MVK Approved ATFJA_Natchez National Cemetery.pdf

Control No. MVK-2021-0031

ATL-21-7043

JUSTIFICATION AND APPROVAL

FOR OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Activity:

The U.S. Army Corps of Engineers, Vicksburg District Contracting Office, 4155 Clay Street, Vicksburg, MS 39183-3435.

2. Description of Action:

The Vicksburg District (MVK) has a requirement from the Department of Veterans Affairs, National Cemetery Administration to mitigate bank sloughing and erosion damage occurring at the Natchez National Cemetery (NNC) in Natchez, MS. There is Congressional interest in this requirement.

On May 12, 2021, MVK, under the authority at FAR 6.302-2 - Unusual and Compelling Urgency, received verbal authorization from the Alternate Advocate for Competition - Atlanta to proceed with contract negotiation and award, utilizing “limited competition”, with an after-the-fact J&A approval. This action was estimated not to exceed $10,000,000 for award of a firm fixed-price construction contract. Funding for this project was appropriated to the Department of Veteran Affairs through the National Cemetery Administration.

Firm fixed-price construction contract No. W912EE21C0008 was awarded to Keller North America, Inc. (CAGE: 1RPE4) on August 02, 2021 for Emergency Erosion Remediation at the NNC. The contract was awarded in the amount of $9,118,587.50 for a performance period of 300 calendar days from the date of notice to proceed (NTP).

3. Description of Supplies/Services:

The NNC is located on a bluff overlooking the Mississippi River. The site’s topography influenced a unique layout of irregular shaped burial sections, terraced hillsides, and gravel and grass pathways. The work consists of furnishing all plant, labor, materials and equipment, and construction related to the emergency stabilization of the west and south bluffs by installing a soil stabilization system design consisting of a soil nail wall;

reconstruction of a mechanically stabilized earth (MSE) retaining wall; and demolition of the existing committal shelter and associated appurtenances. Principal features of work include the contractor developing a concept for and preparing preliminary designs for bluff stabilization measures along the west and south side of the NNC. Based upon previous stabilization measures that have been constructed in the Natchez area, it is anticipated that slope stabilization will primarily be accomplished by reinforcing the soil mass with reinforcing elements (such as soil nails), but could also include deep soil anchors, beam and lagging walls, mechanically stabilized earth walls or ground improvement methods. The work, which is necessary to address the emergency, is schedule to be completed within 300 days of notice-to-proceed.

4. Authority Cited:

10 U.S.C.2304(c)(2), as implemented by the Federal Acquisition Regulation (FAR) - 6.302-2 Unusual and Compelling Urgency.

5. Reason for Authority Cited:

Background

The original requirement was accepted under the USACE Support for Other’s authorities.

In fiscal year 2018, MVK partnered with the Department of Veterans Affairs, National Cemetery Administration to mitigate erosion at the NNC. At this time, MVK was engaged in an ongoing effort to advertise a complete design and award a construction contract through full and open competition. In late fiscal year 2019, while advancing the design the project was paused due to the inability of the government to acquire the necessary right of way (ROW) required by the design plan. In fiscal year 2020 the ROW issues ultimately forced USACE-MVK to abort the original design and engage in a complete redesign of the project that avoided the areas where ROW could not be acquired. In early fiscal year 2021, during the redesign phase and preparation for advertisement of the solicitation under full and open competition, the bluff began to actively erode and slough and existing sinkholes also began to drastically increase in size due to unusual weather events. In May 2021, there were two (2) torrential rain events that triggered erosion and significant land loss at the bluff just south of the retaining wall and committal shelter. The two torrential rain events triggered significant active erosion and land loss at the bluff just south and west of a retaining wall and committal shelter on the cemetery property. This erosion moved the bluff’s edge to within 14 feet of the retaining wall and rendered the committal shelter unsafe for the public to enter posing a danger to the shelter and public safety.

