Other_Than_Full_and_Open_Competition_J-A(Fully_Signed).pdf

Justification and Approval (J&A) for Other Than Full and Open Competition

NEGOTIATION SENSITIVE

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Was a J&A approved for the preceding acquisition where that acquisition required a J&A? Yes No

! ! Attach the preceding J&A in the staff package for this J&A. The preceding J&A will be used as a reference document.

Is this a new or amended J&A Document? New Amended ( Prior to Award Only! )

Is this a Bridge Action as defined at AFFARS 5302.101? Yes No

Dollar Value of this Acquisition: < $750K > $750K and < $15M > $15M and < $100M > $100M

Contracting Activity: 48th Contracting Squadron, RAF Lakenheath, England

Purchase Request (if available) / Local ID Number: N/A (PRs provided for individual task orders)

Program / Project (and PE, if applicable): UK Wide Outside Cable Plant Infrastructure Network Services

Program Type (PEO, Enterprise, of Operational): Operational

Authority:

6.302-1 – 10 USC 3204(a)(1), Only One Responsible Source - No Other Supplies or Services Will Satisfy Agency Requirements Estimated Contract Cost (including options): $ 95,000,000.00 J&A Type: Class Individual

COORDINATION ( AFFARS 5306.304(a) ) Sign and Save Procedure

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Date

20 Jul 2023

Requiring Activity DARYL R. GODFREY, Maj, USAF Commander, 48th Communications Squadron

Signature

X

Date

25 Jul 2023

Contracting Officer

CLAUDIA P. EVANS, GS-14, DAF

PKB Flight Chief, 48th Contracting Squadron

Signature

X

Date

01 Aug 2023

Legal Reviewer

GEORGE O. IWU

48 FW/JA

Signature

X

Date

21 Sep 2023

Chief of the Contracting Office (COCO) MATTHEW B. COMER, Lt Col, USAF Commander, 48th Contracting Squadron

Signature

X

Date

18 Oct 2023

Competition Advocate

JOSEPH F. LYDEN, NH-IV, DAF

Deputy Director, AFICC Operating Location Europe

Signature

X

APPROVAL ( AFFARS 5306.304(a) )

Date JOSEPH L. CAMPO, Brigadier General, USAF Commander, 48th Fighter Wing

DSN 314-226-4500

Signature

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I. Agency and Contracting Activity.

The contracting agency responsible for the proposed contract action is the 48th Contracting Squadron (48 CONS), RAF Lakenheath, Unit 5120, Box 270, APO, AE 09461.

II. Nature and/or description of the action being approved.

This Justification for Other than Full and Open Competition is prepared with regard to the reacquisition of services for the UK Wide Outside Plant Infrastructure Network in support of the USAF Communications (COMM) Squadrons in the United Kingdom (UK). This will be a new firm-fixed-price Indefinite-Delivery Indefinite-Quantity (IDIQ) contract with an anticipated period of performance of a five-year base ordering period and a five-year option ordering period. The estimated ceiling for this contract is $95M.

III. Description of supplies/services required to meet agency needs.

Informational Note: British Telecom (BT) Group Plc is a holding company which owns BT Plc and BT Openreach. BT Openreach is the infrastructure division of BT Group Plc and was established in 2006. BT Federal Inc. is a US company formed in 2003 through BT's purchase of Control Data Systems.

Under the proposed contract, BT Federal equips, furnishes, installs, tests, and repairs (EFIT&R) direct buried/ducted communications cables and tubing (microducts) owned by the USAF within the BT apparatus. Work under this contract terminates either at an internal facility demarcation point or equipment end-point as applicable.

This contract supports the European Deterrence initiative (EDI), including the RC-135 move to RAF Fairford and the DISA Mega Node move to RAF Lakenheath; the F-35 beddown and Surety at RAF Lakenheath; and day-to-day mission needs of the USAF COMM squadrons located in the UK. To facilitate the EDI moves and the F-35 beddown, each COMM squadron has known requirements forecasted into the next five years, as detailed below. For this reason, the contract will consist of a five-year ordering period with a five-year option period.

The contract will use Operations and Maintenance 3400 (O&M) funds and procurement 3080 funds beginning in FY2024. Task orders will be funded with the appropriate fiscal year dollars.

The estimated contract ceiling is $95,000,000.00. A detailed IGE is provided at Attachment 1. The IGE total for each location is as follows:

Location Total Description RAF Lakenheath $12,255,000.00 EDI, F-35, Surety, base fiber upgrades RAF Fairford $5,075,000.00 EDI (RC-135 Relocation) base fiber upgrades RAF Mildenhall $25,650,000.00 EDI, base fiber upgrades RAF Alconbury/Molesworth $1,350,000.00 EDI, Annual Repairs/Maintenance, base fiber upgrades RAF Croughton $1,260,000.00 EDI, Annual Repairs/Maintenance, base fiber upgrades Other RAF Bases $1,950,000.00 EDI, Annual Repairs/Maintenance, base fiber upgrades 5 Yr Estimated Total: $47,540,000.00 10 Yr Estimated Total: $95,080.000.00

