FBO attachment.doc

Justification and Approval for Other Than Full and Open Competition Justification

Control No: HQ0013-08-D-0001 Justification and Approval for Other Than Full and Open Competition Justification

Contracting Activity: Defense Security Cooperation Agency (DSCA)

1. Description of Action: Approval is requested for a modification to increase the labor hours under the Resident Courses and Legal programs contract, a Defense Institute of International Legal Studies (DIILS) contract. DIILS is a Field Directorate of the Defense Security and Cooperation Agency (DSCA). The current contract is an Indefinite-Delivery Indefinite-Quantity (IDIQ) contract, with task orders issued under this IDIQ contract for services in support of this requirement as labor hour orders. Funds used to fund this contract are IMET, CT, WIF, and Peacekeeping.

a. DIILS is the lead DoD agency delivering legal programs to international military and related international governmental officials and the only DoD or State agency solely dedicated to the delivery of these programs. DIILS was unexpectedly tasked with several unusually short suspense, relatively short-term legal programs that were not anticipated under the original solicitation of this contract. The contract contains 11,264 labor hours in this first option year, and 11,264 hours in each of the three remaining option years. This amendment will increase Option Year 1 by 11,287 hours, Option Year 2 by 7,200 hours, Option Year 3 by 3,700 hours and Option Year 4 by 3,700 hours. These projects include:

(1) DoD 1206 legal program. DIILS has been tasked by DoD with the delivery of a Congressionally mandated provision of legal programs to approximately 46+ countries on an exceedingly short suspense given the normal timeline for the preparation and delivery of legal programs. These programs must be conducted by DIILS NLT 30SEP09 in 46+ countries to eliminate a one-time three-year backlog or the overall 1206 program may be suspended or terminated. The Congressional tasking was not effective until 30DEC08, funding is not available until 23MAR09, and completion of the training by DIILS in 46+ countries must be completed by 30SEP09. We anticipate that the contract needs after SEP09 will be more limited, with the contractor coordinating only one half of the amount of work in the additional option years. The provision of specifically approved specialized legal programs in this number of countries within this timeline is unprecedented. The contractor provides a role critical to its implementation. DIILS personnel and DIILS adjunct faculty deliver the programs, but the 8(a) contractor must do the detailed development of both the content and delivery method of these programs, which are actually delivered by DIILS personnel, not the contractor. Addition: 2,920 hours FY09; 1,500 hours in each of the following the Option years. These requirements arose after award of the original contract.

(2) DoS PKO Democratic Republic of the Congo legal program. This DoS program was not developed or funded until DEC08 and then with only ¼ of the funding made available in DEC08 with a requirement for DIILS to design and implement a multi-week series of programs for delivery to the DRC in CY09 and CY10. The contractor provides primarily curriculum development for this unique program, as well as some logistics coordination out of Newport, RI for DIILS personnel delivery of these legal programs throughout provinces in the DRC. Addition: CY09 2,918 hours; CY10 3,500 hours. These requirements arose after award of the original contract.

(3) NETSAFA IMELDA Curriculum Development. This project is a one-time project. Funding was not made available until OCT08. The IMELDA curriculum development project is a one-time curriculum development project that must be completed by SEP09, with the bulk of the work completed before JUN09. Addition: 380 hours (current year only). These requirements arose after award of the original contract.

(4) DoD Combating Terrorism Fellowship Program (CbTFP). DoD’s CbTFP relies on DIILS, as the lead DoD provider of security cooperation legal training, to provide the legal training needs of this priority DoD program. Due to the increased strategic needs in DoD’s CbTFP, there has been an unprojected increase in DIILS CbTFP-related projects. This increase is expected to continue over the term of the contract. The CbTFP coordinators have sponsored a number of students in DIILS Legal Aspects of Combating Terrorism courses. Because of DIILS’ reimbursable nature, with each class participant being charged to the requester, there was not funding for basic development of new courses and programs and updating of old curriculum in the CT arena. DIILS offered one iteration of the Legal Aspects of Combating Terrorism course a year in the Spring. The maximum number of participants that could be accommodated in this course was 35. At the beginning of FY09, the DoD CbTFP coordinators became aware that DIILS’ Legal Aspects of Combating Terrorism (LCT) course, which the CbTFP program sends 20 students to, was at capacity with students being turned away. The DoD CbTFP program coordinators in NOV08 authorized a second iteration of the course to be completed in SEP09. The current contractor provides full support to the LCT course for the course offering in the Spring, and is the only 8(a) contractor in the position able to provide support to a second iteration of the LCT course by SEP09. The requirements for the second course arose after award of the original contract.

