P03_HCA_Signed_LSJ_501_2019-0027_JA_SS_Siemens_Maint_Repair__VA258-18-AP-1219.pdf

VHAPM Part 816.5—Indefinite Delivery Contracts Attachment 1: Request for Exception to Fair Opportunity Memo Format

VHAPM Part 816.5—Indefinite Delivery Contracts Page 1 of 6 Original Date: 08/30/2017 Date: 10/30/2018 Rev 01

DEPARTMENT OF VETERANS AFFAIRS

Justification and Approval

For

Exception to Fair Opportunity Memo

Acquisition Plan Action ID: VA258 18 AP 1219

1. Contracting Activity: Department of Veterans Affairs, VISN 22 G with NCO 22 G, in partnership with New Mexico VA Health Care System using PR 501 19 1 055 0002 for consideration with respect to Justification for Other Than Full and Open Competition using Exception to Fair Opportunity.

2. Description of Action: The proposed sole source task order is for the provision of preventative maintenance services on various Siemens Medical Solutions USA, Inc manufactured equipment currently in use throughout VISN 22. These units will require ongoing preventative maintenance and support in order to ensure that they remain fully functional and can continue to be used for their intended purposes of providing Imaging and/or Ultrasound services in conjunction with critical patient care. The services are currently being provided under task orders against DLA IDIQ contract SPE2D1 17 D 0023. The proposed sole source task order will be firm fixed price under an GWAC IDIQ contract that has been awarded by the Defense Logistics Agency (DLA) under contract SPE2Dl 17 D 0023. The period of performance of the DLA contract is 03/28/2017 to 03/27/2027. The ceiling amount of the DLA contract is $4,128,000,000.00. The DLA Troop Support Medical Supply Chain and the Department of Veterans Affairs National Acquisition Center (VA NAC) are the only activities authorized to place delivery orders under this IDIQ contract except as otherwise delegated in writing by the DLA or VA NAC. Both the VA NAC and DLA will issue orders directly against any IDIQ contract under the program, regardless of which agency is the designated administrating agency. The agency which issues an order will be responsible for all administration functions for the given order.

3. Description of Supplies or Services: The estimated value of the proposed action is $ 885,547.17 with PoP of 11/15/2018-03/31/2019. The preventative maintenance (PM) services of Imaging and/ or Ultrasound equipment located at New Mexico facility, as the original equipment manufacturer (O EM), and sole firm that is capable of servicing, repairing, and supplying replacement parts within manufacturers recommendations for any and/or all equipment.

Equipment list:

1 Biograph mCT 128 400- 482653

Shared Service Basic. Includes SOK Scansec Tube Coverage, 2-mCi Source 10250133 & Consumable Coverage

2 syngo MMWP 400-525082 Shared Service Basic

3 syngo MMWP 400-525084 Shared Service Basic

4 Ysio Max 400-496125 Shared Service Basic. Includes: Tube Coverage, Fixed FD

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Coverage WF & Mobile FD Coverage WFD

5 Ysio Max 400-496748 Shared Service Basic. Includes: Tube Coverage, Fixed FD Coverage WF

6 Ysio Max 400-498361 Shared Service Expert and tube coverage

7 Artis Zee Multipurpose 400- 449462

Shared Service Basic. Includes Tube Coverage & Fixed FD Coverage

8 SOMATOM Definition 400- 321677

Shared Service Basic. Includes 200K Scansec Tube Coverage, & Consumable Coverage

9 Syngo Multimodality WP 400-341850

Shared Service Basic

10 AXIOM Luminos Agile Max 400-496486

Shared Service Basic. Includes: Tube Coverage, Fixed FD Coverage WF & Mobile FD Coverage WFD

11 AXIOM Luminos Agile Max 400-496485

Shared Service Basic. Includes: Tube Coverage, Fixed FD Coverage WF & Mobile FD Coverage WFD

12 AXIOM Luminos Agile Max 400- 537250

Shared Service Basic. Includes: Tube Coverage, Fixed FD Coverage WF & Mobile FD Coverage WFD

13 SOMATOM Definition 400- 482553

Shared Service Basic. Includes 200K Scansec Tube Coverage, & Consumable Coverage

14 Syngo Via 400-506986 IT Care Plan TOP

15 SC2000 400-519837 Shared Service Basic.

16 SC2000 400-519838 Shared Service Basic.

17 SC2000 400-519999 Shared Service Basic.

4. Statutory Authority: The statutory authority permitting an exception to fair opportunity is Section 41 U.S.C. 4106(c) as implemented by the Federal Acquisition Regulation (FAR) Subpart 16.505 Subpart 16.505(b)(2)(i):

( )FAR Subpart 16.505(b)(2)(i)(A): The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays.

