FY20-00207 Justification.pdf

U.S. Department of Homeland Security Office of the Chief Procurement Officer

Justification and Approval for Other Than Full and Open Competition Version 3.1

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION

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, Office of Procurement Operations, Science and Technology Acquisition Division, intends to award a contract 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) Science and Technology Directorate (S&T) intends to procure on a sole source basis development of specialized opioid-related training and investigative tools in support of Homeland Security Investigations (HSI) in their efforts to combat the opioid crisis. The intended contractor is Marshall University located at 1 John Marshall Dr in Huntington, West Virginia with zip code 25755. The anticipated contract type is Cost with no fee for an estimated 36 months of performance. The Request for Proposal number is 70RSAT20R00000039.

The Homeland Security Act of 2002 (Public Law 107-296) states that DHS S&T will conduct research, development, evaluation, and dissemination of advanced tools and techniques that facilitate investigative work, including technical assistance and training materials for law enforcement personnel. Pursuant to this mission, there is a need to improve opioid-related capabilities and training for HSI and their law enforcement partners. To address the ongoing opioid crisis, the S&T Office of Mission Capability Support Opioid Detection Program is funding efforts to develop improved capabilities including knowledge products to enhance DHS Components’ counterdrug mission performance.

United States Senate Report 116-125 from the Appropriations Committee regarding Department of Homeland Security Appropriations Bill, 2020 (S. 2582) provides funding “for S&T to collaborate with HSI and its university partner in this effort by developing opioid related investigative, training, analytical, and other capabilities.” Funding was also provided in the 2019 DHS Appropriations Bill (S. 3109). In this project, DHS S&T seeks to fulfil that directive by acquiring the requisite investigative research and development (R&D) of training to aid HSI in the identification, investigation, and disruption of opioid supply chains.

3. Description of Supplies/Services.

The requirement is to provide the requisite research into digital and chemical forensic methods associated with opioid smuggling, and to develop training curricula for HSI and their law enforcement partners, as well as undergraduate students. To address the ongoing

Justification and Approval for Other Than Full and Open Competition opioid crisis, the S&T Office of Mission Capability Support Opioid Detection Program is funding efforts to develop improved capabilities including knowledge products to enhance DHS Components’ counterdrug mission performance.

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

Competition.

The statutory authority permitting other than full and open competition is 41 U.S.C.

3304(a)(1) pursuant to FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements.

5. Identification of Exception to the Buy American Statute

The Buy American Statute does not apply to this requirement.

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

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

This research and development work is intended to work in tandem with existing work underway by HSI. HSI has established a partnership with Marshall University/Marshall University Research Corporation specifically for support and development of opioid-related capabilities [Contract # 70CMSD19P00000064]. As a result, the university partner specified in Senate Report 116-125 is Marshall University.

Beyond the identification by HSI of Marshall University as its university partner, S&T has identified the following minimum requirements, in accordance with the specifications set forth in Senate Report 116-125 (pgs. 50 and 111):

• Expertise and experience in developing curricula on digital and physical forensics.

• A university or educational institution that is co-located with a State law enforcement agency.

• Must be located in an area disproportionately affected by the opioid crisis.

Key to the successful achievement of the purpose of this project, and ultimate transition of its outputs, is close collaboration with HSI and their partners. To facilitate this collaboration, additional requirements have been identified:

• Must be within 50 miles of an HSI Border Enforcement Security Taskforce.

• Must have accredited forensics laboratory capabilities.

(b) Details covering what events lead to the situation requiring use of other than full and open competition procedures

OPO intends to procure on a non-competitive basis this research and development from Marshall University pursuant to FAR 6.302-1 because Marshall University represents the only

Justification and Approval for Other Than Full and Open Competition viable approach and based upon the minimum requirements established by S&T, they are the only qualified source to perform these services.

Marshall University has an accredited Forensic Science Education Programs and Laboratories within their Forensic Science Center (MUFSC). Course offerings include both physical evidence forensics (e.g., DNA) and digital forensics. In particular, Marshall University has unique expertise in forensics that is currently limited on the commercial marketplace but required for this procurement.

The West Virginia State Police Digital Forensics Laboratory is located within the MUFSC, Marshall University is one of a limited number of academic institutions identified that is co-located with local law enforcement. This partnership already enables information sharing between academic researchers and law enforcement, but also training and development of university students to prepare them for future careers in law enforcement.

Marshall University is located in West Virginia, which is the epicenter of the opioid crisis.

