Clarifications_Attch1_8aRemovalReq_and_Encls_10122016.pdf

Contracting Center

DEPARTMENT OF THE ARMY

PROGRAM EXECUTIVE OFFICE

SIMULATION , TRAINING AND INSTRUMENTATION

12350 RESEARCH PAR'r<YVAY

ORLANDO, FLORIDA 32826-3276

February 04, 2015

U.S. Small Business Administration Supervisor Business Opportunity ATTN: Kenneth Hamilton North Florida District Office 7825 Baymeadows Way, Suite 100-B Jacksonville, FL 32256-7504

SUBJECT: Request to Remove SBA Requirement Number 7700-07-703029 from the 8(a) Business Development Program

The Department of the Army is in the planning stages for the re-compete and Fiscal Year 2017 award of the Artillery and Chemical Trainer (ACT) Contract Life Cycle Contract Support requirement currently procured under SBA Contract number W900KK- 12-C-0028. Pursuant to the Class Deviation issued by the Director of Defense Procurement and Acquisition Policy on 14 March 2014, which prohibits the use of the 8(a) Business Development Program for the Acquisition of Military Simulation and Military Simulation Training , this letter serves as a formal request to remove 7700-07- 703029 from the 8(a) Business Development Program.

The Department of the Army intends to re-compete this effort as a small business set-aside in accordance with Federal Acquisition Regulation 19.5.

Should you have any additional concerns regarding this matter, please contact the Contract Specialist, Ms. Monica Escalante at (407) 208-5098 or the undersigned at

(407) 384-5578.

Sincerely, t;t Contracting Officer

Enclosure

U.S. Small Business Administ ration

March 23, 2007

Jack Rowe Contracting Officer Department of the Navy Naval Air Systems Command 12350 Research Parkway Orlando, FL 32826

U.S. SMALL BUSINESS ADMINISTRATION

North Florida District Office

7825 Baymeadows Way, Suite 1008 Jacksonville, FL 32256-7504

(904) 443-1900/FAX (904) 443-1980

Wilfreda J. Gonzalez District Director

Ralph Ross Deputy District Director

Re: Competitive 8(a) Offering for a Fixed Price Award Fee (FPAF) type contract for providing a ll labor, materials and consumables, tools and test equipment, supply support. maintenance and repai r activity. installation/de-installation. engineering modification and development, production, operation, transportation and relocation necessary for the artillery and chemical trainers located at various installations worldwide.

Dear Mr. Rowe:

Pursuant to Section 8(a) of the Small Business Act (15 U.S.C. 637 (a) and the United States Department of Defense/Small Business Administration's Partnership Agreement for streamlined 8(a) Contracting, the Small Business Administration accepts for competition the referenced offer.

Our preliminary analysis indicates that this requirement meets the criteria for competition in the 8(a) Program. You have designed a North American Industry Classification System (NAICS) code of 541330. The NAICS code should not be changed without further coordination with this office. SBA's assigned Requirement Number is 7700-07-703029.

You are authorized to synopsize the procurement in the FedBizOpps and issue a sol icitation for this procurement.

For this procurement, it has been determined that competition will be limited to 8{a) certified firms serviced SBA's District Offices Nationwide.

At the conclusion of your evaluation, you are to directly advise the servicing SBA District Office of the apparent successful offeror. Your notice should include the firm's name, the anticipated award value, the date of the firm's representations and certifications, and the date of the firm's proposal so that a determination of eligibility can be made. Within (5) business days of that notification, SBA will confirm the eligibility of the apparent successful offeror to receive the contract award and notify your office, in writing, of its determination. If the apparent successful offeror is found ineligible. SBA will inform you, in writing. of the firm's ineligibility and request that you consider the next successful offeror for the contract award.

8(a) Competitive - SBA Requirement# 7700-07-703029 March 23, 2007

Your office shall forward negative pre-award surveys of the apparent successor offeror to the SBA Distr ict Office servicing that firm. That office will review the survey and may request an advisory opin ion from the Small Business Area Office for Government Contracting in making a determination that the firm is competent and responsible to perform.

Upon receipt of the serving SBA District Office's positive determination of eligibility, your office may execute the contract award as directed by the Partnership Agreement between the Department of Defense and the Small Business Administration. Please make sure the appropriate SBA office is added to your distribution for the contract documents, as well as, any modifications and options to follow. Contract terms and conditions shall conform to the Federal Acquisition Regulations (FAR).

If you have any questions, please contact me at (904) 443-1910 or e-mail me Clt kenneth.hamilton@sba.gov.

enneth R. Hamilton Supervisor, Business Development Specialist

ACQUIS m ON.

TECHNOLOGY

AND LOGISTICS

OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000DEFENSEPENTAGON

WASHINGTON. DC 2030 1-3000

In reply refer to OARS Tracking Number: 2014-00007

MEMORANDUM FOR COMMANDER. UNITED STATES SPECIAL OPERATIONS

COMMAND (ATTN: ACQU ISIT ION EXECUTIVE)

COMMANDER. UNITED STATES TRANSPORTATION

COMMAND (ATTN: ACQUISITION EXECUTIVE)

DEPUTY ASSIST A T SECRETARY OF THE ARMY

(PROCUREMENT)

DEPUTY ASSISTANT SECRETARY OF THE NAVY

(ACQUISITION AND PROCUREMENT)

DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE

(CONTRACTING)

DIRECTORS Of THE DEFENSE AGENCIES

DIRECTORS OF THE DOD FIELD ACTIVIT! ES

SUBJECT: Class Deviation- Prohibition on the Usc of the 8(a) Business Development Program for Acquisition of Military Simulation and Military Simulation Training

Effective January 30, 2014. in accordance with the Stipulation and Agreement of Settlement in DynaLantic Corpora£ ion v. United States Department of Defense. eta/ .. No. 95- 2301 (EGS)(D.D.C.) (DynaLantic v. Department of Defense) approved by the Court on January 30, 2014 (Attachment), contracting officers are prohib1ted from awarding "prime contracts under the Section 8(a) program (competitive and sole source) for the purchase of military simulation and military simulation training contracts ... :Military simulation· and ·military simulation training' contracts are contracts for (i) the provision or sale of devices where the primary purpose of the device or devices is instruction for the use, operation and/or maintenance of military equipment of any nature or kind (including, but not limited to, aircraft.

ships, tanks. etc.), and (ii) the training in the use. oeeration or maintenance with all military simulator equipment." Accordingly, contracting o l ticers shall not use FAR subpart 19.8.

Contracting wtth the Small Business Administration (The 8(a) Program). in the case of such procurements.

The injunction entered by the Court in its August 15. 2012, decision and order, as modified by the Stipulation and Agreement of Settlement, remains in effect. The modifications are described in this class deviation. The memorandum from the Director of Defense Procurement and Acquisition Policy, dated August 22, 2012, subject: " Immediate Cessation of Small Business Development Program (8(a) Program) Procurement Contracts for Military Simulators or Services m the Military Simulator Industry:· advised addressees of the dec1sion, provided instructions effective August 15, 2012, based on the decision, and included as attachments the Court' s decision and order dated August 15, 2012.

This class deviation remains in effect until further notice. My point of contact is Ms. Lee Renna, who may be reached at 571-372-6905, or at marvlee.rcnna.civ'@.mail.mil.

7 ' ./ . I ~Ct 1

/\ L · 1.': 1 'I [L 1 '' 7 ' 17

' {; I u . (U / . /- .

{ichard Ginman , Director. Dcfcr)~c Pt; curcment and Acquisition ·Po1icy

Attachment:

As stated

Case 1:95-cv-02301-EGS Document 260 Filed 01/31114 Page 1 of 5

DARS Tracking Number: 2014-00007 Attachment

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA FILED

DYNALANTIC CORP.,

JAN 3 t 2014

-;ieik. U [:, D;~r~ict & &iilak;ul)tC)' .:ot.rt$ to• tile Di~tlitt o: Columor.·

Plaintiff, V.

UNITED STATES DEPARTMENT OF

DEFENSE, eta/., Defendants.

Civil Action No. 95-2301-EGS

STIPULATION AND AGREEMENT OF SETTLEMENT

WHEREAS, by Order entered on August 15, 2012, the Court denied in part and granted in part the parties' respective motions for summary judgment, and ordered .. that the Small Business Administration and the Department of Defense are hereby enjoined from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so" [ECF Document 247];

and

WHEREAS, Plaintiffs appeal from the Court's August 15,2012 Order is currently pending before the United States Court of Appea.ls for the District of Columbia

Circuit in Case No. 12-5330; and

WHEREAS, the parties have agreed to settle this case on the terms and conditions set forth herein.