The escalating security cooperation needs related to combating terrorism have also resulted in an unexpected increased need for new approaches to combating terrorism in the security cooperation arena. In JAN09, the CbTFP program funded two special programs - CT Harmonization and CT Roundtable, initially to be developed by SEP09, but development deadline now shifted to SEP10. DIILS must have additional hours under the contract to complete these taskings. It is anticipated that these curriculum development and CT project needs will remain constant during the period of this contract. In FY09 there will be 1294 curriculum development hours needed. FY10 there will be will be 2840 curriculum development hours needed and 527 CT project hours needed. The amounts in each of the remaining option years are expected to be 1200 for curriculum development and 1000 for related contract support for CT projects. These requirements arose after award of the original contract.

2. Authority Cited: FAR 6.302-1. Only one responsible source and no other services will satisfy agency requirements.

3. Reason for Authority Cited: DIILS, as the lead DoD agency providing legal programs to international military members and international civilian government officials, has received several unanticipated taskings. The current contractor is the only 8(a) set-aside contractor with the experienced personnel to implement the required specialized programs within the six-month primary implementation period for these projects. The DIILS’ resident course and legal program contractor fills a unique niche at DIILS, DoD’s only organization solely focused on the provision of security assistance cooperation legal programs to international military members and the related international government officials.

a. 1206 Legal program. The current contractor can provide the only project manager/ curriculum developer, who has the essential in-country contacts to identify the detailed requirements within the 46+ countries, with the added legal expertise gained from participating in the FY08 substantive development of DIILS legal resources that will be utilized for these 46+ programs. This individual was involved in earlier FY08 DIILS detailed surveys of the subject countries, researching the unique circumstances involved in each country needed for development of the curriculum utilized in each country as well at the unique methods of delivery. This expertise is essential for the rapid coordination and delivery of the programs (specialized for each individual country) by DIILS within the six month period involved, an unprecedented timeline.

b. DRC legal program. The current contractor’s uniquely qualified attorney/project manager described in the preceding paragraph for the 1206 project has detailed knowledge from working on a previous DIILS project in the DRC. The contractor’s intent is to move this person to working part-time on the logistic management and curriculum development of the DRC program, once the short-term burst of project management is completed in the 1206 program. This is critical to DIILS’ accomplishment of this second significant unexpected project. This project is currently funded for only FY09/FY10. As with the 1206 legal program, the current contractor will provide one attorney/manager to identify both the logistical needs within each country for DIILS’ in- country delivery of the program, and to fully coordinate the production of country-unique legal curriculum, making the delivery both timely and cost effective. Required deliverables will not meet deadline without fully qualified attorney/project management staff.

c. IMELDA development program. The current contractor has already identified and hired an individual familiar with all of DIILS curriculum procedures, with over 15 years of experience with DIILS. This individual has already developed DIILS curriculum, which can be used in the new IMELDA curriculum, so the individual will require no training and the individual will be made available immediately to complete the IMELDA curriculum. Required deliverables will not meet deadline without a fully qualified curriculum developer.

d. Combating Terrorism Fellowship Program (CbTFP). DIILS is the only provider of legal programs for the DoD CbTFP program and this contract is the only instrument available to utilize for the unexpected increase in CbTFP needs. This contractor already provides full support to the LCT course being given in MAR/APR09 and is the only 8(a) contractor who could respond to support a second course in SEP09. Both courses will continue annually. The CbTFP mobile projects that the CbTFP coordinators have tasked to DIILS are expected to continue given the priority on combating terrorism.

