6_-_J&A_Litigation_Services.pdf

12318719R0004 J&A – Legal Representation Services

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Legal Representation Services

Federal law (41 U.S.C. 253) requires full and open competition in soliciting offers and awarding Government contracts. This means that acquisitions must be advertised in the Federal Business Opportunities (FEDBIZOPPS) for 15 calendar days before issuing a solicitation, with at least 30 days response time for receipt of bids or proposals from date of issuance of a solicitation and that “all responsible sources must be permitted to compete” (48 CFR Part 6). The normal process of acquisitions takes a minimum of 90 calendar days. The FAR requires that justifications for total acquisition needs within certain dollar levels be approved by the Competition Advocate (FAR 6.304(a)(3).

Accordingly, the following Justification and Approval (J&A) for Other Than Full and Open Competition is prepared in accordance with FAR 6.302-1:

1. Identification of Agency:

USDA Forest Service

2. Nature and/or Description of Action Being Approved:

Litigation Support Services for WO HRM Third Party Representatives. The contractor will supply legal expertise in representing and/or defending the government (USDA Forest Service) in employment litigation before the Merits Systems Protection Board (MSPB), Federal Labor Relations Authority (FLRA), and at Arbitrations and/or Mediations when necessary. Cases average 12 to18 months in length and some may take years to resolve. The sole source contract will be awarded with a base year and two one-year options periods. The option periods will only be exercised if there are cases that remain open. There are six open legal cases which will be supported under this contract. No new cases will be permitted to be assigned to the contractor under this contract.

3. Description of Supplies or Services Required to Meet Agency’s Need

Including Estimated the Value:

Legal support services – the service provided are the full gamut of litigation support services.

NAICS 541110, Small Business Size Standard: Annual Revenues of $11M The proposed contract would be a labor hour contract with one base year and two one-year option periods.

The FS Govt Estimate below is based on significant unknowns about how the legal cases will unfold through litigation. The FS is hopeful that the full amount below will not be needed to support the effort although need to ensure that the contract has enough ceiling to close out the open cases.

4. Identification of Statutory Authority Permitting Other Than Full and Open

Competition:

FAR 6.302-1 - Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.

(1) Citations: 41 U.S.C. 253(c)(1).

5. Demonstration That the Proposed Contractor’s Unique Qualifications or the

Nature of the Acquisition Requires use of the Authority Cited:

The Gary Gilbert Law firm is an incumbent contractor that was providing litigation representation services to the FS under IDIQ contract AG-3187-C- 13-0007, task order AG-3187-D-13-0059. This task order’s period of performance expired on 09 Jul 2019. This proposed acquisition is for the Gary Gilbert Law firm to finish and close litigation cases that were still open when the current contract’s period of performance expired. No new cases will be permitted to be opened under this contract. The barriers to having another contractor assume legal representation on open cases are significant. To change council midway through the litigation would require a time extension which may not be granted by the judge. If a new law firm were to take over litigation on cases already under way, the litigation strategy would need to be revisited and re-accomplished by any new law firm taking over legal representation of the FS’s open cases. There would be a significant investment required to bring a new contractor up to speed on each case with no added benefit to the FS as compared to staying with the council who is already residing over each open case.

6. A Description of Efforts Made to Ensure that Offers are Solicited From as

Many Potential Sources as is Practicable, Including Whether a Notice was

Litigation Representation Services

Base Year $417,000.00

Option Period 1 $417,000.00

Option Period 2 $417,000.00

Total $1,251,000.00 or Will be Publicized as Required by Subpart 5.2 and, if not, Which Exception Under 5.202 Applies:

FAR 6.302-1 – Only One Responsible Source. This notice will be publicized via FedBizzOpps at FBO.gov.

7. Determination by the Contracting Officer That the Anticipated Cost to the Government will be Fair and Reasonable:

The previous IDIQ contract was competed and the rates from that contract will be used to establish the rates for this sole source contract as well as other price analysis techniques may be used to determine price fair and reasonable.

8. Description of Market Research Conducted:

n/a

9. Any Other Facts Supporting the use of Other Than Full and Open Competition: n/a

10. A listing of the Sources, if any, That Expressed, in Writing, an Interest in the Acquisition: None

11. A Statement of the Actions, if any, the Agency may Take to Remove or

Overcome any Barriers to Competition Before any Subsequent Acquisition for the Supplies or Services Required:

The USDA Office of Contracting and Procurement (OCP) is conducting a competitive procurement for litigation support services which will be available to all of USDA to use. However, that contract is not currently in place and it is unknown when that procurement will complete.

12. I certify that this justification is accurate and complete to the best of my knowledge and belief.

SHANNON SWAZIEK, Esq.

Branch Chief, Third Party/Accountability

MARK GREEN

Director, Human Resource Management

TODD W. MATHIE

Contracting Officer

DEANA HICKS

Branch Chief/WO-AQM Operations

DAN MCCUSKER

Mission Area Advocate for Competition