Dining Facility Attendant

MICC Control No: 2017-34 Contractor: Texas Workforce Commission Service: Dining Facility Attendants JUSTIFICATION REVIEW DOCUMENT FAR PART 6 JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN COMPETITION Service: Dining Facility Attendant (DFA) Service for the Logistics Readiness Center (LRC), Fort Bliss, Texas 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: $2.7M Reviews: I have reviewed this justification and find it adequate to support other than full and open competition. FAR Part 6 Justification and Approval for Other than Full and Open Competition 1. Contracting Activity: Mission and Installation Contracting Command (MICC) Fort Bliss, Texas 2. Description of Action: Request approval to award a new contract on a sole-source basis for Dining Facility Attendant (DFA) Services to the incumbent vendor under the Randolph-Sheppard Act through the Texas Workforce Commission (TWC) formerly known as Texas Department of Assistive and Rehabilitative Services (TDARS). The contract will be Firm-Fixed Price for a performance period not to exceed 12 months. The Anticipated award date is 30 March 2017. The requirement will be funded with Operation and Maintenance, Army (OMA) funds. An acquisition plan is not required because this procurement does not meet the threshold at Defense Federal Acquisition Regulation Supplement 207.103(d)(i)(B). 3. Description of Supplies/Services: Fort Bliss requires DFA services to meet the needs of the military and civilian personnel assigned to or in transit at Fort Bliss, TX. The Contractor provides all supervision, labor, equipment, materials, supplies, transportation, and other items and non-personal services necessary to perform DFA services at Fort Bliss, TX. DFA services are considered mission critical by Ft. Bliss. The DFA services include tasks such as cleaning and sanitizing dinnerware, utensils, trays, facilities and equipment; pre and post-meal clean-up; and other associated DFA support not accomplished by the government or contracted Full Food Service (FFS) personnel. Currently, there are four (4) dining facilities requiring DFA services in use at Fort Bliss. These four (4) facilities serve more than 2,000 meals a day. The estimated total value of this twelve (12) month contract is $2.7M. The new work will be priced, evaluated, and negotiated for price reasonableness prior to award. 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: a. Background. Historically FFS and DFA services were combined under one contract and were solicited and awarded to a Randolph-Sheppard Act (R-SA) vendor IAW Section 856 of the John Warner National Defense Authorization Act of Fiscal Year 2007, Pub. L. 109-364. The R-SA provides preferential hiring treatment to blind persons in the carrying out of vending services at federal facilities and on federal reservations. Both the FFS and DFA were awarded to a single R-SA vendor under a single contract in 2004 although there is no R-SA priority for services other than FFS. The reason is that FFS services are related to vending services; food preparation, handling and serving. DFA services are custodial in nature encompassing the cleaning and sanitation of the dining facility before, during and after meals. b. Justification. Acquisition planning for a follow-on contract was conducted in 2014. During this planning, a determination was made that the FFS and DFA would be competed separately since the DFA services were determined to not fall under the R-SA. Therefore, separate acquisition strategies for the DFA and FFS were developed, staffed and approved under Principal Assistant Responsible for Contracting (PARC) authority and the resultant FFS and DFA service requirements were separately solicited. 1) Solicitation W911SG-14-R-0005 for DFA services was posted to the Government Point of Entry (GPE) from 2 July through 2 August 2014. The solicitation was issued as a 100% set-aside for a small business without preference to the R-SA vendor per the approved acquisition strategy. 2) MICC-Fort Bliss was near award of a new DFA services contract when a blind vendor and TDARS filed for a preliminary injunction on 28 August 2014 with the US District Court, Western District of Texas, El Paso Division. The parties argued that application of the R-SA was applicable to the DFA services and therefore a priority of award should be to an R-SA vendor. The Army argued that its policy is that when only DFA services are required apart from Full Food Services, it does not meet the definition of "operating cafeteria services" and therefore, not subject to the R-SA. 3) On 12 September 2014, the United States of America and consequently the U.S. Army, was restrained and enjoined from conducting any procurement in connection with solicitation W911SG-14-R-0005. To prevent a break in services, a sole source contract, W911SG-15-D-0004 was awarded to the incumbent vendor. 4) On 8 Oct 2014 the court dismissed the case as both parties had agreed to submit the issue for arbitration under the US Department of Education for a decision. 5) The first meeting of the arbitration panel was originally scheduled for mid-2015 with a decision expected within 4-6 months. However, because of Department of Education delays the initial panel did not meet until July 2016. 