Sole Source Justification Tribal Law PC 01302020.pdf

Justification for Other than Full and Open Competition United States Department of Agriculture

Federal Acquisition Regulation (FAR) Part 6.3

1. Identification of the agency and the contracting activity.

USDA, Agricultural Marketing Service (AMS), Specialty Crops Program (SCP) Marketing Orders and Agreements Division (MOAD), Hemp Branch requires expert support on Tribal Law and how it relates to the Hemp Program to ensure that it can build successful relationships with the Tribes who submit and administer plans. AMS anticipates using contractor services on an ad hoc basis, as the need arises.

2. The nature and/or description of the action being approved.

The AMS Hemp Program plans to use a sole source contract with Ms. Penny Coleman, Principal at Gwe Nis Consulting using a time and materials contract. The contract will be for a Base Year and one option year. AMS estimates the cost for these services to not exceed $50,000 over a two-year period.

3. A description of the supplies or services required to meet the agency’s needs (including the estimated value).

The contractor will provide the AMS Hemp Program with the following services on an ad hoc basis:

1. Respond to questions related to tribal requests that impact the Hemp Program, including:

a. Ensuring that the AMS Hemp Program is working with Federally recognized tribes

b. Ensuring that the AMS Hemp Program is in contact with correct, authorized tribal authorities

2. Provides clarity on tribal jurisdiction as it pertains to the Hemp Program

3. Provides clarity on the relationship between the USDA, AMS Hemp Program and the

Tribes, as the USDA provides oversight and regulation to the tribes operating as businesses

a. Provides clarity between the USDA and the Tribes as the Tribes regulate their own programs

4. Review comments on rule-making which pertain to Tribes

5. Other requests from the USDA, AMS, Hemp Program related to Tribes

6. Attend any Tribal consultations as requested by the USDA, AMS Hemp Program as an observer and provide any insights or responses to AMS staff questions related to the Tribal consultation.

4. The statutory authority permitting other than full and open competition.

41 U.S.C. 3304(a)(1), as implemented by FAR 6.302-1, titled "Only one responsible source and no other supplies or services will satisfy agency requirements."

5. A statement demonstrating the unique qualifications of the proposed contractor or the nature of the action requiring the use of the authority.

Ms. Coleman is the required contractor for significant reasons. As AMS stands up the Hemp Program, they are encountering challenging questions from Tribes who wish to establish a plan to grow hemp in their jurisdictions. In order to answer those questions in an accurate, comprehensive, and appropriate way, the AMS Hemp Program needs an expert resource to provide quality advice and insight. While there are many tribal law lawyers in practice, the AMS Hemp Program needs someone with the experience and established credibility that Ms. Coleman has. Ms. Coleman has almost 40 years of experience working on Indian Nations issues. She brings a wealth of experience with tribal leadership recognition, Federal acknowledgment of Indian Nations, review of Indian Nation governing documents to determine the scope of an Indian Nation’s governmental powers, the identification of the lands over which an Indian Nation may exercise jurisdiction, the development of regulations to implement new and evolving Federal programs, coordination with Federal, State, and Tribal agencies, and extensive participation in tribal consultations.

Ms. Coleman understands the cultural differences between traditional Native American expectations and those Native Americans who are in regular contact with the Federal government and other non- Native Americans. Her understanding will help AMS Hemp Program to recognize and react appropriately to cultural differences which will increase the efficiency and effectiveness in establishing and managing the AMS Hemp Program. In addition, the AMS Hemp Program must work with an Indian Nation’s recognized leadership and will most likely face disputes regarding who represents that Nation and what authority its claimed leaders may exercise. She has experience with identifying the leadership of an Indian Nation and the scope of that leadership’s authority, by participating in consultations, drafting new governmental documents, and drafting litigation briefs over Indian Nation’s people’s rights. This experience could help the AMS Hemp Program avoid potential tribal, state, and federal litigation.

In this highly complex environment, Ms. Coleman brings credibility with her credentials. She is known in both the Federal government and Tribal environments. From 1981 to 1994, Ms. Coleman worked as a staff attorney with Department of Interior, Office of the Solicitor in the Division of Indian Affairs. All stakeholders know her and have worked with her in the past. This ensures that the AMS Hemp Program is devoting time and resources to answering questions rather than spending extra time to establish relationships. From 1994, Ms. Coleman began work at the National Indian Gaming Commission (NIGC), where she eventually served as General Counsel and Deputy General Counsel. There are very few lawyers with tribal law expertise with this experience. In her role, she approved the operational frameworks and oversaw tribes operating as a business. She worked on NIGC regulations that required Indian Nations to identify the lands on which they proposed to conduct gaming, and the development of a database to store that information. As some of the issues had controversy, her work also included NIGC enforcement actions, testimony before Congress on Indian land issues, and supervision over the Federal Government’s litigation responses.

The AMS Hemp program is similar to what the National Indian Gaming Commission manages; in both instances the tribes are self-regulating and the business has U.S. federal oversight. Penny Coleman brings a wealth of experience in understanding the government to government relationship, specifically when one government entity is regulating another government entity.

After retiring from the Federal government, and with 10 years in private practice in Indian law, Ms.

Coleman can provide a unique and highly needed understanding of both Federal government and Indian issues not readily available through other contractors.

6. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

Fair and reasonable pricing has been determined by comparing labor rates found in GSA Advantage and looking a previous contract history of work closely related or similar to that being procured.

7. A description of the market research conducted and the results or a statement of the reason Market Research was not conducted.

A limited amount of market research was conducted as Ms. Coleman was recommended to AMS Program leadership for her credibilty and expertise in tribal law. A small amount of research was conducted to understand potential costs.