J&A_BSTC_Article_25_Final_Executed.pdf

J&A Other Than Full and Open Competition Rev. 2/5/2016 J&A No.: FY19-0026

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Justification &Approval (J&A)

Justification For Other Than Full And Open Competition 41 U.S.C. 3304

Pursuant to the requirements of the Competition in Contracting Act (CICA) as implemented by the Federal Acquisition Regulation (FAR) Subpart 6.3 and 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 justified by the following facts and rationale required under FAR 6.303-2 as follows:

1. Agency and Contracting Activity.

The Department of Homeland Security (DHS) Office of Procurement Operations (OPO) proposes to modify the Border Security Technology Consortium (BSTC) Other Transaction Agreement (OTA) on a basis of other than full and open competition on behalf of the DHS Science and Technology Directorate’s (S&T) Borders, Immigration, and Maritime (BIM) Division.

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

(a) Type of action: Modification to OTA

(b) Amount: $0.00

(c) Type of funding: N/A

(d) Year of funding: N/A

(e) Other brief descriptive words and phrases: DHS intends to modify the BSTC OTA with an additional Article that allows for the award of follow-on production contracts to those vendors that successfully complete a prototype project under a Call issued against this OTA, pursuant to Section 538 of Division F of the Consolidated Appropriations Act, 2018 (Public Law 115-141).

3. Description of Supplies/Services.

The modification will add Article 25 to the BSTC OTA. This additional article will allow for awarding follow-on production contracts to those vendors that successfully complete a prototype project under a Call issued against this OTA, pursuant to Section 538 of Division F of the Consolidated Appropriations Act, 2018 (Public Law 115-141).

Proposed Article 25 language is as follows:

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NOTICE OF POSSIBLE FOLLOW-ON PRODUCTION TRANSACTION OR

CONTRACT

(a) The Government, pursuant to Section 538 of Public Law 115-141 – Consolidated Appropriations Act 2018, Division F – Department of Homeland Security Appropriations Act 2018, Title V – General Provisions, may award a follow-on production transaction or contract to the awardee of this prototype transaction without the use of additional competitive procedures; provided, the awardee successfully completes the prototype project provided for in this transaction.

(b) The follow-on production transaction may be of any type, such as another OT agreement, a procurement contract under the Federal Acquisition Regulation (Title 48, Code of Federal Regulations), or a Commercial Solutions Opening Pilot contract (Section 880 of Public Law 114-328 – National Defense Authorization Act for Fiscal Year 2017, Division A

– Department of Defense Authorizations, Title VIII – Acquisition Policy, Acquisition Management, and Related Matters).

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(a)(1) pursuant to FAR 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements.

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

The OTA being modified on a sole source basis was competitively awarded on September 30, 2015, via a proposal submitted under the DHS S&T Long Range Broad Agency Announcement (LRBAA) 14-02. The OTA provides for, via access to a consortium of both traditional and non-traditional Government contractors, a coordinated research and development program designed to develop prototypes relevant to Border Security. Under this agreement and associated awards to and through the BSTC, the Government is funding prototype research, development, testing and evaluation.

As part of the Consolidated Appropriations Act 2018, specifically Section 538 of Division F, DHS was granted the ability to issue follow-on production contracts, on a non-competitive basis, to those vendors that successfully complete a prototype project under an OTA. However, a GAO bid protest decision stated that this authority could only be used if the solicitation that the OTA was awarded in response to, and the OTA itself, made clear that there would be the possibility of issuing such follow-on contracts. Neither the solicitation that the BSTC OTA was awarded off of, LRBAA 14-02, nor the OTA itself had such language present at time of OTA award. DHS could not have contemplated being given this authority at time of award, as the follow-on production authority was provided well after award of the OTA.

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The considered alternative, to allow DHS components to issue follow-on sole source contracts on their own, using FAR 6.302-1(a)(ii), was found to be overly burdensome when compared to the ability of simply modifying the OTA itself to utilize the full scope of the current law. Modifying the OTA, using the same authority found at FAR 6.302-1(a)(ii), would streamline the process of issuing the follow-on production contracts, should the issuance of one be warranted. Providing the ability to issue such follow-on production contracts was provided, in part, to accelerate the process of prototype development and deployment into the field. If components were forced to issue follow-on sole source contracts using the considered alternative, DHS would be missing an opportunity to put this authority to critical use.

The statutory authority permitting other than full and open competition is 41 U.S.C. § 3304(a)(1) implemented by FAR Subpart 6.302-1 entitled “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements. The BSTC was proposed under the LRBAA by ATI for the purpose of supporting the border security mission of DHS by bringing together 125 Government contractors, both traditional and non-traditional, that focus on Border Security technology development under one umbrella.

Specifically, the creation of the consortium is ATI’s unique idea toward assisting the DHS S&Twith their goal of developing technologies that improve the security of our Nation’s borders and waterways without impeding the flow of commerce and travelers. No other known entity exists for this purpose and in this structure.

If this J&A to add Article 25 to the OTA is not approved, DHS will be unable to utilize the full scope of Other Transactions Authority allowed by law. Not having Article 25 in the OTA would eliminate the flexibility that Congress has provided DHS in conducting its mission, thereby leading to longer follow-on acquisition timeframes. DHS S&T and other DHS components would need to work through the sole source process for each promising technology right at the period in the acquisition cycle in which time is of the essence.

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

DHS intends to make this justification publicly available pursuant to FAR 6.305 on FedBizOpps in November of 2018.

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

This is a proposed no cost modification to the OTA. No determination of fair and reasonable pricing is necessary for this action.

8. Description of market research.

Market research for this requirement is not applicable and was not conducted. The LRBAA is used to find non-commercial solutions and may only be used when meaningful proposals

J&A Other Than Full and Open Competition Rev. 2/5/2016

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

None

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

N/A. This is a current requirement, awarded in response to a proposal submitted under a LRBAA, being modified to add an additional Article.

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.

No actions were taken to remove barriers to competition. Future requirements related to the activities conducted under this OTA are currently unknown. As future requirements become clearer, and if those requirements lend themselves to competitive procedures, including BAA solicitations, DHS S&T will make all efforts to ensure that such procedures are followed to limit any potential barriers to competition.