FPS AD JA Public Order Training (JA FY23-00195) - Redacted.pdf

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION – J&A# FY23-00195

Authority: 41 U.S.C. 3304(a)(7)

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

1. Agency and Contracting Activity.

The Department of Homeland Security (DHS), Office of Procurement Operations (OPO) Federal Protective Service (FPS), Acquisitions Division (AD) on behalf of the FPS Training and Professional Development (TPD) Directorate, proposes to enter a contract for training services on a basis other than full and open competition.

2. Nature and/or Description of the Action being Approved.

The Department of Homeland Security (DHS)/ Federal Protective Service (FPS) is seeking to improve its ability to manage crowd control events. In 2019, the FPS TPD Directorate began developing a curriculum to prepare students to manage and maintain the order by supporting people’s rights to gather or protest and, when required to maintain order using protective tactics and de-escalation techniques. Developing a practical curriculum guide is a multi-step, ongoing, and cyclical process. The process progresses from evaluating the existing program to designing an improved program, implementing a new program, and evaluating the revised program. To assist TPD with this process, TPD seeks to procure contract services and training.

(a) Nature of action:

FPS intends to procure on a sole source basis a five-year Indefinite Delivery Indefinite Quantity (IDIQ) contract for Public Order Management training. The contract will consist of a one (1) – twelve (12) month base period and four (4) - twelve (12) month optional ordering periods. The total period of performance is all option are exercised will be 09/01/2023 through 08/31/2028.

(b) Name and address of the contractor.

Public Order Management Academy, North America, LLC (POMA),

(c) Contract type:

Firm Fixed Price, IDIQ.

(d) Estimated total value (including options). Provide breakdown as shown below:

Base Year Option Year 1 Option Year 2 Option Year 3 Option Year 4

Contract Grand Total (5 Years)

(e) Type of funding: Operations

(f) Year of funding Fiscal Year

(g) Solicitation number: 70RFP323REH000007

(h) Background information about the requirement.

The Federal Protective Service (FPS), Training and Professional Development (TPD) is seeking approval for a sole-source contract with POMA North America LLC to provide a structured public order training program as it relates to public order based on a European model of crowd management, being identified as the current best practices of law enforcement. During an audit of the civil unrest in the Pacific Northwest (OIG’s Portland Report (OIG-21-31)), the U.S. Department of Homeland Security Office of the Inspector General (OIG) recommended the Secretary and the FPS Director “FPS improve preparedness for multi-component response to future incidents of civil disturbance at Federal facilities including…equipment and training needs.”

An initial pilot training class in support of the directive previously occurred in November 2022. This instant requirement is a continued effort by FPS to fully meet the recommendation of the OIC-21-31 audit.

FPS AD intends to obtain services pursuant to FAR 6.302-1 as only one responsible source and no other sources will satisfy agency requirements for law enforcement public order / crowd management training.

3. Description of Supplies/Services.

The Contractor shall deliver Public Order Public Safety Training program(s) and assistance that specifically develops officers’ knowledge, skills, and attitudes for managing and maintaining the order by supporting people’s rights to gather and/or protest and not get persuaded to focus on managing a disturbance.

A copy of the Statement of Work has been provided as an attachment to this document.

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

41 U.S.C.3304(a)(1) implemented by the FAR Subpart 6.302-1 entitled “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.”

5. Identification of Exception to the Buy American Statute

Not Applicable

6. Demonstration that the proposed contractor’s unique qualifications or the nature of the acquisition requires use of the authority cited.

The proposed contractor supporting this effort are subject matter experts in public order and public safety. The proposed contractor’s staff is current or former law enforcement/military practitioners with at least 10 years of leadership experience and expertise in Public Order/Crowd Management.

The proposed contractor’s staff possesses university undergraduate or graduate faculty credentials and or nationally or international recognized board certifications and previous experience as a Tactical Advisor as defined by the United Kingdom College of Policing standards.

The proposed contractor has a history of delivering evidence-based training. They have previously done research and determined best practices to create sustainable and functional training that enables officers to meet the needs of their job tasks. They also have previous experience training U.S. Federal Law Enforcement Officers.

(a) Rationale for using the authority cited in section 4 of the J&A.

Based on market research for this requirement, it was determined that POMA North America, LLC, was the only vendor that could potentially provide training and consulting on crowd management as required by FPS Statement of Work.

(b) Details covering what events lead to the situation requiring use of other than full and open competition procedures including whether any portion of the work can be segregated to allow for competition.

