PCCIE JA_urgent_compelling_signed.pdf

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

CONTROLLED UNCLASSIFIED INFORMATION

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 1 of 7August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 1 of 7

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 DAFFARS 5302.101? Yes No

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

Contracting Activity: AFMC AFLCMC/HBZKA

Purchase Request (if available) / Local ID Number: TBD

Program / Project (and PE, if applicable): AFMC AFLCMC/HBZBD Power Conditioning and Continuation Interfacing Equipment (PCCIE) Emergency Maintenance/Preventative Maintenance (EM/

PM)

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

Authority:

6.302-2 – 10 USC 3204(a)(2), Unusual and Compelling Urgency Estimated Contract Cost (including options): $ 12,400,000 J&A Type: Class Individual

! ! Provide estimated cost of all contracts.

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

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Date

10 Apr 2024

Project Lead / Program Mgr / Requiring Activity Andrea Faxon

AFLCMC/HBZBD / 801-775-4764

Signature

X

Date

10 Apr 2024

Contracting Officer Betty Tobias

AFLCMC/HBZKA

Signature

X

Date

10 Apr 2024

Local Legal Reviewer Jonathan Bryant

AFMC 75 ABW/JAQ/801-586-4192

Signature

X

Date

11 Apr 2024

Chief of the Contracting Office (COCO) Andrew Hatch

AFLCMC/PZK / 801-586-8602

Signature

X

APPROVAL ( DAFFARS 5306.304(a))

Date

15 Apr 2024

Competition Advocate Kayla V. Marshall

AFMC OL_H/PZC / 801-777-6549

Signature

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 2 of 7August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 2 of 7

I. Agency and Contracting Activity.

Requesting Agency:

United States Air Force (USAF) Air Force Life Cycle Management Center (AFLCMC)/HBZKA Power Conditioning & Continuation Interfacing Equipment Division (PCCIE)

AFLCMC/HBZBD

6039 Wardleigh Road, Hill AFB, UT 84056

Organizational Activity:

Emergency Maintenance and Preventative Maintenance (EM/PM) for Uninterruptible Power Supply (UPS) Systems

PCO: Betty Tobias

AFLCMC/HBZKA

801-777-6171

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

A. Upon approval to use other than full and open competitive procedures, the United States Air Force (USAF) will initiate a contract action to continue PCCIE EM/PM commercial service Indefinite Delivery Indefinite Quantity (IDIQ) Single Award Firm Fixed Price (FFP) contract, for the continuation of PCCIE EM/PM Uninterruptible Power Supply (UPS) systems, along with the associated miscellaneous stored energy systems (battery, flywheel and capacitors) and ancillary equipment incorporated. Together, these systems provide conditioned power and backup energy to critical Department of Defense (DoD) missions. Emergency and preventative maintenance of UPS systems is critical to ensure equipment/mission capability during a contingency situation, prolonging the life of the UPS, and ensuring functionality. Any reference to “maintenance” will include both emergency and preventative.

B. On 19 March 2024, the USAF awarded the follow-on PCCIE EM/PM II . However, after the debrief to the unsuccessful offeror, a GAO protest was made challenging the price evaluation. A Competition in Contracting Act (CICA) stay of performance was issued on 2 April 2024. Due to the timeframe needed to resolve the pricing evaluation process, a bridge contract is needed to ensure continued critical emergency and preventative maintenance services are provided to thousand of worldwide locations.

c. The current contract will expire 14 April 2024. On that date, no new orders can be placed, and no new work can be added. Given the GAO protest, the need exists for a contract action until the PCCIE EM/PM II stay of performance is canceled. To cover the length of time that may be needed, the intent is to award a 6-month contract action with a 6-month option period. When the PCCIE EM/PM II Follow-on contract is awarded, all work will transition to the new contract.

D. The estimated value of the additional 6-month contract with the 6-month option period is $12,400,000. (Basic:

15 April 2024- 14 October 2024; Option 1: 15 October 2024- 14 April 2025), valued at $6,200,000 for each period.

E. The Air Force had a J & A for the previous contract that requires the Prime Contractor to use the Original Equipment Manufacturer (OEM) as specific certified technicians.

