JOFOC - 15DDHQ21R0000010.pdf

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

Revised March 2021 1

Identification Number (purchase request/solicitation number): 15DDHQ21R00000010

1. Identification of the agency and contracting activity.

A. Agency: Drug Enforcement Administration (DEA)

B. Contracting activity: Office of Acquisition and Relocation Management (FA)

C. Requiring activity: Office of the Administrator

2. Nature and/or description of the action being approved. (e.g., new contract award or modification expanding the scope of an existing contract)

New Contract Award

3. A description of the supplies or services required to meet the agency’s needs, including the estimated value.

(inclusive of all options)

The Office of the DEA Administrator requires specialized support services to conduct an immediate, comprehensive review of DEA's international operations and foreign footprint, including administrative and financial support for those operations from DEA headquarters. The review will result in a report that provides an assessment of DEA's current international operational capacity, and identify areas for both immediate and long-term improvement to ensure DEA's international operations are impactful and effective, with the appropriate structures, procedures, and controls to ensure integrity and accountability.

Period of performance or Total estimated value: 1.35 Million final delivery date: Six Months From Date of Award

4. An identification of the statutory authority permitting other than full and open competition.

Check the appropriate box. Only one box may be checked.

41 U.S.C. 3304(a)(1) and FAR 6.302-1 “Only one responsible source and no other supplies or services will satisfy agency requirements”

41 U.S.C. 3304(a)(2) and FAR 6.302-2

“Unusual and compelling urgency”

41 U.S.C. 3304(a)(3) and FAR 6.302-3 “Industrial mobilization; engineering, developmental, or research capability; or expert services”

41 U.S.C. 3304(a)(4) and FAR 6.302-4

“International agreement”

41 U.S.C. 3304(a)(5) and FAR 6.302-5 “Authorized or required by statute”

41 U.S.C. 3304(a)(6) and FAR 6.302-6

“National security”

41 U.S.C. 3304(a)(7) and FAR 6.302-7 “Public interest” http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_1 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_2 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_3 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_4 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_5 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_6 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3304&num=0&edition=prelim https://www.acquisition.gov/far/part-6#FAR_6_302_7

Revised March 2021 2

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

The DOJ Office of the Inspector General (OIG) issued a report on August 25, 2021, documenting the results of the OIG's audit of DEA's headquarters-based oversight of its supported foreign law enforcement units. Upon learning of and concurring with the ten recommendations in the OIG report, DEA determined that a comprehensive review of DEA's international operations is needed expeditiously, to ensure that DEA has a comprehensive assessment of its current international capacity and can implement necessary improvements (both immediate and long-term) identified by the review, to ensure DEA's international operations are impactful and effective, with the appropriate structures, procedures, and controls to ensure integrity and accountability. Such a comprehensive review will assist DEA in implementing the OIG's recommendations with the utmost efficiency.

FAR 6.302-2 states that delay in award of a contract would result in serious injury, financial or other, to the Government. Given that the threat of illicit foreign drugs to the health and safety of the American public has never been greater, and that DEA’s international operations stand as a bulwark against this threat, the DEA requires a highly experienced and knowledgeable team who can assess DEA’s international operations as quickly as possible. In this regard, DEA cannot wait for an inexperienced vendor without the required specialized knowledge to spend months learning the complexities of DEA's international operations before they can begin their assessment. The independent review team led by Boyd Johnson, of WilmerHale, and Jack Lawn, a former DEA Administrator and former federal law enforcement agent, collectively has a depth of specialized experience that will allow the team to begin work immediately. Mr. Johnson is a senior partner with specialized experience that includes numerous cross-border reviews around the world, including global schemes involving corruption, money laundering, and frauds, as well as experience in conducting internal reviews of government agencies, all in addition to his thirteen years of extensive experience as an Assistant U.S. Attorney, when he conducted and supervised investigations in all eight global regions where DEA conducts its international narcotics operations. While serving as DEA Deputy Administrator, Acting Administrator, and the Senate confirmed Administrator under President Ronald Reagan, Mr. Lawn oversaw DEA’s international operations for eight years. Mr. Lawn will bring his experience to the team as a consultant.

This strong level of team experience and qualifications, as well as WilmerHale’s previous investigative experience with the U.S. Department of Homeland Security and the Department of Justice, will allow the team to begin work immediately without a steep learning curve. Ultimately, these efforts will give the DEA the tools to assess the effectiveness of its international operations and quickly implement improvements that will strengthen its ability to protect the American public.

6. A description of efforts made to ensure that offers are solicited from as many potential sources as is practicable, including whether a notice was or will be publicized as required by Subpart 5.2 and, if not, which exception under 5.202 applies.

This requirement will be released with a Notice of Intent to Sole Source on BETA.SAM for 15 days in order to accommodate additional vendors capable of providing these in‐depth services required by the mission of the Drug Enforcement Administration.

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

The Contracting Officer will conduct market research to include other entities that have done similar services.

A price anylsis will be conducted to determine whether the proposed rates fall within a reasonable range to determine fair and reasonable pricing. The DEA intends to seek any federal discounts that are available to the government.

https://www.acquisition.gov/far/part-5#FAR_Subpart_5_2 https://www.acquisition.gov/far/part-5#FAR_5_202

Revised March 2021 3

8. A description of the market research conducted (see Part 10) and the results or a statement of the reason market research was not conducted.

DEA reviewed material from four other firms with similar expertise. Kirkland & Ellis; Cravath, Swaine & Moore;

Wachtel, Lipton, Rose & Katz; and Skadden, Arps, Slate, Meagher & Flom were considered as possible sources.

Except for WilmerHale, none of the firms exhibited the level of experience or qualifications that would allow them to start working immediately upon contract award without a steep learning curve. Indeed, one of the firms appears to have an organizational conflict of interest, so they were not further considered as potential source. In the final analysis, WilmerHale was the only firm who exhibited both company and team experience that could ensure that they met the DEA’s requirements in a timely manner. As a result, a determination was made that they were the firm best suited for this requirement.

9. Any other facts supporting the use of other than full and open competition, such as:

i. Explanation of why technical data packages, specifications, engineering descriptions, statements of work, or purchase descriptions suitable for full and open competition have not been developed or are not available.

WilmerHale's legal staff and partners include a unique cadre of professional subject matter expertise for this review of DEA's international operations, and the team is in a position to begin work immediately.

ii. When 41 U.S.C. 3304(a)(1) is cited for follow-on acquisitions as described in 6.302-1(a)(2)(ii), an estimate of the cost to the Government that would be duplicated and how the estimate was derived.

N/A

iii. When 6.302-2 is cited, data, estimated cost, or other rationale as to the extent and nature of the harm to the Government.

The DOJ Office of the Inspector General (OIG) report issued on August 25, 2021, resulted in ten recommendations that require immediate attention by DEA. Failure to address these recommendations and the establishment of appropriate structural, and procedural controls is necessary to ensure consistent accountability and transparency.

Failure or delay will result in a degradation and disruption of DEA's foreign operations. Conducting an unbiased top to bottom review under the direction of outside leadership is the first critical step in this process.

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

No other entities have expressed interest at this time.

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 the supplies or services required.

The Drug Enforcement Administration will continue to survey the market place as well as other entities for interested vendors to help support the overall mission of the Drug Enforcement Administration. Any information received will be considered for the purpose of determining whether to conduct a competitive procurement.

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https://www.acquisition.gov/far/part-10 https://www.acquisition.gov/far/part-6#FAR_6_302_1__d394e63 https://www.acquisition.gov/far/part-6#FAR_6_302_2