JA FFE redacted.pdf

Personnel Recovery HC-130J Flight Simulator

BOD FF&E

JUSTIFICATION AND APPROVAL (J&A)

FOR OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Agency: US Army Corps of Engineers, Louisville District, PO Box 59, Louisville, KY 40201-0059

2. Description of the Action: Approval is requested to employ brand-name or equal product descriptions to describe the requirements for the Furniture, Fixtures, and Equipment (FF&E) in the project specifications of the firm fixed price construction contract for a new construction contract action to construct a new one-story, 18,170 sf, steel structure to house two new flight simulators and associated devices for the training of US Air Force flight crews located at Patrick Space Force Base, FL. The Government will not purchase the FF&E directly but will include the FF&E and associated “brand name or equal” requirements in a competitive solicitation for the construction project. The firm-fixed-price construction project is funded with Air Force Military Construction (MILCON) funds;

however, the FF&E will be funded by operation and maintenance funds (O&M). The estimated value of this J&A is .

3. Description of Supplies/Services or Nature of Construction: The project specifications include thirty (30) separate instances where a name-brand product description is used to describe the project’s FF&E requirements, including office chairs, desks, systems furniture, demountable partitions, and storage, among other furniture and equipment items. In accordance with Unified Facilities Criteria (UFC) 3-120-10, Interior Design, the “brand name or equal” designations will be made using products and features available from three or more manufactures. In each case, a minimum of three products by three separate manufacturers are cited. Attachment 1 includes a complete list of items described with a brand name or equal product description and their estimated costs.

4. Authority Cited: The statutory authority permitting sole sourcing for this acquisition is 10 USC 2304(c)(1) as implemented by FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements. In accordance with Defense Federal Acquisition Regulation (DFARS) 206.302-1(c)(2) and section 888(a) of the NDAA for FY17 (Pub. L. 114-328), this J&A is required in order to use brand name or equal descriptions to describe the requirements for the FF&E required for the Personnel Recovery Flight Simulator project

5. Reason for Authority Cited:

a. Background. The Patrick SFB Personnel Recovery Flight Simulator facility is subject to severe weather to include hurricanes and associated flooding. Due to the critical nature of its training operations, the facility requires should remain operational to the maximum extent possible.

b. Section 888(a) of the Fiscal Year 2017 (FY17) National Defense Authorization Act (NDAA) (Pub. L. 114-328) requires competition on Department of Defense contracts not be limited through the use of brand name or equal descriptions or proprietary specifications or standards, in solicitations, unless a justification is approved in accordance with 10 USC 2304(f). In accordance with DASA(P) Alert 19-108, Brand Name or Equal requires justification for “or equal” descriptions.

c. The FF&E specifications for a construction project include the layout, selection, specification, and documentation of furniture, such as workstations, seating, tables, storage, filing, accessories, and artwork, and facilitates the furniture procurement and installation. The FF&E must be designed by a qualified interior designer in accordance with UFC 3-120-10 Interior Design, Chapter 2 paragraph “Interior Designer Qualifications.”

BOD FF&E

d. When the Design-Bid-Build project delivery process is used, the FF&E portion of the interior design should be developed concurrently with the building design to ensure coordination with all building systems and construction documents. (See UFC 3-120-10, paragraph 3-3.1) The FF&E package must describe the furniture necessary for the user’s functional requirements to be accommodated within the spaces specified in the design and satisfy the applicable life safety codes. It must show the appropriate size and type of furniture and include critical and required clearances.

Furniture must be coordinated with locations of items such as equipment and casework, lighting, power and communication, electrical and fire protection panels, and sprinklers. (See UFC 3-120-10, paragraph 4-4.6)

e. For projects where FF&E is included as part of the project design, it is necessary for the government to include brand names or proprietary specifications to have a complete FF&E package.

UFC 3-120-10 requires that FF&E packages include documentation listing three or more vendors considered for each furniture items. (See paragraph 5-4.6 of the UFC) It also requires data sheets to be provided for each product, including manufacturer names, product specifications, and finish and fabric information (See paragraph 5-4.7 of the UFC), but requires that systems furniture must be designed using product and features available from three or more manufacturers to ensure open competition (See paragraph 5-4.10.1 of the UFC).

6. Justification.

a. Inclusion of the basis of design manufacturers for furniture, fixtures, and equipment is necessary in order to sufficiently define the scope of work to be performed by the constructing contractor and to adequately establish the required level of product quality. This includes freestanding furniture, systems furniture, and all other fixtures and equipment required as a part of the Furniture, Fixtures, and Equipment.

b. While it is possible for many manufacturers to produce products that are functionally equivalent to this designated furniture, fixtures, and equipment, the features of the listed manufacturers are nonetheless proprietary specifications of the particular manufacturers. ANSI, BIFMA, and SCS Global Services standards for quality, construction, sustainability, indoor air quality and mechanics are included in the solicitation and address portions of the necessary features required to specify furniture; however, these standards do not address all features of the furniture necessary to define the level of quality, function, installation, warranty, and support necessary to satisfy the requirements of the Government.

c. It is not feasible to specify every single function, piece, and part of furniture necessary to obtain an acceptable level of quality. Most furniture manufacturers that produce products of the requisite level of quality have proprietary functions that set them apart from their competition.

