NB680000-23-00556 JOFOC_redact.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Purchase Request No. NB680000-23-00556

1. Identification of the agency and the contracting activity.

U.S. Department of Commerce National Institute of Standard and Technology (NIST) Office of Acquisition and Agreements Management Acquisition Management Division (AMD) 100 Bureau Drive Stop 1640 Gaithersburg, MD 20899-0001

2. Nature and/or Description of the action being approved.

Noncompetitive procurement of commercial laboratory products

3. A description of the supplies or services required to meet the agency’s needs (including the estimated value).

a) One Flourine ICP System

b) One Chlorine ICP System

c) One PECVD System

d) One RIE Metals System

e) One RIE Dielectrics System

The estimated value of this requirement is $4,197,950.

These supplies and services are commercial in nature, per the definition at FAR 2.101.

4. An identification of the statutory authority permitting other than full and open competition.

41 U.S.C. 3304(a)(1), Only one responsible source and no other supplies or services will satisfy agency requirements. The statute is being implemented using simplified acquisition procedures under the authority of 41 U.S.C. 1901 for commercial products or services.

5. A demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited.

Representatives from the NIST Physical Measurement Laboratory (PML) identified five companies that produce commercial products that are similar in nature to the required plasma systems. Each company’s products were reviewed by PML to determine whether the products meet PML’s minimum specifications. Based on extensive recent market research completed November 2022 to February 2023, Oxford Instruments America is the only company that has been identified that can provide a product that meets the minimum specifications for the following reasons:

a) Oxford Instruments America, Inc. produces commercial products that meet NIST’s minimum specifications.

In accordance with FAR 5.203 and 41 U.S.C. 1901(e)(1), a Notice of Intent (NOI) was posted to SAM.gov stating NIST’s intent to enter into a sole source procurement with Oxford Instruments, Inc. The notice was posted on January 19, 2023, with a response date of February 2, 2023, with the notice stating all responsible sources interested may identify their interest and capability. No responses were received. Public posting of acquisition forecast 23-0090 was issued for Boulder Microfabrication Facility Plasma Tools. No responses were received to this posting.

7. A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.

The Contracting Officer will perform price analysis and will only award the purchase order if they determine the price to be fair and reasonable. The Contracting Officer will rely on commercially available pricing information, the Independent Government Cost Estimate and their independent judgment to make that determination.

8. A description of the market research conducted (see part 10) and the results or a statement of the reason market research was not conducted.

Sources Sought Notice (SSN) NIST-SS23-CHIPS-0026 was posted to SAM.gov on November 7, 2022, with a response date of December 6, 2022. Respondents were encouraged to identify any aspects of the notice or minimum specifications that could be viewed as unduly restrictive or contain unnecessary barriers that adversely impact competition. Suggestions from industry were sought to make the market research notice and draft minimum specifications more inclusive and competitive. Responses were received from Plasma-Therm and Oxford Instruments of America.

In addition to the Sources Sought Notice, the Contract Specialist (CS) utilized the NIST Manufacturing Extension Partnership (MEP) to conduct a nation-wide search for U.S.

manufacturers that may be capable of meeting PML’s minimum specifications. The opportunity was posted to the MEP National Network for 30 days. MEP Center Staff reviewed the opportunity and consulted with small- and medium-sized manufacturers, but they did not identify any that could meet PML’s minimum requirements.

In addition to the above, PML scientists spoke with colleagues at NIST, performed Internet searches, and relied on their professional expertise to identify the previously discussed five potential sources for the required plasma tools.

The CS performed additional market research to include review of capabilities of mandatory sources; internet searches; review of existing NIST contract vehicles; review of Acquisition Gateway Best-In-Class (BIC) contract vehicles; and queries in the SBA Dynamic Small Business Database using key words “plasma” under NAICS 334516, which returned 13 potential matches. PML reviewed the commercial websites for those 13 potential matches and determined each business incapable of meeting its requirements.

9. Any other facts supporting the use of other than full and open competition.

None

10. A list of sources, if any, that expressed, in writing, an interest in the acquisition.

Oxford Instruments and Plasma-Therm

11. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required.

The Acquisition Management Division will closely scrutinize any requirements for subsequent acquisitions and will ensure that any restrictions to competition are adequately supported and documented. In addition, during the expected lifecycle of this equipment, NIST will work to identify additional products that could meet its requirements. The CHIPS and Science Act of 2022 invests in the United States semiconductor manufacturing industry and NIST serves an integral role in implementing the Act to remove and overcome barriers to future competition.

Certification Requisitioner:

I certify that the facts and representations under my cognizance, which are included in this justification, and which form a basis for this justification, are complete and accurate.

Reviewed By: Contracting Officer

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

Approved By: NIST Competition Advocate (CAM 1306.70, Par 2.5)

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