S_A12_FBO_FAI_JOFOC_Water_&_Wastewater_Utility_Service_FY-17.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN

COMPETITION

PUBLIC UTILITY – WATER AND WASTEWATER UTILITY

SERVICE

FEDERAL DETENTION CENTER PHILADELPHIA

PHILADELPHIA, PENNSYLVANIA

Contractor: City of Philadelphia

Period of Coverage: 10/1/2016 through 9/30/2017

Estimated Amount: $449,000.00

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISOSN

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Water and Wastewater Utility Service FDC Philadelphia

Pursuant to the Federal Acquisition Regulation (FAR) Part 6.302-1(a) and 6.302-1(b)(3), and the Bureau of

Prisons Acquisition Policy (BPAP) 4100.05 Part 6.304(b), the Federal Bureau of Prisons (FBOP) has determined that the procurement of water and wastewater utility service for the Federal Detention Center (FDC)

Philadelphia located within the city limits of Philadelphia, Pennsylvania, meets the criteria established for other than full and open competition. It is further determined that only one responsible source and no other supplies and/or services will satisfy agency requirements. This limitation on competition is justified as supported by the following information in accordance with FAR Part 6.303-2:

1. IDENTIFICATION OF THE AGENCY AND THE CONTRACTING ACTIVITY:

U.S. Department of Justice

Federal Bureau of Prisons

FDC Philadelphia

700 Arch Street

Philadelphia, PA 30315

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

This action is for the acquisition of water and wastewater utility service provided to the FDC Philadelphia, from the sole provider of such services in the Philadelphia, PA, area. The FBOP, a component of the

Department of Justice (DOJ) has a preceding, current, and continuing requirement for water and wastewater utility service for the proper operation of the facility in order to provide a safe, secure environment to confine offenders and protect the public. The FBOP, Field Acquisition Office working to satisfy the acquisition needs of the FDC Philadelphia, intends to make a single award to the contractor who shall provide water and wastewater utility services upon request by the institution. The pricing includes all associated charges to the government for providing the services required (e.g., insurance, overhead, minimum wages, planning, etc.).

The quantity of supplies/services to be provided by the contractor is estimated. These estimates are not a representation to a offorer or contractor that the estimated quantities will be required or ordered, or that conditions affecting requirements will remain stable or normal. General information regarding the FBOP and its facilities is located at www.bop.gov.

3. DESCRIPTION OF SUPPLIES OR SERVICES REQUIRED TO MEET THE AGENCY NEEDS:

The City of Philadelphia (hereinafter referred to as “the city”) shall provide to the government facility at FDC

Philadelphia, water and wastewater services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. The City shall provide services on an uninterruptible daily basis 365 days per year. The City will be responsible to maintain and/or repair all associated pipelines and equipment, including associated costs for such repair, up to and from the delivery point or meter of FDC Philadelphia.

The City will be responsible to ensure that the pipelines and associated equipment, utilized to provide water and wastewater utility services will be maintained and operated in compliance with all rules and regulations set by the Pennsylvania Department of Health, in accordance with all Federal, State, County, and local government for a safe and sanitary water and wastewater service. Pursuant to FAR Part 41.202, the City continues to provide the “entire water and wastewater utility service” (i.e., production, distribution, system http://www.bop.gov/

JOFOC FDC PHILADELPHIA

Water and Wastewater Utility Services operation and maintenance, collection, treatment, metering, billing, etc.).

The City shall provide water and wastewater utility services for the period from October 1, 2016, through

September 30, 2017, for a 12 month period, subject to funds availability (FAR Clause 52.232-18). The total estimated monthly amount for water and wastewater utility service is $37,416.67. The total estimated amount for a 12-month period is $449,000.00.

Contract Line Item Number Performance Period Estimated Annual Cost ($)

CLIN 0001 October 2016 $36,000.00

CLIN 0002 November 2016 $45,000.00

CLIN 0003 December 2016 $35,000.00

CLIN 0004 January 2017 $40,000.00

CLIN 0005 February 2017 $41,000.00

CLIN 0006 March 2017 $41,000.00

CLIN 0007 April 2017 $43,000.00

CLIN 0008 May 2017 $35,000.00

CLIN 0009 June 2017 $32,000.00

CLIN 0010 July 2017 $33,000.00

CLIN 0011 August 2017 $34,000.00

CLIN 00112 September 2017 $34,000.00

Total Estimated Cost: $449,000.00

4. AN IDENTIFICATION OF THE STATUTORY AUTHORITY PERMITTING OTHER THAN

FULL AND OPEN COMPETITION:

This justification to award as a sole source is prepared pursuant to the exception to full and open competition requirements in accordance with the statutory authority for these services that is found at 41 USC § 3304

(a)(1), when the supplies or services required by the agency are available from only one responsible source.

