Attachment 1: Request for Exception to Fair Opportunity Memo Page 1 of 6 Effective Date: 03/15/2023 Revision: 02 DEPARTMENT OF VETERANS AFFAIRS Justification and Approval For Exception to Fair Opportunity Memo Acquisition Plan Action ID: 36C250-23-AP-4913 Contracting Activity: Department of Veterans Affairs, Network Contracting Office (NCO) 10, 24 Frank Lloyd Wright Dr. Lobby M, Suite M2200, Ann Arbor, MI in support of: Organizational Activity: Department of Veterans Affairs, VISN 10, LTC Charles S. Kittles VA Medical Center, Biomedical Engineering (138BE), Ann Arbor, MI 48105 As a Justification for Other Than Full and Open Competition using: 2237: 506-24-1-1527-0015 Description of Action: A delivery order under the Strategic Acquisition Center (SAC) mandatory Requirements Contract 36C10G19D0092 with Intuitive Surgical Inc., 1020 Kifer Road, Sunnyvale, CA 94086, SAM UEI# LLNKWMBRNH69. The proposed sole source delivery order is for a one-year firm-fixed price (FFP) effort for the maintenance of the da Vinci Surgical Robot currently in use at the Ann Arbor VA. Description of Supplies or Services: Emergency and preventative maintenance plan for the da Vinci Surgical Robot. Intuitive Surgical, Inc. is the single provider of service due to the proprietary nature of this high-tech medical device used daily at the Ann Arbor VA. The estimated annual total is not estimated, but the actual as found in the published prices within the SCMC. There is no plan to replace this surgical robot in the near future, so it is to the VA s advantage to award a firm-fixed price delivery order with a base plus 3 option year agreement. Annual cost is $163,770.00; four year total cost is $655,080.00 should biomedical engineering continue to need this service contract in the future. Statutory Authority: The statutory authority permitting an exception to fair opportunity is Section 41 U.S.C. 4106(c) as implemented by the Federal Acquisition Regulation (FAR) 16.505(b)(2)(i): ( ) FAR 16.505(b)(2)(i)(A): The agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays. (X) FAR 16.505(b)(2)(i)(B): Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized. ( ) FAR 16.505(b)(2)(i)(C): The order 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, provided that all awardees were given a fair opportunity to be considered for the original order. ( ) FAR 16.505(b)(2)(i)(D): It is necessary to place an order to satisfy a minimum guarantee. ( ) FAR 16.505(b)(2)(i)(E): For orders exceeding the simplified acquisition threshold, a statute expressly authorizes or requires that the purchase be made from a specified source . The statutory authority permitting an exception to fair opportunity for this action is 38 U.S.C. 8127(c), known as the Veterans First Contracting Program which provides the authority to directly contract with a Service-Disabled Veteran-Owned Small Business (SDVOSB) or a Veteran-Owned Small Business (VOSB). Rationale Supporting Use of Authority Cited Above: Strategic Acquisition Center (SAC) mandatory Requirements Contract 36C10G19D0092 with Intuitive Surgical Inc. via Supply Chain Master Catalog (SCMC) program. Intuitive Surgical Inc. is the only provider of services as supported by memo stating proprietary technology and intellectual property rights for the da Vinci Surgical Robot. 6. Efforts to Obtain Competition: There were no additional efforts made to find competition once it was discovered that this requirement can be satisfied by this mandatory contract. 7. Actions to Increase Competition: Not applicable. 8. Market Research: Market research conducted using SBA s VetCert and DSBS databases, SAM.gov, FPDS-NG, and VA Supply Chain Master Catalog. SBA s VetCert database query for NAICS 339112 returned 613 SD/VOSB results. DSBS Query using NAICS 339112 returned 3475 SD/VOSB results. A second DSBS query using the same NAICS code adding the keyword da Vinci returned zero results. SAM.gov Entity Registration query using UEI LLNKWMBRNH69 returned active registration status for Intuitive Surgical Inc., which shows they are available for all awards. FPDS-NG query using the keyword da Vinci returned 1144 VA contracts, orders, and modifications to Intuitive Surgical on a sole-source basis. Search of the VA Supply Chain Master Catalog returned VA FSS SAC Requirements Contract 36C10G19D0092 with Intuitive Surgical, Inc. Intuitive Surgical, Inc. 1020 Kifer Road Sunnyvale, CA 94086 LLNKWMBRNH69 servicecontracts@intusurg.com 408-523-0549 Based on market research, the CO does not have a reasonable expectation that offers/quotes will be received from at least two capable SD/VOSB concerns; and based on market research, the CO does not have a reasonable expectation that award can be made at a fair and reasonable price offering best value from capable SD/VOSB concerns. The VA Rule of Two has not been met for this requirement. Furthermore, based on market research, the CO does not have a reasonable expectation that offers/quotes will be received from at least two capable Small Business concerns; and based on market research, the CO does not have a reasonable expectation that award can be made at a fair and reasonable price offering best value from capable Small Business concerns. The SBA Rule of Two has not been met for this requirement. 9. Other Facts: None 10. Technical and Requirements Certification: I certify that the supporting data under my cognizance, which are included in this justification, are accurate and complete to the best of my knowledge and belief. 11. Determination that Anticipated Cost is Fair and Reasonable: A determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable: Pricing is consistent with VA FSS SAC Requirements Contract 36C10G19D0092. 12. Contracting Officer's Certification (required): I certify that the foregoing justification is accurate and complete to the best of my knowledge and belief. John McCallum, Contracting Officer NCO 10 Services Team 4 13. Approvals in accordance with VHAPG Part 816.505 Indefinite Delivery Contracts: Ordering. One Level Above the Contracting Officer (Required over SAT but not exceeding $750K): I certify the justification meets requirements for other than full and open competition. Christopher Gundy, Branch Chief NCO 10 Services Team 4