F. Company:

Pergravis, LLC 10012 N Dale Mabry Hwy Ste 109

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Tampa, FL 33618

G. Contract type: Firm-Fixed Price (FFP) with one Time and Material CLIN, Indefinite Delivery/Indefinite Quantity

(IDIQ)

H. Estimated Contract Maximum

FROM: $0.00

TO: $12,400,000

Increase: $12,400,000

I. Type of J&A: Class

J. Estimated date of contract action: 15 April 2024

K. Purchase Request: TBD

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

A. The purpose of this effort is to continue to ensure Power Conditioning and Continuation Interfacing Equipment (PCCIE) Emergency Maintenance/Preventative Maintenance (EM/PM) sustainment infrastructure is available to support maintain, repair, and modify the nearly 1400 DoD UPS systems in various worldwide locations throughout the entire Air Force. The PCCIE EM/PM contract is the only contract throughout the Air Force that supports these units and is mission critical in ensuring the mission stays up and is not at risk of failure. All Air Force and Space Force missions must remain up twenty-four (24) hour/seven (7) day-a-week, and in order to do that their UPS must be functioning. This PCCIE EM/PM contract supports over 100 different MAJCOMS throughout both the Air Force and Space Force. Some examples are, Air Combat Command (ACC), including PACAF and USAFE, Air Mobility Command (AMC), Air Force Global Strike Command (AFGSC), Air Force Material Command (AFMC), Air Education and Training Command (AETC), Air Force Reserve Command (AFRC), Air National Guard (ANG) and the United States Space Force (USSF). UPS systems provide conditioned power and backup energy to hundreds of critical DoD missions. UPS systems play a key role in nearly every critical mission in the DoD. While the UPS and associated ancillary equipment are commercial off the shelf (COTS) items, the Air Force cannot provide and does not have access to OEM procedures or licensing rights. These licensing rights are necessary to properly maintain, repair, and modify the nearly 1400 DoD UPS systems in various worldwide locations. EM/PM is critical to ensure that the UPS systems function as designed during contingency situations. Only OEM trained, certified, and authorized technicians with licensing rights can maintain, repair, and modify UPS systems to meet agency needs and mission goals. OEMs are the only sources that have licensing rights to the controls and calibration of each OEM-specific system, so as a Prime on this EM/PM contract, they must sub-contract to the OEM in order to meet this critical requirement.

B. The CLIN structure for this requirement will be as follows (PoP 15 April - 14 October 2024), broken into a six-month basic period and a 6-month option period, which total $12,400,000 (12 months x $5,800,000 = $11,600,000 for services/supplies plus $800,000 for time and materials). The estimated total value of an additional twelve months of service, from 15 April 2024 to 14 April 2025 is $12,400,000. The PoP will be broken out into a Base Period (6 months) and one Option Period (6 months) for a total of 12 months total. The Air Force anticipates needing up to an additional 12 months of additional service in order to execute the remaining Quarter 3 and Quarter 4 EM/PM contracts; however, the program intends to only exercise the minimum PoP necessary to overcome the unusual and compelling urgency situation that has been presented.

The following CLINS will be used in the Base period and in each subsequent quarterly period to execute the PCCIE EM/PM services for this effort.

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Base Period (6 Months): 15 April 2024 - 14 October 2024 est.

CLIN # CLIN Description CLIN Type Est. Unit Price CLIN 0001 Emergency Maintenance FFP $1,000,000 CLIN 0002 Preventative Maintenance FFP $2,000,000 CLIN 0003 Batteries Preventative Maintenance FFP $1,500,000 CLIN 0004 Ancillary Equipment FFP $ 500,000 CLIN 0005 Equipment Diagnostic FFP $ 300,000 CLIN 0006 Negotiated Repair FFP $ 500,000 CLIN 0007 Overseas Travel T&M $ 400,000 CLIN 0008 Data NSP $ 0.00

