S_A12_FBO_JOFOCWater2017.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN

COMPETITION

PUBLIC UTILITY – WATER UTILITY SERVICE

FEDERAL CORRECTIONAL INSTITUTION MANCHESTER

MANCHESTER, KENTUCKY

Contractor: City of Manchester

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

Estimated Amount: $321,837.00

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Water Utility Service FCI Manchester, KY

Pursuant to the Federal Acquisition Regulation (FAR) Part 6.302-1(a)(1) 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 utility service for the Federal Correctional Institution (FCI)

Manchester, located in Manchester, Kentucky, 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:

U.S. Department of Justice

Federal Bureau of Prisons

FCI Manchester

805 Fox Hollow Road

Manchester, KY 40962

2. Nature and/or description of action being approved:

This justification for other than full and open competition is for the acquisition of Water utility services supplied to FCI Manchester from the original and sole provider of such services. FCI Manchester has a present and continuing requirement for Water service for the proper operation of the facility.

3. Description of supplies or services required to meet the agency needs:

Pursuant to FAR Part 41.202, the City of Manchester continues to provide the “entire Water utility service” (i.e., distribution, treatment, system operation and maintenance, metering, billing, etc.). The

City shall provide to the government facility at FCI Manchester, KY, water 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 equipment, including associated costs for such repair, up to the delivery point or meter of FCI Manchester. The City will be responsible to ensure that the equipment, utilized to provide Water services will be maintained and operated in compliance with all rules and regulations set by the Public Service Commission of Kentucky, in accordance with all Federal, State, County, and local government for a safe water service.

The City shall provide Water 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 average monthly amount for Water utility service is estimated to be $26,819.75. The total estimated annual amount for Water utility service is $321,837.00.

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

CLIN 0001 October 2016 $27,678.00

JOFOC FCI Manchester

Water Utility Services

CLIN 0002 November 2016 $26,190.00

CLIN 0003 December 2016 $23,370.00

CLIN 0004 January 2017 $26,467.00

CLIN 0005 February 2017 $28,969.00

CLIN 0006 March 2017 $21,948.00

CLIN 0007 April 2017 $27,352.00

CLIN 0008 May 2017 $25,940.00

CLIN 0009 June 2017 $25,878.00

CLIN 0010 July 2017 $25,513.00

CLIN 0011 August 2017 $32,021.00

CLIN 0012 September 2017 $30,511.00

Total Estimated Cost: $321,837.00

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 FCI Manchester. 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.

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 sole provider of Water utility service in the Manchester, KY, service area. The City is authorized by city ordinance as the sole authorized provider of water in the Manchester area. All rates are regulated by city ordinance.

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 (a)(5), “the contract action is for utility services other than telecommunications services and only one source is reasonably available. Therefore, a notice is not required in the Government wide point of entry (GPE).” GSA, Energy Management Center of

Expertise, has previously determined that there are no area wide contracts for wastewater utilities and that no opportunity exists in the local area to compete the requirement.

7. A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable:

The estimated average monthly cost, which is based on invoice history, for the water utility service is

$26,819.75 with a total for the 12 month period of $321,837.00. The current rates offered by the City are equal to the market price levied other commercial, industrial, and Government users. Prices will be analyzed by the Contracting Officer and Facility Manager in order to determine price reasonableness.

The establishment of the current collection and removal services began when the original service connections were installed and the meters set in 2004. As such, the 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. 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.

Background: A review of the obligation reveals the following – The Federal Correctional Institution

Manchester (hereinafter referred to as “FCI Manchester) has a current and continuing requirement for

Water utility service.

Title: Water Utility Service to provide Water utility services for the FBOP, FCI Manchester.

Product Service Code: S- Utilities and Housekeeping Services – S114 Utilities/Water.

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.

Standard Industrial Classification (SIC) Code: 4941 Water Supply.

Potential Sources: The City is the sole provider of water utility service in the FCI Manchester area. 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. The City is a body politic and corporate and a public instrumentality of the

State of Kentucky. Due to its historical relationship with the FCI Manchester under the initial infrastructure connection contract, the City is the only contractor that can maintain and sustain the current and future infrastructure management of all required utility systems.

Deliver / Performance time: Pursuant to FAR Part 41.202, the City continues to provide the “entire

Water utility service” (i.e., treatment, distribution, system operation and maintenance, metering, billing, etc.). The City shall provide to the government facility at FCI Manchester, Water 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 equipment, including associated costs for such repair, from the delivery point or meter to FCI Manchester. The City shall provide Water utility services from

October 1, 2016, through September 30, 2017, subject to funds availability (FAR Clause 52.232-18).

