JA No. FY23-021 - Legal Services (Redacted).pdf

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition

Office of the Chief Procurement Officer J&A No. FY23-021

Source Selection Information - See FAR 2.101 and FAR 3.104

JUSTIFICATION AND APPROVAL FOR OTHER THAN FULL AND OPEN

COMPETITION

41 U.S.C. 3304(a)(2)

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 6.302-2, 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:

1. Agency and Contracting Activity. The Department of Homeland Security, Office of

Procurement Operations, awarded a sole source expert and consultant services contract for legal services under the authority of 6 U.S.C. 392 and 5 U.S.C. 3109.

2. Nature and/or Description of the Action being Approved. DHS awarded a sole source contract to Debevoise & Plimpton LLP, 801 Pennsylvania Ave NW, Washington, DC 20004 for expert and consultant legal services. Debevoise & Plimpton (Debevoise) is the only law firm that has the necessary experience to provide the legal services to DHS for advice and representation relating to potential impeachment proceedings. The effort was awarded on a Time and Material (T&M) basis.

The total value of the contract (including options) is as shown below:

Period Total

Base Year 12 mo. $1,500,000 Option Period 1 3 mo. $375,000 Option Period 2 3 mo. $375,000 Option Period 3 3 mo. $375,000 Option Period 4 3 mo. $375,000

Total $3,000,000

The costs are primarily labor costs associated with this requirement and contain a Not-to- Exceed Other Direct Cost (ODC) amount of $119,000 over the life of the contract. This is a new requirement. There have been no previous acquisitions for this service.

3. Description of Supplies/Services.

The requirement is to provide expert and consultant legal services for advice and representation relating to potential impeachment proceedings in the United States Congress.

Such services are necessary as the agency lacks the requisite resources, experience and knowledge to represent the Secretary and other DHS officials in potential impeachment

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition

Office of the Chief Procurement Officer proceedings. These services are required on an urgent and compelling basis as the Congressional session began on January 3, 2023, and such services are required as soon after that date as possible to assist DHS to prepare OGC, the Secretary, and other DHS officials on impeachment processes and procedures, including related Congressional oversight, prior to the official start of any impeachment proceeding in the House or Senate, as well as to counsel and represent the Department on proceedings that may serve as predicates to impeachment proceedings. Also, Congressional rules may prevent OGC from representing the Secretary and DHS officials at depositions or other hearings, and the contractor may be required to fulfill that representational role and represent the Secretary and DHS officials in their personal capacity, if appropriate.

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)(2) implemented by the FAR Subpart 6.302-2 entitled “Unusual and compelling urgency.”

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

The Agency requires expert and consultant services from a law firm that has extensive experience and knowledge in the impeachment process and related activities. As such, the law firm must also have experience advising federal agencies on matters subject to Congressional oversight. Specifically, the Agency requires a law firm that can provide DHS OGC with advice on not only the process involved in impeachment proceedings, but also Congressional oversight proceedings that may lead to impeachment proceedings in the House, and an impeachment trial in the Senate. The law firm must understand the unique needs and authorities of each committee and staff that may be involved in an investigation that could lead to an impeachment process for a Cabinet member so the Department can provide responsive timely information. The firm must provide this support to assist DHS OGC in defending the Department and avoiding potential impeachment proceedings, a vote to impeach, or a Senate impeachment trial of the Secretary or other DHS officials.

Experience in these areas limits the pool of potential sources greatly as very few law firms and individuals have experience working with both political parties in Congress on relevant issues, in particular issues related to national security, immigration and border security, and terrorism – issues important to DHS. Even more limiting is that very few attorneys have worked on any impeachment proceedings in the last 25 years in any capacity, making the pool of potential sources even smaller.

Impeachment of a Cabinet Secretary is highly unusual, and has not been effected since 1876.

The Department faces highly unusual, if not unique, circumstances as House committees initiate impeachment-related oversight. A House Member has already introduced Articles of Impeachment related to the official policy of the Executive Branch, not the personal conduct

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition of the Secretary. Other such articles are expected to be introduced in the coming weeks.

Multiple hearings and other events in which Members called for impeachment of the Secretary have also occurred. Debevoise is the only firm that will meet the Agency’s needs in these unique circumstances. Debevoise is the only law firm to have provided advice and counsel to the House Representatives in an impeachment in the last 24 years. It is also the only law firm that includes attorneys that have both defended and prosecuted an impeachment trial and have represented elements of both the Democratic and Republican political parties in an impeachment. Individuals within the law firm also have worked on the most recent federal impeachment proceedings. Moreover, Debevoise’s attorneys have had previous experience working for federal agencies on issues that will almost certainly serve as the central subjects of debate during any impeachment proceedings, including immigration and border security issues in particular, as well as national security and terrorism. Debevoise also has experience working with Congress, on a bi-partisan basis, and extensive trial litigation experience. The combination of this experience is not found in any of the law firms surveyed.

While other potential sources were reviewed, none of the sources reviewed have the unique skills and experience that Debevoise possesses. Debevoise, as a firm, has recent experience participating in an impeachment proceeding and so do members within the firm. Debevoise understands the impeachment proceedings on a macro- and micro-level, as a result of its experience that no other firm possesses. This experience will be invaluable to OGC as it advises the Secretary and other DHS officials on oversight and other matters that could lead to impeachment proceedings in the House and Senate. This firm is the only firm that can provide DHS OGC with the necessary skillset upfront, for the reasons set forth above.