Option Period (6 Months): 15 October 2024 - 14 April 2025

CLIN # CLIN Description CLIN Type Est. Unit Price CLIN 1001 Emergency Maintenance FFP $1,000,000 CLIN 1002 Preventative Maintenance FFP $2,000,000 CLIN 1003 Batteries Preventative Maintenance FFP $1,500,000 CLIN 1004 Ancillary Equipment FFP $ 500,000 CLIN 1005 Equipment Diagnostic FFP $ 300,000 CLIN 1006 Negotiated Repair FFP $ 500,000 CLIN 1007 Overseas Travel T&M $ 400,000 CLIN 1008 Data NSP $ 0.00

C. The Fund Types being used include 3400 O&M, 3840 ANG, and 3600 RDT&E.

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

A. Only the incumbent contractor, Pergravis LLC, would be able to perform requirements of the PCCIE EM/PM effort without the Government experiencing a break in service. Pergravis is the only contractor with the manpower, in place documentation such base access, Status of Forces Agreements (SOFAs) and Sub-contractor Status Agreements with the OEMs for performance in over 50 different overseas locations, and hundreds of CONUS locations. From experience at the beginning of our new contract that began in FY19, it took Pergravis well over 6 months to acclimate to our contract, establish lessons learned, create current procedures, set up on-time technical availability, and produce a 24/7 technical line for Emergency Maintenance calls.

This time was expected on a new contract, but the PCCIE office and its customers cannot afford to go through these same growing pains as a new contractor establishes their processes and procedures. In addition, if we re-compete it would be another year to get the new contract awarded. As the USAF awaits a decision from GAO, the new bridge contract must be put in place to cover the period of performance for over 1400 UPS units that would be in critical mission failure until PCCIE EM/PM II is awarded. Per the PWS Section 4.7.7, for any Emergency Maintenance (EM) the contractor must provide support for OCONUS locations within 4 hours, and within 8 hours for OCONUS locations. If this contract is not in place, this critical mission requirement will not be met.

B. The PWS Section 4.7.7 states the following: Contractor shall provide documentation of service support strength (personnel) for Eaton, Vertiv, Schneider, and their primary third-party provider in each state/region (CDRL A020). All repair requirements shall be based on the “start time” identified in Section 4.7.2. Base arrival time shall be identified as to when the contractor's technician arrives at the base's commercial entry gate. Arrival and response timelines shall be No Later Than (NLT) the following requirements.

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• NLT Four (4) hour response time in United States Industrialized areas with area OEM/third party presence.

• NLT Eight (8) hour response time in United States Industrialized areas without area OEM/Third party presence.

• NLT Twenty-Four (24) hour response time in United States Non-Industrialized areas.

• Overseas, identified OCONUS locations (as defined per PWS definitions) and remote locations: Reasonable effort determined by the maximum extent practical shall be applied. Contractor shall fully communicate travel and repair timelines with site and PCCIE for overseas or remote location repair effort.

UPS' provide protection against power outages, surges and spikes. If a UPS goes down, and does not have maintenance coverage, connected equipment will be vulnerable to damage, leading to equipment failure and potential loss of assets. The loads on a UPS are mission critical and must remain operational 24 hours - 7 days a week. Restoring power and recovering a UPS failure requires time and resources. If a maintenance contract is not in place, the site will have no technical availability to restore power, resulting in unnecessary downtime of mission critical equipment. This downtime can disrupt mission operations, impact productivity, result in financial losses, and interrupt scheduled operational air force, space force and missile testing and training which are in direct correlation to our countries security and defense.

The end of the 3rd quarter (April - June), there are over 300 UPS assets that would be without maintenance coverage if a contract is not in place. This is $2.6M in uncovered assets, with over 80% of the inventory being owned by the United States Space Force (USSF). These costs are based upon having established firm fixed price (FFP) pricing that was competed through our EM/PM Source Selection that was awarded in 2019. Pergravis proposed a full year of pricing for FY24, so these are actual costs that the government will incur to establish new EM/PM contracts for 3rd quarter. All USSF missions must remain operational 24 hours - 7 days a week to cover such assets as missile launches, missile warning systems, space exploration and navigation, and Intelligence Surveillance and Reconnaissance (ISR). Assets that are uncovered by a maintenance contract do not meet the mission's prerequisite of having an established maintenance contract, which leaves them non-compliant in their mission requirements. If an emergency need arises, the mission is at risk of power supply failure, which leaves our national defense vulnerable to adversarial warnings, attacks, or advanced defense movements.