The total estimated annual amount for water utility service is $321,837.00.

Commercial Item Determination: Water utility service is an item that is of a type customarily used by the general public and by non-governmental entities for purposes other than governmental purposes.

Market Analysis: The results of market research have determined that the government’s needs can be met by items customarily available in the commercial marketplace.

The market research conducted by the contracting office and the Facilities Department personnel determined that a GSA area-wide or single point contract is not available in accordance with Title 31

USC § 1535. No Interagency Agreement is available for use either. GSA is specifically authorized by law and regulation to purchase utility services on behalf of other agencies by providing an Assisted

Acquisition. In August 2010, in accordance with 40 USC 121 § (d), GSA issued the FBOP a Delegation of Authority for nationwide authority to negotiate and execute utility service contracts at Federal facilities under the control and direction of the FBOP in accordance with 40 USC 501 § (b)(1)(B).

Search of previous purchases of similar/identical acquisitions shows the City is the current wastewater service provider for FCI Manchester and has serviced the facility since dedication. No other company has presented itself with the capabilities nor the infrastructure to provide this utility service to the current connection site. The amount compensated for the construction of the wastewater infrastructure systems currently being used at FCI Manchester is not available. No other sources have been located that are currently capable or that could acquire the capability of meeting the Bureau’s requirement.

Results: Based on the information provided by the sources detailed above, the following information outlines the conclusions and provides the basis for this procurement.

It is this Contracting Officers determination there is a source available that is capable of providing the required services. The procurement will be conducted in accordance with the procedures as outlined in

FAR Part 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.

One potential source is a local entity, the incumbent, which appears able to satisfy the requirement. As a result, the City is the only provider of water utility services in the Manchester area. The City is other than small business.

The provision of Water utility service is essential for the orderly operation of FCI Manchester. The specifications/description requirements documents shall specify needs using market research in a manner designed to promote full and open competition and only include provisions or conditions to the extent necessary to satisfy the needs of the FBOP or as authorized by law. History shows and economics dictate that the construction of facilities by multiple utilities in the same location would be extremely costly and disruptive to communities. The utility is regulated by state and local government to assure fair rates for safe and adequate service. The ratemaking process ensures the lowest reasonable rate for consumers while maintaining the financial stability of the utility. Under the law, the utility is entitled to recovery of its reasonable incurred expenses.

This requirement will not be posted to Fedbizopps as a combined synopsis solicitation to promote competition, broaden industry participation, and assist small business concerns in obtaining contracts for

FCI Manchester, KY. 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 City is the government-owned sole provider of water utility service in the FCI Manchester service area. Having a single supplier of water service for this area is the most efficient method of providing these utility services.

The Bureau does not have the state and local approval or the resources to provide the funding for another company to install a transportation/distribution system for the institution, another source is not available, and no other contractor can provide water service through the City water lines.

The Energy Center of Expertise of 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 service for FCI Manchester.

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

Small Business Procurement Review for the purchase of utility services has been granted a waiver by the Office of Small and Disadvantaged Business Utilization to the FBOP for submitting routine procurements to the Office of Small and Disadvantaged Business Utilization for review in accordance with PGD 09-02.

Recommendation: The Government contemplates the single award of a firm-fixed price requirements type Water utility service purchase order.

Comments: The conclusions from this market research will be incorporated into the agreement document for providing Water Utility Service for FCI Manchester.

9. Any other facts supporting the use of other than full and open competition:

The provision of Water utility services is essential for the orderly operation of FCI Manchester, which was designed with a rated capacity to collectively house approximately 1280 inmates. The facility houses male inmates of all security levels who are in in-custody and out-custody status. State regulations and local 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:

At this time, full and open competition is not available for this requisition. If opportunities arise in the future the FBOP will take appropriate action to satisfy the agency’s requirement. Contracting and requirements 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. 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 and 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 desire to expend funds while those funds are still available.

//SIGNED\\ 12/13/2016

Dennis Dempsey, Contract Specialist Date

Field Acquisition Office

Submitted by:

//SIGNED\\ 10/31/2016

Richard Vergne, Contract Specialist Date

FCI Manchester

//SIGNED\\ 10/31/2016

Tracy Fields, Supervisory Contract Specialist Date

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\\ 11/1/2016

Pam Clark, Facility Manager Date

Concurrence:

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

//SIGNED\\ 11/1/2016

Sandra Butler, Warden Date

Approved:

//SIGNED\\ for 12/14/2016

Jill D. Ryan, Chief Date

Field Acquisition Office