Final_Approved_JA_Redacted.pdf

Control No. 16-020

Justification and Approval for Other Than Full and Open Competition

Lower Columbia River Security Guard Services Revised 15 Mar 2016

1. Contracting Agency:

U.S. Army Corps of Engineers (“Corps” or “USACE”), Northwestern Division, Portland District, 333 SW 1st Ave, Portland, Oregon, 97204.

2. Description of Action:

This Justification and Approval for Other Than Full and Open Competition is to award a new firm-fixed price commercial service bridge contract using FY15 O&M joint funds to BNL Technical Services, a service disable veteran owned small business.

3. Description of Supplies / Services:

USACE, Portland District requires the award of a bridge contract for the immediate provision of armed and unarmed security guard services at three projects along the lower Columbia River—Bonneville Dam, The Dalles Dam, and John Day Dam)—to ensure uninterrupted security coverage at these projects while it terminates the incumbent contractor under Contract Number W9127N-15-C-0023 for cause and works to solicit and award a new multiple-year contract for the provision of these services.

The estimated value of this bridge contract is $1,000,000 for six months (base year) of services and $500,000 for one three-month option period, for an estimated total value of $1,500,000.

This optional period is required to ensure that the Government has enough time to prepare, solicit, and award a new multiple-year contract for the provision of these services and to ensure that the incoming contractor will have an adequate transition period to complete all licensing, training, and other technical post award submittals prior to the commencement of services. This optional period will be priced and evaluated at the time of contract award. FAR clause 52.217-8 (Option to Extend Services) is included in this contract and will be utilized to exercise the three month optional period only if determined necessary. FAR clause 52.237-3 (Continuity of Services) has not been included in this contract.

4. Authority Cited:

The statutory authority permitting other than full and open competition is 10 U.S.C. § 2304(c)(2) as implemented in FAR 6.302-2, Unusual and Compelling Urgency.

5. Reason for Authority Cited:

a. Background:

Bonneville Lock & Dam, The Dalles Lock & Dam, and John Day Lock & Dam are federal civil works projects operated by the Corps, Northwestern Division, Portland District.

These projects support the Corps’ navigation, hydropower, flood control, and recreation missions. The proximity of the projects to a large population base (Portland, Oregon) requires the Corps to provide for continuous, uninterrupted security services at these locations to ensure the safety of personnel, property, and critical infrastructure. In addition, since September 11, 2001, significant force protection measures have been implemented at all Corps civil works projects and facilities. These projects are officially Department of Defense installations and must adhere to Department of Homeland Security regulations regarding force protection which encompasses increased requirements for access control and general security. Consequently, Portland District has determined that the current security posture requires the use of contract security guards at these sites.

Portland District awarded Contract Number W9127N-15-0023 for armed and unarmed security guard services to Guard Force International, LLC (GFI) as a service disabled veteran owned competitive set-aside on 18 September 2015 for performance to commence on 1 November 2015. The contract contemplated a base period of one year followed by four one-year option periods.

GFI experienced contractual challenges from the beginning of the transition process, but the Government worked closely with GFI in an attempt to remedy their challenges.

However, on 9 December, the District learned that 23 of the contractor’s 29 armed guards’ licensing had been revoked by the state of Washington as of 1 December. The Contracting Officer immediately directed the contractor to remove firearms from all unlicensed guards until each could obtain a current license as an armed private security guard. The Government considered the loss of this licensing to be a material breach of the contract terms and conditions.

The Contracting Officer subsequently issued the contractor a cure notice via Serial Letter 0002 directing the contractor to submit documentation demonstrating immediate compliance with the licensing requirements in the contract and to cure additional material deficiencies that the contractor had failed to remedy to that point. The cure notice listed the following material deficiencies in performance: (1) the contractor’s failure to comply with the licensing and training requirements within the Performance Work Statement (PWS); (2) the contractor’s failure to complete medical screening and physical agility tests in accordance with the PWS; (3) the contractor’s failure to submit a scheduling and staffing plan in accordance with the PWS, which resulted in missed shifts and guards working an unsafe number of hours; (4) the contractor’s failure to supply its guards with the materials and equipment required by the PWS; and (5) the contractor’s failure to provide an officer training plan as required by the PWS. The contractor’s materially deficient performance had the potential to compromise the safety of USACE employees, GFI employees, other contractors, and members of the public at these projects.

