5.1.1 JandA Penlink Modification_Final (Redacted).pdf

OFFICE OF ACQUISITION MANAGEMENT

ICE Acquisition Manual 3006.301-90

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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J&A-21-00389

Pursuant to the requirements of the Competition in Contracting Act (CICA) as implemented by the Federal Acquisition Regulation (FAR) in accordance with the requirements of FAR 6.303-1; this justification for the use of the statutory authority under FAR Subpart 6.3 is based on the following facts and rationale required under FAR 6.303-2:

1. Agency and Contracting Activity:

The U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Office of Acquisition Management (OAQ), on behalf of Homeland Security Investigations (HSI), proposes to modify contract number to procure a Pen-Link portable collection system on a basis of other than full and open competition.

2. Nature and/or description of the action being approved:

(a) Type of action: Modification to contract number

(b) Amount of the current J&A:

(c) Brief Description: ICE/OAQ intends to limit the number of sources to only one source pursuant to FAR 6.302-1. The contractor listed below is the only vendor that can provide the Pen-Link PLX portable collection system is required because the supplies are unique or highly specialized:

Pen-Link, Limited 5936 Vandervort Drive Lincoln, NE 68516

3. Description of Supplies/Services:

HSI requires a portable collection system for the collection and monitoring of telephony data and content for the purposes of conducting Title III intercepts. The collection system must allow for six simultaneous end-users to perform monitoring of up to 75 target telephone targets at any given time. ICE previously purchased a Pen Link portable collection system that is deployed throughout the agency, and currently receives maintenance for that system under contract

, which was originally awarded on a sole source basis on June 30, 2017.

Based on the recent assassination of the President of Haiti, coupled with the ongoing repatriation of Haitian citizens from the United States, HSI has an investigative need for additional portable collection systems. Pen-Link’s portable telephonic wire collection system allows HSI to assist Haitian law enforcement in combatting transnational gangs and other criminal organizations. HSI will work with Haitian authorities to maximize judicial wire-tapping methods within their criminal justice system. The portable Pen Link collection system

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

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5. Demonstration that the nature of the acquisition requires use of the authority cited:

Pursuant to FAR 6.302-1, only one responsible source and no other supplies or services will satisfy agency requirements.

The Pen-Link system offers several unique functions, features, and capabilities that are critical to HSI’s requirements that other systems do not offer. Other available systems do not offer the full range of capabilities found in the Pen-Link system; most only do part of what the Pen-Link system can do. Some may handle historical communications (subpoenaed or gained through search warrants) while others may focus on live collection (pen registers, location pings, or wiretaps). Some may process more traditional telephone-based communications while others focus on newer, Internet-based means of communication. Some may focus on the live collection aspect (monitoring, minimization, etc.) while others focus on the analysis aspect (analysis of information already collected). The key difference between other systems and the Pen-Link system is that the Pen-Link system supports all of these things in one system. It is a single, integrated system that supports collection and analysis of all modes of electronic communications: historical records and live intercepts; data-only intercepts (pen registers and pings) and full content intercepts (wiretaps); telephone-based and Internet-based communications, including email, webmail, messaging apps, social media (Facebook, Instagram, Snapchat, etc.), and more. The Pen-Link system can also process and analyze data and content extracted from cell phones and other mobile devices using wide-spread forensic platforms like the Cellebrite UFED or the MSAB XRY. Pen-Link is the only vendor that has an integrated suite of capabilities where all these critical functionalities reside in one location.

In addition, Pen-Link is the only system of its type that comes with an embedded Enterprise instance of Oracle. Other systems may use MySQL (an open-source SQL database) or Microsoft SQL Server, which require IT personnel for separate database administration of the external database system. The Pen-Link system’s approach offers the full power of Oracle Enterprise, often regarded as the most capable commercial, SQL-based, relational database in the world, in the convenience of an embedded format, where all DBA administrative and management functions are internally automated, so that dedicated IT personnel are not required (a cost savings).

Furthermore, the Pen-Link system is used extensively by many other agencies with whom HSI works cooperatively, including federal agencies like the FBI, DEA, Marshals, Secret Service, ATF, and ICE/HSI, ensuring wide compatibility with other law enforcement and federal agencies.

The portable collection system can only be provided by Pen-Link. Pen-link is the sole proprietary developer and distributor for its software products and related services. Pen-Link does not currently use authorized resellers when providing the Pen-Link software or products.

The Pen-Link software suite has been implemented, tested, and demonstrated to work well with the ICE IT enterprise infrastructure and network environment since 2017. Unless ICE/HSI made the significant additional investment of establishing a new system with another

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

Page 4 of 5 Version 1.2 vendor, ICE requires Pen-Link to provide the additional software and system. If the government were to purchase the user software licenses, training seats, the self- paced learning license, and developmental work pack from another vendor, it would require use of that vendor’s telecommunications system. Introducing a new vendor’s software would be incompatible with ICE/HSI’s existing user licenses and accounts, training, and learning resources unique to the Pen-Link suite. In order to transition to a new product, ICE would need to implement the reestablishment of the virtual interconnections with the ICE CALEA network, DHS components, and other Federal agencies networks, transfer data, train personnel, and test the new contractor’s software product. In addition, there would be administrative costs to re- write standard operating procedures and new system training requirements. The 2,500+ total users of the system would all have to be retrained on an entirely new system. The use of any other contractor’s software product on the ICE cloud computing environment could result in inoperability, incompatibility, and interface issues along with the need to rebuild a portion of the ICE cloud to the new contractor’s infrastructure environment, which would require significant investment of time and resources. This would be extremely disruptive to ongoing investigations and result in unacceptable delays in the analysis and presentation of evidence toward prosecution.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as is practicable:

OAQ intends to publicize this requirement, prior to award, as required by FAR subpart 5.2 by posting a notice on https://beta.sam.gov by__________.

OAQ does not intend to publicize this requirement, prior to award, based on the following 5.202(a) exception:

The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of FAR subpart 5.207 with respect to the current proposed contract action.

7. Determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable:

The Contracting Officer has determined that issuing a modification to contract for PLX portable collection system licenses represents the best value and will result in the lowest cost, considering price and administrative costs, to meet the Government’s needs. The Contracting Officer determined that the anticipated price will be fair and reasonable based on the current contract pricing.

8. Description of market research:

Market research conducted in September of Fiscal Year 2021 confirmed there were no other vendors on the market that can provide the additional Pen-Link system required to meet ICE/HSI’s expanded need for telecommunications. ICE confirmed that Pen-Link,