Prior to the torrential rain events, the redesigned plans and specifications were originally scheduled to be completed, and the request to advertise (RTA) issued, on or about August 9, 2021. The advertisement and award of a construction contract under full and open competition was scheduled to occur on or about January 2022. However, after these torrential rain events, when the bluff’s edge receded to within 14 feet of the retaining wall the risk of further land loss from the active erosion resulting in further damage to the cemetery property and gravesites were greatly increased. The new situation posed a high risk to the shelter facility and to public safety due to the potential for loss of life if the bluff stability was to fail when anyone was near it which was deemed high risk due to the public nature of the property as well as the risk to gravesites on the property. The risk posed by bluff instability, caused by the unforeseen significant torrential rain events, was determined to pose a risk of serious injury to the government if normal contract procedures were followed due to the governments interest in protecting the veteran cemetery as well as protecting the its citizens from the risk of injury or loss of life due to bluff instability at this frequently visited public property. Given these circumstances MVK determined the situation to be an emergency for which any delay in award was deemed to pose serios risk to the Government which warranted emergency contracting procedures. Therefore, efforts were undertaken to expedite a design and obtain authorization to issue an emergency contract under unusual and compelling urgency authority.

After the emergency determination, temporary mitigation efforts were undertaken by placing sandbags and plastic sheeting over the bluff and surrounding area to divert localized rainwater away from the site of the erosion until an emergency construction contract could be awarded. However, it was unknown how long the temporary sandbags and sheeting would effectively mitigate further erosion. It was determined that these mitigation efforts did not sufficiently mitigate the risk to the government structure or to public safety and a contract for further efforts to fully stabilize the bank were necessary and any delay in award would still result in serious injury to the government.

Further delay through a normal procurement process, with RTA to occur in August 2021, as originally planned with a contract award in January 2022, would result in a contract being awarded in mid-winter, which is typically an exclusion period for construction because of adverse winter weather. This would delay any actual construction efforts to stabilize the site until dry weather in the Spring 2022. It is impossible to determine the exact extent of the monetary damages that would have occurred should contract award and construction be delayed into the Spring of 2022, however, due to public safety to mitigate potential serious injury or loss of life from the emergency situation as well as significant danger to the gravesites it was essential to fully stabilize the bluff. Therefore, there was urgency on behalf of the Department of Veterans Affairs and USACE to get an emergency contract awarded and begin construction as soon as possible during the current 2021 construction season.

The agency considered as many potential sources as practical given the emergency situation.

Market research was conducted and identified five (5) potential contractors who were included in the limited competition to meet the urgent need. The design of the plans and specifications were expedited and solicitation W912EE21R0016 advertised on June 25, 2021.

The solicitation closed and price proposals were received on July 16, 2021 resulting in a firm fixed-price construction contract No. W912EE21C0008 awarded to Keller North America, Inc. (CAGE: 1RPE4) on August 02, 2021 for Emergency Erosion Remediation at the NNC.

Justification

As noted above, in May 2021 the situation dramatically worsened due to unforeseen torrential rainfall events resulting in significant additional erosion occurring at the cemetery. It was determined that an emergency contract action under the authority at FAR 6.302-2 Unusual and Compelling Urgency was required to make immediate repairs and any delay in award would result in serious injury to the government due to the governments interest in protecting the veteran cemetery as well as protecting its citizens from the risk of injury or loss of life due to bluff instability at this frequently visited public property.

Without immediate full remediation, there was potential to lose the cemetery access road and eventually gravesites. The committal shelter and retaining wall were determined to have been significantly undermined and rendered unsafe. The committal shelter will be demolished with the retaining wall to be removed and replaced after slope repairs are made under the emergency contract. The period of performance of 300 days represents the amount of time required to make the emergency repairs to the west and south sides of NNC that experienced the erosion during the torrential rain events of May 2021 that resulted in unsafe conditions and a facility that could no longer be used for funerals. There was insufficient time to complete a redesign concurrently with addressing the existing emergency to allow sufficient time for the agency to enter into a full and open contract to complete any of the work. The work does not include repairs to any other areas of the NNC but is limited to the work necessary to address the bluff stabilization necessary to address the emergency.

