JA 20-0369 clean version IBFU (A2) 10-13-20(cald) FINAL 217pm_.pdf

OFFICE OF ACQUISITION MANAGEMENT

ICE Acquisition Manual 3006.301-90

SOLE SOURCE JUSTIFICATION: SIMPLIFIED PROCEDURES FOR CERTAIN

COMMERCIAL ITEMS EXCEEDING SAT, INCLUDING BRAND NAME

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J&A-20-0369

Pursuant to the requirements under the authority of simplified procedures for commercial items at 41 U.S.C. 1901 as implemented by Federal Acquisition Regulation (FAR) Subpart 13.501 and consistent with the content requirements of FAR 6.303-2.

1. Agency and Contracting Activity.

The Department of Homeland Security, U.S. Immigration and Customs Enforcement, Office of Acquisition Management, proposes to enter into a contract on behalf of Homeland Security Investigations (HSI), Transnational Organized Crime 1 (TOC 1), Identity and Benefit Fraud Unit, on a basis of other than full and open competition.

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

(a) Type of action: Hybrid, firm-fixed price/time and materials/labor IDIQ contract.

(b) Amount the current J&A is justifying: $357,106.50

(c) Brief Description: OAQ intends to procure, on a sole source basis, Rapid DNA Testing Services from the incumbent contractor using simplified acquisition procedures. This action is being taken pursuant to the authority of FAR 13.501. The vendor listed below is the only company that can provide the required services.

Bode Cellmark Forensics, Inc.

10430 Furnace Road, Suite 107 Lorton, VA 22079-2626

3. Description of Supplies/Services. Describe the supplies or services to be acquired.

Provide the estimated total value (including options, if any).

This requirement is to provide continued Rapid DNA testing which aids in the identification of fraudulent familial relationship claims made by individuals entering or attempting to enter the United States. The utilization of a Rapid DNA testing program will continue to assist HSI Special Agents with identifying and investigating those who continue to commit these types of criminal acts in direct violation of U.S. law. The Rapid DNA testing equipment and test kits will be deployed at up to eleven locations on the southwest border where the influx of illegal aliens is prevalent. This requirement includes the purchase of commercial supplies and services, including DNA test kits, instruments/equipment to process the test kits, training and support services for executing the tests.

This proposed sole source, single award contract has an estimated total contract value of $357,106.50 for a 120-day performance period.

http://uscode.house.gov/

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4. Identification of the authority.

This action is being taken under the authority of Simplified Procedures for Commercial Items, 41 U.S.C. 1901 as implemented by FAR 13.501. The rationale for not promoting competition to the maximum extent practicable for this procurement is unusual and compelling urgency arising out of GAO protest B-419173.1, filed September 21, 2020.

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

Bode is the only source currently capable of meeting the agency's unusual and compellingly urgent requirement for uninterrupted Rapid DNA testing during the pendency of GAO protest B-419173.1. As the incumbent contractor under protested contract 70CMSD20D00000002, Bode provided required services under task order 70CMSDFR0000187, awarded on September 13, 2020. Protest B-

419173.1 was filed on September 21, 2020. A stop work order was issued on September 23, 2020. Award of this 120-day requirement was made on September 25, 2020 via contract 70CMSD20P00000189. The notice of intent to sole source and award notice was posted Beta.SAM.gov on September 25, 2020.

Bode has and currently has positioned all necessary testing equipment and supplies, and provides on-going support services and training at numerous deployed locations on the southern border of the United States, enabling ICE’s continuous, effective, and uninterrupted use of Rapid DNA testing for investigative purposes in furtherance of enforcing US immigration law. Any interruption in performance of these services is unacceptable and would have a disastrous effect on ICE’s ability to conduct its law enforcement and national security mission.

