I 04 - Cleary_JOFOC-final.pdf

IRS Form (Rev 6/21)

IRSAP 1006.3

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

(JOFOC)

FAR SUBPART 6.3

I recommend the use of other than full and open competition for the acquisition of the following supplies or services. If this acquisition is to be made with only one source or a limited number of sources, negotiations will be conducted with the indicated proposed supplier(s).

1. IDENTIFICATION OF THE AGENCY AND CONTRACTING ACTIVITY:

Department of the Treasury, Office of the General Counsel (OGC) Internal Revenue Service, Office of Procurement, Office of Business Solutions Acquisitions (OBSA)

2. NATURE/DESCRIPTION OF THE ACTION BEING APPROVED:

This justification is for the issuance of a $1,300,000 contract without full and open competition to acquire legal services for the Department of the Treasury, Office of General Counsel.

In furtherance of its mission to ensure the safety and soundness of the U.S. financial system, the Department of the Treasury required immediate implementation of a new federal financial assistance payroll support program for airline workers, initially authorized by Section 4112(a)(1) of the Coronavirus Aid, Relief, and Economic Security Act and extended in other COVID-19 related laws.

OBSA awarded contract 2032K820C00005 to Cleary Gottlieb Steen & Hamilton LLP for legal support services to aid the Department in the establishment of the program and provide consultation during the administration. Treasury continues to require this support.

The anticipated contract type is a time-and-materials type contract.

3. DESCRIPTION OF SUPPLIES OR SERVICES

Due to the damaging effect of the COVID-19 pandemic on the United States economy, the United States Government established payroll support programs. The Department of the Treasury needs a contractor to provide legal expertise and advice in the administration of the passenger airline worker payroll support program.

The period of performance will be one year starting upon contract award. The award will include one option quantity and FAR Clause 52.217-8.

4. REQUISITION NO.

21PR-TDP-0453

5. NAME(S) OF PROPOSED SOURCE(S)

Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza; New York, NY 10006

DUNS: 0 7 1013270 6. COST ESTIMATE

$ 1,300,000

CERTIFICATION OF TECHNICAL OR REQUIREMENTS PERSONNEL

I hereby certify that any supporting information and data provided, which form the basis for this justification, are accurate and complete to the best of my knowledge and belief.

7. PROGRAM OFFICE

(Requiring Activity) (Name & Title) Eric Froman, Assistant General Counsel (Banking & Finance)

(Signature)

(Phone No.)

(Date)

SMALL BUSINESS CERTIFICATION

I have reviewed this justification, including any attached documentation, if applicable, and concur / do not concur with the findings.

8. SMALL BUSINESS

SPECIALIST

(Name and Title)

PROCUREMENT OFFICE CERTIFICATION

> This requirement [ ] will, [X] will not, provide for a bridge contract

I certify that this submission is accurate and complete to the best of my knowledge and belief. This certification will serve as approval, unless action exceeds $700K.

9. CONTRACTING OFFICER

(Name)

Before requesting this procurement, state one statutory authority for this procurement to be conducted under “other than full and open competition” procedures. Provide narrative justification associated with the respective state authority in block number 17.

Eric Froman

Digitally signed by Eric Froman Date: 2021.06.08 13:01:52 -04'00'

Steven C. Gordon Digitally signed by Steven C. Gordon Date: 2021.06.10 14:03:39 -04'00'

Mary G. McKinzie

7/1/2021240-613-5434

IRSAP 1006.3

THE COMPETITION IN CONTRACTING ACT OF 1984 (P.L. 98-369)

(place “X” in appropriate box)

10.

41 U.S.C. 3304(a)(1), FAR 6.302-1– Only one responsible source; or brand name specification

11.

X

41 U.S.C. 3304(a)(2), FAR 6.302-2 – Unusual and compelling urgency

12.

41 U.S.C. 3304(a)(3), FAR 6.302-3 – Industrial mobilization, engineering, developmental, or research capability; or expert services

13.