For the reasons indicated above, it was essential that MVK take immediate action to prevent further damage and mitigate the potential for a complete failure of the NNC west bluff facing the Mississippi River. The planned schedule under normal competitive procedures was to advance the design and issue the RTA in Aug 2021. This would result in a contract award utilizing a best value tradeoff (BVTO) procurement on or about January 2022. The use of emergency contracting procedures allowed the government to receive RTA in June 2021 and award the emergency contract on August 2, 2021, under a limited competition, in accordance with FAR 6.302-2 – Unusual and Compelling Urgency. This acquisition plan placed a highly qualified contractor on site actively working in August 2021 during the 2021 construction season, rather than delaying the work to the Spring of 2022 which would have occurred had normal competitive procedures been followed. The August 2021 start date for construction avoided delays in repairing the dangerous conditions due to the heavy erosion caused by the May 2021 torrential rains and avoided delays due to winter weather that would have occurred if the contract had been awarded later in 2021.

Alternatives

The primary alternative to awarding under FAR 6.302-2 – Unusual and Compelling Urgency was to continue as originally scheduled and issue a solicitation pursuant to FAR part 15 with a basis for award being a BVTO source selection. For the reasons indicated above, this alternative was determined unacceptable due to the procurement time necessary to complete an award under the BVTO source selection that would have pushed construction into the Spring 2022 and the unacceptable risk posed by any delay.

The government considered issuing an invitation for bids (IFB) under full and open competition while utilizing the authority at FAR 6.302-2 – Unusual and Compelling Urgency to significantly shorten the advertisement period. However, this alternative was rejected.

Due to the complexity of the design, the government determined it may become necessary to enter into discussions with offerors. Thus an IFB was not an appropriate contract type.

The government also considered a direct sole source award under FAR 6.302-2 – Unusual and Compelling Urgency. A direct sole source award was rejected in lieu of utilizing a “limited competition” with a shortened advertisement period, pursuant to FAR 6.302-2(a)(2).

During market research multiple contractors were identified that specialized in similar geotechnical construction that were also available for immediate mobilization. It was ultimately determined that a limited competition would allow the government to expedite the emergency contract award while continuing to realize the benefits from the consideration of competitive pricing. The intent with the acquisition approach selected was that it would help the government achieve the best value and allowed competition from as many potential sources as practical under the circumstances.

Impacts

The procurement meets the criteria for limiting competition under the authority cited due to urgent and compelling reasons. A delay in award would result in serious injury, financial, or other, to the Government as previously discussed. Allowing the NNC to fail, by increasing the procurement timeline up to three months for contract award, would result in a risk of serious injury to the government. As indicated above this delay ultimately would have delayed actual construction until the Spring of 2022. The scope of this delay would have resulted in loss of property at the site, ultimately impacting the graves of the veterans who are interred at the NNC, as well as risk to public safety.

There is a significant risk of harm to the Government in the public’s perception of the Veteran’s Administration and the USACE if this delay of up to three months for contract award, as well as the resulting delays to the construction schedule were realized. The committal shelter is now closed for safety reasons, however, the property remains open and the unstable bluff represented a public safety hazard which needed to be immediately addressed. In the event further damage occurred to the point that the access road is closed, or existing graves are disturbed public perception of the government’s ability to accomplish its mission will be damaged, also generating additional Congressional concerns and inquiries.

6. Efforts to Obtain Competition:

On May 12, 2021, The Vicksburg District (MVK) received verbal authorization from the Alternate Senior Contracting Official (SCO-Atl.) under the authority at FAR 6.302-2 - Unusual and Compelling Urgency to proceed with contract negotiation and award, utilizing “limited competition” and/or “sole source award”, as determined necessary by the Contracting Officer, with an after-the-fact J&A approval.

