Justification and Approval .pdf

Attachment 1 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)

Regulatory Analysis and Operational Enforcement Guidance Support

Version 2.0 August 2021

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

1. Agency and Contracting Activity.

The CBP Office of Field Operations (OFO), Cargo and Conveyance Security, NII Acquisition Program Management Office, proposes to enter into a contract for Regulatory Analysis Support on a basis other than full and open competition.

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

The CBP Office of Field Operations (OFO), Cargo and Conveyance Security, NII Acquisition Program Management Office, has a requirement to obtain Regulatory Analysis and Operational Enforcement Guidance support on a sole source basis for various U.S.

Customs and Border Protection Programs. The name and address of the proposed contractor is Jeremy Baskin, Customs Penalties, LLC, 3800 Fairfax Drive, # 1101, Arlington, VA 22203.

3. Description of Supplies/Services.

The services to be acquired consist of Regulatory Analysis and Operational Enforcement Guidance support for various U.S. Customs and Border Protection Programs. The areas of regulatory analysis support shall cover, but is not limited to, customs law, including: fines, penalties, seizures, forfeitures and liquidated damages; bonds and bonding; entry of merchandise; cargo redelivery; cargo transportation; conveyances; manifesting, including advance cargo information submission; customs broker regulations; administrative petitioning; protests; detention of merchandise; intellectual property enforcement; bonded warehouses, foreign trade zones, and other custodians of bonded merchandise (container freight stations, centralized examination stations); airport security bonding; aircraft penalties;

user fees; duty collection and liquidation; exports; and restricted merchandise.

The contractor is required to review draft regulatory development packages prepared by OFO program offices for submission to the CBP OFO Office of Regulatiions and Rulings (ORR) for review and approval. The documentation in the draft packages are relevant to OFO’s innovation projects and initiatives; provide proposed recommendations on OFO project documentation, including capability analysis reports, mission needs statements, operational requirements documents; and identify gaps in CBP’s regulatory authority.

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.

253(c)(1) implemented by the Federal Acquisition Regulation (FAR) 6.302-1 entitled, “Only

One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements”. As permitted under (FAR) Subpart 6.302-1(a)(2), the services required by the agency are available from only one responsible source, and no other type of service will satisfy agency requirements.

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

The nature of the work contained within the Statement of Work (SOW) is highly specialized.

Competition must be restricted on this acquisition because only one responsible source possesses the unique experience, expertise and capability to perform the Statement of Work requirements for CBP Office of Field Operations (OFO). Regulatory issues to be analyzed and supported under the Statement of Work are not routine or general in nature, but are specific to internal CBP processes, Programs, requirements and initiatives. Specific knowledge and experience within the CBP environment are required in order to evaluate, analyze and advise on the impact of Policies, Regulations and initiatives on OFO innovative projects. Specific knowledge of and experience with CBP systems, regulations, and operations is required, along with specific experience in gathering data from internal stakeholder sources and performing analyses to support OFO initiatives. Specific knowledge of and experience with customs law is also required, in the areas of fines, penalties, seizures, forfeitures and liquidated damages; bonds and bonding; entry of merchandise; cargo redelivery; cargo transportation; conveyances; manifesting, including advance cargo information submission; customs broker regulations; administrative petitioning; protests;

detention of merchandise; intellectual property enforcement; bonded warehouses, foreign trade zones, and other custodians of bonded merchandise (container freight stations, centralized examination stations); airport security bonding; aircraft penalties; user fees; duty collection and liquidation; exports; and restricted merchandise.