The application which permits use of the cited statutory authority are stated at FAR Part 6.302-1(b)(3), “When acquiring utility services (see 41.101), circumstances may dictate that only one supplier can furnish the service (see 41.202). When a public utility supplier refuses to execute a tendered contract the agency may proceed with the acquisition and pay for the utility service under the provisions of 31 USC § 1501(a)(8).

Analysis of the market indicates that the City has proprietary rights up to the meter at FDC Philadelphia. In order for another provider to be capable of providing the service, significant capital improvements would be needed. The Bureau would be required to pay for the capital improvements, but it would not recover the costs of duplication of services, connection fees and infrastructure installation costs through competition.

The current requirement is for follow-on services and does not include funding for capital improvements. In accordance with FAR 9.102(b), a contracting officer is not required to make a responsibility determination when awarding to a Foreign, State, or local government.

5. A DEMONSTRATION THAT THE PROPOSED CONTRACTOR’S UNIQUE QUALIFICATIONS

OR THE NATURE OF THE ACQUISITION REQUIRES USE OF THE AUTHORITY CITED:

The City is the government-owned sole provider of water and wastewater utility service in the FDC

Philadelphia service area. The City is an entity of the State of Pennsylvania, the only agent authorized by rules and regulations to provide water and wastewater service in the Philadelphia area. Having a single supplier of water and wastewater service for this area is the most efficient method of providing potable water and collecting and treating sewage. In accordance with Philadelphia Ordinance, the Philadelphia Water, Sewer, and Storm water Rate Board is an independent ratemaking body responsible for fixing and regulating rates and charges for water and sewer services. The rates and charges are then approved by the City council.

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

AS MANY POTENTIAL SOURCES AS IS PRACTICABLE INCLUDING WHETHER OR NOT A

NOTICE WAS OR WILL BE PUBLICIZED AS REQUIRED BY FAR SUBPART 5.2:

As stated in FAR Part 5.202, Exceptions to transmitting a notice to the Government Point of Entry(GPE) at

(a)(5), the contracting officer need not submit a notice when “the proposed contract action is for utility services other than telecommunications services and only one source is available.” There are no General

Services Administration (GSA) area-wide or single point contracts for water and wastewater utility service in the FDC Philadelphia area at this time. This contracting officer has determined, in accordance with FAR

5.202(a)(5), that this requirement appears to be a non-competitive market and the contracting officer need not submit a notice of, nor the issuance of, the RFQ to the GPE.

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

TO THE GOVERNMETN WILL BE FAIR AND REASONABLE:

The estimated average monthly cost, which was based on invoice history, for the water and wastewater utility service is $37,416.67 with a total estimated usage for a 12 month period of $449,000.00. Utility rates are enacted by resolutions by the City Council. The City, which is charged under State of Pennsylvania law to ensure that rates be just and reasonable. The State of Philadelphia, City of Philadelphia, and the Water

Revenue Bureau websites have provided sufficient data to the FBOP contracting officer, pursuant to FAR

15.402, Pricing Policy, allowing the ability to make a preliminary determination that such anticipated costs appear to be fair and reasonable. The City of Philadelphia is a municipal corporation and operates under the guidelines of the State of Pennsylvania Charter. A formal decision in the form of periodic rulings, reviews, or similar actions of a governmental body, or embodied in the laws, are sufficient to set pricing (see FAR

15.403-1[c][2]). The establishment of the current supply and delivery of services began when the original service connections were installed. As such, this Contracting Officer has determined the anticipated cost to the Government will be fair and reasonable.

8. A DESCRIPTION OF THE MARKET RESEARCH CONDUCTED:

This documentation is in accordance with FAR Part 10, which describes the policies and procedures for conducting market research in a process of finding viable sources of goods and services to meet government requirements and to find the most suitable approach to acquiring, distributing, and supporting supplies and services. The amount of market research will vary, depending on such factors as urgency, estimated dollar value, complexity, and past experience. Market research involves obtaining information specific to the item being acquired. This report is submitted in support of an acquisition with an estimated value in excess of the simplified acquisition threshold. Below are the findings of the market research for the above referenced requirement.