Upon the determination that this situation would require an emergency contract action, the MVK contracting officer began market research to identify technically capable contractors, who were interested in submitting an offer, and were also capable of immediate mobilization.

Per FAR 5.202 (a)(2), “The proposed contract action was made under the conditions described in 6.302-2 and the Government would be seriously injured if the agency complies with the time periods specified in 5.203”. Based on this regulation, a synopsis of the proposed contract action was not posted.

Five (5) large businesses were identified, through market research, that specialized in geotechnical construction, specifically possessing the technical capability, experience and past performance installing similar erosion control systems; and installing soil nail walls of a similar size, scope and complexity who were available for immediate mobilization. In accordance with FAR 6.302-2(c)(2), the Contracting Officer considered as many sources as practicable and provided a Request for Proposal to the five (5) potential offerors.

7. Actions to Increase Competition:

This is a one-time requirement. MVK continues to solicit similar non-emergency requirements using competitive procedures.

8. Market Research:

Market research included internet search, consultation with the A/E firm designing the project, review of technical capability documents marketed to MVK by vendors interested in similar work, and a review of past MVK contract actions performing similar work, including prior geotechnical construction completed at the NNC. Five (5) large businesses were identified who were found to be potentially capable of successfully completing work with a same or similar scope. Phone interviews were conducted with each potential contractor to evaluate their technical capabilities and experience. Capability and past performance documentation were requested from each offeror detailing their history of constructing similar projects, specifically the construction of soil nail walls. Out of the five (5) interviews, it was determined that all five (5) were technically capable, interested in receiving a request for proposal, and capable of immediate mobilization. No further market research was conducted.

The acquisition strategy and market research were coordinated with the U.S. Small Business Administration on form DD-2579 through the MVK Small Business Representative.

9. Interested Sources: The five identified firms that were queried were the only known sources identified which were capable of providing the service within the required timeframe. This requirement was not synopsized pursuant to the exception in FAR 5.202(a)(2).

10. Other Facts:

The original design plans and specifications called for stabilization work to be completed on areas of the bluff designated as the west, south and north reaches. It was ultimately determined that the stabilization of the west and south reaches required an emergency action to immediately mitigate further damages. Project Engineers determined that the north reach was not being impacted by the active erosion and it was in the government’s best interest to concentrate this effort and available funding toward mitigating the damages in the emergency area only. Work in the north reach was easily removed from the plans and specifications and will be considered later for a future contract action under full and open competition.

Pursuant to FAR 6.302-2(d)(ii) the period of performance was held to 300 days which was the time necessary to address the emergency situation.

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

Name: Lanny B. Barfield P.E.

Title: Chief, Geotechnical Branch

Signature:

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

Name: David L. Wallace P.E.

Title: Chief, Design Branch Signature:

12. Fair and Reasonable Cost Determination: I hereby determine that the price to the Government for this contract action is fair and reasonable. Pursuant to FAR 6.302-2, under a limited competition, five (5) highly qualified offerors were invited to provide pricing. Based on competition, negotiations with vendors, and comparison with the independent government estimate, the price is considered fair and reasonable. Certified cost or pricing data is not required due to adequate price competition.

Name: R. Ellis Screws

Title: Contracting Officer

Signature:

13. Contracting Officer Certification: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Name: R. Ellis Screws

Title: Contracting Officer Signature:

Approval

Based on the foregoing justification, I hereby approve the emergency procurement for the Department of Veterans Affairs, National Cemetery Administration to mitigate erosion at the Natchez National Cemetery (NNC), on an “other than full and open competition” basis pursuant to the authority of 10 USC 2304 (c)(2) and Federal Acquisition Regulation (FAR) 6.302-2 in the amount of $9,118,587.50, and provided the services herein described has otherwise been authorized for acquisition.

Kimberly A. Marshall Alternate Advocate for Competition - Atlanta