If award was not made to Debevoise, there is a high risk that an award to another firm would lead to work product that is inferior to the product that Debevoise would produce. This risk may harm the Department and lead to inadequate preparation prior to the commencement of any proceedings, potentially lead to an inadequate defense of the Secretary and DHS officials on impeachment matters, and pose unnecessary risk to the Department by failing to secure the necessary skills and experience required for this rare and unique event.

These unique services are required on an expedited basis because the new Congressional session began on January 3. November’s election results gave Republicans a majority in the House. House Republicans have stated in the media that they intend to pursue articles of impeachment against the Secretary during the current Congressional session. A Representative has already filed a resolution in the House calling for the impeachment of the Secretary. Impeaching Alejandro Nicholas Mayorkas, Secretary of Homeland Security, for high crimes and misdemeanors, H.Res. 8, 118th Cong. § 1 (2023). Other such resolutions are anticipated. Multiple hearings and other events in which Members called for impeachment of the Secretary have also occurred. It is imperative that DHS OGC obtain these legal services as quickly as possible to ensure there is sufficient time to prepare and advise the Secretary and DHS officials on strategy and procedure. Delay in an award for these services would

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition delay and impede DHS’s ability to work with Members of Congress ahead of time to demonstrate that impeachment is not warranted or prudent, work with legal counsel on potential strategies and plans, and begin preparation work with the Secretary and DHS officials to effectively respond to Congressional inquiries.

6. Description of Efforts Made to Ensure that Offers are Solicited from as Many Potential

Sources as is Practicable.

No announcement of the requirement was made as FAR 5.202(a)(2) provides an exception for actions made under FAR 6.302-2. The Government determined that there would be insufficient time for DHS OGC or DHS’s senior officials to work with contracted legal counsel on the necessary services for this requirement should DHS be required to synopsize the requirement ahead of award in accordance with FAR 5.203. DHS conducted market research to determine if other sources were available that could provide the necessary requirements on an expedited basis. DHS met with firms to discuss their experience and qualifications. Given the unique nature of the services needed and the expedited timeframe to ensure an award was in place prior to the start of any impeachment proceeding to ensure the necessary resources were in place to provide advice and counsel to the Secretary and DHS officials, a competition was impracticable. As explained within this justification and documented in the market research report, DHS determined that only one source could provide the services necessary on an unusual and compelling urgency basis.

7. Determination by the Contracting Officer that the Anticipated Cost to the Government will be Fair and Reasonable.

The Contracting Officer determined that the pricing was fair and reasonable prior to award based on a review of price lists obtained during the market research phase from several law firms in the Washington DC area. The Contracting Officer reviewed these lists and developed an average hourly rate for various labor categories and used this average to compare against Debevoise’s proposed price and against the independent government cost estimate.

8. Description of Market Research.

Given that House Republicans indicated that should they gain a majority in the House in the November elections, it would begin impeachment proceedings against the Secretary, DHS began market research at the end of October in anticipation. Market research was conducted between October-December 2022 to identify law firms in the Washington, DC area that have significant trial litigation experience—working on issues that may come up relating to a potential impeachment proceeding including immigration, border security, national security, and terrorism; working with Members of Congress in both political parties on different issues, but in particular working on issues that may affect DHS; and recent experience working on impeachment proceedings from all sides.

U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition

Firms were identified based on knowledge of the industry from senior officials within DHS.

DHS officials met with each firm to better ascertain the firm’s experience and capabilities in each of the identified areas described in the paragraph above. Based on those discussions, it was determined that only Debevoise had the requisite experience and knowledge that met the Agency’s requirements.

9. Any Other Facts Supporting the Use of Other Than Full and Open Competition.

The Rules of Professional Conduct contemplate that a client has the right to select counsel of his/her choice. See e.g., ABA Formal Op. 99-414 (Sept. 8, 1999) (citing Rule 1.16). As part of this contractual requirement counsel may be required to represent the Secretary and other DHS officials in their personal capacity, the Secretary’s recommendation to award to the law firm that can best provide the legal services needed to represent him and other DHS officials during possible impeachment proceedings has been taken into consideration. Independent market research and assessment of Debevoise and other law firms were conducted to ensure that awarding a sole source contract to Debevoise under other than full and open competition represented the best decision for DHS, as a federal agency, and for the Secretary and other DHS officials that may be impeached.

10. A Listing of the Sources, if Any That Expressed, in Writing, an Interest in the

Acquisition.

None

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.

These services may only be required in this instance. Impeachment proceedings of Cabinet Secretaries by Congress are exceedingly rare. Should such requirement occur again in the future, DHS will conduct new market research to determine if its needs and the market have changed.

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U.S. Department of Homeland Security Justification and Approval for Other Than Full and Open Competition

ANN F VAN

HOUTEN

Digitally signed by ANN F

VAN HOUTEN

Date: 2023.02.15 11:57:31 -05'00'

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.

2/15/23

Paula Nusbaum 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.

Ann Van Houten Procuring Activity Advocate for Competition Date

PAULA K

NUSBAUM

Digitally signed by PAULA K

NUSBAUM

Date: 2023.02.15 11:09:28 -05'00'

APPROVAL: