Redaced_MICC_2016-43_JA_17-D-0004._FRK_DFA_21_FEB_17.pdf

CLASS JUSTIFICATION REVIEW DOCUMENT

FAR PART 6 JUSTIFICATION AND APPROVAL FOR OTHER

THAN FULL AND OPEN COMPETITION

Supply/Service: Food Services in support of Logistics Readiness Centers (LRC), United States Army, located on installations on which procurements for such food services operations are stayed pending arbitration under the Randolph-Sheppard Act (R- SA) and either a Court-ordered injunction or agreement in lieu of injunction.

Authority: 10 U.S.C. 2304(c)(1) as implemented by FAR Part 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.

Amount: EST NTE

Prepared by:

Reviews: I have reviewed this justification and find it adequate to support other than full and open competition.

Contracting Officer:

Technical:

MICC Senior Attorney

Department of Army

FAR Part 6 Justification and Approval (J&A) for Other than Full and Open Competition

1. Contracting Activity: Mission and Installation Contracting Command (MICC) offices located at Fort Sill, Oklahoma, Fort Riley, Kansas, and other MICC offices that are conducting procurements in support of LRC food services operations and which procurements have been enjoined or stayed in lieu of injunction.

2. Description of Action: MICC offices at Army installations provide food services contracting support to LRCs for Soldiers assigned to those installations. Consistent with Army policy and applicable Army Regulations (AR), MICC acquires such food services under the R-SA if the requirement is for Full Food Services (FFS); if the requirement is for other than FFS (such as Dining Facility Attendants [DFA]), the Army acquires such services either through small business set-asides, unrestricted competition, or, if the requirement has been properly placed on the AbilityOne Procurement List, from the designated AbilityOne Non-Profit Agency (NPA). Where such procurements have been enjoined or otherwise stayed in lieu of injunction to permit arbitration under the R-SA to proceed, the Army must extend existing food services contracts to ensure uninterrupted food services to Soldiers. This Class J&A provides for extending food services contracts performed by existing contractors until these arbitrations have been completed and competitive procurement authorized

A MICC-Fort Sill. Oklahoma (OK) contract.

Full Food Services (FFS) and Dining Facility Attendant (DFA) services are currently combined under one contract (W9124J-09-D-0003) for supporting the Dining Facilities (DFAC's) on Fort Sill. Contract is currently operating under an approved J&A authority implemented by FAR 6.302-1, Only One Responsible Source and No Other Supplies or Service Will Satisfy Agency Requirements that will expire 31 March 20 16. Solicitations have been issued separately for the FFS and DFA portion for follow on contracts . The FFS solicitation has an estimated contract award date of 1 April 2016. The DFA solicitation has been challenged in court by the Oklahoma State Licensing Agency (SLA) and is currently placed on hold indefinitely by court order pending completion of the R- SA arbitration directed by the Department of Education.

Upon award of a separate FFS contract, the Fort Sill LRC requires DFA services for those dining facilities (DFAC) that need DFA services. This Class J&A authorizes the MICC-Fort Sill, OK, to modify the existing contract number W9124J-09-D-0003 with the OK Department of Rehabilitation Services (OKDRS), the SLA, either to provide all food services support or DFA, presuming that the FFS is awarded and not protested or otherwise challenged . Operations and Maintenance, Army (OMA) funds will be used;

the estimated value of this contract extension/modification is ------------------.

If the requirement after 1 April 2016 is solely for DFA services, then the proposed contract modification requires the contractor SLA to provide resources, except Government Furnished Property (GFP), to include labor, equipment , tools, material, supervision, and other work efforts to perform only the DFA Services in one (1) DFAC.

This J&A will cover all future actions for these DFA services (as appropriate) pending the completion of the arbitration process and the time necessary to conduct and complete a competitive solicitation for OFA .

3. Description of Supplies/Services: The Army requires contracting support for all resources necessary to provide complete hot meals and food services for Soldiers according to the Army Food Program's nutritional standards as specified in AR30-22.

The requirements applicable to this Class J&A may be obtained either as FFS contracts or contracts for less than FFS (DFA) or combined contracts. If the only services required under this Class J&A are DFA services, those services are only for janitorial and custodial functions within the DFAC which include, but are not limited to, mopping, sweeping, scrubbing, dishwashing , window washing, pot and pan cleaning, trash removal, waxing, stripping, buffing, and other sanitation-related functions . Where a contract includes a Collective Bargaining Agreement (CBA) with a local union implementing the Service Contract Labor Standards (formerly known as the Service Contract Act of 1965), the CBA will be incorporated.