In January 2016, the Contracting Officer determined that it was necessary to terminate the contract with GFI for cause because the contractor had failed to submit the required certifications and had failed to remedy numerous other material deficiencies in performance, including meeting staffing requirements. However, because the Government cannot afford to allow the provision of security guard services at the three projects to lapse for any period of time, the Contracting Officer could not terminate the contract with GFI until a bridge contract had been awarded to ensure the continuous, uninterrupted provision of these services. While the Contracting Officer explored options for awarding the bridge contract as soon as practicable, the Government continued to work with GFI in the hope that it would cure its deficient performance and, thereby, eliminate the need to terminate the current contract and award a bridge contract.

After meeting with a Native American 8(a) firm capable of providing armed security guard services on 13 January, Portland District determined that it would be in the Government’s best interest to issue a request for proposal (RFP) to this firm for the award of a sole source bridge contract utilizing the procedures in FAR Subpart 19.8.

The Small Business Administration (SBA) accepted this recommendation on 25 January 2016. However, after receiving SBA acceptance, the firm notified Portland District that it was no longer interested in submitting a proposal for the bridge contract. Subsequently, Portland District notified the SBA that it was withdrawing the requirement for a bridge contract from the 8(a) program because no other 8(a) contractors appeared capable of meeting the required terms and conditions.

On 8 February, the Contracting Officer determined that it was necessary to seek approval to solicit proposals from limited sources for the award of a bridge contract in accordance with 10 U.S.C. § 2304(c)(2) as implemented by FAR 6.302-2, Unusual and Compelling Urgency, to ensure the uninterrupted provision of security guard services at the lower Columbia River projects while the Government prepares, solicits, and awards a new multiple-year contract for the provision of these services. The Contracting Officer utilized the pool of technically acceptable offerors from the previous procurement to identify those firms that possess the capabilities to commence the provision of these services with a qualified and licensed work force no later than 15 March. Initially, the Contracting Officer determined that two out of offerors (from the original award evaluation process were deemed capable of meeting the licensing requirement in a short time), for the previous procurement were capable of meeting the expedited licensing requirements of the bridge contract: BNL Technical Services and

. These two offerors from the original award were deemed capable of meeting the licensing requirement in a short time period, and do the work at a fair and reasonable price. The Government approached BNL Tech services and because their proposal and pricing indicated that they were most capable of meeting the requirement. When withdrew from the competition, the remaining offerors were reassessed and was approached on their interest and ability to meet the requirement. After the Request for Proposal was released, responded that they were not capable as they did not have enough upfront capital or necessary personal to meet the resourcing requirements of this procurement within the expedited time period required to meet this procurement.

The other firms that were originally determined technically qualified within the previous procurement were determined to have limited to no confidence in being able to meet the requirement under these unusual and compelling circumstances at a fair and reasonable price. was determined to be technically qualified originally; but had a price that was in line with that offered by the firm being terminated which has been considered unrealistically low based on the many personnel and performance issues with the encumbent. Though originally technically qualified, this firm does not have the resources to be able to meet an accelerated resourcing schedule in which they could meet the manpower or licensing levels required in this unusual and compelling environment. also was technically qualified; however their original pricing was substantially higher than any other firm within the competitive range. This new requirement contains additional risks which would increase the potential overall price of this procurement causing their price to be even higher. The contracting officer did not believe that a fair and reasonable price could be reached with either of these contractors.

After receiving verbal approval from the Special Competition Advocate (SCA) on 9 February 2016 to issue an after-the-fact Justification and Approval for Other Than Full and Open Competition to award the bridge contract, the Contracting Officer contacted BNL Technical Services and to determine whether they were interested in submitting proposals for the bridge contract determining they were the only two firms capable of meeting the urgent requirements. Both firms expressed written interest in participating in the RFP process; however, withdrew their participation prior to issuance of the RFP. The Government reassessed the remaining firms in an effort to maintain competition, and indicated their desire to compete. The Government issued the RFP on 22 February to BNL Technical Services and

. On 23 February, rescinded their interest in the requirement due to financial requirements. BNL Technical Services submitted their proposal for the bridge contract on 25 February 2016.

