24-418DCFS-PROCU-B-41713 - Sole Source Hearing Officer Recommendation.pdf

TO: Ellen H. Daley, Chief Procurement Officer for General Services

FROM: Ellen C. Morris, Sole Source Hearing Officer

DATE: March 20, 2024

SUBJECT: March 6, 2024, Sole Source Hearing Officer Determination

On March 6, 2024, I presided as hearing officer over a hearing to consider comments regarding the following agency determination to contract on a sole source basis:

Agency: Illinois Department of Children and Family Services (“DCFS”)

Vendor: Biometric Impressions

Brief Description: Statewide Fingerprinting Services

Procurement Bulletin Reference: 24-418DCFS-PROC-B-41713

Factual Background:

DCFS has had contracts for fingerprinting services with Biometric Impressions since 2017. All these contracts were releases off a Joint Purchase Master Contract (“JPMC”) with the Illinois Department

Central Management Services (“CMS”). The JPMC was originally competitively procured through a

Request for Proposal. The contract subject to the instant sole source hearing is estimated to begin March

26, 2024, and end March 25, 2025.

DCFS published sole source justification forms (“SSJFs”) on February 21, 2024. In the SSJFs, DCFS wrote that Biometric Impressions is the sole economically feasible source for these services due to compatibility of equipment, accessories, and replacements parts. DCFS stated that DCFS has always used this service via the CMS JPMC, but that the JPMC extension expires on March 25, 2024. DCFS stated that that DCFS is required by law to provide licensing services to all day care, foster care, home of relative, and purchase of service providers. Additionally, DCFS stated that background checks are required for all employees interacting directly with youth in care, and that a background clearance is required for providers and employees to work with children. DCFS stated that fingerprints are required for the background checks to ensure a child is not placed with a registered sex offender and to ensure the child is placed with the person who they say they are. DCFS stated that without fingerprints, DCFS cannot license a foster parent/home or a private agency and will not be allowed to place children. Also, DCFS stated that new DCFS employees must be fingerprinted and cannot start working until they pass a background check. DCFS stated that

Biometrics Impressions is a certified vendor through ISP and the FBI. DCFS stated that DCFS cannot let the services lapse or DCFS will be in violation of the law. DCFS stated that it has been working with CMS to procure a new master contract and plans to have the procurement finalized in the next few months.

On February 25, 2024, Crystal Fisher of Protected Biometrics, Inc. requested the hearing.

Summary of Hearing:

The hearing was held via Webex on March 6, 2024. The notice of intent to contract on a sole economically feasible source basis as well as the justification form for this procurement were incorporated into the record.

DCFS’s Will Blount-Stephens and Tiffany Parnell testified on behalf of DCFS. Mr. Blount-Stephens stated that this is a sole economically feasible source for one year for statewide fingerprinting services for DCFS.

Currently, there is a release from a CMS JPMC, which was set to expire on October 31, 2023. CMS was granted a six-month extension, which expires March 25, 2024. CMS contacted DCFS in February and asked if DCFS would accept delegated authority to conduct their own procurement, which DCFS accepted. DCFS believes CMS will have trouble getting the JPMC in place by March 25, 2024. While DCFS is working on the procurement, DCFS must have these services in place. Biometric Impressions has the infrastructure in place, is certified through ISP and FBI, and that DCFS would not have time for another vendor to take over to avoid lapse in service. Ms. Parnell stated that the vendor must be vetted through DCFS and DoIT to get all the information through, which is a timely matter due to confidentiality issues. Mr. Blount-Stephens stated that there are confidentiality issues with the data. Regarding the procurement, DCFS has a working group and should be ready to put out the procurement in two to three months at the latest. The past data needs to be transitioned to a new vendor if a new vendor is awarded the contract.

Crystal Fisher testified on behalf of Protected Biometrics, Inc. Ms. Fisher stated that over last three years, Protected Biometrics experienced inconveniences by the DCFS customer base. A significant amount of their business calls and walk-ins are for DCFS-related background checks. This is an inconvenience to

Protected Biometrics because they look up nearest Biometric Impressions location for these people. The nearest Biometric Impressions location to them is the Harvey location that is open on Saturdays only from

9am-3pm. Also, having one vendor puts that client base at risk due to potential cybersecurity risks. If that one vendor is compromised, where would the customer base go? Once a sole source is in place, customer satisfaction goes out the window. There are also issues with the Biometric Impressions locations, as some only have walk-in appointments, some are only open 9am-3pm, and some customers do not have vehicles.