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Technical data, support equipment and support services do not apply. The CLIN list is provided at Attachment 2 due to the large number of CLINs.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

Subsection 1:

BT owns all of the manholes, duct systems and copper cabling (known as the BT apparatus) on the U.S. Vising Forces (USVF) bases associated with the 48 CS, 100 CS, 420 CF, and 423 CS in the UK. The USAF entered into Duct Sharing Agreements (DSA) with BT in November 1996 (Attachment 3) to allow the USAF access to the BT apparatus to install high speed fiber and other communications support items. The DSAs allow the USAF to access the BT apparatus subject to supervision by BT. As stated in paragraph 9 of the DSA, the USAF "shall not sub-contract any aspect of this Agreement. ....It is BT's policy not to share with other license operators/service providers." From 1996 to 2009, EFIT&R services for USVF bases in the UK were provided by USAF personnel.

As the USAF in the UK does not currently have the organic capability to service the outside plant cabling and other apparatus, these services must be contracted, and have been since 2009.

Therefore, this acquisition is for continued service of a highly specialized service.

EFIT&R services were first contracted by DISA/DITCO Europe in 2009 to BT via contract HC1021-09-D-2000 in accordance with an approved J&A (Attachment 4). The contract was an IDIQ with a one year base period and four one year options valued at $20M. The contract included EFIT&R services both inside and outside of internal facility demarcation points/equipment end-points.

48 CONS awarded contract FA5587-15-D-0002 in 2015 for EFIT&R services to BT Federal Inc. in accordance with an approved J&A (Attachment 5). The contract was an IDIQ with a 12-month performance period valued at $2.9M. The contract was extended 6 months using the Option to Extend Services Clause, FAR 52.217-8, and expired 14 Nov 2016. The contract only included EFIT&R services outside of internal facility demarcation points/equipment end-points in the BT apparatus.

48 CONS awarded contract, FA5587-17-D-0001 in 2017 for EFIT&R services in the BT apparatus outside of internal facility demarcation points/equipment end-points to BT Federal Inc., 11440 Commerce Park Dr, Suite 100, Reston, Virginia. This is an IDIQ contract with a 12-month period of performance valued at $9.9M and issued in accordance with an approved J&A (Attachment 6). The contract was extended by four months on 21 February 2018 IAW FAR clause 52.217-8 in anticipation of the March 2018 release of the UK telecommunications authority's (Ofcom) final decision regarding opening BT ducts and related infrastructure to competition.

The Ofcom decision was released on 28 March 2018 but did not mandate competition for BT duct access. Instead, Ofcom confined its ruling to duct access for high-speed fiber only and gave BT approval authority over which companies are allowed access to the BT apparatus and each approved company must pay an access fee to BT. As the USVF bases included in this contract already have high-speed fiber in the BT apparatus, this ruling does not affect BT's ownership of their ducting apparatus nor the Duct Sharing Agreement currently in place.

48 CONS awarded contract, FA558719DA001 in 2019 for EFIT&R services in the BT apparatus outside of internal facility demarcation points/equipment end-points to BT Federal Inc., 11440 Commerce Park Dr, Suite 100, Reston, Virginia. This was an IDIQ contract with a base year and

March 2023 NEGOTIATION SENSITIVE Page 4 of 6March 2023 NEGOTIATION SENSITIVE Page 4 of 6 four option years valued at $22M.

In Dec 2021 Ofcom regulated Physical Infrastructure Access (PIA) regime permitting independent providers to lay cable (fibre, copper, co-ax) in Openreach ducts. PIA is designed to allow industry competitors to offer downstream business model and a dark mode fibre model. The Downstream models is where independent providers can install fiber into Openreach ducts and rent the duct space for £0.14 per per meter per month for one blown duct tuber which holds one 12 strands fiber cable, in turn the downstream independent providers charge the end customers i.e. business and personnel customers a monthly rental fee. Independent providers would then install their own end equipment and offer broadband services to end customers. As a cost comparison RAF Lakenheath currently has over 282 miles through-out our network, resulting in a potential monthly rental fee of £0.14 x 453,738 meters (282 miles) = £63,523, this does not include the actual cost to install the fibre.

The Dark fibre Model gives rival UK network operators and broadband ISPs physical access to harness existing fibre optic cables ran by Openreach to run leased line style services again at a fee, again installing their end own equipment to offer commercial broadband services .

Neither of these model work for the the Communications Squadrons as we require standalone fibre to be installed between our own facilities and servers rooms to router our own NIPR, SIPR, Air Force Emergency Services, Classified networks and the countless IT systems that need to be physically protected from outside independent providers. The fibre that will be installed using this contracting vehicles will be for US government use only.