Additional options in this case were very limited and the proposed strategy was considered to be in the best interest of the government. Awarding a new contract without limiting competition was considered too long of a process to be without adequate guard protection. Doing nothing and allowing the unsatisfactory performance was also not an option.

b. Justification:

Although the Government hoped that they would cure their deficient performance, Guard Force International continues to be out of compliance with material terms and conditions of Contract Number W9127N-15-C-0023, leaving the lower Columbia River projects exposed to security threats. As a result, it is imperative that the Government get a contractor in place to provide adequate security guard services at the projects as soon as possible.

To do so, the Contracting Officer has concluded that it is necessary to limit sources for the award of the bridge contract in accordance with FAR 6.302-2, Unusual and Compelling Urgency. The lower Columbia River projects are presently in an unsecure state and face unmitigated security risks that endanger the safety of employees, contractors, and the public. The projects are still without a full armed security guard staff, and the contractor continues to leave shifts unfilled on a weekly basis.

Accordingly, the Contracting Officer has concluded that an unusual and compelling urgency exists.

Moreover, the Contracting Officer has concluded that it is necessary to limit sources for this procurement because soliciting and awarding the contract through full and open competition would delay the award a new contract by an estimated 180 days. The Government would suffer serious injury from that delay because the three hydroelectric dams would remain vulnerable to cyber and physical attacks, including acts of terrorism, that threaten the safety of employees, contractors, and the public for a significantly longer period of time than if sources were limited. By limiting sources for the award of the bridge contract, contract performance will commence and the transition of security guard services from the incumbent contractor to the new contractor will be complete no later than 15 March which allows a minimal timeframe for review. Consequently, the Contracting Officer has concluded that the use of other than full and open competition to issue a bridge contract for the services described above is justified under FAR 6.302-2, Unusual and Compelling Urgency, because an unusual and compelling urgency precludes full and open competition and delay in award of a contract would result in serious injury to the Government.

The remaining firm from the limited pool of sources for the bridge contract, BNL Technical Services, possesses the capabilities to provide security guard services at the lower Columbia River projects under the bridge contract beginning no later than 15 March. They have a total of approximately 100 guards licensed within the geographic location to meet the daily service needs of the projects. These security guards are currently in possession of the mandatory training to provide security guard services at the projects required by the Oregon Department of Public Safety Standards and Training (DPSST), Washington Department of Labor (WSDOL), Army Regulation (AR) 190-56, AR 190-14, AR 25-2, Army Training Support Package TSP-191-SG-0001, and NERC regulations CIP-004 and CIP-007. As a result, BNL Technical Services can begin performance immediately as required whereas other potential contractors may require additional time to meet the licensing and training requirements of the contract.

c. Impact:

Portland District is responsible for guarding against and responding to cyber and physical vulnerabilities, threats, and attacks at the lower Columbia River projects and relies upon the provision of armed security guard services to do so. The Columbia River is a vital navigation corridor and source of hydroelectric power for the United States. It is mission critical to keep the dams, spillways, navigation locks, and powerhouses operating safely to avoid interruption of commerce, interruption of hydroelectric power production, loss of flood control protection for the Portland and Vancouver metropolitan areas, and loss of life or property. In addition to the considerations justifying this action discussed above, listed below are attributes of the projects that would be severely impacted should the bridge contract not be awarded through other than full and open competition and security be breached:

• More than 2600 vessel traverses annually on the Lower Columbia River 35 million tons of cargo annually on the Lower Columbia River

• Top Visited Visitor Center in the Corps (Bonneville with approximately 900,000 visitors annually)

• $20 billion Marine Highway

• 40% of U.S. wheat exports

• $24 Billion in Economic Impact

• Power to approximately 3 million homes

• Designated as MEVAs (Mission Essential / Vulnerable Area) per Army

Regulation 190-13

• Failing USACE Supplement to AR 190-51 Risk Level III

• Failing North American Electric Reliability Corporation (NERC) compliance standard

• Very rural areas where letters of agreement with local law enforcement would not allow for response times

If Portland District did not immediately award a bridge contract through the use of limited sources to ensure the provision of adequate security guard services at the projects, it would be prolonging the unmitigated security risks that currently threaten the execution of the vital missions described above.