Protected Biometrics are unable to provide services to those customers. DCFS customers are confused and think they can use Protected Biometrics, but they can only use Biometric Impressions. If the sole source is only awarded to Biometric Impressions, how does that help the customer base? Additionally, Protected Biometrics is interested in bidding on a procurement for these services. Protected Biometrics would need a more in-depth picture of what is required by DCFS to be able to say whether or not they can provide the services in the SSJFs in the short timeframe.

James Williams testified on behalf of Biometric Impressions. Mr. Williams stated that he started the company in 2008 and was awarded the JPMC in 2018. In the process to transition to the JPMC, it took a minimum of six months to get the all the customer client base to go to the proper locations, and still have issues with that. Biometric Impressions has numerous fingerprint files and data and that not all fingerprinting software converts or transitions the same. Another company to take over would take time and would be a challenge.

Naomi Evans testified on behalf of C&N Licensing and Title Service, PLLC (“C&N”). Ms. Evans stated that she has experienced same thing as Protected Biometrics in that she has customers come in and is unable to provide them services. Background checks for families need to be done promptly and it would be nice to serve them when they come in. C&N is interested in interested in bidding on a procurement for these services. When asked by the Hearing Officer if C&N can provide the services in the SSJFs in the short timeframe, Ms. Evans responded that they could get it done as long as they know what is being required.

Applicable Statutes and Rules

Sole-source procurements must be scrutinized because they tend to contravene the core purpose of the

Procurement Code, namely, “that the principles of competitive bidding and economical procurement practices shall be applicable to all purchases and contracts by or for any State agency.” 30 ILCS 500/1-5.

The Code requires heightened transparency for sole source awards because they lack competition and can be abused relatively easily. See, generally, 30 ILCS 500/20-25.

The Code states that “contracts may be awarded without use of the specified method of source selection when there is only one economically feasible source for the item.” 30 ILCS 500/20-25(a). Additionally, the

Code states that a “contract may be awarded as a sole source contract unless an interested party submits a written request for a public hearing at which the chief procurement officer and purchasing agency present written justification for the procurement method.” Id. Additionally, the Code states that “[a] sole source contract where a hearing was requested by an interested party may be awarded after the hearing is conducted with the approval of the chief procurement officer. Id.

Whether a sole source procurement be made is determined by the State Purchasing Officer, based on the request made by a State agency via a written form. 44 ILL. ADMIN. CODE 1.2025(c). Additionally, the SSJFs must be included in the Procurement Bulletin (BidBuy). 30 ILCS 500/20-25(c).

The Illinois Administrative Code further outlines the following:

A sole source procurement is permissible when a requirement is available from only a single supplier. A sole economically feasible source is permissible when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one vendor is authorized to provide that item.

44 ILL. ADMIN. CODE 1.2025(b).

Section 1.2025(c) provides that “[p]rior to authorizing the State agency to enter into a contract based on the . . . sole economically feasible source request, the CPO-GS shall offer a public hearing to be held and make a final determination as required by Section 20-25(a) of the Code.” 44 ILL. ADMIN. CODE 1.2025(c).

Analysis and Recommendation

Two questions are at issue: 1) whether any vendor other than Biometric Impressions can provide the necessary level of service to meet DCFS’s needs with regards to providing statewide fingerprinting services; and 2) whether any other vendor can do so in an economically feasible manner, given DCFS’s current circumstances and the need for fully operational fingerprinting services to be in place no later than March 26, 2024, following the expiration of the Master Contract extension on March 25, 2024. The answer to the first question is unclear based on the hearing, but the answer to the second is “no,” and that answer controls the outcome.

Nothing in the testimony establishes that a full transition of the current statewide fingerprinting system like DCFS’s can be accomplished in the short time remaining before the current JPMC extension expires.

DCFS needs a vendor to provide statewide fingerprinting services by March 26, 2024. According to DCFS, a new vendor may require months to implement the services for DCFS, including time to integrate the prior data. C&N and Protected Biometrics stated they would have to review the requirements to see if their businesses could meet the requirements in the timeframe. Additionally, DCFS stated that the State cannot afford a gap in these services as these services are required by law, are necessary to place children, are necessary for the safety of the children, and required before new employees start working at DCFS.

I agree that DCFS and the State cannot afford an interruption in these services while DCFS puts a competitive solicitation together for the fingerprinting services.

Based on the foregoing, I find the justification for this sole economically feasible source to be sufficient, and I recommend the procurement be approved.