Redacted LSJ_Redacted.pdf

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SOLE SOURCE JUSTIFICATION

(FOR SAP PROCUREMENTS)

Contracting Organization: Pension Benefit Guaranty Corporation (PBGC) / Procurement Department (PD)

Requisition Number:

Procurement Action Type: New Contract

Contract Number:

Contractor Name or Brand Name Product: The New York Times

Supplies or services to be procured:

The Pension Benefit Guaranty Corporation (PBGC) intends to procure advertising space in a national newspaper publication, as an initial step to assume responsibility of a pension plan for Exide Technologies (Exide). PBGC is seeking to terminate the pension plan effective July 31, 2020, before the plan sponsor’s control group breaks up from sales in bankruptcy of substantially all asets of the Debtors. There are some valuable non-debtors in the sponsor’s control group who are located overseas, and the PBGC needs to preserve the possibility of collecting from those non-debtors some of the pension liabilities that will attach to plan termination. Once PBGC becomes statutory trustee of the terminated pension plan, liens will arise in favor of PBGC against the assets of those non-debtor foreign controlled group members.

In order for a plan termination to be effective, plan participants must at least have constructive notice to extinguish their expectation of plan continuation. Federal courts have previously held that newspaper publication is sufficient notification to do so. See e.g., PBGC v. Heppenstall Co., 633 F.2d 293 (3d Cir. 1980). The court of appeals has held that in selecting a plan termination date, the interests of the plan participants and PBGC must be balanced. The court of appeals also held that the earliest possible date that properly can be selected by a court is the date on which participants had reasonable notice that PBGC was seeking termination. Reasonable notice is notice sufficient to extinguish the participants’ justifiable reliance interests, and constructive notice by publication is sufficient.

Exide manufactures automotive and industrial lead acid and lithium-ion batteries. Exide has 8,800 plan participants, and many participants are retirees. These participants are geographically dispersed across the United States and North America based upon the location of the Exide facilities. There are eleven active Exide facilities across North America. Locations include: Milton, Georgia (Corporate Headquarters); Fort Smith, Arkansas; Kansas City, Kansas;

Kansas City, Missouri; Manchester, Iowa; Salina, Kansas; Mississauga, Onatario, Canada; Lampeter, Pennsylvania;

Canon Hollow, Missouri; Muncie, Indiana; and Reading, Pennsylvania. Additionally, there are twenty-four (24) non-performing properties in eleven (11) states owned by Exide. At one time Exide operated facilities in each of those twenty-four (24) locations. They were closed for various reasons (e.g., no longer economical to operate or too burdened by environmental hazards). However, it is likely there are plan participants (i.e., former Exide employees) still residing in many or most of these areas.

Based upon the forgoing concerning constructive notice requirements, and the geographic spread of plan participants,, PBGC requires a vendor that can publish in print, on or before July 31, 2020, a notice in a nationwide publication that PBGC intends to seek termination of the Exide pension plan.

Supplies: Quantity and estimated value of each item to be procured: OR Services: Period of performance and estimated value of each service to be procured:

N/A

1. AGENCY AND CONTRACTING ACTIVITY

2. NATURE AND/OR DESCRIPTION OF THE ACTION BEING APPROVED

3. DESCRIPTION OF THE SUPPLIES OR SERVICES REQUIRED TO MEET THE AGENCY’S NEED

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Total Estimated Value: $24,000.00

FAR Subpart 13.106-1(b)(1) - Only one source (including brand name product) is deemed reasonably available to provide the required supplies or services and the cost/price is at or below the SAT.

FAR Subpart 13.106-1(b)(2) – The required supplies or services are commercial items, only one source (including brand name product) is capable of satisfying the Agency’s requirement, and the cost/price exceeds the SAT but does not exceed $7M.

The New York Times is a national publication capable of providing the constructive notice required by law as described in the Description of the Requirement section of this document. According to market research, the New York Times is the third leading newspaper in the United States by circulation as of January 2019. Other publications were considered, but were local or regional publications, which would not meet the requirement for participants to receive constructive notice required by law due to the plan participants being geographically dispersed. Additionally, other, comparable national publications were considered and engaged in an effort to meet competition requirements under FAR Part 13, but due to the timeline in which this requirement was brought to the procurement department's attention and the urgency of this request for publication by July 31, 2020, the deadlines from those publications had already passed. The agency considered publishing the notice after the July 31, 2020, publication date, but publishing the notice into August would force PBGC to accept a later plan termination date, which would enable liable entities to avoid laibility related to the plan termination.

The agency also considered alternatives, which included multiple purchases with the Govermentwide Purchase Card (GPC) with a number of regional newspaper providers, but again due to the plan participants being geographically dipersed across much of the United States and portions of Canada, such an approach was not feasible in order to meet this urgent requirement.

Additionally, the agency considered performing these services in-house and simply posting the notice on the agency website; however, it is quetionable and unlikely this would meet the notice requirements required by law.

