J_A 20-0147 Online Law Library Final.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-20-0147

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.

The 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 as follows:

1. Agency and Contracting Activity.

The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), Office of Acquisition Management (OAQ), proposes to enter into a purchase order on behalf of the Custody Management Division (CMD) on a basis of other than full and open competition.

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

(a) Type of action: Firm Fixed Price Purchase Order

(b) Amount of the current J&A: $972,000

(c) Brief Description: OAQ intends to procure, on a sole source basis, continuation and maintenance of the custom developed comprehensive legal online law library for ICE detainees from the following service provider:

RELX, Inc dba LexisNexis 9443 Springboro Pike Miamisburg, Ohio 45342

3. Description of Supplies/Services.

This requirement is to provide continuation and maintenance of the detainee comprehensive legal online law library for a base year and one 12-month option period at an estimated total cost of $972,000 (see below). This service is required to ensure ICE detainees have access to a properly equipped online law library, inclusive of legal materials and equipment to facilitate the preparation of supporting documentation related to their immigration case. This requirement specifically provides 250 external hard drives to 24 facilities which lack adequate internet access and 45,000 online custom interface applications for use on ICE provided tablets. The 250 external hard drives will be provided on a monthly basis and updated quarterly.

Period Time Total

Base 12 mos. $486,000 Option Year 1 12 mos. $486,000 $972,000

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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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 as implemented by:

☒ FAR Subsection 6.302-1: Only one responsible source and no other supplies or services will satisfy agency requirements.

☐ 6.302-2: Unusual and compelling urgency.

☐ 6.302-3: Industrial mobilization; engineering, development, or research capability; or expert services.

☐ 6.302-4: International agreement.

☐ 6.302-5: Authorized or required by statute.

☐ 6.302-6: National security.

☐ 6.302-7: Public interest.

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

ICE/OAQ intends to procure services for the continuation and maintenance of a full comprehensive law library which consists of customized external hard drives (EHDs) and online custom interface applications for detainee access across multiple ICE-designated facilities.

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

Per ICE’s Performance Based National Detention Standards (PBNDS), ICE is required to provide a comprehensive law library for detainees within its custody. On September 2009, utilizing the FEDLINK program under the Library of Congress, order HSCEDM-09-F-00072 with a 12-month base and four options was awarded to Matthew Bender & Company to procure 415 custom compact disks (CDs) based on ICE specifications for distribution to detention facilities. On February 2015, a follow-on order (HSCECR-15-P-00009) for another base and four option year period under the FEDLINK program was re-established with RELX, Inc. dba Lexis Nexis (Lexis Nexis), which had assumed Matthew Bender. However, for the current order, ICE converted from CDs to 250 customized EHDs to accommodate an increase in required materials specified by PBNDS 2011, Section 6.3.A. Additionally, in the last option year of the current order, to meet the influx of detainees from the Southern Border, 23 facilities and 24,000 detainees were given access to a Lexis Nexis custom online interface application via ICE provided tablets. This enhancement allowed ICE to provide more detainees access to the law library, thereby minimizing potential legal ramifications—as detailed in the last paragraph of this section.

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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Notably, market research issued as a Request for Information on February 27, 2019 sought capability statements from various entities capable of providing a comprehensive electronic legal research platform. Of the 15 entities queried which represented non-governmental organizations, universities, and for-profit businesses; 3 entities responded on March 15, 2019. Of the 3, Lexis Nexis is the only electronic legal research provider capable of providing both an offline (EHD) and online (custom interface app) solution that can be deployed at the same time and via multiple means such as a personal computer, kiosk, or tablet. Additionally, the EHD drive format provided by Lexis Nexis includes proprietary software of Shepard’s Citations Service and Matthew Bender treatises. Shephard’s is the only citator available in a non-Internet (EHD) format and this is important because it has the ability the assess the validity of a legal authority (such as a case, statue, or regulation) and generate a comprehensive list of materials citing to it, an asset for the detainees’ law research. The Matthew Bender treatises serve as the publishing arm for Lexis Nexis. Each of these publications require a license from Lexis Nexis.

Therefore, considering ICE’s current need to maintain both an offline and online comprehensive law library solution to ensure detention facilities, lacking the appropriate internet connectivity, can still provide detainees with the mandated access to legal resources to support their immigration cases, ICE has determined that Lexis Nexis remains the only responsible source capable of satisfying the agency’s requirements. Failure by ICE to maintain the established offline and online solutions customized and maintained by Lexis Nexis would likely result in several consequences for the detainees and ICE directly. As a result: a) detainees would be deprived of necessary tools needed to facilitate access to attorneys, resources, and information about their cases when preparing for immigration court proceedings; b) ICE would likely face extensive litigation by detainees and organizations representing detainees such as the American Civil Liberties Union because of the aforementioned deprivation; c) ICE would fail to be compliant with the PBNDS and may consequently be assessed detrimental findings by the Department of Homeland Security (DHS) Office of the Inspector General and the DHS Office of Civil Rights and Civil Liberties; and d) failure to provide a law library would jeopardize the overall safety and security of the facilities housing detainees.

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

☒ OAQ publicized this requirement, prior to award, as required by subpart 5.2 by posting a notice on beta.SAM.gov on May 21, 2020.

☐ OAQ does not intend to publicize this requirement, prior to award, based on the following 5.202(a) exception: [See FAR 5.202(a) and select one of the 14 exceptions allowed for not publicizing on www.beta.sam.gov.

7. Determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable.

The Contracting Officer determined that the anticipated price will be fair and reasonable based on FAR 13.106-3(a)(2)(ii) comparison of the proposed price with prices found reasonable on previous purchases.

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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8. Description of market research.

A Request for Information (RFI) was issued on February 27, 2019 seeking capability statements from various entities capable of providing a comprehensive electronic legal research platform These 15 entities represented non-governmental organizations, universities, and for-profit businesses. Of the 15 queried, 3 entities, including Lexis Nexis responded on March 15, 2019. All responders, except Lexis Nexis indicated a need for internet connectivity, thereby minimizing their ability to meet ICE’s requirement for both an offline and online solution.

9. Any other facts supporting the use of other than full and open competition.

ICE continues in its efforts to expand and improve custom legal research technology and to identify new service providers. These efforts include the reforming of an internal working group focused on this ever-changing need. ICE anticipates having a new plan in place by 2021 that will outline facility-wide technological capabilities and future infrastructure needs.

10. A listing of the sources, if any that expressed, in writing, an interest in the acquisition.

A synopsis was issued on beta.SAM.gov on May 21, 2020 requesting that parties express their interest in writing to the Contracting Officer. No expressed interest in writing was received.

11. 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.

ICE anticipates releasing another Request for Information (RFI) in Q1 of FY21 to determine if capabilities in the market have changed. The results of the RFI will determine if a competitive procurement can be solicited and awarded.

☒ After award of this action, DHS/ICE intends to post the approved/signed justification pursuant to 6.305.

☐ After award of this action, DHS/ICE does not intend to post the approved/signed justification in accordance with 6.305(f).

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JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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12. 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

13. 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/COR Date

14. Approval.

Over $700,000 but not exceeding $13.5 million Date Procuring Activity Advocate for Competition