JA-21-00279 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-21-00279

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 6.302-1 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 modify and add to an existing firm-fixed price contract on behalf of the Enforcement, Removals, and Operations Division (ERO) on a basis of other than full and open competition.

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

(a) Type of action: Exercise option to extend (FAR 52.217-8) and increase size of contract number 70CDCR21C00000001 via modification.

(b) Amount of the J&A: $66,653,740.30 (if all options are exercised)

(c) Brief Description:

This contract originally provided for 1,239 hotel beds and related services to provide for Emergency Family Staging Centers1 (EFSC) along the U.S. southwest border to receive the sudden and large influx of families seeking asylum. The service provider is:

Family Endeavors, Inc. (“Endeavors”) 6363 De Zavala Rd., Ste. 200 San Antonio, TX 78249-2104

The Government intends to take two actions requiring this justification. First, the Government intends to exercise its option to extend the performance of contract number 70CDCR21C00000001 using FAR clause 52.217-8 by three months, ending on December 31, 2021. Clause 52.217-8 was included in the solicitation and contract but was not included in the price evaluation supporting the Government’s original award decision. The price of this option to extend under this FAR clause has now been evaluated along with the additional beds as described below.

Second, the Government intends to increase the dollar value of this contract by adding two additional EFSCs which will have 360 beds. The addition of these hotels will begin on September 28, 2021. Under the authority of FAR 52.217-8, the Government also intends to extend the period of performance for these additional beds for six months with a final expiration date of March 31, 2021.

1 These facilities were originally referred to as “Emergency Family Reception Sites.” However, the Government and the contractor agreed to change the name to “Emergency Family Staging Centers” in the first modification of this contract completed on August 17, 2021.

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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3. Description of Supplies/Services.

The purpose of this contract is to support ICE through the provision of EFSCs for families entering the United States and placed in ICE and Federal Government custody. This contract originally provided for 1,239 hotel beds and other necessary services in response to the emergency situation along the U.S. southwest border. Because of the unprecedented increase in migrant families at the border beginning in Spring 2021 and continuing to the present, the Government now seeks to add another 360 hotel beds to the size of the contract.

Services to be provided at these EFSCs include, but are not limited to, transportation to and from U.S. Border Patrol Stations, ports of entry to shelter sites and to transportation hubs and other locations as directed, language assistance/translation, appropriate family recreational activities in each individual room, meal services, laundry, cultural and legal orientations, and staff trained in trauma-informed care. The provider will also support the resident’s understanding of documentation and immigration process to include translation and interpretation services and coordinate with legal service providers and will support enrollment in one of ICE’s alternatives to detention programs.

All EFSCs utilize COVID-19 protocols, quarantine methods, and the administration of COVID vaccines. The contractor shall continue to work closely with local and state partners, including health officials, to allow for the safe, dignified, and humane release of migrants in U.S. communities near the Southern border.

The total price of this contract, with all anticipated options exercised, will increase as follows:

From: $87,326,091.47 By: $66,653,740.30 To: $153,979,831.77

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. Additionally, the Government is exercising the authority of FAR Clause 52.217-8, Option to Extend Services.

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

The Government is exercising the right under FAR Clause 52.217-8, Option to Extend Services for six months. In accordance with FAR Clause 52.217-8, Endeavors was given notice within 15 days, per the terms of the clause.

Additionally, under the authority of FAR 6.302-1, Endeavors is the only source capable of meeting the Government’s urgent requirement beginning on October 1, 2021. Because of the time and groundwork required for new facilities to become completely operational to the

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

Page 1 of 6 Version 1.2 standards required by ICE, including being adequately staffed and integrated into Government operations, there are no sources, other than the Endeavors who currently is providing the services that can satisfy the requirements at the time the current contract expires on September 30, 2021. The Government has issued a request for proposal against a DHS strategic souring vehicle (competitive multiple award IDIQ) that will provide continued support for EFSCs, meeting agency requirements. In the interim, this contract must be extended to ensure there is no gap or disruption in the Government’s ability to respond to the current surge at the Southern border.

The Government is continuing to see an unprecedented increase in migrant flows to the Southern border of the United States, including greater numbers of family units and unaccompanied children (FAMUs). The projected encounters for fiscal year 2021 are expected to be the highest number observed in over 20 years. Since June 2021, the Government has been encountering an average of about 2,098 individuals in families per day across the southwest border. The large majority of those families (68%) were encountered in just two Border Patrol sectors—the Rio Grande Valley and Del Rio sectors. DHS anticipates that family encounters will remain high and could even increase in the coming months. From March 1, 2020, to July 22, 2021, U.S. Customs and Border Protection (CBP) encountered a total of about 315,000 individuals in families along the southwest border. The number was only 738 individuals in families in April 2020. In just the first three weeks of July 2021, the number had risen to 53,236. This represents an approximate 72-fold increase from April 2020 to July 22, 2021.

