A-02-04_JA_RN_Bridge__May_2019_Redacted.pdf

Control Number: 19-HRCO-361 Registered Nursing Services

For the San Antonio Military Health System (SAMHS)

For Official Use Only (See FAR 2.101 and 3.104-4)

(March 2019)

Justification and Approval for Other Than Full and Open Competition

1. Contracting Activity: U.S. Army Medical Command (MEDCOM), Health Readiness Contracting Office (HRCO), 2199 Storage Street, Bldg 4197, Suite 68, Joint Base San Antonio (JBSA) Fort Sam Houston, TX 78234-5074.

2. Description of Action: The HRCO requests approval to negotiate a new bridge contract for personal services as a 4-month sole-source contract with the incumbent contractor, MedTrust LLC, to provide Registered Nursing (RN) services for the San Antonio Military Healthcare System (SAMHS). This is a personal services requirement. An Indefinite Delivery, Indefinite Quantity (IDIQ) contract with Firm-Fixed-Price (FFP) Contract Line Item Numbers (CLINs) is anticipated. The type of funds to be used is Fiscal Year 19 Defense Health Program appropriations. Estimated share and ceiling arrangements and fee or profit are not applicable to this acquisition.

3. Description of Supplies/Services:

a. These services are necessary to ensure the continuity of operations for essential medical services currently being performed throughout the SAMHS, which is comprised of San Antonio Military Medical Center (SAMMC),Fort Sam Houston, Texas and their outlying clinics throughout the San Antonio, Texas area.

b. The contractor shall provide contract RN services in support of the Government’s medical operations 7 days per week, 24 hours per day, to include holidays. All contract healthcare providers shall perform essentially the same functions, within the scope of acceptable practice for the specific specialty or position, as those required by the military treatment facilities government service healthcare professionals of similar experience and in similar duty assignments. The scope of services provided throughout the SAMHS covers the same range of services as those that are provided in civilian hospital system of similar size and complexity. SAMMC is a level one trauma center and features the burn unit, multiple critical care units, intensive care units, step down units, medical surgical units, pediatrics, maternal and child services, surgical services, extensive specialty/subspecialty services supported by Graduate Medical Education program, ambulatory clinics, and other specialty clinics. A core mission of the Center for the Intrepid, also located on the SAMMC campus, is to provide rehabilitation for combat and related casualties who have sustained amputation, burns, or functional limb loss.

c. The maximum estimated value of the proposed action is $13,500,000.00 for a 4-month period of performance from 1 June 2019 through 30 September 2019. The Federal Acquisition Regulation (FAR) Clause 52.217-8, Option to Extend Services, will not be included in the resultant contract. The anticipated contract will be an IDIQ contract with FFP CLINs.

(March 2019)

4. Authority Cited: The statutory authority permitting other than full and open competition is 10 United States Code 2304(c)(1) as implemented in Federal Acquisition Regulation (FAR) 6.302-1(a)(2)(iii)(B), Only one responsible source and no other supplies or services will satisfy agency requirements.

5. Reason for Authority Cited:

a. There is a current bridge contract in place for these services through contract number W81K04-19-D-0009. Task orders were issued against the basic contract with a 4-month period of performance expiring on 31 May 2019. The Government was prepared to award a follow-on RN contract, W81K04-18-D-0024, in early September 2018; however, following the requisite small business notifications one of the offerors filed a Small Business Size Protest on 29 August 2018. The Small Business Administration (SBA) dismissed the protest on 2 October 2018 and an appeal was filed with the SBA Office of Hearings and Appeals (OHA) on 16 October 2018. On 17 December 2018, OHA granted the appeal and remanded the protest back to the cognizant SBA Area Office for a decision on the merits.

