S_A12_FBO_Utility_JOFOC_2017_-_Waste_Water_Sig_Pg.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN

COMPETITION

PUBLIC UTILITY – WASTEWATER UTILITY SERVICE

FEDERAL MEDICAL CENTER DEVENS

AYER, MASSACHUSETTS

Contractor: MDFA

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

Estimated Amount: $232,656.65

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Wastewater Utility Services

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

Prisons Acquisition Policy (BPAP) Part 6.304 (b), the Federal Bureau of Prisons (BOP) has determined that the procurement of wastewater utility services for the Federal Medical Center located in Devens, MA 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. Agency:

Department of Justice

Federal Bureau of Prisons

Federal Medical Center Devens

42 Patton Road

PO Box 880

Ayer, MA 01432

2. Nature and/or Description of Action Being Approved:

This action is for the acquisition of wastewater utility services supplied to the Federal Medical Center, Devens, MA from the sole provider of such services in the Devens, MA area.

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

The service required is transportation and related services for wastewater utility services from October 1, 2016 through September 30, 2017, subject to funds availability (FAR Clause 52.232-18). The services will be procured by way of purchase order. The estimated cost for the transportation of the utility is as follows: Wastewater: $232,656.65. The total estimated amount for the period is $232,656.65.

Contract Line

Item Number

Utility

Performance Period

Estimated Annual

Cost ($)

CLIN 0001 Wastewater October, 2016 – September, 2017 $232,656.65

Total Estimated Cost: $232,656.65

4. 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

U.S.C. 253 (c)(1), when the supplies or services required by the agency are available from only one source.

The application which permits use of the cited statutory authority are stated at FAR 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). Analysis of the market indicates that the MDFA has proprietary rights up to the meter at FMC Devens. 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. Determination that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited:

Massachusetts Development Finance Agency (MDFA) dba: Massachusetts Government Land Bank

(MGLB) or MassDevelopment is uniquely qualified as the designated sole source supplier of wastewater services for the Devens area. Massachusetts State Legislation under Special Acts of 1993, Chapter 498

The Act Creating the Devens Commission, has authorized the Massachusetts Government Land Bank

(MGLB) to provide all public services, including all utilities, for the Devens area either directly or by contract. The purpose of this legislation is for the redevelopment of Devens for non-military uses beneficial to the local economy. In 1998, MDFA was created by the Massachusetts State Legislature enactment of M.G.L. Chapter 23G, which merged MGLB and the Massachusetts Industrial Finance

Agency (MIFA). As a result MDFA is responsible for the Devens area and designated to provide wastewater utility services. The Massachusetts Department of Public Utilities (MDPU) is the administrative agency charged under Massachusetts law with the supervision and control over all public utilities in the state of Massachusetts. The MDPU has regulatory authority with a statutory mandate to ensure utilities are provided at reasonable rates, however MDPU does not regulate MDFA.

6. Efforts made to solicit from as many potential sources as practicable, including whether a notice was or will be publicized as required by FAR Part 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 the transportation of utilities and that no opportunity exists in the local area to compete the requirement.

7. Contracting Officer Determination that the cost to the Government will be fair and reasonable:

The current rates offered by MDFA are equal to or below the market price levied other commercial, industrial, and Government users when compared to other utility prices in the state. Prices will be analyzed by the Contracting Officer and Facility Manager in order to determine price reasonableness.

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 Medical Center Devens

(hereinafter referred to as “FMC Devens”) has a current and continuing requirement for wastewater utility service.

Title: MDFA to provide wastewater utility service for the FBOP, FMC Devens in Ayer, MA.

Product or Service Code: S- Utilities and Housekeeping Services – S119 Other Utilities.

North American Industry Classification System (NAICS): 221320 Sewage Treatment Facilities = this industry comprises establishments primarily engaged in operating water and sewer systems or sewage treatment facilities that collect, treat, and dispose of waste.

Standard Industrial Classification (SIC) Code: 4952 Sewerage Systems

Potential Sources: MDFA is the sole provider of wastewater utility service in the FMC Devens service 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. After serving as the U.S. Army’s New England headquarters for 79 years, Fort Devens was closed in 1996. With financial support from the Commonwealth and a vote of the people, the Devens

Regional Enterprise Zone was created by Statute and is redeveloping Devens into a sustainable and diverse mixed-use community. Pursuant to FAR Part 41.202, the MDFA continues to provide the “entire wastewater utility services.” Under the condition precedent to the initial and continuing supply of wastewater utility services at FMC Devens by the MDFA (“Mass Development”, The “Agency” or

“MDFA”), a body politic and corporate and a public instrumentality of the Commonwealth of

Massachusetts, created and existing under the provisions of Mass. St. 1998, c. 289, Sections 23-29, 33.

