Whiteman MPA ECP 09 ECP 10 FOE Approved_Redacted.pdf

Justification for an Exception to Fair Opportunity or to Use Brand-Name Restriction

CONTROLLED UNCLASSIFIED INFORMATION

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While the extent of Government delay will be more fully discussed below, for this section it is necessary to state that while the modification described herein arises and is enforceable under the original Delivery Order awarded at the time of competition, the cumulative effect of all modifications and delays are such that the Period of Performance (PoP) anticipated for completion of this delivery order now extends beyond the period that could have been reasonably contemplated by the Offerors at the time of the competition. As such, this modification falls out-of-scope of the Delivery Order for reasons of PoP alone.

(3) Description of the supplies/services required to meet the agency's needs:

On 05 October 2016, the initial Whiteman Air Force Base (AFB) Mass Parking Area (MPA) Intrusion Detection System (IDS) effort was awarded to facilitate the Design and Installation (D&I) of an AFMAN 31-101 compliant ESS upgrade to the Whiteman AFB MPA at This effort was subsequently funded for an amount of $ with Fiscal Year (FY) 2016 3080 procurement funds. The Delivery date for the D&I CLIN was originally proposed and awarded as 18 Months After Receipt of Award.

The contract was awarded to InDyne Integrated Security Solutions as Delivery Order (DO) FA8730-17-F-004 under the Force Protection Sustainment 3 (FPS3) Indefinite Delivery Indefinite Quantity (IDIQ) contract vehicle (FA8730-15-D-0001). DO award was competitively awarded amongst all FPS3 IDIQ holders via Fair Opportunity competition. InDyne's FPS3 Basic award was made on 29 January 2015. The IDIQ contemplated a 5-year ordering period ( ) and an additional 3-year period of performance ). The scope of this effort includes all activity and work required to implementation plan/install/ integrate/test and deliver the required Intrusion Detection System at Whiteman AFB.

(4) Identification of the exception to fair opportunity and the supporting rationale:

Due to the circumstances outlined in this document, the AFLCMC/HBUK has determined that an exception to Fair Opportunity is necessary for award of the contemplated modification, specifically as a logical follow-on to a competed DO pursuant to 10 U.S.C. § 3406(c)(3), as implemented by FAR 16.505(b)(2)(i)(c) and further described below.

It is AFLCMC/HBU's assessment that the contemplated modification must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, and all awardees were given a fair opportunity to be considered for the original order.

The ultimate goal of design and installation of an AFI-31-101 compliant security system for the Whiteman MPA complex remains unaltered from initial award up to this point. InDyne is actively engaged in the performance of the contracted-for effort, and thus stands uniquely positioned to carry out the work of this modification, which would be in-scope of the original delivery order, but for PoP extensions largely attributable to Government Delay. In the first place, InDyne is entitled to this modification as a matter of contractual right, and as such, analysis of awarding the effort to another contractor is without basis in logic or fact. Nonetheless, award of this effort to any other source would result in that source needing time to mobilize, plan/design, and then perform the work; and would necessitate additional and burdensome Government oversight to monitor the boundaries, potential conflicts, and interaction of the work being performed by different contractors; all at a cost equal to or exceeding that of this modification (additional delay would be present in the time needed to plan, solicit, evaluate, and award as well - previous awards utilizing this process range from in duration). By contrast, award of the modification to InDyne would produce no delay whatsoever in terms of mobilization, planning, or design (all such tasks having already been completed), no additional Government oversight, and time for performance is (at least) on-par with that of any other potential source. Beyond all

16 Jun 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 3 of 716 Jun 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 3 of 7 of this, as previously stated, InDyne is entitled to this modification by contractual right.

As a result, it becomes clear that the effort encompassed by this modification is 1) a logical follow-on to a competed DO, 2) necessary to be awarded on a sole-source basis in the interest of economy and efficiency, and 3) entirely consistent with the pre-existing contractual obligations of the Government.

(5) Contracting Officer's determination that the anticipated cost to the Government will be fair and reasonable:

The anticipated cost will be determined fair and reasonable via a technical evaluation of the contractor's technical approach for the proposed solution(s) for current and any applicable future proposal. These technical evaluations will be supplemented with Government fact finding questions and contractor responses on an as-needed basis. These documents will be used by the contracting officer to negotiate a fair and reasonable price.

Furthermore, the following analysis will be conducted to determine a Fair and Reasonable price;

(1) Price analyses will be conducted in accordance with FAR 15.404-1 to ensure offered prices are fair and reasonable. The Contracting Officer will use the Program Office Estimates as well as the prices obtained in previous delivery and task orders as well as actuals for the same contract vehicles to analyze price of supplies and services.

(2) Also, the Contracting Officer will obtain cost or pricing data from InDyne as needed to conduct cost analysis. The cost and pricing data will be analyzed by Government technical evaluators, the Administrative Contracting Office, and cost analysts as required. The final contract price will be evaluated and negotiated by the PCO in accordance with FAR Part 15 to ensure that the price paid by the Government is fair and reasonable. Depending on the value of the delivery/task order and/or change the PCO may require the contractor to submit certified cost and pricing data in accordance with the Truth In Negotiations Act. InDyne in turn will be required to submit a certificate of current cost and pricing data upon request to ensure the Government has received the most current, accurate and complete cost and pricing data in determining a fair and reasonable price.