The SBA Area Office determined the apparent awardee was a small business on 25 February 2019. The appellant offeror filed an OHA appeal on 12 March 2019. On 14 March 2019, the OHA issued a Notice and Order setting the close of record as 29 March 2019. On 29 March 2019, the Appellant filed a supplement to the appeal and moved to extend the close of record until 15 April 2019. OHA granted the extension and the record closed on 15 April 2019. The award of the follow-on contract is pending until a final decision is received from OHA. This could take an estimated 30 – 120 days.

b. Additionally, given the protest and litigation history associated with this re-procurement, as further described below, the Government fully expects additional protests or litigation to follow. It is more likely than not that the Government will need to use the period of performance for the bridge to evaluate alternative courses of action for the way forward based on the timing and outcome of the OHA appeal as well as any other additional appeals, protests, or litigation. The below-described barriers to competition for a bridge also apply to the follow-on transition period for the re-procurement award and the overarching need for a bridge contract starting 1 June 2019.

c. As to the sole-source approach to the bridge contract, there are certain barriers that make it impossible for another source to perform the Government's requirement as of the required start date. First, approximately 269 RNs are required to support the Medical Treatment Facilities (MTFs) and clinics within the SAMHS. The services in this ongoing requirement are subject to the non-displacement of qualified workers requirement established in Executive Order 13495 and implemented through various federal regulations, including the prescribed use of FAR Clause 52.222-17, Non-displacement of Qualified Workers. The clause is included in the current contract and will be included in follow-on contracts, and requires a successor contractor to recruit and present a bona fide express offer of employment to qualified workers performing

(March 2019) under the existing contract. Each bona fide express offer made to a qualified service employee on the predecessor contract must have a stated time limit of not less than 10 days for an employee response. In addition, not less than 30 days before completion of the contract, the predecessor contractor is required to furnish to the Contracting Officer a certified list of the names of all service employees working under the contract and its subcontracts at the time the list is submitted.

d. Second, the Government requires the contractor to provide profile application packets on each employee who will be performing services under the contract no later than 10 business days prior to the start of work for privileging purposes. The profile application packets shall provide the following information: (a) Completed Centralized Credentials Quality Assurance System (CCQAS) data entry form which is required for credentialing; (b) primary source verification of state licenses with expiration date, license number, name and contact information for individual performing primary source verification attesting to direct verification and the method of verification; (c) education history with primary source verification of college attendance/degree, (RNs must be a graduate with an Associate Diploma or Baccalaureate degree from an accredited school of nursing and provide a copy of transcripts); (d) Certifications: Basic Life Support (BLS), Advanced Cardiac Life Support (ACLS)1, Pediatric Advanced Life Support (PALS), Trauma Nursing Care Course (TNCC), and any professional certifications required for the position; (e) contractor conducted Criminal History Background Check; (f) employment history and resume; (g) immunization status and health examination date; and (h) skills assessment checklists, competency assessments, medication examinations, telemetry examinations, or any other skills verification necessary far specialty and location. According to market research, there are a number of interested business concerns that have expressed their capabilities of compiling the information necessary within a minimal amount of time, however, per the Government's requirement, the contractor would have needed to submit the profile application packets by 20 May 2019, and there is simply not sufficient time for the Government to conduct a competitive acquisition and award a contract in time for another contractor to be able to meet the Government's requirement.

e. It is not possible to solicit a contract with any source other than MedTrust LLC, the incumbent contractor. Only MedTrust LLC possesses the required qualifications to instantly perform the continuation of these services given that only MedTrust LLC already has the required resources, trained manpower, and has completed all in-processing requirements for their employees. As such, Med Trust LLC requires no transition efforts to continue performing these essential medical services. Furthermore, any delay in continuation of services will negatively impact the requiring activity's mission of enhancing our Nation’s security through a healthy military force capable of providing the full range of military operations supported by a combat ready healthcare system that also sustains the health of eligible DoD beneficiaries. The Government would suffer serious injury if award of this bridge contract is delayed. Only MedTrust LLC can satisfy these mission critical services without causing unacceptable delays or disruption of mission essential services.