Subsection 2:

In accordance with FAR 6.302-1(a)(2)(iii)(A), award to any other source would result in a substantial duplication of cost to the Government that is not expected to be recovered through competition. In 2008 BT estimated the value of their ducts/manholes/infrastructure at £22M/$36M for RAFs Lakenheath, Mildenhall, Alconbury, Fairford/Welford and Feltwell. BT provided an updated valuation of their ducts/manholes/infrastructure on 31 May 2018 totaling $92M for all USVF bases included in this contract. The $92M purchase of the BT apparatus has not been added to the Components Program Objectives Memorandum or factored into the timescale for operations. As the USAF does not currently have organic capabilities to provide EFIT&R services and must contract those services out, the government's purchase of BT's ducts/manholes/infrastructure would result in duplicated costs of $70M ($92M asset buy - $22M contract IGE). As of 2018, even if competition resulted in 50% savings in total contract value the amount saved ($11M total savings) would be significantly less than the current asset value of the BT apparatus ($92M) and not offset the estimated $70M in duplicated costs.

Subsection 3:

Therefore, BT Federal Inc is the only firm capable of providing the supplies and services described in Section III above without the USAF experiencing substantial duplication of costs that could not be expected to be recovered through competition.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

Sources Sought Synopsis:

A Notice of Intent to Award Sole Source/Request for Information (RFI) - Outside Plant Services was

March 2023 NEGOTIATION SENSITIVE Page 5 of 6March 2023 NEGOTIATION SENSITIVE Page 5 of 6 posted on 17 March 2023 to the System Award Management website, www.SAM.gov, announcing the Government's intention to award a sole source contract to BT Federal for EFIT&R services. The synopsis was posted for two weeks and zero responses were received.

VI. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

The prices established in the contract will be determined fair & reasonable IAW FAR 15.404, Proposal Analysis. The contracting officer has determined that these services meet the definition of a commercial service IAW FAR 2.101 and IAW FAR 15.403-1(b)(3), certified cost and pricing data will not be required.

Price Analysis will be conducted under FAR 15.404-1(b)(2)(ii), (iv), (v), and (vi) using the contractor's proposed price list, the Government's estimated price list, historical pricing from previous UK Wide OSP contracts FA558717D0001 and FA558719DA001, the UK Consumer Price Index (CPI) for Communication Services and fact-finding. The price analysis for Fact-finding will include a random sampling of support equipment line items IAW DFARS 15.404-1(a)(ii)(C) and (D). This will be conducted by obtaining market pricing on a random sampling of the most utilized price list items from public sources such as Internet searches, published price lists and pricing information obtained from commercial vendors. Furthermore, if the information obtained through this market research is deemed insufficient IAW DFARS 15.404-1(b)(ii) and (iii) we will request from BT prices paid for the same or similar items and work, such as installation, under similar conditions.

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

As described in Section V above, market research was conducted in accordance with FAR Part 10, by synopsis of the proposed acquisition, advising industry of the pending acquisition, soliciting inquiries from interested parties, reviewing the DSA and monitoring Ofcom rulings regarding the UK telecommunications market.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

Throughout 2016, 2017 and 2021 the UK's telecommunications regulatory body, Ofcom, conducted a Competition & Markets Authority (CMA) study to determine if BT should open up access to their ducting infrastructure to competitors. Based on draft opinions posted by Ofcom in 2017, 48 CONS anticipated a decision from Ofcom mandating BT open their ducting infrastructure to competition. However, Ofcom's final decision, published on 23 March 2018, did not mandate open competition, but instead required interested contractors to be approved by BT and pay BT related fees for access to the BT infrastructure.

Additionally, the Ofcom ruling related specifically to expansion of high speed fiber networks and not the EFIT&R services that make up the scope of this acquisition. On review of the Ofcom 2021 review the PIA program is only for registered CPs, Communication Providers and the CPs must follow rigid engineering principles to engage in the process to use specified ducts and poles in Public areas. Ducts and poles on military bases are considered private and do not follow the standard arrangement as off base infrastructure.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

See Section VI above.

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

The J&A for contract HC1021-09-D-2000 stated at paragraph 11 that “USAFE is working concurrent competitive contracting efforts for the items that can be competed. This includes the commercial trunks, ISP service, AC cabinet power installation, cable television head end equipment O&M, and EFIT&M of data switches and routers.” This J&A confirms that those actions have taken place and commercial trunks, ISP service, AC cabinet power installation, CATV head end equipment and EFIT&M of data switches and routers are not part of this acquisition. These functions are included in the EFIT&M inside cable plant BPAs, FA5587-15-A-0006 and FA5587-15-A-0008.

The J&As for contract FA5587-15-D-0002 and FA5587-17-D-0001 stated that 48 CONS would undertake efforts to engage with BT to update the DSA to provide more conclusive language on our intention to allow contractors other than BT to perform EFIT&R work on our behalf within the outside cable plant and engage with Ofcom to determine if BT/Openreach is operating within the guidelines mandated by the Telecommunications Act of 1984 as amended by the Communications Act of 2003.

Several attempts were made by 48 CONS to update the 1996 DSA, however BT was not amenable to our efforts. 48 CONS received no response to our 2016 letter to Ofcom requesting Ofcom's assistance in establishing competition to access the BT infrastructure.