Case 1:95-cv-02301-EGS Document 260 Filed 01131114 Page 2 of 5

OARS Tracking Number: 2014-00007 Attachment

NOW, THEREFORE, Plaintiff and Defendants stipulate and agree as follows:

I. Subject to the Court's approval, the injunction entered by the Court in its

August 15,2012 Order shall be modified to read as follows: "Defendants shall not award prime contracts under the Section 8(a) program (competitive and sole source) for the purchase of military simulation and military simulation training contracts without first articulating a strong basis in evidence for doing so. ·Military simulation' and 'military simulation training' contracts are contracts for (i) the provision or sale of devices where the primary purpose of the device or devices is instruction for the use, operation and/or maintenance of military equipment of any nature or kind (including, but not limited to, aircraft, ships, tanks, etc.), and (ii) the training in the use, operation or maintenance with all military simulator equipment:· The injunction, as so modified, shall not apply to contracts already in effect as of the date this Stipulation and Agreement of Settlement is signed by Plaintiff and Defendants.

2. The provisions contained in this Paragraph are contingent upon the Court's approval of the modifications to its injunction set forth in Paragraph I above, and shall become effective only upon the Court's entry of this Stipulation and Agreement as a

Court order:

A. Defendants shall pay Plaintiff the sum of One Million and 00/100 Dollars

($1 ,000,000.00) in full and final satisfaction of Plaintiff's claims for attorney's fees, costs, and other litigation expenses on account of (i) this action from its inception up to the date this Stipulation and Agreement of

Case 1:95-cv-02301-EGS Document 260 Filed 01131114 Page 3 of 5

Attachment

Settlement is signed by Plaintiff and Defendants, (ii) Plaintiff's pending appeal in D.C. Circuit Case No. 12-5330, (iii) Defendants' appeal in D.C.

Circuit Case 12-5329, (iv) Plaintiff's appeal in D.C. Circuit Case No.

96-5260, and (v) Plaintiff's petition for writ of mandamus in D.C. Circuit

Case No. 12-5220, and Defendants shall have no further liability for any such fees, costs, or expenses. Payment shan be made as promptly as practicable, consistent with the normal processing procedures followed by

Defendants, the Department of Justice, and the Department of the Treasury, by electronic transfer of funds as specified in instructions provided to

Defendants' counsel by Plaintiffs counsel in writing.

B. Plaintiff shaH promptly dismiss its pending appeal in D.C. Circuit Case No.

12-5330.

C. Defendants shall refrain from seeking to vacate the injunction entered by the Court in this case for a period of at least two years after the date on which this Stipulation and Agreement of Settlement is signed by Plaintiff and Defendants. At any time after the expiration of that two-year period, Defendants may give notice to the Court and to Plaintiff of Defendants' intent to begin re-using the Section 8(a) program for military simulation and military simulation training contracts. Such notice (i) shall be in writing, (ii) shall be given at least thirty days prior to the date on which

Defendants propose to begin such contracting activities, and (iii) shall be

Case 1:95-cv-02301-EGS Document 260 Filed 01131114 _Page 4 of 5

Attachment filed and served through the Court·s electronic case filing system or as otherwise permitted by the Federal Rules of Civil Procedure and the local civil rules. The injunction shall remain in effect until further action is taken by the Court modifying or dissolving it.

3. Except as expressly set forth herein, Plaintiff reserves all of its rights (i) with respect to the injunction entered by the Court in this case, and (ii) to oppose any request to vacate the injunction.

4. If Plaintiff at any time believes that any contracting action or proposed contracting action by Defendants has violated or would violate the Cowt' s injunction, Plaintiff shall notify Defendants of the alleged violation and Defendants shall then have ten days to cure the violation or otherwise respond to the claim. The parties shall make a good faith effort to resolve any dispute arising from or regarding the injunction's scope or applicability before bringing the dispute to the Court's attention.

5. The Court shall retain jurisdiction over this case.

6. Each signatory hereto represents and warrants that he is fully authorized to enter into this Stipulation.

Case 1:95-cv-02301-EGS Document 260 Filed 01/31/14 Page 5 of 5

Attachment

IN WITNESS WHEREOF, Plaintiff and Defendants, intending to be legally bound, have executed this Stipulation on this 28th day of January 2014.

/s/?JtldMt E. ~

MICHAEL E. ROSMAN

D.C. Bar #454002 Center for Individual Rights 1233 20th St N.W., Suite 300 Washington, D.C. 20036

(202) 833-8400

Counsel for Plaintiff s

JOCELYN SAMUELS

Acting Assistant Attorney General Civil Rights Division United States Department of Justice

RONALD C. MACHEN Jr.

United States Attorney District of Columbia

/s/t)..ut j7 . .,_ ~

DANIEL F. VAN HORN

D.C. Bar #924092 Chief, Civil Division United States Attorney's Office 555 Fourth St., N.W.- Room E4226 Washington, D.C. 20530

(202) 252-2506