(March 2019)

f. The period of performance on the current contract and task order can no longer be extended. FAR Clause 52.217-8, Option to Extend Services, was not included in the current contract which expires on 31 May 2019. The proposed 4-month contract must be awarded no later than 20 May 2019, in order to continue the current level of services. The RNs are required to be privileged by the MTFs. As such, the incumbent contractor, MedTrust LLC is the only responsible contractor with the required and qualified personnel who have already been privileged at the MTFs that will be ready to start performance on 1 June 2019.

6. Efforts to Obtain Competition:

a. Effective Competition. The Government has selected an apparent awardee; however, that award is pending a final decision on the associated OHA appeal as discussed above. Based on information in paragraph 5 above, competition for this action is not feasible. As such, no other efforts will be made to obtain competition (with the exception of the follow-on competitive five-year IDIQ contract) as only the incumbent is capable of meeting the RN services requirement prior to the expiration of the existing contract.

b. Subcontracting Competition. In accordance with FAR Subpart 19.705-2, the Contracting Officer has taken actions to determine whether the proposed contractual obligation requires a subcontracting plan. The current requirement is for personal services and the Contracting Officer has determined that a subcontracting plan is not required per the exemption at FAR 19.702(b)(2).

7. Action to Increase Competition: It is not possible to compete this proposed bridge contract in time for services to commence on 1 June 2019. The Government is in the process of awarding a competitive small business set-aside acquisition; however a small business size appeal has been filed and is pending an OHA decision.

8. Market Research: Market research was conducted to identify additional sources. Market research was conducted by the Contracting Officer publishing a RFI/SS notice utilizing FedBizOpps to identify potential sources. Other contractors are capable of providing similar services if there were adequate time to compete the requirement and obtain or meet all the requisite requirements or approvals and security clearances to ensure no disruption in services during a potential change in contract performance. It is unrealistic to competitively solicit a requirement of this magnitude, award, and transition a new contractor prior to 1 June 2019.

9. Interested Sources: To date, 16 sources submitted responses to the RFI/SS.

The notice required by FAR 5.201 of our intent to award a sole-source contract will be published in FedBizOpps.

(March 2019)

10. Other Facts:

a. Procurement History.

(1) Contract numbers and dates of last several awards.

(a) This requirement is currently being performed under bridge contract W81K04-19- D-0009 with a total maximum value of $13,500,000.00, for a 4-month period of performance from 1 February 2019 through 31 May 2019.

(b) Bridge contract W81K04-18-D-0030 with a total maximum value of $13,500,000.00, for a 4-month period of performance from 1 October 2018 through 31 January 2019.

(c) Bridge contract number W81K04-17-D-0020 with a total maximum value of $44,000,000.00, for a 6-month base period from 1 October 2017 through 31 March 2018 and 6-month extension of services. Task orders were issued against the basic contract with a 1-year period of performance from 1 October 2017 through 30 September 2018.

(d) Bridge contract number W81K04-16-D-0039 with a total maximum value of $44,000,000.00 for a 6-month base period from 1 October 2016 through 31 March 2017 and a 6-month extension of services, which was exercised from 1 April 2017 through 30 September 2017.

(e) Bridge contract W81K04-15-D-0009 had a maximum total value of $44,000,000.00. The base period of performance was 1 April 2015 through 30 September 2015 and the 6-month extension of services ran from 1 October 2015 through 31 March 2016. After the initial 6-month task orders were issued, the contracting offices issued task orders for a 1-year period of performance against the basic contract from 1 October 2015 through 30 September 2016, thereby ensuring services for an additional six months beyond the basic contract expiration.

(f) Bridge contract W81K00-14-D-0014 had a maximum total value of $40,000,000.00. The period of performance was 1 April 2014 through 30 September 2014 and the 6-month extension which was exercised from 1 October 2014 through 31 March 2015.