Although previous efforts by the Government and Ofcom's 2018 and 2021 ruling have failed to establish competition, the Government plans to continuously monitor regulatory changes and availability of competition and will include the market status in each determination to exercise options.

XI. Certification by the Contracting Officer.

As evidenced by my signature above, I certify that this justification is accurate and complete to the best of my knowledge and belief.

XII. Certification by the technical/requirements personnel.

As evidenced by my (our) signature(s) above, I (we) certify that any supporting data contained herein, which is my (our) responsibility, is both accurate and complete.

Remove the Guidance pages below.

March 2023 Page of International Agreement Competitive Restrictions (IACR) Page of 13 May 2022 Was a J&A approved for the preceding acquisition where that acquisition required a J&A?

!! Attach the preceding J&A in the staff package for this J&A. The preceding J&A will be used as a reference document.

Is this a new or amended J&A Document?

Is this a Bridge Action as defined at AFFARS 5302.101?

Dollar Value of this Acquisition:

J&A Type:

!! Provide estimated cost of all contracts.

COORDINATION ( AFFARS 5306.304(a)) ** The text in the signature blocks below is editable, including the title.

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APPROVAL ( AFFARS 5306.304(a)) NOTE 1: A signature block will appear here (replacing these notes) based on the "Dollar Value of this Acquisition" selected above. Since most digital signatures that include date/time-stamps are redacted before they are made publicly available, always insert the date in the “Date” cell when affixing a digital signature to this document.

NOTE 2: Some types of acquisitions awarded under circumstances where full and open competition is not required by statute do not have to be supported by a written justification and approval. See 10 U.S.C. § 3204(e)(7); FAR 6.302-5(c)(2). For Class J&As, all contracts within the class must fall within the same statutory authority.

NOTE 3: Users of this template are directed to SAF/AQC Policy Memo 22-C-02, or latest issuance, which provides detailed instructions on how to complete each section of a J&A. The memo will be posted at the following location:

https://usaf.dps.mil/sites/AFCC/KnowledgeCenter/Documents/Contracting_Memos/Policy/22-C-02.pdf (See "Specific Guidance for Completing this Template" after item XII below.)

I. Agency and Contracting Activity.

II. Nature and/or description of the action being approved.

III. Description of supplies/services required to meet agency needs.

IV. Demonstration that the contractor's unique qualifications or the nature of the acquisition requires use of the authority cited above.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by subpart 5.2 and, if not, which exception under FAR 5.202 applies.

VI. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

VII. Description of the market research conducted and the results, or a statement of the reasons market research was not conducted.

VIII. Any other facts supporting the use of Other Than Full and Open Competition.

IX. List of any sources that expressed, in writing, an interest in the acquisition.

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

XI. Certification by the Contracting Officer.

XII. Certification by the technical/requirements personnel.

Specific Guidance for Completing this Template I. Agency and Contracting Activity. (FAR 6.303-2(b)(1)) Self-explanatory II. Nature and description of the action being processed. (FAR 6.303-2(b)(2)) An individual J&A is for a single contract. State whether the action is a new contract or a modification to an existing contract (identify contract number) and identify the contract type(s) planned (e.g., firm-fixed-price, cost-plus-incentive-fee). If exception 2 is cited (unusual or compelling urgency), include the date of UCA/contract/modification issuance and amount.

An individual J&A cannot be used to support more than one contract action irrespective of the quantities or the dollar value stated therein. If a proposed contract will contain unpriced options (including NTE prices), those options must be supported by a separate J&A prior to option exercise. Stoehner Security Services, Inc., 248077.3, Oct. 27, 1992, 92-2 CPD ¶ 286 at 6. This principle applies with equal force and effect whenever a contracting officer seeks to exercise FAR 52.217-8 (Option to Extend Services) if the contract that incorporated that clause by reference is not a Service Contract Labor Standards-covered contract, as such contracts do not include wage determinations that establish “prevailing labor rates provided by the Secretary of Labor.” FAR 52.217-8. See Major Contracting Services, Inc., B-401472, Sep. 14, 2009, 2009 CPD ¶ 170 at 6, mot. for reconsid. den., Department of the Army --Reconsideration, B-401472.2, Dec. 7. 2009, 2009 CPD ¶ 250 at 5-6. In the alternative, the J&A supporting the basic contract must be a Class J&A. Although a Class J&A may be written for multiple awards to a single source, or multiple awards to various sources, it must describe each proposed contract action separately so it is clear that each such action is within scope of that Class J&A. FAR 6.303-1(d).

III. Description of the supplies/services required to meet agency needs. (FAR 6.303-2(b)(3)) Describe the supplies, services, or supplies and services to be acquired. Identify the quantities of each item, the estimated delivery dates/periods of performance, the type of appropriation(s) that will acquire those supplies/services, the total estimated value of the acquisition (including options), and the methodology used to arrive at that total estimated value. Provide sufficient information to demonstrate to the approving official that the acquisition of intellectual property (IP) and associated IP rights will satisfy the program's requirements, acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan.

