P03 - JA for MATOC Exception to Fair Opportunity Condesate Lines (All sigs).pdf

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

VHAPM Part 816.5—Indefinite-Delivery Contracts Page 1 of 4 Original Date: 08/30/2017 Date: 03/11/2019 Rev 02

DEPARTMENT OF VETERANS AFFAIRS

Justification and Approval For

Exception to Fair Opportunity Memo

Acquisition Plan Action ID: 36C263-20-AP-3933

1. Contracting Activity: Network 23 Contracting Office (NCO 23), Construction Team 1, St Paul, Minnesota

Requiring Activity: Department of Veterans Affairs, VISN 23, Minneapolis VA Health Care System

2237: 618-20-4-6977-0071

2. Description of Action:

This is a firm-fixed-price task order, awarded on August 11, 2020, to DAX/GBAB under the Minnesota construction MATOC contract number of 36C26319D0087.

This project was presented as an urgent requirement, but not an emergency, to fix two locations of damaged piping at the Minneapolis VAMC campus: The Nutrition and Food Services (NFS) condensate line and the 222 water main. This requirement was solicited to all MATOC holders with three proposals received.

This document serves as documentation for a finding and resolution to the culmination of errors which stemmed from the statement of work. As written, the statement of work contained a bid alternate, which the Contract Specialist (CS) for this project misinterpreted as an alternate way of performing the work that was requested. However, the bid alternate was intended by the Contracting Officer’s Representative (COR) to remove the 222 water main from the project costs entirely. As written, the bid alternate contained the same language as a statement of work would lead off with for a base project description, which was identical in this case to the base description that was provided. The 222 water main was not mentioned in the base requirement, only as a separate entry with “Bid alternate” preceding text.

At least one contractor, identified as Offeror A, who submitted a proposal appears to have been confused by the statement of work as well and crossed off bid alternate and wrote in the names of each pipe location as their bid. A second proposal, submitted by Offeror B, contained the word “deduct” written on the bid alternate on the SF1442, but the price schedule breakdown did not include the word “deduct” on the bid alternate, have a subtraction symbol, or put the bid alternate total in parenthesis to symbolize an amount to deduct. So, the Government added the cost to the total price instead of deducting the price.

On August 26, 2020 at 5:10pm, the CS was informed by a colleague that there appeared to be a problem with the proposals and how they were interpreted. After review, the CS agreed.

On August 27, 2020 – early in the morning – the CS spoke with the CO and called the problem to his

VHAPM Part 816.5—Indefinite-Delivery Contracts Page 2 of 4 Original Date: 08/30/2017 Date: 03/11/2019 Rev 02 attention. The CO made numerous calls throughout the morning, speaking to the CS, and the COR and conferring with other Contracting Officers, the Office of General Council, and to a contractor representative that alerted the Government of the issue.

When the CO spoke with Offeror B to explain the situation, the Offeror stated that the estimator had underpriced the project, and the company would have lost money on this task order. The Offeror stated that the company would have still honored the price that they submitted had they been rightfully chosen as the lowest price proposal, but concluded, they would not pursue a complaint in response to the error that had been made by mistake, as aforementioned in this section of this document. The Offeror stated he also would not have known that the company had submitted a proposal with a pricing error without the Government first making this mistake.

The solicitation has closed, so no new proposals will be accepted at this time. Offeror A’s proposal was higher than either of the proposals provided by Offeror B or DAX/GBAB. Moving forward, the award will remain with DAX/GBAB. The award of this project occurred on August 11, 2020, and two weeks of submittals have occurred. Repairs are scheduled to start August 31, 2020; additional harm would occur to the Government if these emergent repairs were delayed further.

3. Description of Supplies or Services:

An urgent construction need arose when pipes began leaking water underground at the NFS condensate line and the building 222 water main. The water could not be fully shut off as they are both critical water lines to many parts of the hospital and building 222.

Work for the NFS condensate line includes, but is not limited to:

• Demolition of approximately 83 lineal feet of slab on grade concrete floor with tile, which will include a saw-cut of approximately 83 feet of flooring.

• Installation of a new condensate line approximately 16-18 inches below top of finished floor.

Work for the 222 water main includes, but is not limited to:

• Utilization of trenchless repair (bursting) to repair approximately 530 lineal feet of 6-inch watermain in the vicinity of Building 222. The line has 2 each fire hydrants within the section to be repaired.

Estimate Value: $343,164.00 Estimated Period of Performance: 63 calendar days.

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)(A):

(X) 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.

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5. Rationale Supporting Use of Authority Cited Above:

On August 13, 2020, the project shifted from an urgent need to a more emergent need as water damage continued to build up and heavy rains water damage were contributing to water intrusion at building 222.

Due to the explanation provided in section 2 of this document, it is imperative that this project continue as awarded.

6. Efforts to Obtain Competition:

This project was solicited to the Minnesota MATOC holders on the basis of a price only evaluation factor.

Due to the issues described in section 2 of this document (an error) the original competition can no longer be recognized. However, as stated in section 2 of this document, the Offeror who would have otherwise been selected for award has stated that they will not pursue a complaint against the Government and that this works in their favor on a cost basis, as they would have lost money on this award.

7. Actions to Increase Competition:

More time and diligence will be given by the CS in the future for proposal reviews to ensure that awards are always made to the appropriate Offeror.

8. Market Research:

Marked research was performed on June 29, 2020 prior to solicitation by the CS. All Minnesota MATOC holders were verified to be active in SAM and VIP.

9. Other Facts:

This concern was brought to the attention of the contracting team before any action was taken by a contractor and preemptive corrective measures began immediately once the issue was known. The CS and CO did their due diligence on evidence gathering, fact finding, and documenting the action. This is the corrective action taken to remediate these issues.

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.

STEVE CHALLEEN Date Chief of Engineering Minneapolis VA Health Care System

11. Determination that Anticipated Cost is Fair and Reasonable:

The Contracting Officer shall determine the estimated cost for this emergent procurement will be fair and reasonable because the CO will thoroughly review, compare, and analyze the IGE, the Contractor’s proposal, and the COR’s technical evaluation of the proposal.

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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.

SHEA A. COLBY Date Branch Chief Network 23 Contracting Office (NCO 23)

13. Approvals in accordance with VHAPM Part 816.505 Indefinite Delivery Contracts: Ordering.

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

SCOTT J. PETRIN Date Division Chief Network 23 Contracting Office (NCO 23) https://vaww.pclo.infoshare.va.gov/PCLO/PMWeb/VHAPM_Part_816.505.aspx