I. BACKGROUND: A review of the obligation reveals the following – The Federal Detention Center

Philadelphia (hereinafter referred to as “FDC Philadelphia”) has a current and continuing requirement for the purchase of water and wastewater utility service for the continuation of normal operations of the institution in order to provide a safe, secure environment to confine offenders and protect the public.

1. Title: Water and Wastewater Utility Service - FDC Philadelphia

2. Product or Service Code: S- Utilities and Housekeeping Services – S114 Water Service and S119

Other Utilities.

3. North American Industry Classification System (NAICS): 221310 Water Supply and Irrigation

Systems = this industry comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems. The water supply system may include pumping stations, aqueducts, and/or distribution mains. The water may be used for drinking, irrigation, or other uses; and 221320 Sewage Treatment Facilities = this industry comprises establishments primarily engaged in operating water systems or sewage treatment facilities that collect, treat, and dispose of waste.

4. Standard Industrial Classification (SIC) Code: 4941 Water Supply - 4952 Sewerage Systems

II. DELIVERY / PERFORMANCE: Purchase order to provide water and wastewater utility services from

October 1, 2016 through September 30, 2017. The City shall provide to the government facility at FDC

Philadelphia, water and wastewater utility services in a manner and form that is consistent with all applicable laws, rules, codes, industry standards, permits, and regulations, promulgated by any and all governmental authorities having jurisdiction. The City shall provide services on an uninterruptible daily basis 365 days per year. The City will be responsible to maintain and/or repair all associated water and wastewater lines and equipment, including associated costs for such repair, from the delivery point or meter of FDC Philadelphia. Pursuant to FAR Part 41.202, the City continues to provide the “entire water and wastewater utility service” (i.e., collection, treatment, testing, system operation and maintenance, metering, billing, etc.).

III. POTENTIAL SOURCES: City of Philadelphia, Water Revenue Bureau, Municipal Services Building, 1401 J.F.K. Boulevard, Philadelphia, PA 19102-1607

IV. MARKET ANALYSIS:

1. The results of market research have determined that the Government’s needs can be met by an item that is of a type customarily available in the commercial marketplace and is used by the general public.

2. The following methods were utilized to conduct Market Research:

X Reviewed historical acquisition information.

X Personal knowledge in procuring supplies/services of this type.

X Review of Government and/or commercial databases for relevant information.

X FedBizOpps Sources Sought Synopsis; Found no other interested party capable of providing water and wastewater utility service.

X Searched database and contacted GSA Energy Center of Expertise; Found no areawide or single point contract is available.

X Searched FPDS-NG; Found GSA, VA, IRS, and the FBOP are purchasing water and wastewater service from the City.

X Searched previous purchases of similar/identical acquisitions; Found the City is current provider to FDC Philadelphia. This is a continuation of service.

3. Results: Results of Market Research were as follows: Only on source could be found. A

Justification for Other than Full and Open Competition is provided for approval.

V. RECOMMENDATION:

1. It is this Contracting Officers determination there is a source available that is capable of providing the required services. The requirement will be awarded to the City as a single award of a firm-fixed price requirements type water and wastewater utility purchase order utilizing FAR Part 6, 12, 13, and

41. A Performance-Based Acquisition method will not be used for this procurement as it is determined not applicable. A PBA relies on the use of measurable performance standards and financial incentives in a competitive environment to encourage competitors to develop and institute innovative and cost-effective methods of performing the work.

2. The City is the sole provider of water and wastewater utility service in the FDC Philadelphia service area. The City Council of Philadelphia is the governing body that approves all rates with the responsibility of water and wastewater services for the locale in which FDC Philadelphia resides. I applied personal knowledge, interaction with knowledgeable individuals in local and Federal

Government regarding market capabilities to meet the requirements, and research of generally accessible literature available on-line were the techniques used in researching this procurement for a supply/services of this type. During construction of the institution, one contract was awarded for the installation and operation of one water and one wastewater pipeline leading to and from the institution. A review of State of Pennsylvania regulations determined that a water and a wastewater utility service is not a deregulated utility. Deregulation would promote competition. In the case of utilities owned and operated by municipalities, the Pennsylvania Public Utility Commission does have jurisdiction. FDC Philadelphia is within the City of Philadelphia Zoning District. The City is other than small business.