The program's requirements for IP and IP rights in the Request for Proposals (RFP) must be consistent with the program's acquisition strategy, life cycle sustainment plan, systems engineering plan, and test and evaluation master plan. Accordingly, approving officials will ensure this section of the J&A:

(1) States whether the CLIN structure will include separately-priced CLINs for intellectual property (IP) and IP rights. Once the DFARS is revised to implement 10 U.S.C. § 4236, Air Force contracting officers will be required to negotiate a fair and reasonable price for IP and associated IP rights. Air Force contracting officers must start thinking now how they will do so during sole-source and competitive negotiations and how the resulting contract will reflect the results of those negotiations. Otherwise, they may be caught flat-footed if the RFP did not include such separately-priced CLINs and the Director of Defense Pricing and Contracting issues the final rule implementing 10 U.S.C. § 4236 --the effective date of which occurs one day prior to the award date. See also FAR 7.105(b)(14)(iii) and DFARS 215.470(a);

(2) Lists the titles of all such IP (including digital models) to be to be acquired contained in Exhibits A-N of the draft Request for Proposals; and

(3) Identifies the type of IP rights to be acquired to those deliverables (including the IP rights to be acquired to contract administration information since the standard DFARS clauses do not grant the Air Force any license rights to that type of IP).

Mission-focused business leaders are encouraged to engage early in the acquisition life-cycle with industry regarding the subjects of IP and IP rights. They are also encouraged to consult with approving officials, designees, or both, regarding those subjects well in advance of submitting a draft J&A to the appropriate approving official.

For Class J&As, identify each contract action (contract, modification) to be authorized by the proposed J&A for each potential offeror. If the same information applies to more than one contract, it need only be stated once.

For ID/IQ or requirements contracts, use the maximum dollar value of the total estimated orders as the total estimated value of the acquisition.

IV. Demonstration that the contractor's unique qualifications or nature of the acquisition requires the use of the authority cited above. (FAR 6.303-2(b)(5)) Provide detailed facts sufficient to justify the use of the particular authority cited. Contracting without providing for full and open competition shall not be justified on the basis of a lack of advance planning or concerns relating to the amount of funds available (e.g., expiring funds). (FAR 6.301(c)).

Check the applicable box below. Checking a box will display the text for that section.

In the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, the rationale must first justify the supplies/services as either associated with a “major system” or “highly specialized equipment”. It must then justify either “substantial duplication of cost to the Government that is not expected to be recovered through competition” or “unacceptable delays in fulfilling the agency's requirements”, whichever situation applies. If both of those situations apply, the rationale can be based upon either or both of those two situations. This authority shall not be used when any of the other authorities apply.

Sub-subsection 1. FAR 6.302-1(a)(2)(ii) and (iii) require that the J&A demonstrate that specific conditions have been satisfied. Therefore, this sub-section must deconstruct the specific words in those provisions and demonstrate to the appropriate approving official how the proposed acquisition satisfies those words.

For example, this sub-subsection must demonstrate the proposed acquisition is a “follow-on contract” by identifying the current contract number of the contract the intended awardee of that “follow-on contract” is currently performing, the basis of award for that contract (competitive, sole-source), the purpose of that contract, the date of contract award, and the date that contract will expire. PTC, Inc., B-416863, Dec. 20, 2018, 2019 CPD ¶ 48 at 6-7. This subsection must also demonstrate the proposed acquisition will continue “development” or “production” of a “major system” or “highly specialized equipment, including major components thereof” or provide “highly specialized services.” In the case of the former, this subsection must either identify the ACAT I or II program --since the legal definition of a “major system” includes ACAT I and II programs --or explain why the equipment sought to be acquired is “highly specialized” for which the proposed acquisition will “continue[ ] development or production”. In the alternative, this subsection must explain why the services sought to be acquired are “highly specialized”.

If the planned acquisition will result in a “bridge” contract that contains options, this subsection must explain why options are necessary. If significant lead time is required prior to approval of the J&A in order to acquire the supplies or services described in Section III, this subsection should mention that fact and explain why that is the case.

Next, this sub-subsection should add a concluding sentence to the end of this subsection, suitably tailored; e.g., “Therefore, this acquisition will be a follow-on contract for the continued development of a major system.”

“Therefore, this acquisition will be a follow-on contract for the continued production of a major system.”, “Therefore, this acquisition will be a follow-on contract for the continued development of highly specialized equipment.”

“Therefore this acquisition will be a follow-on contract for the continued production of highly specialized equipment.”

“Therefore, this acquisition will be a follow-on contract for the continued provision of highly specialized services.”

The purpose of that sentence is to bring the approving official back to the regulatory requirements the preceding paragraphs of this section of the J&A have discussed to demonstrate the J&A satisfies those requirements.