Specifying the details that make any one product acceptable from a quality perspective could unintentionally lead to the specification of proprietary features. By listing three manufacturers for basis of design, an expectation is set as to what level of quality is required throughout the entire lifecycle of the furniture, without unnecessarily restricting competition.

d. Furniture has many parts, pieces, and other requirements that must be considered in order to achieve the necessary level of quality. This includes critical requirements in the manufacturing, assembly, on-site installation, and warranty phases of furniture procurement. Furniture manufacturers must have a network of dealerships that support them. These dealerships have the installation teams that build the furniture on-site and support the manufacturer’s warranty.

BOD FF&E

e. Listing the manufacturers sets an expectation from the bidders of what level of construction and service the Government requires. These relationships between the manufacturer and dealership have specific programs that hold them accountable and ensure consistent quality and service in all aspects of furniture delivery. The quality standards do not address these essential components of FF&E quality.

f. In addition to listing multiple products from multiple manufacturers for each element in an FF&E package, competition is further encouraged by inclusion of FAR Clause 52.236-5, Materials, and Workmanship, in construction contracts, which addresses any potential competition concerns associated with including a basis of design on the plans or in the specifications and has been well-defined and well-understood by the construction contracting community for decades. This clause makes clear that inclusion of name brands or proprietary specifications is only used to establish a level quality, and the contractor can use any brand material that is similar.

g. The identified brands/ manufacturers, or proprietary specifications for each item included in the FF&E package are intended to be examples for the basis of interior design to help ensure the FF&E provided under the construction contract ultimately satisfies the Government’s quality requirements, including requirements related to installation and warranty.

7. Alternatives. The only potential alternative would be to convert the procurement into a design-build procurement without complete designs. Utilizing a basis of design as assumptions is a critical component of designing complete, functional mechanical and electrical systems. It is impossible to fully design a system to meet requirements without assumptions of specific equipment specifications.

The alternative to providing assumptions of equipment and the make and model of the basis of design is to solely list the standard of quality and all characteristics whereby the Contractor can design their own system.

8. Impact. Providing the make and model of equipment used as the basis of design is an industry standard necessary to complete a 100% design needed for a Design-Bid-Build procurement. Design- Bid-Build procurements ensure that the government has maximum control over the design of the requirement and maximize competition amongst offerors. If the basis of design elements here were not permitted to be used, it would effectively limit the ability of the government to control the design and impact competition.

9. Efforts to Obtain Competition: Competition is obtained to the maximum extent practical while meeting the agency’s requirements by utilizing a specific product only to the extent it is necessary to complete the 100% design, while allowing contractors to use the brand-named or any other product which meets the government’s minimum characteristics and standards of quality. A Notice of Intent (NOI) to Sole Source was posted to beta.sam.gov by the District on 8 October 2021 which stated the intent to utilize Brand-name or Equal requirements as the basis of deign. To date, no responses were received.

10. Actions to Increase Competition: This J&A supports a discrete requirement that will end when the project is complete. Therefore, there are no planned actions to increase competition for the requirement covered by this J&A.

11. Market Research: A Notice of Intent (NOI) to Sole Source was posted to beta.sam.gov by the District on 8 October 2021 which stated the intent to utilize Brand-name or Equal requirements as the basis of deign. To date, no responses were received. Based on involvement of experts in the field, BOD FF&E knowledge of the market, review of product availability, and discussion with multiple manufacturers, there is more than sufficient products available to meet project needs. Items listed in the project plans and specs are provided solely as the necessary basis of design.

12. Interested Sources: A Notice of Intent (NOI) to Sole Source was posted to beta.sam.gov by the District on 8 October 2021 which stated the intent to utilize Brand-name or Equal requirements as the basis of deign. To date, no responses were received. The solicitation will be synopsized in accordance with FAR 5.201, and responses will be evaluated per FAR Part 15. Based on involvement of experts in the field, knowledge of the market, review of product availability, and discussion with multiple manufacturers, there is more than sufficient products available to meet project needs. Items listed in the project plans and specifications are provided as the basis of design.

13. Other Factors: None.

14. Technical Certification:

Name: Eliot Lincoln Signature:

Title: Technical Lead Date:

15. Requirements Certification:

Name: Branden L Jones Signature:

Title: Project Manager Date:

16. Fair and Reasonable Price Determination

Name: Nicholas Kennedy Signature:

Title: Cost Estimator Date:

17. Contracting Officer Certification

Name: Emily Moore Signature:

Title: Contracting Officer Date:

18. Legal Justification

Name: Jennifer Kirby-McLemore Signature:

Title: Office of Counsel Date: 10/20/21