Expert Witness J&A Posting.pdf

Program/Item: Expert Witness/Legal Support Est Dollar Value: $120,000.00

Department of Army Justification and Approval for Other than

Full and Open Competition

1. Contracting Activity: New York Air National Guard, National Guard Bureau, Moen St, Westhampton Beach, NY 11978

2. Description of Action: This action will result in a firm fixed price contract with Mark Boe, P.E., of Capital Project Management, Inc. Award is projected for the fourth quarter of 2019, and O&M funding will be used. An acquisition plan is not required because it does not meet the dollar threshold for an acquisition plan.

3. Description of Services: This requirement is for an expert witness/litigation support pertaining to a contract appeal, ASBCA No. 61690. The Period of Performance is from the date of contract through 31 DEC 2019. The estimated dollar value is $120,000.00. The proposed contract will contain the option to extend for no more than six months. The estimated total dollar value, however, will remain the same at $120,000.00.

4. Authority Cited: Citations: 10 U.S.C. 2304(c)(3) or 41 U.S.C. 253(c)(3), as authorized by FAR 6.302-3, Industrial Mobilization; Engineering, Developmental, or Research Capability; or Expert Services.

5. Reason for Authority Cited: As authorized by FAR 6.302-(B)(3(i)(A) and (B), An expert to use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Government in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, whether or not the expert is expected to testify. Examples of such services include, but are not limited to:

(A) Assisting the Government in the analysis, presentation, or defense of any claim or request for adjustment to contract terms and conditions, whether asserted by a contractor or the Government, which is in litigation or dispute, or is anticipated to result in dispute or litigation before any court, administrative tribunal, or agency, or

(B) Participating in any part of an alternative dispute resolution process, including but not limited to evaluators, fact finders, or witnesses, regardless of whether the expert is expected to testify.

6. Efforts to Obtain Competition: This procurement action is under a time constraint and Mr. Boe has been deemed responsible and reasonable. Mr. Boe has completed quality work for the KFLD Trial Attorney in the past, when the attorney was at the U.S. Department of Justice.

Mr. Boe’s expert report is scheduled to be produced to the appellant by 20 Dec 2019, and a rebuttal report on 9 January 2020. Mr. Boe will need as much time as possible to analyze the record and prepare his report. Delays will jeopardize the litigation and increase the cost of any eventual expert contract.

Program/Item: Expert Witness/Legal Support Est Dollar Value: $120,000.00

7. Actions to Increase Competition: Time is the main factor in this requirement. Future actions to increase competition would be streamlining the funding process so that time would no longer be an issue and a solicitation will be advertised through FedBizOps.

8. Market Research: Experts have been used in similar litigation and charged similar rates. In an example from 2019, the primary expert's rate was $350 per hour; the less senior personnel charged $280 per hour. In an example from 2018, the primary expert witness charged $450 per hour, and another less senior expert charged $275 per hour. In one recent example, the primary expert's rate was $250 per hour (although $300 per hour for depositions and $375 per hour for testifying). Lower rates were charged for less senior personnel: $225 per hour for the chief engineer, $185 per hour for the principal professional although the chief engineer charged $281 per hour for depositions and $337 per hour for testifying and support staff. Mr. Boe’s rates fall within the prevailing market rates for delay expert witnesses. Mr. Boe’s services have recently been utilized in litigation at the same rates quoted.

9. Interested Sources: To date, no other sources have expressed a written interest in this requirement. Notice is not posted IAW FAR 5.202(a)(10).

10. Other Facts:

a. Procurement History

Contract: W9124D19P0171 Contractor: Linscott, Luke Award Date: 31 May 2019 Competitive Status: Not Competitive Authority: FAR 6.302-3

Contract: W9124D19P0025 Contractor: Ackley, Craig Award Date: 31 May 2019 Competitive Status: Not Competitive Authority: FAR 6.302-3

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