Interruption of these services is not an acceptable option for ICE as rapid DNA testing capability is a critical investigative tool without which ICE operations and investigations would be severely and negatively impacted. If ICE had to forego these services, it would (1) severly and negatively impact ICE’s capability to determine and confirm parental relationships which is required for the safety of minors encountered as well as to determine the most efficient and appropriate adminstrative and or criminal investigative response, (2) increase time required to investigate aliens at the border thereby reducing the amount of time available to conduct other critical law enforcement operations; (3) decrease security by eliminating a strong, highly visible deterrent to those seeking to exploit operational and administrative loopholes for the purpose of profiting from illegal migration, (4) eliminate a highly effective source of evidence that can be used in federal prosecution, (5) increase enforcement costs thereby reducing resources available for other mission-essential purposes; and; (6) have the perverse effect of http://uscode.house.gov/

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Switching to another Rapid DNA testing vendor during the pendency of the protest would have an unacceptable operational impact on ICE. ICE agents are currently trained on the Bode equipment and supplies. Until a successor Rapid DNA testing contract can be properly and competitively let, ICE is not able to forego its agent’s operational time to learn new processes and equipment. Agent time must continue to be spent on enforcement operations, not learning and becoming proficient with new processes, procedures, and equipment that will be used for a 120-day period. Additionally, transitioning to a new vendor for the protest period would needlessly disrupt on-going operations at border locations by requiring ICE to dedicate resources to remove existing equipment and install replacement testing equipment. Additionally, a significant amount of contract cost and administrative time would be expended to establish a new vendor with no hope of recouping that lost time and expense through efficiencies gained during the 120-day contract period. Also, transition would unreasonably disrupt on-going ICE operations at the various deployment sites with no operational or cost benefit to be gained during such a short-term contract term.

The Agency requires these on-going services in order to aid in the identification of fraudulent familial relationship claims made by individuals entering or attempting to enter the United States. Because Bode is currently providing these services, Bode is the only contractor that can continue to provide the required training, services, and supplies on an on-going basis without unacceptable interruption, delay, or disruption, resulting in a significant adverse impact on the agency's mission.

The objective of the proposed interim120-day sole-source contract with Bode is to provide continuous and uninterrupted performance of these critical services during the pendency of protest B-419173.1. Continued performance by Bode will ensure that there is no lapse of these critical services during the resolution of the protest.

The government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits proposals. The typical transition for a contractor is upwards of 2 to 3 weeks. The critical nature of these Rapid DNA tests does not allow for a lapse in service. This interim contract during the protest will allow continuous uninterrupted support of critical services in support of ICE’s Homeland Security Investigations.

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

☐ OAQ has made___

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☒ OAQ intends to make a redacted version of this justification publicly available pursuant to FAR 13.501(a)(1)(iii) and 6.305(a) within 30 days after contract award due to unusual and compelling urgency.

7. 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 the fact that the prior award was made competitively, and since it is very recent, it is likely the incumbent will offer those same rates for this sole source award. Additionally, the contracting officer will compare the Independent Government Cost Estimate to the submitted pricing.

8. Description of market research.

Market Research demonstrates that there are multiple small business sources that can perform these services; however the incumbent contractor is the only contractor that can perform the required services on an ongoing basis without unacceptable interruption, delay, and disruption, and a resulting significant adverse impact to the agency's mission during the pendency of protest B-419173.1.

Further, while other small businesses are operationally capable of providing these services, only Bode is known not to be a subject of investigation into possible Procurment Integrity Act violations/Organizational Conflicts of Interest. The Agency’s on-going investigation into possible PIA/OCI violations involving the other capable sources is the reason ICE awarded contract 70CMSD20D00000002;

to provide sufficient time to permit ICE to investigate and take appropriate action in accordance with FAR 3.104-7. Award to any source currently under investigation for possible PIA/OCI violations would undermine the integrity of the procurement system and be inconsistent with federal procurement law and regulation.

Awarding to an alternate source at this time would result in an unacceptable lapse in services.

9. Any other facts supporting the justification.

This J&A only supports a 120-day contract period of performance, which will allow the Agency to defend GAO protest B-419173.1 and take appropriate follow-on action in accordance with the protest decision.

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

Due to the unusual and compelling urgency no others vendors were soliticted.

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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.

Since this is an interim contract while the protest is being adjudicated, no other actions will be taken to compete these services during the pendency of the protest period.

12. DHS intends to post the requirement pursuant to FAR 13.501(a)(1)(iii) and 6.305(a).

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.

Angela L. Avery Date Contracting Officer

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.

ANGELA D. TOLER Date Contracting Officer’s Representative (COR)

15. Approval.

William Fuller Date Competition Advocate Office of Acquisition Management U.S. Immigration and Customs Enforcement