Sole Source Justification.pdf

Source Selection Information – see FAR 2.101 and 3.104

SOLE SOURCE FOR AN ACTION EXCEEDING THE SIMPLIFIED ACQUISITION

THRESHOLD

USING SIMPLIFIED PROCEDURES FOR CERTAIN COMMERCIAL ITEMS

(AUTHORITY: FAR 13.501(a), 41 U.S.C. 1901)

PR NMAN2150-22-00655

Electricity (Utility) Service at Marine Operation Center – Pacific (MOC-P)

1. Agency and contracting activity. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) Acquisition and Grants Office (AGO), Eastern Acquisition Division (EAD), and the Office of Marine and Aviation Operations (OMAO).

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

This is a sole source justification for a follow-on contract to an existing purchase order. The existing purchase order, 1305M221PNMAN0047, is with Central Lincoln People’s Utility District (Central Lincoln). It is planned to award a follow-on firm fixed price purchase order to Central Lincoln.

3. Description of supplies or services required to meet the agency’s needs (including the total estimated value).

This requirement is to provide electricity to the NOAA MOC-P facility located at 2002 SE Marine Science Drive in Newport, Oregon 97365. The electricity to be provided will power the entire MOC-P facility as well as vessels that require varying levels of shore power. The Period of Performance is April 1, 2022 to March 31, 2023. The total estimated value for this requirement is $260,000.00.

These utility services are repetitive in nature and the provider of these services does not change from year to year. Due to Federal Regulations regarding acquisition of utility services, if a General Services Administration (GSA) area wide contract is not utilized and the procuring agency, NOAA, does not have delegated authority from GSA, as stated in Federal Acquisition Regulation (FAR) 41.103, a contract exceeding a one year period cannot be issued.

4. Statutory authority permitting the sole source (including brand name) acquisition.

41 U.S.C. 1901, using SAP up to $7M as authorized by FAR 13.500(a) and implemented by FAR 13.501(a).

41 U.S.C. 1903, using SAP up to $13M for contingency operations as authorized by FAR 13.500(c) and implemented by FAR 13.501(a).

5. Demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited. The contracting officer has determined the following circumstances justify the use of a sole source as supported below:

Only one source – Central Lincoln is a not-for-profit local governmental entity and the only electricity provider in the Newport, Oregon area. Utilities are ruled by FAR Part 41. Per FAR 41.201(d)( l ),"none of the funds appropriated by that Act or any other Act with respect to any fiscal year by any department, agency, or instrumentality of the United States, may be used for the purchase of electricity by the Government in any manner that is inconsistent with state law governing the providing of electric utility service, including state utility commission rulings and electric utility franchises or service territories established pursuant to state statute, state regulation, or state-approved territorial agreements." Per Oregon Revised Statutes (ORS) 757.669(6), Policy Regarding Consumer-Owned Electric Utilities (attachment I), "The Legislative Assembly declares that it is the policy of the State of Oregon regarding consumer-owned utilities to preserve the existing exclusive distribution rights of electric utilities as and to the extent such rights exist under current law." Furthermore, on April 1st 1999, per the Public Utility Commission of Oregon's Order No. 99-449 (attachment II), Central Lincoln is exclusively serving Newport, Oregon. A map from Oregon’s Department of Energy-Public Utilities can be found at https://www.oregon.gov/energy/energy-oregon/pages/find-your-utility.aspx. Central Lincoln is the only provider of electricity at this location and the electricity is provided through its lines and meters. Central Lincoln, has provided the required services to the satisfaction of NOAA since July, 2011. Therefore, for the reasons cited herein, it is considered to be in the best interest of NOAA to negotiate a sole source purchase order with the proposed vendor for the required services.

6. 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 Subpart 5.2 and, if not, which exception under FAR 5.202 applies.

Central Lincoln is the only electricity provider servicing Newport, Oregon and in accordance with FAR 5.202(a)(5) “the contracting officer need not submit the notice required by 5.201 when the contracting officer determines that the proposed contract action is for utility services other than telecommunications services and only one source is available.” Therefore, in accordance with FAR 5.202(a)(5) a posting will not be published in the Government Wide Point of Entry.

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

Central Lincoln is a not-for-profit local governmental entity that provides electricity in a specified community area, in this case exclusively to Newport, Oregon. It has provided electric service to MOC-P since the opening of the facility in July 2011 and publishes its rates online; rates for this contract are per Schedule 350 - Commercial and Industrial Service (attachment III) and are set by the contractor's publicly elected board of directors. The price will be determined to be fair and reasonable per FAR 13.106-3(a)(2)(iii), “Current price lists, catalogs, or advertisements.”

8. Description of the market research conducted (see Part 10) and the results or a statement of the reason market research was not conducted.

Market research was conducted, specifically focusing on the local laws/regulations governing Oregon electricity utilities to verify the exclusivity of Newport's electricity supply by Central

Lincoln as well as researching the firm and its rates. Based on the results of the market research, it was determined Central Lincoln is the only company capable of meeting the requirements.

Additionally, a search of GSA’s area wide contracts (Attachment IV) for utility services was conducted and Central Lincoln was not included.

9. Any other facts supporting the use of a sole source (including brand name), such as:

All supporting facts have been documented herein.

10. List of the sources that expressed a written interest in the acquisition.

No sources have indicated an interest in this requirement. As discussed in section 6, a synopsis is not required.

11. A statement of the actions, if any, the agency may take to remove or overcome any barriers to competition before any subsequent acquisition for the supplies or services required.

At this time the barriers to competition cannot be overcome unless the Public Utility Commission of Oregon changes its order to grant Central Lincoln exclusivity in Newport, Oregon and allows multiple entities to serve the area.