ICE increased its capacity to process families encountered at the border by awarding contract number 70CDCR21C00000001, adding 1,239 additional beds to ICE’s family housing capacity. These changes allowed ICE to increase its family processing capacity from 200 individuals per day to about 500 per day, with the potential to increase to 600 individuals per day once certain variables are met, including the softening of pandemic-related capacity reductions. Even with these improvements, ICE continues to lack the capacity to hold and process all the families, necessitating the need for an additional 360 beds.

Without the uninterrupted use of the current EFSC facilities and the two additional sites, the Government will be seriously injured as it is currently not prepared to address the large influx of FAMUs otherwise. The current capacity figures are extremely worrisome, particularly because of the continued spread of the highly transmissible Delta variant of COVID-19.

Overcrowding challenges, the Government’s ability to effectively execute many of its core public health mitigation and countermeasure activities. Additionally, higher rates of COVID-19 transmission within a Department of Homeland Security (DHS) facility could quickly impede DHS’s ability to utilize that facility’s maximum capacity, further lowering the overall processing and holding capacity along the southwest border. Without the extension of existing EFSCs and the addition of more, the Government will be forced to house these people in unsuitable and unsafe living conditions. The Government is subject to regulatory and judicial constraints that mandate specific housing requirements and failure to comply will open the Government to substantial liability. While the Government is attempting to replace this contract with a competitively awarded follow on contract, the time required to complete the award and get the new EFSCs fully operational will still result in an unacceptable gap in services.

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

41 U.S.C. 3304

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

ICE is competitively procuring a subsequent contract to replace this contract utilizing the new DHS Blanket Purchase Agreement entitled, “Temporary Facilities and Services.” At the time of this writing, the Government is evaluating quotes from offerors. The anticipated award date for the new contract is expected to be within the next 4-6 weeks with another 30- 60 days before the facilities under the new contract being available for Government use.

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

The total cost of $66,653,740.30 set forth in Section 2 above includes the extension of the existing 1,239 beds by up to three months beginning from October 1, 2021, and the addition of the 360 beds beginning on September 28, 2021. The total cost is determined almost entirely by bed day rates. The currently billed bed day rate was determined fair and reasonable. The additional cost of vaccinations has also been evaluated and determined to be fair and reasonable based on comparison with historical data for the same services recently also determined to be fair and reasonable.

The rate for the existing 1,239 beds is $352.64 per bed, per day. The Government previously determined this rate to be fair and reasonable by comparing the elements of the rate to comparable elements at ICE family residential centers which are similar in nature to EFSCs.

Under FAR 52.217-8, the Government may extend the existing rate for a period of up to six months. These rates are still considered to be fair and reasonable during the extension period beginning on October 1, 2021.

The rate for the 360 new beds is $388.67 per bed, per day. While the new rate is 9% higher than the original rate, this increased rate is still considered fair and reasonable. Once performance began with the original hotels, the cost of staffing increased for numerous reasons, including demand for bi-lingual staff that could speak Spanish, increased medical personnel required to safely address pandemic-related issues, and the need to recruit staff nationally to obtain staff that could timely clear the Government’s personnel security requirements. The rate is also fair and reasonable in comparison to pricing recently obtained by the Government via competitive solicitation for similar services.

8. Description of market research.

The Agency has actively engaged in market research utilizing the techniques set forth in FAR 10.002(b)(2)(i) and (vii)—contacting knowledgeable individuals within Government and industry and conducting interchange meetings with potential offerors. The Government continues to engage in these market research techniques and others, including issuing a request for information on June 2, 2021, for a new competitive subsequent acquisition.

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

None.

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

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

The notice required by FAR 5.201 was met on September 8, 2021, by posting a draft of this Justification, any bids, proposals, quotations, or capability statements were considered.

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.

The Government is currently in discussions with prospective offerors to replace this contract in a competitive procurement. This new contract is expected to be awarded sometime in early fiscal year 2022.

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

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

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.

9/10/2021

9/13/2021

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

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

Over $13.5 million but not exceeding $68 million Date Head of Contracting Activity