As described above, additional sources were considered and engaged, but were either local or regional publications (which would not meet the necessary notice requirements as described above) or could not meet the deadline to publish the notice prior to July 31, 2020 based upon the timeframe in which this requirement was recognized in excess of the micro-purchase threshold -- thereby significantly impacting the agency's timeline. The agency did engage prior service providers that were capable of previously meeting similar such advertising requirements to determine if they could meet the agency's requirements under the necessary timelines in an effort to ensure the promotion of competition to the "maximum extent practicable" under FAR Part 13.104 . However, as described above, the deadlines for publication in the July 31, 2020 edition had passed.

Determination: A determination that the cost/price is fair and reasonable will be made by the Contracting Officer before the contract action is issued.

4. AUTHORITY PERMITTING SOLE SOURCE PROCUREMENT

5. DEMONSTRATION THAT THE CONTRACTOR’S UNIQUE QUALIFICATIONS OR THE NATURE OF THE

ACQUISITION REQUIRES THE USE OF THE AUTHORITY CITED

6. DESCRIPTION OF EFFORTS MADE TO ENSURE THAT QUOTATIONS/OFFERS ARE SOLICITED FROM

AS MANY POTENTIAL SOURCES AS PRACTICABLE

7. DETERMINATION BY THE CONTRACTING OFFICER THAT THE ANTICIPATED COST TO THE

GOVERNMENT WILL BE FAIR AND REASONABLE

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The determination that the cost/price is fair and reasonable will be made by the Contracting Officer before the award is issued by comparing the proposed price to the IGCE and prices contained in previous contract actions/Government Purchase Card actions for newspaper advertisements. To be completed by the Contracting Officer.

Market research was conducted as described above concerning national publications capable of meeting the agency need. Prior to a determination to award to the New York Times, the agency also conducted market research concerning the commerciality of these services, and the services were determined to be commercial in nature.

Prior to the determination to use Simplified Acquistion Procedures, in accordance with FAR 13.003(a), the agency considered required sources of services under FAR Part 8 (e.g., Federal Prison Industries, Committee for Purchase from People Who are Blind or Severely Disabled, and Federal Supply Schedule contracts), and it was determined no required sources of services were inapplicable for this requirement, as documented more fully in the Market Research Report.

Further, as required by FAR 13.003(b), the agency considered and documented why the subject services were not set aside for small business, as required when the the anticipated dollar value is above the micro-purchase threshold, but at or below the simplified acquisition threshold, but it was determined there were no small businesses available to meet the agency's need, as documented more fully in the agency's Market Research Report.

Based upon the market research conducted, as well as the information set forth in other sections of this document, and the agency's urgent need related to the condensed timeline for this one-time procurement, a sole source awardis necessary under the circumstances.

N/A

The USA Today, expressed an interest in writing, and provided an estimate during market research, but by the time a purchase order could be completed the deadline had passed for publication in the July 31, 2020, edition of the newspaper.

This is a one-time procurement, necessary to meet the agency's minimum needs. The agency intends to make future purchases with local or regional publications below the micro-purchase threshold which does not require the same "maximum extent practicable" competition requirements for a procurement of this dollar value. For procurements that require a national publication, such as the subject action, the agency intends to take efforts to ensure future procurements are received timely when initial market research indicates the services will exceed the micro-purchase threshold, which will allow for greater competition. Further, the agency plans to evaluate its current acquistion strategy to determine if there are more efficient means to meet these requirements by having an established contract in place, within the agency, for when such requirements arise. Such a procurement would meet necessary competition procedures. Finally, the agency intends to further consider whether such notices can be provided by posting public notices on the agency's website and/or social media.

I hereby certify that this Sole Source Justification, and all supporting data, are accurate and complete to the best of my knowledge and belief.

8. DESCRIPTION OF THE MARKET RESEARCH CONDUCTED AND THE RESULTS, OR A STATEMENT

OF THE REASON MARKET RESEARCH WAS NOT CONDUCTED

9. ANY OTHER FACTS SUPPORTING THE USE OF SOLE SOURCE

10. LISTING OF SOURCES, IF ANY, THAT EXPRESSED, IN WRITING, AN INTEREST IN THE ACQUISITION

11. A STATEMENT OF THE ACTIONS THE AGENCY MAY TAKE TO REMOVE OR OVERCOME ANY

BARRIERS TO COMPETITION BEFORE MAKING ANY SUBSEQUENT ACQUISITION FOR THE

SUPPLIES OR SERVICES REQUIRED

12. TECHNICAL OR REQUIREMENTS PERSONNEL’S CERTIFICATION

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Program Office/COR

07/30/2020 Signature Date

I hereby certify that this Sole Source Justification, and all supporting data, are accurate and complete to the best of my knowledge and belief.

Justification does not exceed $700K - I approve this Sole Source Justification.

Justification exceeds $700K

Contracting Officer

07/30/2020

I approve this Sole Source Justification

Justification exceeds $700K but does not exceed $7M

Enter Name Competition Advocate

Date

13. CONTRACTING OFFICER’S REVIEW OR APPROVAL

14. COMPETITION ADVOCATE’S REVIEW OR APPROVAL