Sub-subsection 2. Thoroughly describe the contractor's unique/highly specialized capabilities and qualifications (e.g., facilities, personnel, special tooling acquired), (FAR 6.303-2(b)(5)), and why no other type of supplies or services will satisfy the agency requirements.

Sub-subsection 3. This subsection should begin with the following sentence, suitably tailored:

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition.”

“The __[insert program office name]__ has determined that award to any other source would result in unacceptable delays in fulfilling the agency's requirements.”

“The __[insert program office name]__ has determined that award to any other source would result in substantial duplication of cost to the Government that is not expected to be recovered through competition and unacceptable delays in fulfilling the Government's requirements.”

The purpose of this opening sentence is to direct the approving official's attention to which specific words in FAR 6.302-1(a)(2)(ii) and (iii) will be the basis for going sole-source.

Next, when the rationale for going sole-source is based upon substantial duplication of cost, this sub-subsection must include an estimate of the amount of cost that would be duplicated (e.g., training required so that another source could acquire the skills necessary to perform the work, equipment, facilities) less the estimated cost to run a competition. (For example, the development costs the Government incurred under the existing contract or similar programs may provide insight into the amount of cost duplication were the proposed acquisition to be competed.) This sub-subsection should also identify the organization(s) that/who performed the analyses that supports those estimates, and describe the analysis that/those organization(s) performed to arrive at both estimates. The methodology must account for inflation during the projected remaining life cycle of the acquisition. (FAR 6.302-1(a)(2)(ii)(A) and (iii)(A); FAR 6.303-2(b)(9)(ii)).

When, however, the rationale for going sole-source is based upon unacceptable delay, this sub-subsection must state how long it would take someone else to obtain this capability (in months/years) and why, and provide a detailed explanation of the impact or problem caused by the delay. When describing the impact or problem caused by the delay, the rationale must identify all nodes on the critical path between the failure to acquire the supplies and services described in Section III and the delivery date(s)/period(s) of performance identified in that section, and the reduction (or frustration) of the warfighter's ability to accomplish specific missions. The explanation provided must be commensurate with the delivery date(s)/period(s) of performance identified in Section III (e.g., longer delivery date(s)/period(s) of performance necessitate a more detailed explanation). (FAR 6.302-1(a)(2)(ii)(B) & (iii)(B)).

Although the existence of IP rights retained by the developer make the supplies and services available from only once source, the mere existence of such rights does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Therefore, if the program office will use that rationale to justify going sole-source, this sub-subsection must demonstrate the program office performed sufficient due diligence to validate the developer retains such IP rights that require the use of this authority to acquire the supplies and services described in Section III. Specifically, this sub-subsection must explain:

(1) What IP rights the Government acquired to what IP deliverables under predecessor contracts described in Subsection 1 of this section and why those rights are insufficient to compete acquisition of the supplies or services described in Section III;

(2) What IP clauses (include the month/year of issuance) or applicable commercial computer software licenses were included into all of those predecessor contracts described in Subsection 1 of this section;

(3) Whether those predecessor contracts included the Deferred Ordering clause (DFARS 252.227-7027) and if so, why the program office did not exercise its rights to acquire needed IP deliverables by exercising its rights under that clause;

(4) Why the Government did not acquire sufficient IP deliverables and IP rights under that/those predecessor contract(s) that would have precluded the need to go sole-source for the proposed acquisition (e.g., acquisition strategies for those predecessor contracts were based upon the Total System Performance Responsibility (TSPR) initiative);

(5) What IP deliverables did the program office acquire under that/those predecessor contract(s) and what restrictive markings did the developer affix to those deliverables;

(6) What pre-challenge requests for information or formal challenges the program office initiated in response to a developer's assertions of development at private expense (DFARS 252.227-7019, DFARS 252.227-7037) and what analysis the program office performed of the information it received in response to that request or formal challenge;

(7) What investigation the program office conducted to determine whether the IP deliverables provided under that/those predecessor contract(s) was/were developed in whole or in part at Government expense (e.g., reviewing the developer's IR&D project approvals and accounting records, reviewing earned value management data and integrated program management reports);

(8) Assuming the results of that investigation validate the developer's assertion of development at private expense, what if any steps did the contracting officer take to request the developer propose a price to furnish the IP deliverables and IP licenses needed to compete the proposed acquisition; and

(9) The extent to which the program office considered reverse engineering any subsystems or components of the end item described in Section III (and summarize the estimated cost to reverse engineer those subsystems or components and the time it would take to complete such reverse engineering activities); or considered use of a modular open system approach to acquire those subsystems or components consistent with the program's capability development document, acquisition strategy, and system engineering plan. (DFARS 207.106(S-72)(2)(v); DFARS 227.7103-5(d)(2)(iii)).

Although the control of basic raw material makes the supplies or services available from only once source, the mere existence of such rights or circumstances does not in and of itself justify the use of this authority. (FAR 6.302-1(b)(2)). Under such circumstances, this sub-section must identify how the intended source acquired a monopoly on those raw materials.