5. Efforts to Obtain Competition: The current contractor uniquely met DIILS’ specialized mission as DoD’s only organization solely focused on the provision of legal programs to international military members and the related international government officials. DIILS regularly works with subject matter experts throughout DoD and the remainder of the executive branch for this unique area in the provision of legal programs. The current contractor provides a very limited number of part time highly qualified subject matter experts for development of curriculum for unique military-related legal programs delivered by DIILS. The primary specialty of the contractor is personnel both with legal knowledge and with experience in this unique niche of administering the development of legal programs and laying the groundwork for DIILS’ delivery of these programs in-counties worldwide. Existing project management, attorney and curriculum development expertise provides essential continuity in meeting these additional short-fused taskings before funding or congressional deadlines expire. In particular, with respect to the 1206 tasking this is not a matter of lack of prior planning, but rather a congressionally mandated tasking which followed the award of the initial contract. The timeline was part of the congressionally mandated new tasking which precludes the lead time necessary to conduct a full solicitation.

Prior to the issuance of the solicitation for its current contractor in JUN08, DIILS reviewed numerous websites for related prior efforts and contacted numerous contractors. Five of the contractors contacted assured DIILS that they could do the work. However, once the 8(a) set-aside nature of the work was described with the relatively low dollar value and highly specialized requirements described, the contractors expressing an initial interest failed to submit bids to the solicitation.

6. Actions to Increase Competition: Currently, DIILS is in a very small minority of DoD agencies that is totally reimbursable. As a totally reimbursable agency, DIILS is fiscally unable to start work on projects without funding. Given the last minute availability/release of funding that frequently occurs in DoD, DIILS has been put in the position over its 15 years of existence of being asked periodically to, as the only DoD entity dedicated to the provision of international legal programs, respond on timelines that are extremely difficult given the fact the DoD does not, as a rule, contract out legal work except in extremely controlled circumstances. The circumstances of needing to respond on short notice has not been due in any part due to a lack of adequate planning on the part of DIILS, but is due to its unusual fully reimbursable status and in part due to the funding nature of security assistance funds, particularly IMET and EIMET funding. DIILS is in the midst of obtaining its first POM funding ever in FY10. Moving from a fully reimbursable agency, to an agency with some O&M funding should allow for in house resources being available to start proposals and implementation effort prior to actual availability of funds. In brief, DIILS believes the long-term solution, given its work is legally related, is to minimize contracted out legal work, as this is an extremely limited specialty area where there is little fiscal motivation for contractors to develop the expertise to compete.

7. Market Research: DSCA awarded the current DIILS contract for Resident Course and Legal Program less than nine months ago. The bulk of the market research done was completed in the past 12 months. Whereas the previous DIILS Resident Course and Legal Program contract was an 8(a) set-aside and there was reasonable expectation that at least two eligible and responsible 8(a) firms would submit offers at a fair market price, the current contract is the result of an 8(a) competitive procurement. Since this is a an 8(a) set aside requiring very specific, highly specialized legal needs, the number of 8(a) contractors eligible and able to respond is, not surprisingly, low. In conducting their market research for the current contract, DIILS checked a number of websites for any reasonably related work in this field. Although the initial market research response was positive yielding the five interested contractors noted in the Acquisition Strategy, none of the five responded to the solicitation.

8. Interested Sources: To date no other sources have written to express an interest.

9. Other Facts:

a. Procurement history

(1) Previous contract was an 8(a) sole source.

(2) Current contract is the result of an 8(a) competitive procurement

b. Contract numbers and dates of the last several awards

(1) Contract N00140-05-D-0884 awarded 1 August 2005, with period of performance of

1 Aug 05 to 31 Jul 08;

(2) Contract N00140-01-D-2835 awarded 3 July 2001, with period of performance of

3 Jul 01 to 31 May 05

Contracting Officer Certification:

I certify that this justification is accurate and complete to the best of my knowledge and belief.

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