original capacity of $30,000,000 was to be for twelve (12) task orders, all for SSSI. To date a total of $25,374,511.98 has been awarded in task orders. During the Validation Study, the District determined that a task order for design of NYC Department of Environmental Protection future outfalls through the line of the protection was not necessary (see Table 1 below), so the requested ordering period extension will support design of the following eleven (11) project features/requirements with new task orders to be awarded during the extension period. All these task orders support the SSSI project:

TABLE 1

Project Features/Requirements Estimated Value

Public Design Commission Hydraulics and Hydrology $400,000 Permit Support $100,000 Midland to Fort Wadsworth (boardwalk) investigations $6,000,000 Midland to Fort Wadsworth (boardwalk) Plans & Specs $6,040,000 Additional Survey $100,000 Updated Risk Assessment $200,000 Engineering and Design During Construction $6,100,000 Parks Boardwalk Betterment $2,000,000 Oak-Miller Seawall re-design (to 60%) $4,800,000 Hylan Blvd Road Raising Betterment $1,500,000 Floodwall Design NYC Dept of Env Protection betterment

$100,000

$27,340,000

Justification for other than CUI South Shore of Staten Island,

4. AUTHORITY CITED: 10 U.S.C. 3204(a)(1), as implemented by FAR 6.302- 1(a)(2)(iii), “Only one responsible source and no other supplies or services will satisfy the agency requirement.”

5. REASON FOR AUTHORITY CITED:

Background: The South Shore of Staten Island (SSSI) Fort Wadsworth to Oakwood Beach, NY Coastal Storm Risk Management Project provides the first line of defense against severe coastal storm surge flooding and wave forces and reduces the risk of storm damage. The project includes a buried seawall, floodwalls, earthen levees, road closure structure, and associated interior drainage features. These design services for these construction contracts (except for the separable Interior Drainage Areas E and C) are currently being provided under Contract No. W912DS18D0001 by the Moffat & Nichol-AECOM Joint Venture. The multiple construction contracts which the South Shore of Staten Island Coastal Risk Management projects will be constructed under include:

• Contract 1- Interior Drainage Area E: excavated pond.

• Contract 2- Floodwall at Oakwood Beach Wastewater treatment Plant.

• Contract 3 – Interior Drainage Area C: excavated ponds.

• Contract 4- Levee, Hylan Blvd Road Closure Structure, and Interior

Drainage Area A: earthen levee (3400 feet); road closure structure; tide gate.

• Contract 5- Oakwood Beach to Miller Field: 1.75 miles of seawall with concrete promenade, tidal wetland, tide gate, interior drainage Area B excavated pond.

• Contract 6 – Midland Beach to Fort Wadsworth: 2.5 miles of seawall with boardwalk.

• Contract 7- Miller Field Offset -forested wetlands enhancement.

Justification: Per FAR 6.302-1(a)(2)(iii), the work must be highly specialized, and the action must constitute a follow-on contract. Since the Moffat & Nichol- AECOM J/V is the original source, this action is a follow-on to the work already completed by the Moffat & Nichol-AECOM J/V, and the work they will perform is highly specialized because it is for the completion and support services for a unique design produced by the Moffat & Nichol-AECOM J/V. The A-E’s knowledge of all aspects of the South Shore of Staten Island project, including knowledge of the underlying data and analyses that formed the basis of design decisions, and project planning and design, is specialized knowledge. The follow-on work had been anticipated in the scope of the original IDIQ. The design effort, however, has proven to be more involved and take longer than was anticipated. J&A Control No: NAN-20-011 was approved by the Head of the Contracting Activity on 13 August 2020, increasing the capacity of this Contract No. W912DS18D0001 to the current amount of $55,000,000. After the approval of that J&A (NAN-20-011), the project costs escalated almost four

Justification for other than CUI South Shore of Staten Island, times due to the rising costs of labor and raw materials attributed to the COVID- 19 pandemic and inflation, and the design took a strategic pause to evaluate cost savings measures. A Division and HQUSACE-required Validation Study/Report commenced with recommended cost savings measures and design adjustments to the project. The Validation Study/Report is now nearly complete and will lift the strategic pause to allow the design to re-commence.

Table 1 identifies the remaining task orders, utilizing the current capacity, that are planned to be executed during the requested extension period. The purpose of this J&A is to increase the period of performance from the original 60 months to 72 months without any increase in capacity. This additional time will allow the District to execute the remaining task orders for this project.