The requirement for other than full and open competition is due to only one viable source being commercially available to full this requirement. At this time there is not a portion of the work that can be segregated to allow for competition but FPS will continue to periodically conduct market research to determine if new vendors have entered the marketplace and allow for a competitive award.

(c) Summarize alternatives considered and why they will not work; and

Based on the market research for this requirement, there is only one viable source that can provide the required training services. At this time there are no alternative sources that can be considered to successfully implement this training.

(d) Impact to the mission that would result if the J&A is not approved and, consequently, the product or service not provided.

Failure to award contract would result in FPS and TPD not meeting the recommendations of the DHS Office of the Inspector General’s audit (OIG’s Portland Report (OIG-21-31)), as well as FPS would not be able to properly train law enforcement officers in public order training which could potentially result in increased risks, liabilities, and injuries.

(e) Rationale for use of the nonavailability exception to the Buy American statute, including detailed information explaining why the particular articles, materials, or supplies of the class or kind to be acquired, either as end items or components, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

N/A

If using “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements” as your authority, also include the following:

(f) Details on the specific requirements (not what the equipment, process, or service is capable of doing);

The Contractor shall deliver Public Order Public Safety Training program(s) and assistance that specifically develops officers’ knowledge, skills, and attitudes for managing and maintaining the order by supporting people’s rights to gather and/or protest and not get persuaded to focus on managing a disturbance. A copy of the Statement of Work is provided as an attachment to this document.

(g) Information on why only one contractor is capable of fulfilling the requirements;

Based on market research for this requirement, it was determined that POMA North America was the only viable source that currently provide consulting services and training in accordance with FPS Statement of Work for this requirement.

(h) Why other proposed contractors are unable to meet the requirements;

Based on market research for this requirement, no other vendor currently employ an instructor with at least 10 years of public order training experience as well as certification as a tactical advisor from the United Kingdom College of Policing.

(i) Unique capabilities or qualifications of the contractor that form the basis for the justification; and

i. The vendor was determined by FPS/ TPD to be the only provider in North America that can provide training and consultation that meets the Department and FPS philosophy developed as a results of the audit of the civil unrest in the Pacific Northwest (OIG’s Portland Report (OIG-21-31) in which it was determined that most crowds that gather are law-abiding citizens who are legally exercising their rights to protest and voice their concerns and beliefs and should be treated as such by law enforcement.

ii. The Statement of Work for this requirement states that the lead instructor must provide an accredited public order instructor with at least 10 years of experience as well be a certified tactical advisor as defined by the United Kingdom College of Policing. The vendor must also have experience in providing training using the European model of crowd management, being identified as the current best practices of law enforcement. Via market research, TPD determined that POMA NA is the only vendor that has instructors that are uniquely qualified to meet this requirement.

a. Failure to award contract will result in:

i. FPS and the Department not meeting the recommendations of the DHS Office of the Inspector General.

ii. FPS will not be able to properly train law enforcement officers resulting in increased risks, liabilities, and injuries.

7. Description of Efforts Made to Ensure that Offers are Solicited from as Many

Potential Sources as is Practicable.

The circumstance restricting competition for this requirement is that “only one responsible source and no other supplies or services will satisfy agency requirements,” pursuant to FAR 6.302-1. Therefore, no exception to the FAR 5.2 notification requirement applies, and FPS AD will post this requirement to SAM.gov on or about August 15, 2023, pursuant to FAR 5.201(b)(1)(i). FPS AD intends to make this justification publicly available pursuant to

FAR 6.305.

8. Determination by the Contracting Officer that the Anticipated Cost to the Government will be Fair and Reasonable.

The Contracting Officer determines that the anticipated price will be fair and reasonable based on FAR 15.404-1(b)(2)(vi) - Comparison of proposed prices with prices obtained through market research for the same or similar items. FPS has recently awarded a purchase order for this training in November 2022. A comparison of the pricing obtained for this order compared to the proposed training pricing received in response to this November requirement was found to be similar. Also, FPS awarded a purchase for Fair and Impartial Police Training (Order #70RFP322PEH000006) on 09/28/2022. The Contracting Officer compared the pricing for this requirement to the estimate received for this requirement on a per instructor cost basis and the estimate was lower than the instructor costs for the Fair and Impartial Police Training. Finally, the Contracting Officer also reviewed pricing associated with the travel costs proposed and compared them to current markets rates for air travel, rental cars, hotels and per diem and determined that price proposed to be reasonable. Thus, based on the above, the contracting officer determined the price for this requirement to be fair and reasonable.