12. Technical/Requirements Representative Certification

I certify that this requirement constitutes the Government’s minimum needs and the supporting data provided herein is accurate and complete to the best of my knowledge and belief.

Jason Jenks Date Contracting Officer Representative

13. Contracting Officer’s Certification and Approval

I certify this justification is accurate and complete to the best of my knowledge and belief, my signature also serves as approval of the justification.

Jason Jenks

Digitally signed by Jason Jenks DN: cn=Jason Jenks, o=NOAA, ou=DOC, email=jason.jenks@noaa.gov, c=US Date: 2022.03.03 11:18:50 -08'00'

Ashley Perry Date Contracting Officer

14. Office of General Counsel Concurrence

Concur

Jonathan S. Baker Date Attorney Advisor, Contract Law Division Office of General Counsel

See Attached Email

3/4/2022

3/1/22, 1:48 PM National Oceanic and Atmospheric Administration Mail - Sole Source Justification for Electricity Services NOAA Facility MOC-P https://mail.google.com/mail/u/0/?ik=f1d06d1c61&view=pt&search=all&permmsgid=msg-f%3A1726124239010484081&simpl=msg-f%3A17261242390… 1/1

Shawn Griscom - NOAA Federal <shawn.griscom@noaa.gov>

Sole Source Justification for Electricity Services NOAA Facility MOC-P

Baker, Jonathan S. (Fed) <jonathan.baker@nist.gov> Tue, Mar 1, 2022 at 1:45 PM To: Shawn Griscom - NOAA Federal <shawn.griscom@noaa.gov> Cc: "Perry, Ashley (Federal)" <ashley.perry@noaa.gov>

Thanks for revising this Shawn. This is fine. No OGC comments.

I do not sign JOFOCs; however, you may use this email to show OGC reviewed the JOFOC.

Jonathan S. Baker

Attorney Advisor

Contract Law Division

Office of the General Counsel

U.S. Department of Commerce

Phone: 301.975.8801

Fax: 202.501.8005

From: Shawn Griscom - NOAA Federal <shawn.griscom@noaa.gov> Sent: Tuesday, March 1, 2022 1:08 PM To: Baker, Jonathan S. (Fed) <jonathan.baker@nist.gov>

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2/15/22, 2:57 PM ORS 757.669 - Policy regarding consumer-owned electric utilities https://oregon.public.law/statutes/ors_757.669 1/1

Location:https://california.public.law/codes/ca_penal_code_section_4573.

Original Source: § 4573, https://leginfo. legislature. ca. gov/faces/codes_displaySection. xhtml?

lawCode=PEN&sectionNum=4573. (last ac cessed Jun. 6, 2016).

(1)

(2)

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(6)

Utility Regulation Generally

ORS 757.669

Policy regarding consumer-owned electric utilities

The Legislative Assembly declares that it is the policy of the State of Oregon regarding consumer-owned utilities to:

Preserve and enhance the ability of community-based, consumer-owned utilities to provide reliable electric power to their consumers;

Recognize that communities served by consumer-owned utilities located in various parts of the State of Oregon may differ in their needs and desires concerning the provision of electricity and related products and services;

Preserve and enhance the ability of consumer-owned utilities and their elected governing bodies to respond to their consumers’ needs and desires;

Retain local control over consumer-owned utilities that provide or distribute electricity to retail electricity consumers;

Preserve, clarify and, as provided herein, enhance the rights and authorities of consumer-owned utilities and their governing bodies; and

Preserve the existing exclusive distribution rights of electric utilities as and to the extent such rights exist under current law. [1999 c.865 §22]

2/15/22, 3:01 PM OR99-449

https://apps.puc.state.or.us/orders/1999ords/99-449.htm 1/2

ORDER NO. 99-449

ENTERED JUL 26 1999

This is an electronic copy. Appendices and Footnotes may not appear.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UA 70

In the Matter of the Application of Central Lincoln People’s Utility District for an Allocation of Exclusively Served Territory.

) ORDER

DISPOSITION: APPLICATION APPROVED

On April 1, 1999, Central Lincoln People’s Utility District (CLPUD) filed with the Commission an application for an allocation of exclusively served territory (Area I, which is located in Lincoln County, Oregon, and includes the cities of Depoe Bay, Siletz, Toledo, Newport, Waldport, and Yachats, and surrounding areas). The application was filed pursuant to ORS 758.435 and OAR 860-025-0020 and docketed as UA 70.

Public notice of the application was published in the Newport News Times on April 16, 1999 and April 23, 1999. The Notice informed the public that any affected customer may request a hearing within 30 days of the notice. No one requested a hearing.

On June 30, 1999, Commission Staff and CLPUD entered into a Stipulation for Approval of CLPUD’s Application for an Allocation of Exclusively Served Territory. In the Stipulation, the parties identified the documents to be included in the administrative record for Docket UA 70 and agreed that the application should be approved by the Commission. The Stipulation is attached as Exhibit A to this Order.

We have reviewed the parties’ Stipulation and the administrative record. Based on our review, we find that CLPUD is exclusively serving the territory covered by the application in this docket. The application of CLPUD for an allocation of exclusively served territory should be approved.

A description of the CLPUD exclusive service territory is attached as Exhibit B to this order.

ORDER

IT IS ORDERED that the application of Central Lincoln People’s Utility District for an allocation of exclusively served territory is approved.

Made, entered, and effective ________________________.

Ron Eachus

Chairman

Roger Hamilton

Commissioner

2/15/22, 3:01 PM OR99-449

https://apps.puc.state.or.us/orders/1999ords/99-449.htm 2/2

Joan H. Smith

Commissioner

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements in OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070(2). A party may appeal this order to a court pursuant to applicable law.