In an effort to reduce substantial duplication of cost to the Government and the Project Sponsor as this is a cost-shared project (FAR 6.302-1(a)(2)(iii)(A)) and to avoid unacceptable delays in fulfilling the Government requirements (FAR 6.302-1(a)(2)(iii)(B)), completion of design and Title II services are less costly and most efficient when performed by the current Designer of Record (DOR), Moffatt & Nichol-AECOM J/V, as they have both a legal responsibility for the design and are intimately familiar with the project. This will allow for a completely coordinated design of all project features and will simplify coordination with the construction contractor, which cannot be easily replicated by another firm without undue cost and time. This is due to two factors, re-competition and the challenges in a new A-E adopting existing work.

To re-compete, a standard procurement process would result in additional labor cost to the Government of approximately $50,000 as well as unacceptable delays of up to nine (9) months to procure services from a new A-E following the Brooks Act procedure in fulfilling the agency's requirement.

Completion of design, award of construction contracts, and overall construction completion would be delayed due to the time needed to re-procure design and Title II services. As DOR, Moffatt & Nichol-AECOM J/V has the specialized experience and holds the legal liability for the design. Another A-E firm would not assume responsibility for completing the design prepared by Moffatt & Nichol-AECOM J/V without substantial compensation and time. If the contractor were changed, at a minimum the new A-E would have to review and validate all the work previously performed by the Moffat & Nichol-AECOM J/V. This re-work would substantially duplicate the costs already paid by the government to Moffat & Nichol-AECOM J/V for the same services. It would also create unacceptable performance delays. We estimate that it would take an additional $7,000,000 and 8 months for a new A-E to review and accept responsibility for the design prepared by Moffatt & Nichol-AECOM J/V over and above the additional work detailed in Table 1 above.

Continued use of Moffatt & Nichol-AECOM J/V provides continuity of experience and knowledge of all aspects of the South Shore of Staten Island project, including knowledge of the underlying data and analyses that formed the basis

Justification for other than CUI South Shore of Staten Island, of design decisions, and project planning and design. Their understanding and ownership of the design completed to date will allow them to seamlessly transition to completing final design, construction documents, and providing construction support. Furthermore, Moffatt & Nichol-AECOM J/V staff that are performing the current design of the South Shore of Staten Island project under IDIQ W912DS18D0001 would continue to do so, thereby assuring a professional quality, technically accurate, and completely coordinated design and related services for construction. The amount of $25,374,511.98 has already been obligated against this contract. An extension of the IDIQ period of performance is required to complete the project design. The project has experienced significant and unexpected delays in schedule as a Division and HQUSACE Validation Study was triggered by significant increases in project cost. This Validation Study is scheduled to be completed in March 2023 and no new work is permitted to be awarded before that time. The IDIQ is currently scheduled to expire on 21 DEC 2022 preventing the Government from awarding any future tasks described previously.

Impact: The South Shore of Staten Island project is under a great deal of scrutiny and visibility. It is critical for the safety and well-being of the residents of the project area. The study area was subject to devastating flooding during Hurricane Sandy. It is estimated that approximately 4,100 individual structures were affected by Hurricane Sandy, which had an estimated annual exceedance chance of 1%. Within the study area, fourteen (14) persons died during this storm, which accounts for over 26% of the total deaths due to Hurricane Sandy in the State of New York. Equivalent average annual benefits of the project are estimated to be $30,374,000 (FY 17).

Award of the first construction contract for the South Shore of Staten Island project is scheduled for April 2023. If the period of performance of existing A-E IDIQ W912DS18D0001 is not increased as a sole source action, the Government can expect to incur delays and loss of quality as a new designer adopts the existing designs, resulting in the negative impact on this time sensitive, highly visible, on-going project. Moffatt & Nichol-AECOM J/V (DOR) has been working alongside USACE Staff, the Sponsor, regulators, and stakeholders for the past two years. Once construction begins, in their role as DOR, Moffatt & Nichol- AECOM J/V will be required to continue to provide engineering support until the end of construction. At a minimum, the amount of time required for the re- competition of this work would be nine (9) months and, when compounded with the time needed for a potentially new contractor to familiarize themselves with all the aspects of this project, the result would be an untenable delay that would be to the detriment of the Government and the public. Use of any other firm to complete the project design and to provide construction support services that is NOT the current DOR would incur additional risk to the Government with respect to any A-E Liability and loss of efficiency in completing the project design. The South Shore of Staten Island Coastal Storm Risk Management project is critical to providing safety and

Justification for other than CUI South Shore of Staten Island, security to the residents of Staten Island. The history of storm damage and loss of life in this area emphasizes the need to maintain schedule and quality.