The time period necessary to award the proposed bridge contract through full and open competition would result in the interruption of security guard services at the Lower Columbia River Projects, thereby compromising the safety and security of government personnel, property, and critical infrastructure. The lower Columbia River projects would be without security guard services for a minimum of five months to a maximum of 8 months depending on the time it would take to solicit and award a procurement without using the statutory authority permitting other than full and open competition as implemented in FAR 6.302-2, Unusual and Compelling Urgency.

6. Efforts to Obtain Competition:

A limited sources solicitation was issued to three potential offerors after receiving verbal approval from the SCA on 9 February 2016 for an “after-the-fact” Justification and Approval for Other Than Full and Open Competition. The Corps will not publish a synopsis of the proposed contract action as required by FAR 5.203 because it has determined that the exception to that requirement provided by FAR 5.202(a)(2) applies.

For the same reasons that the Corps has determined that the Government would suffer serious injury if it awarded this bridge contract through full and open competition, the Corps has determined that the delay caused by publishing the synopsis for 15 days as required by FAR 5.203 would seriously injure the Government.

7. Actions to Increase Competition:

A sources sought synopsis for the new multiple-year contract for the provision of these services will be issued once the bridge contract is awarded. The Corps typically procures these security guard services through full and open competition after exclusion of sources as 100 percent set-asides for small business concerns. The NAICS code utilized to procure these services provides for robust competition. The new procurement will be awarded under competitive procedures.

8. Market Research:

Market research was conducted and validated for the contract currently being terminated. Market research included a sources sought conducted throughout March and April of 2015. Further, the SBA quick and dynamic searches were used and telephonic and set-aside specific requests for information were incorporated to gain a firm understanding of the industry and current market conditions. No significant change has occurred within the industry or market since conclusion of pre-solicitation activities for that contract on 13 May 2015.

9. Interested Sources:

The Justification and approval will be posted in accordance with FAR 6.305, which requires posting of the J&A within 30 days after award.

10. Other Facts:

a. Procurement History:

As shown in Table 1, these services are typically procured though full and open competition after exclusion of sources as 100 percent set-asides for small business concerns.

TABLE 1: PROCUREMENT HISTORY

Contract Number Contractor Value Type NAICS Competitive Status

15-R-0039 GFI $9 MIL FFP 561612 Service Disabled Veteran Owned Small Business

15-P-0113 RAMS, Inc $600K FFP 561612 OTSB; Sole Source Bridge Contract utilizing FAR 6.302-2, Unusual and Compelling Urgency, due to receipt of 1 GAO preaward protest and 1 agency level local post-award protest

10-C-0040 RAMS, Inc $7.5 MIL FFP 561612 Woman Owned Small Business

08-P-0006 HWA, Inc $1.25 MIL FFP 561612 Small Business

04-P-0108 Garnett & Associates $95K FFP 7381 Small Business

b. Unusual and Compelling Urgency:

As discussed in paragraph 5, above, the lower Columbia River projects remain in an unsecure state and face unmitigated security risks due to Guard Force’s continued failure to meet the terms and conditions of the current contract for the provision of armed security guard services at those locations. The three hydroelectric dams covered under the contract–Bonneville Dam, The Dalles Dam, and John Day Dam—are considered critical assets under the National Electric Reliability Corporation (NERC) Reliability Standards, and the Portland District is responsible for guarding against and responding to cyber and physical vulnerabilities, threats, and attacks at those locations.

In addition, the projects are of vital importance to the Pacific Northwest economy and for flood control protection for the Portland and Vancouver metropolitan areas. The Portland District relies upon the provision of private armed security guard services to protect the projects from acts of terrorism from both river and land approaches and to respond to emergency incidents at the projects that threaten the safety of employees, contractors, and the public. If it cannot quickly obtain the services of armed security guards at the projects, the Portland District would likely have to close key USACE recreational facilities that receive more than 1 million visitors a year and further limit access to the dams from Washington and Oregon to minimize these risks. However, even these measures would not fully mitigate the risk of cyber and physical attacks at the dams. For the reasons discussed above, the Contracting Officer has concluded that an unusual and compelling urgency precludes full and open competition and delay in award of the bridge contract would result in serious injury to the Government.