Period of Performance: Until the R-SA arbitration for a specific installation has been completed and competitive procurement authorized.

4. Authority Cited: 10 U.S.C. 2304(c) (1), as implemented by FAR 6.302-1, only one responsible source and no other supplies or services will satisfy agency requirements.

5. Reason for Authority Cited: Pursuant to FAR 6.302-1(a) (2), the required food services (to include DFA services for which the solicitations have been challenged and stayed) are available only from the current contractor due to delays in the follow-on contract procurement resulting the Army having to complete the arbitration process directed by the Department of Education and a concomitant court-ordered injunction or agreement in lieu of such injunction. For installations and contracts covered by this Class J&A, the Army (MICC) has been enjoined (or is "stayed" in lieu of a court injunction) from awarding to any other entity until the arbitration process is completed.

As described at FAR 6.302-1(a) (2), when the supplies or services required by the agency are available only from one responsible source, or for DoD, NASA and the Coast Guard, from only one or a limited number of responsible sources, and no other types of supplies or services will satisfy agency requirements, full and open competition need not be provided for.

A MICC-Fort Sill. OK, Contract.

(1) OKDRS, with its SLA blind vendor and teaming partner, R&R Food Services, are currently performing the food services, to include DFA services, and possess the capabilities that cannot be replicated by Government personnel in a timely or seamless manner. OKDRS has the manpower and the resources to continue these mission-critical services, uninterrupted while pending the resolution of arbitration between OKDRS and the U.S. Army for DFA services.

(2) Alternatives: At this time no alternatives are available to the Government. The U.S.

Army has entered into a Settlement Agreement with the OKDRS to suspend action on a follow on DFA solicitation (W9124L-14-B-0001) and competitive procurement remains enjoined pending the completion of the arbitration process. The arbitration panel has set the date for conducting a hearing before the arbitration panel of 27-28 July 2016.

(3) OKDRS requested that an arbitration panel be convened pursuant to the R-SA, 20 U.S.C. §§107d-1(b) and 107d-2, pertaining to Solicitation No. W9124L-14-B-0001, DFA Services, Fort Sill, OK, competitive HUB Zone set-aside. MICC-Fort Sill received notice on 30 March 2015 that the Department of Education authorized the convening of an arbitration panel. The central issue is whether the Army violated the R-SA by denying the R-SA priority when the solicitation was issued and the SLA excluded from participating because the solicitation was not subject to the R-SA and the SLA was not a HUBZone small business entity .

(4) The current Fort Sill food services contract expires on 31 March 2016.

(5) The impact to the Fort Sill Food Service Program without the continuity of service would result in mission failure. If the contract extension requested under this J&A is not approved, Fort Sill will not be able to operate its DFACs without interruption and therefore would not be able to provide clean dining facilities to feed Soldiers.

Furthermore IAW AR 30-22, paragraph 3-42c (2), permanent party enlisted Soldiers will not perform OFA functions and/or duties on a regularly detailed basis without prior approval by Headquarters , Department of the Army (HODA). There are insufficient trained government personnel to provide DFA services fat Fort Sill, OK.

B) MICC - Ft Riley Kansas

(1) Source America, a sub-agency of AbilityOne, was interested in the Fort Riley DFA Services and proceeded to develop the requirements to add the DFA Services to the Procurement List (PL). The AbilityOne Commission added the Fort Riley DFA Services to the PL on 22 Jan 2016.

(2) A Complaint for Preliminary and Permanent Injunction was filed in the U.S. Federal Court for the District of Kansas on 22 Jul 2015. This injunction sought to prevent the award of the follow-on Dining Facility Attendant Services (DFA) contract authorized under FAR 8.002 through the AbilityOne Commission to the selected Non-Profit Agency (NPA) Lakeview Centers, Inc.

(3) DFA Solicitation, W911 RX-15-R-0010, is a follow-on to the current contract W911RX-11-0-00006 with DCF. A new contract action was necessary to provide for the continuation of essential services pending resolution of the litigation and arbitration request currently being pursued by the State of Kansas in Federal Court and with the Department of Education.