When acquiring utility services, circumstances may dictate that only one supplier can furnish the service, or when the contemplated contract is for construction of a part of a utility system and the utility company itself is the only source available to work on the system. (FAR 6.302-1(b)(3)).

When the agency head has determined in accordance with the agency's standardization program that only specified makes and models of technical equipment and parts will satisfy the agency's needs for additional units or replacement items and only one source is available, (FAR 6.302-1(b)(4)), this sub-section must identify the relevant standardization program.

Notwithstanding FAR 6.302-1(c)(2), a justification and approval is required in order to use brand name or equal descriptions or the use of proprietary specifications or standards. (DFARS 206.302-1(c)(2) and (S-70)).

Sub-subsection 4. When using the rationale described in sub-subsection 3 above, conclude this subsection by including one of the following sentences, as applicable:

“Accordingly, ___[insert company name]___ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be recovered through competition.”, “Accordingly, __[insert company name]__ is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing unacceptable delays in fulfilling its requirements.”

“Accordingly, __[insert company name]__, is the only firm capable of providing the supplies and services described in Section III above without the Government experiencing substantial duplication of cost that could not be expected to be recovered through competition and unacceptable delays in fulfilling its requirements.”

The purpose of this sentence is to restate for the approving official's benefit which rationale(s) is/are the basis for going sole-source, thereby sensitizing them to the fact the author will now turn to discussing a different topic.

Contracting Officers must notify SAF/AQC as soon as practicable when contemplating the use of this authority for a J&A requiring SPE approval.

Provide an explanation why the supplies or services are needed at once due to, e.g., fire, flood, explosion, other disaster, emergency) or essential equipment or repairs to that equipment are needed at once to facilitate meeting critical mission needs of the Government. Identify the nature of the urgency, the reasons for it occurring, and the extent of the anticipated serious injury to the Government -- thereby demonstrating why the Government's need for the supplies or services described in Section III is of “unusual and compelling urgency” to preclude adverse impact to military readiness. (FAR 6.303-2(b)(9)(iii)). In other words, identify all nodes on the critical path between the failure to acquire the supplies or services described in Section III and the reduction (or elimination) of the warfighter's ability to accomplish specific missions. Merely citing a Joint Urgent Operational Need (JUON), Force Activity Designator (FAD) rating, Program Management Directive (PMD)/Program Action Directive (PAD) guidance, or DX priority rating is not in and of itself sufficient reason to use this exception from the requirement to obtain full and open competition. Note that only the minimum quantity required to satisfy the unusual and compelling urgency qualifies for this exception. In addition, the period of performance CANNOT exceed one year, including all options unless the head of the agency determines that exceptional circumstances apply (FAR 6.302-2(d)(ii)); thus, the inclusion of options when using this authority is not advised.

Note: This statutory authority requires that agencies request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-2(c)(2)).

Justifications citing this authority must demonstrate the need to maintain a facility, producer, manufacturer, or other supplier available for furnishing supplies or services in case of a national emergency or to achieve industrial mobilization; to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center; or to acquire the services of an expert or neutral person for any current or anticipated litigation or dispute. If the proposed contract will require the contractor to keep vital facilities or suppliers in business or make them available in the event of a national emergency, train a supplier in the furnishing of critical supplies or services, prevent the loss of a supplier's ability and employees' skills, or maintain active engineering, research, or development work, maintain properly balanced sources of supply, create or maintain the required domestic capability for production of critical supplies, or continue in production where there would otherwise be a break in production, or divide current production requirements among two or more contractors, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(1)). If the proposed contract will establish or maintain an essential engineering, research, or development capability to be provided by an education or other nonprofit institution or a federally funded research and development center for theoretical analyses, exploratory studies, experiments in any field of science of technology, or engineering or development work calling for the practical application of investigative findings and theories of a scientific or technical nature, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(a)(2)(ii) and (b)(2)). If the proposed contract will acquire the services of an expert to use in any litigation, dispute, or alternative dispute resolution proceedings involving the Government, this section must provide facts sufficient to justify the use of this authority (FAR 6.302-3(b)(3)).

Identify the applicable statute explicitly authorizing other than full and open competition. (FAR 6.302-5(b); DFARS 206.302-5(b)). The following is a non-exclusive list of statutes lifted from FAR 6.302-5(b) that authorize acquiring supplies and services from specified sources or through another agency:

(1) Federal Prison Industries (UNICOR) (18 U.S.C. § 4124 (see FAR Subpart 8.6).

(2) Qualified nonprofit agencies for the blind or other severely disabled (41 U.S.C. Chapter 85) Committee for Purchase From People Who Are Blind or Severely Disabled (see FAR Subpart 8.7).

(3) Government Printing and Binding (44 U.S.C. §§ 501-504, 1121 (see FAR Subpart 8.8)).

(4) Sole source awards under the 8(a) Program (15 U.S.C. § 637), but see FAR 6.303 for requirements for justification and approval of sole-source 8(a) awards over $25 million. (See FAR Subpart 19.8).