41 U.S.C. 3304(a)(4), FAR 6.302-4 – International agreement

14.

41 U.S.C. 3304(a)(5), FAR 6.302-5 – Authorized or required by statute

15.

41 U.S.C. 3304(a)(6), FAR 6.302-6 – National Security

16.

41 U.S.C. 3304(a)(7), FAR 6.302-7 – Public Interest

17. JUSTIFICATION (ADD PAGES IF NEEDED)

A. DEMONSTRATION THAT THE PROPOSED CONTRACTOR’S UNIQUE QUALIFICATIONS

OR THE NATURE OF THE ACQUISITION REQUIRES USE OF THE AUTHORITY CITED.

The Department of the Treasury’s mission is to maintain a strong economy and create economic and job opportunities by promoting the conditions that enable economic growth and stability at home and abroad, strengthen national security by combating threats and protecting the integrity of the financial system, and manage the U.S. Government’s finances and resources effectively. The payroll support program initially authorized by Section 4112 of the CARES Act is a matter of urgent importance for the stability of the U.S. financial system and maintenance of the strength of the U.S.

economy. This contract will provide for continued legal support in reviewing newly enacted legislation, drafting documents for oversight bodies and other interested parties, and providing consultation during the administration of the program. The contractor has the needed experience, skills, resources, and availability for this work.

Cleary Gottlieb’s support was crucial in the establishment of the payroll program and they have exceptional experience in preparing and negotiating complex and specialized agreements specific to this program. The firm has been working on section 4112 transactions since April 2020.

Competing this work would mean a complete halt in ongoing provision of financial assistance, a long delay to complete the competition, and potentially additional time for a new contractor to gain the knowledge that Cleary Gottlieb already has. This delay of months would undermine the government’s efforts to support the air carrier industry while the economy recovers, and frustrate the purpose of the CARES Act and its successors. The nation remains in a critical position due to the continuing spread of COVID-19 and the Department of the Treasury OGC continues to require support from Cleary Gottlieb.

IRSAP 1006.3

B. DESCRIBE THE EFFORTS TAKEN TO ENSURE OFFERS WERE SOLICITED FROM AS

MANY POTENTIAL SOURCES AS IS PRACTICABLE, INCLUDING WHETHER A NOTICE

WAS OR WILL BE PUBLISHED AS REQUIRED BY SUBPART 5.2 AND, IF NOT, WHICH

EXCEPTION UNDER 5.202 APPLIES.

This justification will be posted to the public.

The CARES Act and subsequent COVID-related legislation require that billions of dollars in payments be made to approved applicants within a short time after enactment, and the contractor’s services are required to assist with drafting associated agreements sufficient to protect the Government’s interest. Exemption to synopsis is permitted under FAR 5.202(a)(2), as a delay in award would frustrate the congressional purpose and lessen the effectiveness of the payments.

The spread of the coronavirus has disrupted activity throughout the United States. In furtherance of its mission to ensure the safety and soundness of the U.S. financial system, the Department of the Treasury required immediate implementation of a new federal financial assistance program to respond to the economic risks, pursuant to the President’s national emergency declaration under section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.

5121-5207.

C. DETERMINATION THAT THE ANTICIPATED COST TO THE GOVERNMENT WILL BE FAIR

AND REASONABLE.

The Department of the Treasury has a history of contracting for legal services and will utilize historical data to ensure the rates established in the anticipated contract are fair and reasonable.

IRSAP 1006.3

D. DESCRIBE THE MARKET RESEARCH THAT WAS CONDUCTED AND THE RESULTS OF

THAT SURVEY. IF ACTIONS WERE TAKEN BY PROCUREMENT PERSONNEL TO

SATISFY THIS REQUIREMENT SUCH AS A GPE SOURCES SOUGHT SYNOPSIS, PLEASE

SPECIFY.