(g) Bridge contract W81K00-13-D-0003 had a maximum total value of $41,000,000.00. The period of performance was 1 April 2013 through 30 September 2013 and the 6-month extension which was exercised from 1 October 2013 through 31 March 2014.

(March 2019)

(h) Contract W81K04-09-D-0015 had a 12-month base period of performance, two 12-month option periods, and included the 6-month option to extend services clause FAR 52.217-8. The period of performance for contract W81K04-09-D-0015 was 1 October 2009 through 30 September 2012. The 6-month extension was exercised extending the period of performance through 31 March 2013. The total value of the contract was $100,000,000.00.

(2) Competitive Status of These Actions. Contract W81K04-09-D-0015 was solicited as a 100% small business set-aside and a commercial, single award task order contract was awarded to MedTrust LLC on a competitive basis.

(3) Authority previously used for less than full and open competition. The bridge contracts W81K04-19-D-0009, W81K04-18-D-0030, W81K04-17-D-0020, W81K04-16-D- 0039, W81K04-15-D-0009, W81K00-14-D-0014, W81K00-13-D-0003 were issued on a sole source basis using the statutory authority permitting other than full and open competition at 10 U.S.C. 2304(c)(1) and FAR 6.302-1, Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.

(4) Justification prepared to support the procurement made before this one with a summary of the contents of paragraph 7, Actions to Increase Competition, of the justification for that procurement and an explanation of the results. The justification prepared for the current bridge contract, W81K04-19-D-0009, was due to a SBA small business size protest and OHA Appeal on the RN re-procurement contract. The Government is in the process of awarding a competitive small business set-aside acquisition.

(5) If prior award accomplished by full and open competition, a detailed explanation of the changed circumstances. Not applicable.

(6) Explanation of unusual patterns revealed by history, e.g., several consecutive, urgent buys. Not applicable.

(7) Justification prepared to support the procurement made before this one and description of circumstances for justification & any significant changes. The justification prepared for the bridge contract W81K04-19-D-0009 was due to a SBA small business size protest and OHA Appeal on the RN re-procurement contract.

b. Protest/Litigation history.

(1) The re-procurement solicitation was first issued on September 14, 2012 as a small-business set aside. The first related protest was filed January 25, 2013, with the Government Accountability Office (GAO), with an offeror challenging its removal from the competitive range. In the spring of 2013, while the GAO protest was pending, the Government issued a sole-

(March 2019) source award to the incumbent contractor. This initial sole-source contract covered the period from 1 April 2013 through 30 September 2013, and included a six-month option period. The GAO sustained the protest on 6 May 2013 and the Government undertook corrective action as a result. While re-evaluating offers as part of the corrective action, the Government issued MedTrust a second sole-source bridge contract in February 2014, covering the period from 1 April 2014 through 30 September 2014.

(2) In August 2014, the Government made its second award decision and a competing offeror filed a protest against the awardee’s status as a small business on 5 February 2015. In March 2015, because the SBA had not yet made a determination on the merits of the size status protest, the Government issued a third sole-source bridge contract to the incumbent.

(3) On 7 April 2015, while the SBA size protest was still pending, the Government amended the solicitation and reopened it to allow offerors to submit revised proposals. In response, an offeror filed a protest with the Court of Federal Claims (COFC) challenging the decision to reopen the solicitation. The Government then cancelled the reopened competition and the court dismissed plaintiff’s protest as moot.

(4) The government attempted to award again on 17 June 2015, and an offeror again filed a bid protest action with the GAO on 29 June 2015. One month later, on 30 July 2015, the SBA issued its decision that the original awardee qualified as a small business for purposes of the solicitation. An offeror then appealed SBA’s size determination to the OHA.

(5) Following proceedings in the GAO bid protest filed on 29 June 2015, the Government elected to take corrective action, which involved a new price evaluation and a new source selection decision. The GAO dismissed the protest on 26 August 2015 due to the decision to take corrective action. And on 29 October 2015, the SBA OHA affirmed the denial of the original size protest.