(5) Sole source awards under the HUBZone Act of 1997 (15 U.S.C. § 657a)(see FAR 19.1306).

(6) Sole source awards under the Veterans Benefits Act of 2003 (15 U.S.C. § 657f).

(7) Sole source awards under the WOSB Program (15 U.S.C. § 637(m)(see FAR 19.1506).

Note: Some statutes do not require a written J&A.

Full and open competition need not be provided for when the disclosure of the agency's needs would compromise the national security (e.g., would violate security requirements) unless the agency is permitted to limit the number of sources from which it solicits bids or proposals. Accordingly, if this authority is used, this section shall explain how these conditions are satisfied.

V. Description of efforts made to ensure that offers are solicited from as many potential sources as practicable, including whether a notice was or will be publicized as required by FAR 5.2 and, if not, indicate which exception under FAR 5.202 applies. (FAR 6.303-2(b)(6); FAR 6.303-2(b)(8); FAR 6.303-2(b)(10)) The contracting officer shall issue a sources sought synopsis or an RFI, provide the date the synopsis was issued, the synopsis number, and a brief description of its content. Identify the number of responses received, the names of the respondents, the results of the screening process, and the rationale for determining the unacceptability of any respondents, unless exempted by the MAJCOM SCO or Operating Location SCO with rank of GO or SES, otherwise approval by the HCA is required. (FAR 6.302-1(d)(2); DFARS 206.302-1(d); DFARS PGI 206.302-1(d); AFFARS 6306.302-1(d); AFFARS MP5301.601(a)(i)).

Specify whether this acquisition will require a Notice of proposed Contract Action (NOCA) IAW FAR 5.201 and if not, provide the exception IAW FAR 5.202. If a NOCA was or will be publicized provide the dates or expected dates of publication of the NOCA. Address any other actions taken or planned to facilitate competition for this acquisition.

When using the authority granted by FAR 6.302-1, an RFI or Sources Sought Synopsis is mandatory. (DFARS PGI 206.303-2(b)(i)).

When using the authority granted by FAR 6.302-2, agencies must request offers from as many potential sources as is practicable under the circumstances unless the Government would be seriously injured if the agency complied with the time periods specified in FAR 5.203. (FAR. 5.202(a)(2); FAR 603.2-2(b)(2)).

When using the authority granted by FAR 6.302-3, no synopsis is required if the proposed contract action is for utility services other that telecommunications services and only one source is available. (FAR 5.202(a)(5)).

When using the authority granted by FAR 6.302-5, no synopsis is required if the proposed contract action results from acceptance of a proposal under the Small Business Innovative Research (SBIR) program. (FAR 5.202(a)(7)).

When using the authority granted by FAR 6.302-6, agencies must request offers from as many potential sources as is practicable under the circumstances. (FAR 6.302-6(c)(3)). The fact that a proposed solicitation or contact action contains classified information, or that access to classified information may be necessary to submit a proposal or perform the contract does not, in itself exempt that proposed contract action from the synopsis requirement. (FAR 52.202(a)(1)). Under such circumstances, this section must identify what alternatives the program office used to compete this requirement (e.g., accessing the National Reconnaissance Office's (NRO) Acquisition Research Center's Central Contractor Registry database or the National Security Agency's (NSA) Acquisition Resource Center's Business Registry database to identify potential cleared offerors and summarize what outreach the program office conducted with those potential cleared offerors to determine their interest in the proposed acquisition).

If qualifying country sources have expressed interest, but will be excluded, provide supporting rationale.

VI. Determination by the contracting officer that the anticipated cost to the government will be fair and reasonable. (FAR 6.303-2(b)(7)) Include the following text, suitably tailored: “Based upon (1) certified cost or pricing data provided in the offeror's proposal, (2) the program office's technical analysis of the offeror's Basis of Estimates (BOE), and (3) inputs from the Defense Contract Management Agency, including from the Administrative Contracting Officer, the contracting officer expects they will be able to determine that the anticipated cost to the Government will be fair and reasonable.”

VII. Description of the market research conducted and the results, or explain why market research was not conducted. (FAR 6.303-2(b)(8)) Discuss any market research conducted pursuant to FAR Part 10 (in addition to any actions described in Section VI above) and describe the results of that research. When other exceptions from the requirement to obtain full and open competition are relied upon, the market research might be limited to an examination of the acquisition history and experience with the marketplace under previous acquisitions for the same or similar items. Discuss what relevant documentation the contracting officer provided to respondents in a bidders library (e.g., capability development document, system engineering plan, system requirements document, statement of work/performance work statement, technical data package, compliance documents). Discuss how the contracting officer shared the Government's analysis of each respondent's response with that respondent.

If market research was not conducted, so state and provide the rationale.

VIII. Any other facts supporting the use of Other Than Full and Open Competition. (FAR 6.303-2(b)(9)(i)) Provide any other facts supporting the use of other than full and open competition, including an explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available. (FAR 6.303-2(b)(9)(i)).

IX. List of sources,…