JUSTIFICATION AND APPROVAL (2).pdf

U.S. Customs and Border Protection Justification and Approval For Other Than Full and Open Competition

For contracts or orders above the Simplified Acquisition Threshold (SAT)

Version 2.0 March 2018

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

1. Agency and Contracting Activity.

Customs and Border Protect (CBP), Office of Chief Counsel (OCC), proposes to enter into a contract for expert witness and litigation support services on a basis other than full and open competition.

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

CBP has a requirement on a sole source basis to obtain expert witness and litigation support services at a cost of $388,000.00. Proposed contractor:

DCI Consulting Group 1920 I St NW Washington, DC 20006

3. Description of Supplies/Services.

The requirement is to provide expert witness and litigation support services at a cost of $388,000.00. CBP requires an expert(s) experienced in the field of job-related physical performance measures as applied to EEOC class action litigation to support the Agency’s arguments before the EEOC. DCI Consulting is uniquely qualified to provide these services on the expedited timeline ordered by the EEOC Administrative Judge presiding over the class complaint.

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)(3), implemented by the Federal Acquisition Regulation (FAR) Subpart 6.302-3 entitled, “Industrial mobilization; engineering, developmental, or research capability; or expert services.”

5. Demonstration That the Nature of the Acquisition Requires Use of the Authority Cited.

The instant litigation requires the services of an expert knowledgeable in the development and validation of pre-employment physical fitness testing and any disparate impacts on female applicants that may result from the implementation of such testing. DCI Consulting is an expert in that field of study, and is also familiar with the work performed by the developers of the original job analysis and validation studies being challenged in the instant litigation. DCI Consulting has multiple employees who can assist OCC in assessing the strengths and weakness of the Agency’s case and the potential liability the Agency may face.

OCC had previously agreed with opposing counsel on a discovery schedule that would have extended through August 2020 and provided additional time to obtain expert witnesses.

However, on January 17, 2020, the EEOC Administrative Judge rejected the joint submission of the parties and ordered that expert discovery be completed no later than May 15, 2020. A subsequent order on March 20, 2020 extended that deadline to July 17, 2020.

DCI Consulting is uniquely situated with sufficient resources to perform all necessary work within that expedited timeframe.

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

OCC contacted potential experts via telephone to gauge interest and ability in performing the anticipated work within the timeframe ordered by the EEOC Administrative Judge. DCI Consulting was the only potential contractor to commit to the expedited timeframe. Pursuant to FAR 5.202(a)(14), this contract action is exempt from the notice requirements of FAR Subpart 5.2.

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

The contracting officer performed a Google search for an expert witness testimony. The median price for an expert witness testimony is $500.00 per hour and expert witness consultation services are between $695 to $995 per hour. DCI Consulting Group rates for the expert witness services range from $350 to $600 per hour.

The contracting officer has determined that the price will be fair and reasonable.

8. Description of Market Research.

The internet was searched for a list of contractors that could provide the expert witness and litigation support serves required. Assistance was also solicited from CBP’s Office of Human Resources Management (HRM), Personnel Research and Assessment Division (PRAD) concerning respected experts in the field of job-related physical performance measures as applied to EEOC class action litigation. The market research and endorsement from PRAD showed that DCI Consulting was best positioned to provide the expert services and litigation support.

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

The requirement is for expert witness and litigation support services regarding job-related physical performance measures as applied to EEOC class action litigation. A neutral third-party expert is needed to review job analyses and physical fitness test validation studies completed in 2009 by a different contractor in order to confirm that proper methodology was used in developing the physical fitness standards at issue in the instant litigation. DCI Consulting is familiar with the contractors who performed the studies and completed the reports at issue, which will help expedite DCI’s review and analysis of those studies and reports and enable them to provide timely feedback to OCC in order to successfully defend the Agency in the EEOC class action litigation.

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

Acquisition.

As described above in item 6, OCC contacted potential experts via telephone to gauge interest and ability in performing the anticipated work within the timeframe ordered by the EEOC Administrative Judge. DCI Consulting was the only potential contractor to commit to the expedited timeframe.

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

OCC does not anticipate future acquisitions of the same service for the same litigation will be necessary. To the extent subsequent litigation arises concerning the same or similar clims at issue in the instant litigation, OCC will assess the need for expert witness litigation support and the necessity of using the authority provided in 41 U.S.C. 3304(a)(3) to fulfill such need at the appropriate time.

12. Posting Requirement.

CBP will post this justification on Beta.Sam.gov/Contract Opportunities website and DHS

Acquisition Planning Forecast System (APFS) within 14 days of the contract award pursuant to FAR 6.305, Availability of Justification.

► J&A CERTIFICATIONS

14. REQUISITION/PROGRAM OFFICE CERTIFICATION

I certify that the foregoing justification is accurate, meets the Government’s minimum needs and contains complete information necessary to support the action described in this document and the authority cited.

Office:

Name: (Print):

Title:

Signature: _______________________________ Date: _____________

15. CONTRACTING OFFICER CERTIFICATION/APPROVAL*

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.

Name (Print):

Contracting Officer

Signature: ________________________________ Date: _____________

* In accordance with FAR 6.304(a)(1), CO certification of a J&A for a requirement not exceeding $700,000 shall constitute approval of the J&A.

16. SMALL BUSINESS SPECIALIST CERTIFICATION (Per HSAM 3019.501 -

Above the SAT)

I certify that I have conducted a search for small businesses and other socio-economic concerns capable of participating in this acquisition.

If any were found, a list is attached.

CBP Small Business Specialist

Signature: _____________________________________ Date: _____________

17. CHIEF COUNSEL REVIEW (Per HSAM 3006.304-70 - Above the SAT)

Signature: _____________________________________ Date: _____________

► J&A APPROVALS

Office of Chief Counsel James Attanasio

Senior Attorney

4/16/2020

18. COMPETITION ADVOCATE (Per FAR 6.304(a)(2) - Above $700,000)

Approved Disapproved

Name (Print): ________________________ Competition Advocate

Signature: ___________________________ Date: _____________

19. HEAD OF CONTRACTING ACTIVITY (Per FAR 6.304(a)(3) - $13.5M to $68M)

Name (Print): _______________________ Head of the Contracting Activity

Signature: __________________________ Date: _____________

20. DHS CHIEF PROCUREMENT OFFICER (Per FAR 6.304(a)(4) - Above $68M)

DHS Chief Procurement Officer

21. DHS SECRETARY (any determination and justification for a contract awarded under FAR 6.302-7, Public Interest, regardless of dollar amount)

DHS Secretary