3. This requirement will not be posted to Fedbizopps to promote competition, broaden industry participation, and assist small business concerns in obtaining contracts for FDC Philadelphia. This requirement meets the exemption at FAR 5.202(5) the proposed contract action is for utility services other than telecommunications services and only one source is available. The Department of Water

Revenue Bureau is an entity of the City, the only agent authorized by rules and regulations to provide water and wastewater service in the Philadelphia area. Having a single supplier of water and wastewater service for this area is the most efficient method of providing potable water service and collecting and treating sewage.

4. Search of previous purchases of similar/identical acquisitions shows the City is the current water and wastewater service provider for FDC Philadelphia and has serviced the facility since dedication.

Also, the City is the only service supplier capable at this time of providing FDC Philadelphia with water and wastewater services. No other company has presented itself with the capabilities nor the infrastructure to run water and wastewater lines to the current connection site. No other sources have been located that are currently capable or that could acquire the capability of meeting the

Bureau’s requirement. The Bureau does not have the state and local approval or the resources to provide the funding for another company to install a new water and wastewater system at the institution, other pipelines are not available, and no other contractor can provide water and wastewater service through the City pipelines.

5. The U.S. General Services Administration has issued a Delegation of Contracting Authority to the

U.S. Department of Justice, Federal Bureau of Prisons to negotiate and execute utility service contracts. This includes the provision of water and waste water service for FDC Philadelphia.

6. I also make the determination that this procurement action “NOT” be set-aside for small business.

VI. COMMENTS: The Government contemplates the single award of a firm-fixed price requirements type water and wastewater utility service purchase order resulting from this requirement. The conclusions from this market research will be incorporated into the document for providing Water and Wastewater

Utility Service for FDC Philadelphia.

9. ANY OTHER FACTS SUPPORTING THE USE OF OTHER THAN FULL AND OPEN

COMPETITION:

The provision of water and wastewater utility service is essential for the orderly operation of FDC

Philadelphia, which is designed to collectively house with a rated capacity of approximately 2,000 inmates.

The institution consists of a United States Penitentiary (USP), a Federal Prison Camp (FPC), and a Federal

Detention Center (FDC). State regulations and ordinances limit the providers of this service to only one.

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

THE ACQUISITION:

There were no other sources which expressed an interest in this acquisition.

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

OVERCOME BARRIERS TO COMPETITION BEFORE ANY SUBSEQUENT ACQUISITION

FOR THE SUPPLIES OR SERVICES REQUIRED:

Contracting and requirement staff continue to conduct appropriate market research to determine if sources capable of satisfying the agency’s requirement exist and to overcome competition barriers. Deregulation laws are presently nonexistent and no alternative source of service is currently available. A review of government procurement databases shows only the FBOP, GSA, IRS, and the VA are issuing orders to the

City for water and wastewater utility requirements. FDC Philadelphia is a consumer of services from the public utility. If another potential source emerges, the agency will assess whether competition for future requirements is feasible.

12. CONTRACTING OFFICER’S CERTIFICATION:

I hereby certify that this request for Justification and Approval of Other Than Full and Open Competition is made in good faith, that the supporting data and information are accurate and complete to the best of my knowledge and belief, and that I would not be making this request if it were feasible to fully compete this requirement. I further certify that this request is not the result of lack of advance planning or a desire to expend funds while those funds are still available.

//SIGNED\\ 11/30/2016

Dennis Dempsey, Contract Specialist Date

Field Acquisition Office

I hereby certify that the supporting data provided by the technical and requirements personnel which form the basis for this justification is complete and accurate to the best of my knowledge and belief.

//SIGNED\\ for 10/17/2016

Date

Neil R. Morgan, Facilities Manager

FDC Philadelphia

Concurrence:

In accordance with BPAP 4100.05 Subpart 6.304(c), I certify I have reviewed this justification and find it adequate to support other than full and open competition.

//SIGNED\\ 10/21/2016

Sean Marler, Warden Date

FDC Philadelphia

Approved:

//SIGNED\\ 12/1/2016

Jill D. Ryan, Chief Date

Field Acquisition Office