( X ) FAR Subpart 16.505(b)(2)(i)(B): Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.

VHAPM Part 816.5—Indefinite Delivery Contracts Page 3 of 6 Original Date: 08/30/2017 Date: 10/30/2018 Rev 01

Order against: IDIQ Contract Number: SPE2D1 17 D 0023

Name of Proposed Contractor: SIEMENS MEDICAL SOLUTIONS USA, INC

Street Address: 40 LIBERTY BLVD

City, State, Zip: MALVERN, PA 19355

Phone: 760 994 9828

Compliance with the specifics of the warranty and the service agreement is required. Services attempted or performed by any person or company not authorized to perform such service will constitute a breach of the agreement and will consequently void the warranty on the systems currently in operation at New Mexico Facility.

( ) FAR Subpart 16.505(b)(2)(i)(C): The order must be issued on a sole source basis in the interest of economy and efficiency because it is a logical follow on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.

( ) FAR Subpart 16.505(b)(2)(i)(D): It is necessary to place an order to satisfy a minimum guarantee.

( ) FAR Subpart 16.505(b)(2)(i)(E): For orders exceeding the simplified acquisition threshold, a statute expressly authorizes or requires that the purchase be made from a specified source”. The statutory authority permitting an exception to fair opportunity for this action is 38 U.S.C. 8127(c), known as the Veterans First Contracting Program which provides the authority to directly contract with a Service Disabled Veteran Owned Small Business (SDVOSB) or a Veteran Owned Small Business (VOSB).

( ) FAR Subpart 16.505(b)(2)(i)(F) In accordance with section 1331 of Public Law 111 240 (15 U.S.C.

644(r)), contracting officers may, at their discretion, set aside orders for any of the small business concerns identified in 19.000(a)(3). When setting aside orders for small business concerns, the specific small business program eligibility requirements identified in part 19 apply.

5. Rationale Supporting Use of Authority Cited Above: The imaging equipment software updates and upgrades to these systems are only available from Siemens. They are the original equipment manufacturer (OEM) and these updates and upgrades will not be available from any other source.

The VA has received a confirmation from Siemens verifying that they are the only vendor who can perform these services and that they do not have a responsive/eligible contractor partner in the servicing this Siemens manufactured proprietary equipment. Compliance with the specifics of the warranty and the service agreement is required. Services attempted or performed by any person or company not authorized to perform such service will constitute a breach of the agreement and will consequently void the warranty on the systems currently in operation. This single factor precludes

VHAPM Part 816.5—Indefinite Delivery Contracts Page 4 of 6 Original Date: 08/30/2017 Date: 10/30/2018 Rev 01 modification to enhance competition. Thus, acquiring a service contract with a potential contractor other than the suggested source can potentially prove too costly and injurious to the Government. If VA were not to obtain this particular service, the station would not be able to safely and effectively treat patients. There will be a substantial duplication of cost to the government due to the purchasing of additional equipment or out sourcing this service, if the equipment is not adequately maintained for use.

If this is a Brand Name Justification: The discussion shall include how the particular brand name, product, or feature is essential to the Government’s requirements and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs. Include this sentence in your discussion: Not applicable.

6. Efforts to Obtain Competition: A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable.

NCO 22 G Contracting office posted RFI 36C25818Q9708 from 08 02 2018 to 08 07 2018 on FBO, GSA eBuy and e mailed four vendors on VIP. No contractor responded with respect to meeting the customer's need through the RFI. Completed Market Research on GSA, GSA elibrary, VIP and google.

a. General Services Administration (GSA) VA SIN 66 with zero positive responses.

b. Federal Business Opportunities (FBO): Zero positive responses.

7. Actions to Increase Competition: Describe actions taken, or that will be taken, to remove or overcome any barriers to competition before initiating any subsequent acquisitions for the supplies, or services required, including challenges to restrictive data markings, data rights, preparation of a performance based work statement, and etc.

Currently Siemens is the only vendor authorized to provide this service. If Siemens authorizes other vendors to provide these services, other vendors then can be considered on future preventive maintenance services on this equipment. The contracting office may survey the market again and solicit sources as necessary. In order to overcome barriers to competition, more sources supplying equivalent equipment/services must be available. Since Siemens Medical has the proprietary knowledge, parts, and licensed software, overcoming the barriers for competition cannot be utilized at this time. Lastly laws, clauses and regulations such as VAAR clauses 852.219 10, 852.219 11, 15 USC 657s and 13 CFR 125.6 enables these barriers as well, and the Government has no choice but to comply.