(6) Other facts supporting the justification:

Since DO award, this effort has experienced significant requirements changes and Government delays, including (amongst others) more than a year-long period where the entire effort was placed in “strategic pause.” In addition to this 13-month “strategic pause,” during which no work took place, operational needs of have driven numerous schedule-prolonging matters, such as limiting work

By September of 2019 several things had occurred: 1) the project had come out of “strategic pause”, 2) the design was due to emerging requirements, 3) several “Pre-Installation Deviation and Posting” (PIDAP) approaches were discussed in an effort to minimize the posting burden on security forces, and 4) ECPs 1, 4 and 5 were awarded for the design portion of Windows 10 changeover, modifications to alarm point configuration, and additional site survey and design work, respectively. These ECPs were awarded by Mutual Agreement of the Parties (FAR 43.103(a)) on 30 September 2021 for via modification FA8730-17-F-0004 P00004.

The project's design phase again status by September of 2021 and in the interim had resolved additional technical requirements. The project was further delayed as it awaited the availability of systems released from project. This culminated in the award of P00008 in August of 2021 which allowed for a Milestone Payment Plan (MPP) due to the age of the contract. ECP 7 (the design portions of ECP's 1, 4, and 5) was submitted to again adjust the technical baseline and update equipment requirements and was awarded on 27 September 2021 for via modification FA8730-17-F-0004

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P00009.

ECP 07 also included InDyne's request for a to account for elapsed Government delays. The Government advised that the

. This modification updated and adjusted labor rates from FY 17 rates that were used when the contract was originally awarded to (then-current) FY 21 and FY 22 rates. This was awarded on 07 October 2021 for via modification FA8730-17-F-0004 P00010.

By April of 2022, were in place, the design had achieved Release for Construction (RFC) status and the installation began on site. At that point, HBUN Project Management (PM) and HBUN Engineering (EN) personnel travelled to Whiteman to conduct an oversite visit. During that April visit, HBUN personnel identified several technical issues which would need to be addressed during the installation. This culminated in a request for an ECP 8 addressing those issues. Concurrent with the submission of ECP 8, HBUN requested InDyne provide any Request for Equitable Adjustments (REA) that were produced by the prolonged design phase. Between the request for the ECP 8 and its submission, approach and the installers would be restricted to .

Once HBUN was advised of the restriction, the Government requested InDyne include the impacts in their ECP 8 submittal.

On the 12th of July 2022, InDyne submitted ECP 8 which included the original technical portions identified by HBUN personnel, the impacts of the restrictions, the REA from the design phase, a rate refresh from the 2016 negotiated labor rates, and a cost adjustment for the fence materials negotiated in 2016. These items - and particularly the restriction -induced a proposed schedule slip from to . ECP 8 was negotiated and awarded on September to resolve impact of the restrictions, while other elements of the proposal listed above were put on hold due to the need for FY16 3080 funds to fund REA and fence re-pricing activities. An Upward Obligation Adjustment was subsequently requested by HBU for the design phase REA and fence re-pricing. This was awarded 03 February 2023 for , which increased the overall total contract cost to

On November 10, 2022, the Government sent Contracts Letter 2022-0256, which requested an updated proposal submission to address the remaining issues (supply chain impacts, reprioritization of the installation schedule and Milestone Payment Plan to align with Government priorities, and establishment of a viable PoP end-date), re-designated as ECP 9. InDyne's initial proposal response was received January 13, 2023. After an initial review of that submission, fact-finding questions were issued on February 16, 2023, and InDyne responded with an updated proposal submission on February 24, 2023.

Award of this proposed ECP would require an extension to the Delivery Order until to complete Design and Installation activities. Since the original DO award only contemplated an eighteen-month period to complete these design and installation, this extension would be considered to no longer be within scope of the contract It could not have been reasonably anticipated by offerors under the initial Fair Opportunity Competition this IDS effort would been extended for this period of time, primarily due to Government induced delays described above. These Government induced delays created an issue where the contract's cumulative length this award would result in a delivery date of approximately , which represents approximately a increase in period of performance from the initial DO's delivery date. Cumulative costs have increased over . It is the contracting officer's determination such changes in the respective technical requirements and Period of Performance could not have been reasonably expected/anticipated prior to award of the initial effort.

(7) Actions the agency may take to remove or overcome any barriers to increasing fair opportunity before any subsequent acquisition for the supplies or services:

The AFLCLMC/HBUK already promotes fair opportunity for all IDIQ holders for new awards under FPS Delivery Orders. The process includes a two-step review process, the first being a White-Paper Request (WPR). The WPR is sent to all FPS IDIQ contract holders and allows for the contractor to submit a White Paper describing how the contractor would accomplish the effort in question. The White Paper responses are reviewed by the HBU evaluation team and three to five White papers are

16 Jun 2022 CONTROLLED UNCLASSIFIED INFORMATION Page 5 of 7 selected to move forward in the second step of the process, the Fair Opportunity Proposal Request (FOPR). These FOPRs are reviewed and the best contractor suited for the work in accordance with the Evaluation Criteria is selected and is subsequently awarded a DO.

(8) Program Manager's certification that supporting data is accurate and complete:

As evidenced by my signature below, I certify that any supporting data contained herein, which is my responsibility, is both accurate and complete.

(9) Contracting Officer's certification that the justification is accurate and complete:

As evidenced by my signature below, I certify that the justification is accurate and complete to the best of my knowledge and belief.

(10) Approving Official's determination that one of the circumstances in FAR 16.505(b)(2)(i) applies to the order.

As evidenced by my signature below, I hereby determine that the fair opportunity exception checked on page 1 applies.

Date

12 May 2023

Program Manager

Signature

Date

Contracting Officer

Local Legal Reviewer

Approval Authority