Alternatives:

1. The first alternative would be to compete this requirement, in accordance with the Brooks Act. This alternative would be costly and timely for both the Government and all offerors. The Government would have to post the synopsis, allow 30 days for receipt of proposals, and convene an evaluation board. Offerors will have to organize teams and personnel, prepare SF330 submittals, and participate in interviews.

However, a Sources Sought notice determined there may not be adequate competition based on the Moffatt & Nichol-AECOM J/V being the DOR.

2. The second alternative is to issue a task order under an existing A-E

IDIQ held by another A-E when the Validation Report is completed and HQUSACE authorizes new tasks to be awarded. However, award to a new A-E is risky as they are not familiar with the current designs and drawings. Therefore, a different A-E would require time to adopt the existing designs and bring them to completion; requiring longer lead times when responding to RFI's and issues and/or misinterpretations when clarifying details of the DOR drawings and in turn could result in delays and complications with the construction contractor. Due to the liability risks to an A-E who is other than the current Designer of Record, it is unlikely another A-E firm would willingly take on the role of completing designs prepared by others, and reviewing shop drawing submittals, and responding to RFI’s for a design that is not wholly their own without first reviewing and validating the work of the Moffat & Nichol-AECOM J/V at a substantial reduplication of cost and further unacceptable delays.

6. EFFORTS TO OBTAIN COMPETITION: The original contract was procured, in accordance with the Brooks Act, as a single award IDIQ Contract. It was awarded on 22 Dec 2017. As is detailed in paragraph 8, market research was performed in support of this J&A. Based upon the information in paragraph 5, competition for this action was not feasible.

7. ACTIONS TO INCREASE COMPETITION: This J&A supports a discrete requirement that will end when the project is complete. Therefore, there are no planned actions to increase competition for the requirement covered by this J&A. The anticipated services required to bring the current project design, which is approximately 75% complete, to 100% complete and to provide Title II services are identified above in paragraph 3.

Justification for other than CUI South Shore of Staten Island,

8. MARKET RESEARCH: A Notice of Intent to Sole Source, intended to address the extension of period of performance from 60 months to 72 months, was posted on SAM.gov on 02 November 2022 (Attachment 1) for 15 days and received no responses.

9. INTERESTED SOURCES: IAW FAR 6.305 -- Availability of the Justification. (a)

The agency shall make publicly available the justification required by 6.303-1 as required by 10 U.S.C. 2304(l) and 41 U.S.C. 3304(f). This justification shall be made publicly available within 14 days after contract award. In this case, it pertains to contract modification. There were no responses to the 02 November 2022 Market Survey.

10. OTHER FACTS: N/A

Justification for other than CUI South Shore of Staten Island, 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: ROBERT GERRITS DATE

TITLE: Chief, Engineering Management Branch

11. REQUIREMENTS 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: ROBERT GERRITS DATE

TITLE: Chief, Engineering Management Branch

12. FAIR AND REASONABLE COST DETERMINATION:

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

For each task order to be issued under this IDIQ, an independent Government cost estimate (IGCE) will be prepared and will be compared to the contractor's proposal, in accordance with FAR 15.404-1, to ensure that the contractor's proposal is fair and reasonable.

NAME: FRANCIS CASHMAN DATE

TITLE: Contracting Officer

13. CONTRACTING OFFICER CERTIFICATION:

I certify that this J&A is accurate and complete to the best of my knowledge and belief."

NAME: FRANCIS CASHMAN DATE

TITLE: Contracting Officer

Justification for other than CUI South Shore of Staten Island, APPROVAL

Based on the foregoing justification, I hereby approve the procurement to modify Contract No. W912DS18D0001 for extending the period of performance from 60 months to 72 months for the design and title II services for the South Shore of Staten Island project on an other than full and open competition basis pursuant to the authority of 10 U.S.C. 3204(a)(1) and FAR 6.302-1(A)(2)(iii), “Only one responsible source and no other supplies or services will satisfy agency requirements,” subject to availability of funds, and provided that the services and property herein described have otherwise been authorized for acquisition.

Date: Signature:

JILL E. STIGLICH, SES

Head of Contracting Activity