8. Market Research: Provide a description of the market research conducted among the contract holders and the results. If market research was not conducted, the reasons it was not conducted should be stated. When citing 16.505(b)(2(i)(b) or 16.505(b)(2)(i)(e), the only possible way to state in paragraph 5 of the J&A that there is only one contractor who can fulfill the agency’s needs is to conduct market research, and it should be summarized here.

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Market research for this effort did not yield any additional sources that could meet the Government’s requirements. There is zero competition anticipated for this acquisition. In accordance with FAR 8.405 6, this action will be synopsized post award on the Federal Business Opportunities (FBO) and the justification will be made publicly available. No other prime firms have contractors that are OEM trained or have certified technicians that can also provide timely and appropriate software/hardware preventive maintenance service per the OEM firm.

Siemens Medical representative confirmed that due to VAAR clauses 852.219 10/ 852.219 11 referencing; 15 USC 657s and 13 CFR 125.6 limitations on subcontracting; their SDVOSB/VOSB’s primes would simply be a pass through company and Siemens would essentially be conducting 100% of the services performance as the subcontractor. Siemens previously had to consult an SDVOSB that was not aware of this USC law which resulted in the SDVOSB set aside service contract being Terminated for Convenience.

Note: Part of these details was communicated over a telephone conversation with a Siemens representative and the confirmation was emailed from this same Siemens representative.

Currently there is at least 3 active contracts for limited sources of similar service items awarded to Siemens Medical Solutions USA, Inc:

1. SPE2D1 17 D 0023 VA258 17 F 2226 – 10 01 2018 09 30 2022 $2,218,541.05 Siemens Medical Solutions USA, Inc.

2. SPE2D1 17 D 0023 VA258 17 F 2930 – 10 01 2018 – 09 30 2018 $1,407,011.57 Siemens Medical Solutions USA, Inc.

3. SPE2D1 17 D 0023 VA258 17 F 2853 – 10 01 2017 – 09 30 2018 $697,218.09 – Siemens Medical Solutions USA, Inc.

9. Other Facts: In section 6 and in the attached market research report, it detailed that these services are only available from one source. Compliance with the specifics of the warranty and the service agreement is required. Services attempted or performed by any person or company not authorized to perform such service will constitute a breach of the agreement and will consequently void the warranty on the systems currently in operation at New Mexico VA Health Care System.

10. Technical and Requirements Certification: I certify that the supporting data under my cognizance, which are included in this justification, are accurate and complete to the best of my knowledge and belief.

(This signature is the requestor’s supervisor, fund control point official, chief of service, someone with responsibility and accountability)

Emily Salmon Date Biomedical Engineer New Mexico VA Health Care System

Emily A Salmon 393420

Digitally signed by Emily A Salmon 393420 Date: 2018.10.29 09:37:17 -06'00'

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12. Contracting Officer's Certification (required): I certify that the foregoing justification is accurate and complete to the best of my knowledge and belief.

Edelma Galarza Valentin Date NCO 22 G/Branch Chief

13. Approvals in accordance with VHAPM Part 806.3 Other Than Full and Open Competition SOP. This part if filled out by Contracting Staff as part of the Justification

a. One Level Above the Contracting Officer (Required over $250K but not exceeding $700K): I certify the justification meets requirements for other than full and open competition.

Dan Thiel Date NCO 22 G/Division Chief

HIGHER LEVEL APPROVAL (Required for orders over $700,000):

b. VHA SAO HCA REVIEW AND APPROVAL (over $700,000 to $68 million): I have reviewed the foregoing justification and find it to be complete and accurate to the best of my knowledge and belief and approve for other than full and open competition.

DATE

Curtis M. Jordan Acting Executive Director, SAO West Head of Contracting Activity (HCA)

Edelma A Galarza-Valentin 204754

Digitally signed by Edelma A Galarza- Valentin 204754 Date: 2018.10.29 09:37:38 -07'00'

KELLY M. Griego 185769 Digitally signed by KELLY M.

Griego 185769 Date: 2018.10.29 12:57:53 -07'00'

DOC review and approval

Sabrina J. Smith Director of Contracting NCO 22 Gilbert, Desert Pacific District/SAO-West

Date

VHATUCThielD Typewritten Text Acting for