A final Federal Register announcement, Vol. 81, No. 14, dated 22 Jan 2016, established the DFA at Fort Riley as applicable to the Ability One Source America. DCF filed an amended complaint with the Federal Court on 3 Feb 16 requesting a preliminary injunction preventing the US Army from awarding a contract for DFA services on Fort Riley to an AbilityOne service provider.

The judge assigned to this federal litigation heard arguments on the Plaintiff's request for preliminary injunction on 23 Feb 2016. On 26 Feb 16, the judge entered a preliminary injunction in favor of the State of Kansas and enjoining Army from "conducting any procurement, including making any award of contract in connection with cafeteria services at Fort Riley, except as permitted under the RSA and its regulations, until such time as the arbitration proceeding initiated by Kansas under RSA is concluded, or further order modifying this preliminary injunction."

b. Alternatives: No other alternative than awarding to the incumbent are available to the Government. The U.S. Army has entered is enjoined from proceeding with a competitive award as well as awarding to AbilityOne. There are insufficient Government personnel available and without these services the dining facilities cannot operate feeding the soldiers...

c. Impact: The incumbent contractor, Kansas Department of Children and Families, is the only logical source to perform the services and has the labor force, equipment and subcontractors in place ready to perform all the required services without disruption or delay. No other firm could mobilize and interface with the LRC in the time remaining under the contract. Without this sole source award, food service operations at Fort Riley would cease causing substantial harm to the 1s1 Infantry Division specifically and the Army in general.

6. Efforts to Obtain Competition:

a) Effective Competition: This interim action is a result of the court order for enjoining the Army from proceeding with a competitive procurement. Once completed the implementation of the arbitration is expected to result in more than one proposal received providing for effective competition.

b) Subcontract Competition: Subcontract competition is not available for these type actions

7. Actions to Increase Competition: The original actions that resulted in the court ordered injunction resulted from competitive solicitations. Once the arbitration is completed, the resulting implementation of the results will proceed allowing for maximum competition available at that time.

8. Market Research:

As provided by Defense Federal Acquisition Regulation Supplement (DFARS) Procedures, Guidance and Information PGI 206-302-1(d), waiver has been granted by the Head of the Contracting Activity designee.

This requirements falls under the North American Industry Classification System (NAICS) code 722310, Food Service Contractors, with a business size standard for

$38.SM.

9. Interested Sources: Various sources submitted proposals and demonstrated interest in the enjoined actions. Once the arbitration is resolved, those sources will be solicited as appropriate. The notices required by FAR 5.202 will be posted and responses shall be considered within the parameters of the court actions.

10. Other Facts:

Class J&A: This Class J&A will cover all future actions for these OFA services pending the resolution of an arbitration hearing and follow on DFA contract can be awarded.

Each action will be supported by a memorandum for record stating the action is within the scope of the class J&A in each contract file. The total value of the actions under this Class J&A will not exceed $13.5M.

11. Technical Certification: I certify that the supporting data under my cognizance which are included in the justification regarding food services are accurate and complete to the best of my knowledge and belief.

12. Requirements Certification: I certify that the supporting data under my cognizance which are included in the justification regarding food services are accurate and complete to the best of my knowledge and belief.

13. Fair and Reasonable Cost Determination: I hereby determine that the anticipated cost or price to the Government for the Ft Sill contract action will be fair and reasonable.

The techniques identified at FAR 15.404-1(b)) will be used to ensure award will be at fair and reasonable prices. Each Contracting Officer will use used a comparison of industry cost for similar work. The Independent Government Cost Estimate (IGCE) will primarily be an analysis of the contractor's proposed cost. Additionally , the techniques identified at (e.g. FAR 15.404-1(c)(2)(iii)) will be used to further ensure award will be at fair and reasonable prices Labor costs are subject to a CSA Certified Cost and Pricing Data will not be obtained.

14. Contracting Officer Certification: I certify that this justification is accurate and complete to the best of my knowledge and belief and applicable across the class of actions to the best of my knowledge.

Approval

Based on the foregoing Class justification, I hereby approve the procurement of Dining Facility Attendant (DFA) Services for not more than $13.5M total on an other than full and open competition basis pursuant to the authority on of 10 U.S.C.2304©(1), subject to availability of funds, and provided that the services herein described have otherwise been authorized for acquisition. In accordance with department procedures I have reviewed previous justifications and determined that the actions planned for eliminating barriers to competition were completed.

MICC Special Advocate for Competition U.S.

Army Mission and Installation Contracting Command, Fort Sam Houston, TX