9. Description of Market Research. Market research is required by FAR Part 10, and the results of the market research should be summarized here. Include the following information:

a. Describe the market research techniques utilized, the specific results of the market research, the date when the market research was conducted during the period of November 2022 through April 2023, and how the market research was used by the contracting officer to determine price reasonableness.

FPS TPD staff conducted an internet search for a list of contractors that would be able to provide training based on the European model of crowd management, being identified as the current best practices of law enforcement, as well of the Statement of Work for this requirement. Market research identified POMA North America LLC, as the only company who can provide the required services. Cost for POMA North America LLC services and other contractors providing educational (such as firearms, leadership training) comparable services were reviewed to assist with making the price reasonableness determination.

In addition FPS TPD conducted literature reviews, moderated discussions with state, local, tribal, territorial, and international law enforcement partners, focus groups, and workshops.

b. Describe the market research results that support the determination that the items are nonavailable (Section is required to be completed when the J&A includes the exception listed under FAR 25.103(b)(2) or FAR 25.202(a)(2)).

N/A

10. Any Other Facts Supporting the Use of Other Than Full and Open Competition. This section presents an opportunity to strengthen the justification by presenting supplemental or supporting information. Do not summarize or duplicate information already stated in previous sections. This section should include information such as:

a. An explanation why technical data packages, specifications, statement of work, or purchase descriptions are not suitable for full and open competition.

Currently law enforcement training and training offered by training companies is based on principles of crowd psychology that is outdated and inherently dangerous to citizens and law enforcement personnel. FPS, worked with DHS components, state, local, tribal, territorial, international partners, community-based organizations, professional, organizations such as the Police Executive Research Forum to develop a new approach to crowd management training. This training is evidence based and is supported by the Department of Justice Report: “21 Century Protest Response – Promoting Democracy and Advancing Community and Officer Safety.”

In looking for a partner to support this training program, FPS TPD engaged in numerous discussions with law enforcement, academia, international law enforcement training partners and it was determined that only one vendor possessed the knowledge, experience, and understanding of crowd behavior to meet this requirement.

b. Discuss why your requirement cannot be modified to enhance competition.

The basis of the FPS training program is formed in the principals of crowd behaviors, psychology, size, de-escalation, and tactical communication. The ability to train requires a strong understanding of these principles. Vendors will need to have the ability to translate academic theories and be able to translate them into practitioner skills. The ability to accomplish this cannot be modified if the vendor or contractor does not currently possess this capability. Additionally, it cannot be learned in time to meet the requirements of this project.

c. For a proposed contract subject to the restrictions of FAR 6.302-1 for follow-on acquisitions as described in 6.302-1(a)(2)(ii), all Components except USCG must provide an estimate of the cost to the Government that would be duplicated and detailed information on how the estimate was derived. Similarly, for a proposed contract subject to the restrictions of FAR 6.302-1 for follow-on acquisitions as described in 6.302(a)(2)(iii), the USCG must provide an estimate of the cost to the Government that would be duplicated and detailed information on how the estimate was derived.

N/A. This is not a supply procurement.

d. For a proposed contract subject to the restrictions of FAR 6.302-2(d) or HSAR

3006.302-270 and where FAR 6.302-2 is cited as the authority, describe the exceptional circumstances allowing for an award for a period of performance in excess of the one-year limitation (applicable to all federal agencies) or the DHS-specific statutory 150-day limitation.

N/A This section does not apply.

11. A Listing of the Sources, if Any That Expressed, in Writing, an Interest in the

Acquisition.

None

12. A Statement of the Actions, if Any, the Agency May Take to Remove or Overcome Any Barriers to Competition Before Any Subsequent Acquisition for Supplies or Services Required.

The program office is aware to seek opportunities to tailor the requirement for any future training sessions in an attempt to remove any current barriers to competition that the current requirement for this training currently presents. They will also continue to perform market research to try and identify other potential vendors who can meet this requirement in the future.

13. Contracting Officer’s Certification. I certify that the data supporting the recommended use of other than full and open competition is accurate and complete to the best of my knowledge and belief.

Contracting Officer Date

14. Technical/Requirements Personnel Certification. I certify this requirement meets the Government’s minimum need and that the supporting data, which forms a basis for this justification, is complete and accurate.

Technical Representative

APPROVAL:

Date

Procuring Activity Advocate for Competition Date

Aug 8, 2023