6) The arbitration panel decision received on 3 November 2016 found in favor of the Government. Specifically, the decision stated that the "Army did not violate the R-SA when it issued solicitation W911SG-14-R-0005 for DFA services without applying the provisions of R-SA to the Army's source selection process, particularly in light of the fact that military personnel retain responsibility for performing the management operations, headcount and cashier services, cooking, and menu planning and serving food at those facilities". 7) Initial Planning for the conduct of the follow-on procurement commenced in November 2016. Original procurement planning estimates expected an arbitration decision in the May/June 2015 timeframe. A review of the documents on-hand was required given that over two (2) years had passed since the original award date and almost three (3) years since the original acquisition support documents had been written and approved. No action was taken during the arbitration period to update the acquisition package. Additional delay was incurred because of two factors. First, there were questions of whether the arbitration decision was sufficient to proceed with the follow-on acquisition. Second, there was an imbalance in workload amongst contracting offices and a decision had not been made whether this procurement would be transferred to another office to execute. 8) On 31 January 2017, a complaint was filed by the Texas Workforce Commission against the US Department of Education challenging the arbitration decision. Although the Army was not a named party in the complaint, its outcome could have impacted the planned follow-on DFA acquisition should the arbitration decision be overturned or a new arbitration ordered. 9) On 21 February 2017, the 418th Contracting Support Brigade moved the DFA follow-on acquisition to MICC-Joint Base Lewis McChord. This decision was made due to the total dollar value of the acquisition and the current workload at MICC-Fort Bliss. 10) The final Task Order (TO) issued under W911SG-15-D-0004 (again, which is now expired) will expire on 29 March 2017. A competitive contract of the magnitude required cannot be put into place in such a short timeframe. The requiring activity (RA) had to restart the entire process of their requirement package. All of the documents that were used in solicitation W911SG-14-R-0005 are over three years old and needed to be revised. c. Alternatives. A sole source bridge contract to the incumbent R-SA contractor is the only feasible alternative to meet the Army's on-going DFA service requirements due to the amount of time required to solicit and award the follow-on contract. The following alternatives were considered and all were determined not viable for the reasons cited. 1) Forego Service. Fort Bliss has four dining facilities on the installation that require DFA services. These facilities serve in excess of 2,000 meals per day to the 1,600 soldiers in training for redeployment. Contracted service is the only option other than closing down the dining facility operations which would have a negative impact to readiness of the soldiers either deploying or transitioning through Fort Bliss. Fort Bliss does not have an alternate means to feed these soldiers should the dining facilities close. Temporarily suspending contracted services, an alternative that does not provide meals to the Soldiers is not a viable option. 2) Utilize military or US Department of Army (DA) civilian personnel to perform DFA duties at Soldier-run dining facilities. Neither the Fort Bliss military units nor the DA agencies on Fort Bliss possess the personnel resources to assume the DFA mission supporting the four DFA dining facility operations. This is not a viable alternative. 3) Competitively award a separate contract. The original acquisition package cannot be used for a competitive acquisition given that the documentation is approximately three (3) years old. The requested 12 month period is the minimum time needed to refresh the acquisition package, to include all new reviews and approvals, and solicit and award a new competitive contract. Therefore, initiating a new competitive procurement action is not a viable alternative. c. Impact. Due to the unique situation fostered by the over two (2) year resolution of the initial injunction and pursuant to FAR 6.302-1(b)(1)(i), only the incumbent can provide the mission critical DFA support until the issue is decided by the arbitration panel and a follow-on contract can be solicited and awarded. Failure to approve this J&A may force the Fort Bliss Logistics Readiness Center (LRC) to close four (4) dining facilities that rely on contractor provided DFA services to operate. These closures will have an adverse impact on the health and welfare of the assigned and attached Soldiers and other service members as the remaining dining facilities are not staffed or equipped to handle the additional use and are not accessible to all personnel - especially those in training, deployment, or otherwise without transportation. This includes personnel processing through the CONUS Replacement Center, visiting international students, and other military dignitaries on the installation. Also impacted are regular operations personnel and soldiers in training who normally do not have the time or access to transportation to seek meals elsewhere without seriously disrupting training and at a cost significantly higher than those charged in the dining facilities. 6. Efforts to Obtain Competition: a. Effective Competition: There is no other source that can successfully perform this requirement in the timeframe required. In addition, any award to other than the incumbent R-SA vendor is highly likely to be subject to either a protest or Federal court injunction given the ongoing court action against the US Department of Education discussed above. b. Subcontracting Competition: A subcontracting plan is required. 