(6) The Government concluded corrective action between August 2015 and June 2016 and again awarded the contract to the original awardee. Then, on 25 July 2016, an offeror filed a second GAO protest. While this GAO protest was pending, the Government awarded the incumbent a fourth sole source bridge contract.

(7) The GAO sustained the second protest in part on 2 November 2016. On 30 December 2016, the Government agreed to take corrective action as a result of the GAO decision. On 5 September 2017, after various delays in undertaking corrective action, the Government stated its intention to award the fifth sole-source bridge contract to the incumbent and then on 2 November 2017 the Government decided to cancel the solicitation based on potentially significant changes to the scope of the requirement.

(8) Then, on 14 December 2017, an offeror protested again to the Court of Federal Claims.

The protest complained against, among other things, both the fifth sole-source bridge contract

(March 2019) and the Government’s decision to cancel the solicitation to the Court of Federal Claims. The Government then rescinded the cancellation and the court dismissed that count of the complaint.

(9) On 25 April 2018, the court issued an opinion finding that the fifth sole-source bridge award lacked a rational basis, and therefore, the agency’s decision to make the award did not comport with the requirements for awarding a contract outside of the competitive process. On 28 June 2018 the Court issued its final ruling arising from the 14 December 2017 protest, finding that despite the protestor’s success on the merits, the sought-after injunctive relief would be denied, find that an injunction would risk an unacceptable interruption in medical services to military personnel and their dependents and that the protested bridge contract would be nearly complete by the time a transition of services could be made.

(10) On 29 August 2018, an offeror filed a small business size protest with the SBA. On 2 October 2018, the SBA dismissed the small business size protest and the offeror filed an appeal to the OHA. The OHA granted the appeal on 17 December 2018. The SBA Area Office determined the apparent awardee was a small business on 25 February 2019. A second OHA appeal was filed on 12 March 2019.

(11) OHA was scheduled to resolve the appeal by 29 March 2019; however, a motion to exceed the page limit for the supplemental appeal and a motion for an extension of time were granted. AS of now, the Government has suspended the award of the contract pending an OHA decision.

c. The Performance Work Statement (PWS) for this contract is essentially the same as the PWS for the current contract and only includes administrative updates such as date changes, changes to point of contact and those required.

(March 2019)

11. Technical Certification:

I certify that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Signature: _____________ Date: _____________ Type Name: Title: COR, SAMMC Nursing Operations

12. Requirements Certification:

I certify that the supporting data under my cognizance, which are included in the justification, are accurate and complete to the best of my knowledge and belief.

Signature: _________ Date: _____________ Type Name: Title: COR, SAMMC Nursing Operations

13. Fair and Reasonable Cost Determination:

I hereby determine that the anticipated cost (valued at $13,500,000.00 for a 4-month period of performance) for this contract action will be fair and reasonable based on several factors: 1) the incumbent contractor has been performing these RN services for the past nine years, and 2) the estimated cost for this contract action will be based on price analysis in accordance with FAR Subpart 15.404-1 supported by independent government estimate and historical data. These services are considered commercial and therefore, certified cost and pricing data will not be required for this non-competitive procurement in accordance with the exception at FAR subpart 15.403-1(b)(3).

Signature: _ Date: _____________ Type Name: Title: Contracting Officer

14. Contracting Officer Certification:

I certify that this justification is accurate and complete to the best of my knowledge and belief.

Signature: _ ______ Date: _____________ Type Name: Title: Contracting Officer

(March 2019)

Approval

Based on the foregoing justification, I hereby approve the procurement of registered nursing services in support of the San Antonio Military Healthcare System (SAMHS) NTE $13,500,000.00 on an other than full and open competition basis pursuant to the authority of 10 U.S.C. 2304(c)(1) and FAR 6.302-1, subject to availability of funds, and provided that the services herein described have otherwise been authorized for acquisition.

Signature: Date: _____________ Type Name: Title: USAHCA, Special Advocate for Competition