According to the Centers for Disease Control (CDC), West Virginia has the highest opioid-related death rate, which is threefold higher than the national average rate. Despite a 20% decline in 2017 of prescription opioid-related deaths, the overall opioid-related deaths continue to rise, pointing to illicitly manufactured and smuggled opioids as a root cause. For this reason, in 2019 HSI established the Mountain and Old Dominion (MOD) Border Enforcement Security Taskforce (BEST), operating within the valley and ridge region of Virginia and West Virginia. Marshall University is within 50 miles of this BEST team, which would facilitate the tight collaboration between S&T, HSI, and a university partner necessary to achieve the aims of this project.

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

Based on results of the information discovered from sources used during market research, there is only one responsible source. Multiple searches conducted against independent/single requirements were completed to identify sources that might meet some, but not all, of the established requirements. Marshall University/Marshall University Research Corporation is the only responsible source that meets all of the requirements set forth for this project.

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

If this sole source procurement is not approved, DHS would have to decouple the established requirements to find other suitable sources, which would result in significant tradeoffs and limit delivery of full required capability. Furthermore, this would substantially increase the acquisition and administrative costs of this procurement, as well as introduce additional technical risks with multiple performers that would be difficult to mitigate and manage. In particular, the use and exchange of sensitive information imposes additional demands on performers to meet DHS security requirements and additional administrative burden on DHS to verify multiple performer information security protocols and information handling systems.

Moreover, the fulfillment of the requirements set forth needs a close collaboration with HSI and law enforcement partners; distribution of performers across disparate geographic regions

Justification and Approval for Other Than Full and Open Competition may result in logistical challenges and increased resource (e.g., time) demands for the Government. Overall, if this project is not approved, and the R&D services are not provided, HSI, and other law enforcement partners, will lack sufficient training and remain limited in their understanding of the complex issues that hinder successful investigations of opioid-related crimes. Without this training and the advanced investigation tools developed under this effort, HSI and their partner law enforcement agencies will be limited in their capacity to dismantle opioid supply chains and disrupt related crimes, and opioid-related overdoses may continue to challenge and devastate communities.

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

Sources as is Practicable.

A beta.SAM synopsis notice was publicized as required by FAR 5.2 on June 30, 2020. No interested contractors responded.

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(s) will be fair and reasonable based on market research indicating that Marshall University’s pricing is commensurate with similarly matched educational universities, in terms of size, research capabilities and capacity.

The Contracting Officer will require submission of certified cost or pricing data for use in performing a cost analysis in accordance with FAR 15.404-1(c)(2)(i) and a price analysis to determine that the overall price is fair and reasonable. A certificate of current cost or pricing data will be required for this award.

9. Description of Market Research.

Market research was conducted by reviewing the following sources: DHS acquisition history, other recent market research, interviews with Government subject matter experts, reviews of commercial sources, and in-depth research of educational and non-profit institutions.

In terms of the potential for commercial sources to fulfill these requirements, market research indicated that there is a very limited commercial marketplace for the investigative services required by this procurement. There are limited numbers of operational end-users for the resultant capabilities, and significant limitations in the number of sources with the appropriate/requisite expertise, access to information or facilities. The latter is a critical factor in the ultimate selection of the provider of the services requested in this procurement. There are no commercial/non-development products or services that meet the requirements set forth under this procurement.

Other educational or non-profit institutions were considered, however market research only returned one result, Marshall University, that met all of the minimum requirements established by S&T. Only five sources were found to have accredited criminal justice agencies, have

Justification and Approval for Other Than Full and Open Competition accredited forensics laboratories, or have accredited forensic sciences education programs.

Only three sources offering some form of accredited education (undergraduate, graduate, certificate) had a specialization in digital forensics and evidence. Lastly, a search to identify universities or educational institutions that are co-located with a law enforcement agency yielded less than five sources.

The intellectual property rights for the curriculum developed will reside with DHS. All work under this requirement is subject to FAR 52.227-14 Rights in Data-General (May 2014) Alts.

II, III, and IV (Dec 2007).

10. Any Other Facts Supporting the Use of Other Than Full and Open Competition.

None.

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

Acquisition.

A synopsis was issued on beta.SAM on June 30, 2020 requesting that parties express their interest in writing to the contracting officer. Responses were due July 14, 2020. No offerors expressed an interest.

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.

To increase competition, subsequent requirements will build on the outputs of this effort. The knowledge products produced will enable multiple sources to develop alternative training and investigative tools and will be able to compete for this requirement on future acquisitions.

Mechanisms to increase competition for future requirements may include broad agency announcements, small business innovation research (SBIR), and other transaction authorities such as Silicon Valley Innovation Program.

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.

/s/ Procuring Activity Advocate for Competition