7. Actions to Increase Competition: The original 2014 acquisition was synopsized as a competitive, small business set-aside and six (6) proposals were received. This indicates that there is industry interest in this acquisition. This new contract will provide the Government enough time to competitively solicit and award a five (5) year follow-on contract. This intent is conditional upon whether the above referenced court action (paragraph 5.b.8) against the US Department of Education results in a US Federal Court decision that delays the solicitation and award process. The follow-on acquisition will again be synopsized as a competitive small business procurement and, as before, fair competition is expected. 8. Market Research: Market research was conducted utilizing the Small Business Administration's (SBA) Dynamic Small Business Database Search Engine (DSBS) and querying other agencies regarding contracts for similar services for the follow-on competitive action. The DSBS identified more than 7,501 small business contractors nationwide with profiles that match NAICS code 561720. In addition, a sources sought was issued on 27 February 2017, see results in paragraph 9 below. The Government, after reviewing the above information, has determined that only the incumbent can perform the requirements of this acquisition given the risk of a protest or court injunction and timeframe that services are required to start. 9. Interested Sources: A Sources Sought was posted on the Government Point of Entry (GPE) on 27 February 2017 with an end date of 14 March 2017. Below is brief summary, of the Sources Sought. Name of firm: Prohill Service LLC Cage Code: 7HE64 Business Size: Small Summary: ProHill Service LLC has no objection to the Sole Source notice, Name of firm: Rice Services, Inc Cage Code: 3A3U8 Business Size: Small Summary: Rice Services, Inc has no objection to the Sole Source notice, Name of firm: Texas Workforce Commission formally known as Texas Department of Assistive and Rehabilitative Services (TDARS) Cage code: 0JAW8 Business size: Large Summary: TWC has no objection to the sole source contract to their firm. 10. Other Facts: a. Procurement History. 1) Contract Number: W911SG-15-D-0005 Period of Performance: 29 September 2015 - 29 March 2017 Total Est. Value: $4,925,782.82 Sole Source Authority: 10 U.S.C. Section 2304 (c)(1) as implemented in Federal Acquisition Regulation 6.302-1(a)(2)(iii)(B); Only one responsible source and no other supplies or services will satisfy agency requirements. Summary of sole source basis: The requirement was awarded on a Sole Source basis due to the issuance of an injunction by the United States District Court for the Western District of Texas, El Paso Division, which precluded the award of any DFA services to other than the incumbent, until the completion of the arbitration. 2) Contract Number: W911SG-10-D-0005 of Performance: 01 April 2010 - 25 September 2015 Total Est. Value: $73,936,894.05 Sole Source Authority: 10 U. S. C. Section 2304 (c)(1) as implemented in Federal Acquisition Regulation 6.302-1(a)(2)(iii)(B); Only one responsible source and no other supplies or services will satisfy agency requirements. Summary of sole source basis: Randolph Shepherd Act b. Previous Justification and Approval, MICC Control No: MICC 2015-128. Bliss 2015-6 was approved for the previous procurement on a sole source basis under the justification of "FAR Part 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements" due to the issuance of an injunction by the United States District Court for the Western District of Texas, El Paso Division, which precluded the award of any contract for DFA services to other than the incumbent contractor until the arbitration between the U.S. Army, U.S. Department of Education, Texas Department of Assistive and Rehabilitative Service (TDARS, and the incumbent contractor, Harvey Johnson. There have been no significant changes in the requirement. 11. Technical Certification: I certify that the supporting data under my cognizance included in this justification 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 are accurate and complete to the best of my knowledge and belief. 13. Fair and Reasonable Cost Determination: I hereby determine that the anticipated price for this 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 price. The Independent Government Cost Estimate (IGCE) will primarily be an analysis of the contractor's proposed cost. Additionally, the techniques identified at FAR 15.404- 1(c)(2)(iii) will be used to further ensure award will be at fair and reasonable prices. 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. Approval Based on the foregoing justification, I hereby approve the procurement of Dining Facility Attendant (DFA) services on an other than full and open competition basis pursuant to the authority of 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, subject to availability of funds, and provided that the services or property herein described have otherwise been authorized for acquisition. In accordance with department procedures I have reviewed planned actions for eliminating barriers to competition and they have been satisfactorily completed under the circumstances. Scott D. Kukes Special Advocate for Competition US Army Mission and Installation Contracting Command, Ft Sam Houston, TX