Only one contractor is capable of fulfilling the Statement of Work requirements: Jeremy Baskin, Customs Penalties, LLC. The contractor, Jeremy Baskin, Customs Penalties, LLC., has a vast amount of experience providing the specific Statement of Work Regulatory Analysis and Operational Enforcement Guidance support within the CBP OFO environment and a vast amount of experience dealing with all the required elements of customs law, described above. The contactor has evaluated, analyzed and advised on the impact of policies, regulations and initiatives on CBP OFO innovative projects, and has specific experience in gathering data from internal stakeholders and performing analyses to support OFO initiatives. The contractor’s experience has not been routine or general in nature, or general work within a related field, rather it has been providing relevant hands-on analysis, advice and support to the Office of Regulations and Rulings (ORR). The contractor served in the office of general counsel of the Consumer Product Safety Commission (CPSC) and advised the Commission and the General Counsel on import matters.

Other companies were sought and evaluated in an attempt to identify additional sources capable of meeting the Statement of Work requirements, and six companies were identified for further evaluation, based on the nature of their work. Market research found, however, these other sources cannot meet the Statement of Work requirements. The expertise of these firms was either general in nature or specialized in other areas not related to the SOW requirements, covering a broad cross-section of public policy and regulatory issues both within the continental United States and abroad. None involved direct regulatory analysis and operational enforcement guidance relative to support CBP OFO policies, regulations and initiatives or direct experience with and knowledge of the elements of customs law described above. Knowledge and experience of OFO operations is necessary to successfully meet the SOW requirements. Market research showed that no other sources have the capability to perform the Statement of Work requirements other than Jeremy Baskin, Customs Penalties, LLC.

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

A FedBizOpps notice will be publicized, as required by FAR Subpart 5.102(a)(6) and 5.2.

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

The contracting officer has determined that the independent government cost estimated will be fair and reasonable based on price comparisons of open market sources providing similar work and of sources providing similar support to other non-CBP agencies.

8. Description of Market Research.

Seven companies were identified under Market research as possibly having the potential to perform the requirements of the Statement of Work. None of these other firms, however, have experience or expertise specific to providing regulatory review and operational enforcement guidance and support within the CBP OFO environment. These firms do not have the required experience in the specific environment of customs law as it relates to specific internal CBP processes, Programs, requirements and initiatives, nor do they possess an expert knowledge of CBP systems, regulations, and operations, in order to gather data from various sources as necessary to perform analyses to support CBP OFO and provide support for a variety of programs and initiatives. This knowledge and subject matter expertise is required to meet the requirements in the SOW.

Only one source, Jeremy Baskin, Customs Penalties, LLC, was found capable of fulfilling the Statement of Work requirements. Jeremy Baskin, Customs Penalties, LLC. has a vast amount of experience providing regulatory analysis and operational enforcement guidance within the CBP OFO environment. The contactor has evaluated, analyzed and advised on all Statement of Work elements of customs law and on the impact of policies, regulations and initiatives on OFO innovative projects, and has specific experience in gathering data from internal stakeholders and performing analyses to support OFO initiatives. The contractor’s experience has not been routine or general in nature, or general work within a related field, rather it has been directly relevant hands-on regulatory review and operational enforcement guidance and support to DHS and CBP OFO.

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

The requirement is not suitable for full and open competition because the nature of the work is highly specialized and applicable only to the internal CBP OFO operating environment.

Sources must have direct experience with and knowledge of customs law as it applies to internal CBP OFO Policies, Regulations and initiatives, along with specific direct experience in gathering data from internal stakeholder sources and performing analyses to support CBP OFO programs and initiatives covering both immigration (Title 8 authorities) and customs (Title 19 authorities).

The SOW requirement cannot be modified to enhance competition, because to do so would require removing the essential elements of the requirement which would significantly adversely impact the ability of the CBP and OFO to meet their mission in accordance with CBP and OFO Policies, Regulations, and initiatives.

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

Acquisition.

A synopsis will be published in FedBizOpps requesting parties to express interest by writing to the Contracting Officer. All responses will be reviewed and dispositioned accordingly and appropriately by the Contracting Officer.

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 will continue to monitor marketplace conditions to determine whether additional sources become available for performing the highly specialized Statement of Work requirements.

13. Posting Requirement.

CBP will post this requirement on FedBizOpps pursuant to FAR 6.305.