Market research was conducted by the Department of the Treasury to assess the extent to which various firms have the expertise and capability to address the increasing problems to the American economy brought on by COVID-19. Among other topics, the market research assessed various firms’ experience with relevant industry sectors, large and complex financial transactions, previous work for government clients, knowledge of applicable compliance requirements, potential conflicts of interest, ability to commence the work with a large team immediately, and standard hourly billing rates. The Department of the Treasury initially met with five law firms to determine which have the expertise and capability to address the increasing problems to the American economy brought on by COVID-19.

A Dynamic Small Business Search conducted on 04/30/2021 found 17 small businesses under the NAICS code 541110. None contain capabilities that appear to have the specialized knowledge required for this action.

E. DESCRIBE ANY OTHER FACTS TO SUPPORT THE JOFOC.

The Department of the Treasury’s policy goals for the program are to (1) provide stability and prevent further disruption to the financial markets and financial system, (2) ensure the availability of credit and liquidity, and (3) protect the interests of taxpayers. The specific strategies may change over time but will be consistent with these policy goals. To the extent practicable, the program will be managed to limit the potential for losses.

The contractor shall not perform any inherently governmental functions (e.g., approving or making decisions) associated with the requirement.

F. LIST SOURCES, IF ANY, THAT EXPRESSED, IN WRITING, AN INTEREST IN THE

ACQUISITION.

No sources have expressed an interest in writing in the acquisition.

G. LIST THE ACTIONS THE BUREAU WILL TAKE TO REMOVE OR OVERCOME ANY

BARRIERS TO PROMOTE THE COMPETITION ON ANY SUBSEQUENT ACQUISITIONS

FOR SIMILAR SUPPLIES OR SERVICES.

The circumstances necessitating this contract remain critical and unpredictable. Transferring this work to a new law firm will provide additional variation and potential conflict.

H. STATEMENT THAT REQUIREMENT DOES NOT RESULT FROM A LACK OF PLANNING OR

THE EXPIRATION OF FUNDS.

This requirement does not result from a lack of planning or expiration of funds. COVID-19 first appeared internationally in January 2020 and the world had little time to understand the disease, the speed of its spread, and the repercussions on the economy and financial system. The payroll support program this requirement supports was last reauthorized by the American Rescue Plan Act of 2021 in March 2021.

IRSAP 1006.3

ADDITIONAL APPROVALS

O

VE

R

$5 M

IL

LI

O N

$7

M

IL

LI

18. BUREAU CHIEF

INFORMATION

OFFICER (for IT only) (Name & Title)

(Note: The Bureau CIO may delegate their authority for proposed contracts over $5 million, but not exceeding $15 million to the Associate Bureau CIO(s).)

[ ] APPROVE

[ ] DISAPPROVE

(Signature) (Phone No.)

(Date)

O

VE

R

0,

19. BUREAU COMPETITION

ADVOCATE (Name & Title)

[ ] APPROVE

[ ] DISAPPROVE

(Signature) (Phone No.)

(Date)

O

VE

R $1

M

IL

LI

20. HEAD OF THE

PROCURING ACTIVITY

OR AUTHORIZED

DESIGNEE (Name & Title)

[ ] APPROVE

[ ] DISAPPROVE

(Signature) (Phone No.)

(Date)

O

VE

R

M

IL

LI

21. TREASURY CHIEF

INFORMATION

OFFICER (for IT only) (Name & Title)

[ ] APPROVE

[ ] DISAPPROVE

(Signature) (Phone No.)

X

IRSAP 1006.3

O

VE

R

M

IL

LI

22. SENIOR

PROCUREMENT

EXECUTIVE (Name & Title)

[ ] APPROVE

[ ] DISAPPROVE

NOTE: Each review must be preceded by lower level approval(s). For example, actions over $75 million require all approvals.

IN NO CASE WILL AN INDIVIDUAL SIGN MORE THAN ONE APPROVAL LEVEL.