The Act authorizes MDFA to be the exclusive public agency responsible for the acquisition, control, maintenance, and redevelopment of Devens. It is intended that these Terms and Conditions apply with equal force to supplying all utility services. Due to its historical relationship with the FMC Devens under the initial infrastructure connection contract, MDFA is the only contractor that can maintain and sustain the current and future infrastructure management of all required utility systems. It would not be in the government’s best interest to expect MDFA to propose small business subcontractor labor support when they have been performing this effort since the institution was dedicated in 1998.

Deliver / Performance time: Pursuant to FAR Part 41.202, MDFA continues to provide the “entire wastewater utility service” (i.e., collection, treatment, testing, system operation and maintenance, metering, billing, etc.). MDFA shall provide to the government facility at FMC Devens, 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. MDFA shall provide services on an un-interruptible daily basis (365) days per year. MDFA will be responsible to maintain and/or repair all associated wastewater lines and equipment, including associated costs for such repair, from the delivery point or meter of FMC Devens.

Commercial Item Determination: Wastewater utility services are items that are 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 an item customarily available in the commercial marketplace.

The market research conducted by the contracting office and the Facilities Department staff determined that a GSA area-wide nor a single point contract with MDFA is available in accordance with Title 31 USC

§ 1535. GSA is specifically authorized by law and regulation to purchase utility services on behalf of other agencies by providing an Assisted Acquisition. However, MDFA in not willing to enter into a bilateral agreement to provide wastewater service. August 2010, in accordance with Title 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

Title 40 USC § 501(b)(1)(B). Search of previous purchases of similar/identical acquisitions shows

MDFA is the current wastewater service provider for FMC Devens and has serviced the facility since dedication. MDFA is the only service supplier capable at this time of providing FMC Devens with wastewater services. No other company has presented itself with the capabilities nor the infrastructure to these utilities 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.

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 and is authorized by the Massachusetts State Legislation under Special Acts of 1993, Chapter 498, The Act

Creating the Devens Commission, has authorized the MDFA to provide all public services, including all utilities, for the Devens area either directly or by contract. MDFA resulted from the merger of MGLB and

MIFA. As a result, MDFA is the only provider of wastewater utility services in the Devens area. MDFA is other than small business.

The provision of wastewater utility service is essential for the orderly operation of FMC Devens. 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 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

FMC Devens, Massachusetts. 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. MDFA is the government-owned sole provider of wastewater utility service in the FMC

Devens service area. MDFA is an entity within Devens, Massachusetts, the only agent authorized by rules and regulations to provide wastewater utility services in the Devens area. Having a single supplier of wastewater 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 treatment plant at the institution, another pipeline is not available, and no other contractor can provide wastewater service through the MDFA system.

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

Department of Justice, FBOP to negotiate and execute utility service contracts. This includes the provision of wastewater utility services for FMC Devens.

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 wastewater utility service purchase order resulting from this requirement.

Comments: The conclusions from this market research will be incorporated into the document for providing Wastewater Utility Service for FMC Devens.

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

State regulations and local ordinances limit the provider of this service to only one provider.

10. A listing of sources, if any, that expressed in writing, an interest in the acquisition:

There were no other sources which expressed an interest in this requirement. The service area for wastewater utilities provided by MDFA is not regulated by the Massachusetts Department of Public

Utilities (MDPU).

11. Actions taken by the Agency to remove or overcome barriers to competition:

At this time, full and open competition is not available for this requisition. The BOP has contacted

GSA and they will not pursue an area wide contract, pursuant to FAR Part 41. If opportunities arise in the future the BOP will take appropriate action to satisfy the agency’s requirement.

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// 7/27/2016

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// 7/11/2016

Isaac Hilton, Facilities Manager Date

FMC Devens

Concurrence of:

//Signed// 7/8/2016

J. Grondolsky, Warden Date

FMC Devens

//Signed// 7/29/2016

Jill D. Ryan, Chief Field Acquisition Office Date