In the 4th quarter (July-Sept), there are over 500 UPS assets that would be without maintenance coverage if a contract is not in place. This results in over $3.7M in uncovered UPS assets. These costs are based upon having established firm fixed price (FFP) pricing that was competed through our EM/PM Source Selection that was awarded in 2019. Pergravis proposed a full year of pricing for FY24, so these are actual costs that the government will incur to establish new EM/PM contracts for the 4th quarter. The MAJCOMS that would be uncovered and at risk of mission failure are Air Education Training Center (AETC), Air Force District of Washington (AFDW), Air Force Reserve Command (AFRC), Air Material Command (AMC), Air Combat Command (ACC), Special Operations Command (SOCOM), Pacific Air Forces (PACAF), United States Space Force (USSF), 16th Air Force Intelligence Surveillance Resonance Mission (ISR), Air Force Special Operations Command (AFSOC), and United States Army Space and Missile Command (USASMDC). Assets that are uncovered by a maintenance contract do not meet the mission's prerequisite of having an established maintenance contract, which leaves them non-compliant in their mission requirements. If an emergency need arises, the mission is at risk of power supply failure, which leaves our national defense vulnerable to adversarial warnings, attacks, or advanced defense movements.

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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.

Exception at FAR 5.202(a)(2) applies. See section VII.

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

The following steps will be taken to ensure that the anticipated cost of this acquisition will be fair and reasonable.

The Contracting officer will comply with the procedures and criteria contained in Federal Acquisition Regulation (FAR) under Part 30 - Cost Accounting Standards, Part 31 - Contract Cost Principles and Procedures, Subparts 15.4 - Contract Pricing; to include technical evaluations from the appropriate technical experts. Additional steps to ensure price reasonableness actions will be under the guidance of the Contract Pricing Reference Guides, jointly developed by the Federal Acquisition Institute and the Air Force Institute of Technology. The Air Force will obtain certified cost or pricing data IAW FAR Subpart 15.402, when required.

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

Extensive program history and previous market research shows this effort can be competed. However, the incumbent is the only company that is capable of providing the contract services in the required timeframe. Additional market research was not conducted as this requirement is of unusual and compelling urgency, and only one source (Pergravis, LLC, incumbent) is capable of providing the requirement within the required timeframe without a break in service. This contract action to the will serve as the bridge between, PCCIE EM/PM the current contract (FA8217-19-D-0002), and the competitive PCCIE EM/PM II Follow-on, until a favorable GAO decision is provided and the PCCIE EM/PM II can be awarded.

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

No further information not already contained in this J&A

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

See Sections V and VII

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 PCCIE EM/PM II source selection was competed as a full and open competition as a Lowest Price Technically Acceptable (LPTA). Two offerors submitted proposals, and Pergravis, LLC was the successful awardee with LPTA offer. After a written debrief by the Government, the unsuccessful offeror submitted a protest to GAO. In accordance with FAR 33.104(c)(1) if the protest falls within the required guidelines, a stay of performance must be issued. A stay of performance was issued on 2 April 2024 to Pergravis LLC. This bridge contract is to provide continuation of PCCIE EM/PM critical services until GAO makes its decision and the protest is resolved. The contemplation of unusual and compelling urgency, due to the GAO protest timelines, does not allow competition for this contract. The PCCIE EM/PM II contract included competition as a full and open competition and is the

August 2023 CONTROLLED UNCLASSIFIED INFORMATION Page 7 of 7 follow-on to this bridge contract.

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.

August 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 DAFFARS 5302.101?

Dollar Value of this Acquisition:

J&A Type:

!! Provide estimated cost of all contracts.

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

** To remove a row, click the "X" next to the signature block. CAUTION: Once removed, it can only be restored by downloading the BLANK FORM again.

APPROVAL ( DAFFARS 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…