Limited Source Justification_Redacted.pdf

DEPARTME TOFDEFE J E

, ASHINGTOl HEADQUARTERS ERVI

1155 DEFEN E PE 'TAGO

WA HINGTON, DC 20301-1155

LIMITED SOURCE JUSTIFICATION

FOR OTHER THAN FULL AND OPEN COMPETITION

This acquisition is conducted under the authority of tbe Multiple Award Schedule Program (41 V.S.c. 251, et seq., and 40 V.S.c. 501).

Subject: Habeas Corpus Privilege Team and Military Commissions Privilege Team Support Services.

I. Identification of Agency and Contracting Activity

The contracting activity responsible for this Limited Source Justification is the Washington Headquarters Services, Acquisition Directorate, Enterprise Analysis and Studies Division (WHS/AD/EASD), 1155 Defense Pentagon, Washington, DC 20301-1155. The requiring activity for this effort is the Office of the Under Secretary of Defense for lnteliigence (OUSD(l)) and the Department of Defense Office of General Counsel (DoD OGC).

[I. Description of the Action

The purpose of this action is to award a sole source task order for services requiring a Performance Work Statement (PWS) to TASC Inc. under GSA Federal Supply Schedule (FSS) No. GS-lOF-0318Y. The government anticipates awarding a Firm-Fixed-Price (FFP) order against TASC Inc.'s Missions Orientated Business Integrated Services (MOErS) Schedule, Standard Industry No. 874-1.

HI. Description of Services Requit-ed

This requirement is for professional, technical, analytical, and administrative services to assist OUSD(I) and DoD OGC in the areas of world-wide intelligence/counterintelligence and security interests. The contractor will conduct security inspections of written communications between detainees held at the DoD detention facility in Guantanamo Bay, Cuba (GTMO), and their legal counsel. The contractor will be responsible for assembling two separate entities known as the Habeas Corpus Privilege Team (PT) and the Military Commissions Privilege Team (MCPT).

The PT and MCPT will implement and comply with judicial orders issued by federal courts and military commissions, as well as other orders and directives issued by competent authorities, consistent with applicable law including the right to counsel and attorney-client privilege.

Specifically, the PT will be responsible for implementing and complying with judicial orders issued by federal courts as well as other orders/directives regarding the handling of communications involved in or following the termination of habeas corpus civil litigation, transmitted between Guantanamo detainees and legal counsel. Further, the PT will provide the following within the parameters ofjudicial orders issued by federal courts and other orders and directives issued by competent authorities: security and intelligence reviews; classification

Page I of7 reviews; and advice and recommendations regarding security and intelligence issues relating to communications.

The MCPT is tasked with conducting security inspections of communications between detainees and attorneys representing them in military commission proceedings. While conducting security inspections, the MCPT must comply with and implement all orders/directives issued by military judges presiding over military commissions, military magistrates, and other orders/directives regarding the handling of communications involved in military commission proceedings transmitted between GTMO detainees and their military commission defense attorneys. The MCPT is not authorized to conduct classification reviews of any written attorney-client communications.

The period of performance for this requirement will be a base period of 12-months, with four 12 month option periods.

• Base Period:

• Option Period I:

• Option Period 2:

• Option Period 3:

• Option Period 4:

August 30, 2012 through August 29, 2013 August 30,2013 tlu-ough August 29,2014 August 30,2014 through August 29,2015 August 30,2015 through August 29,2016 August 30,2016 through August 29,2017

IV. Authority and Supporting Rationale of Contractor's Unique Qualifications, FAR 8.405 6(a)(1 )(i)(B)

This acquisition is conducted in accordance with Title III of the Federal Property and Administrative Services Act of 1949 (41 V.S.c. 251, et seq.) and Title 40 U.S.c. 501, Services for Executive Agencies. The authority for permitting other than full and open competition for this acquisition is FAR 8.405-6(a)(l )(i)(B), "Only one source is capable of providing the services required at the level ofquality required because the services are unique or highly specialized."

This acquisition is a follow-on to task order HQ0034-07-A-1040-0003. This effort was originally solicited competitively under a multiple award BPA, however only one BPA holder, Northrop Grumman, responded. The Contracting Officer received notification (via email) from the other BPA holders that they were not interested in responding to this requirement.

Page 2 of7

Northrop Grumman, the contractor currently providing the highly specialized services required under the existing task order (governing the work under the habeas protective orders), has been doing so since 2007. TASC Inc. provided these services as a subsidiary of Northrop Grumman until 2009. In 2009, the Weapon Systems Acquisition Reform Act (WSARA) was passed to prevent the occurrence of organizational conflicts of interests (OCls) created when a contractor performs both advisory and development support services on a major defense acquisition programs. Northrop Grumman had both development and advisory services programs. As a result of the passage ofWSARA, on December 19,2009, Northrop Grumman sold TASC, Inc.

(its advisory services business). Since its sale, TASC Inc. has continued to provide these services as a subcontractor to Northrop Grumman. Throughout this time, TASC Inc. has developed unique knowledge and expertise that is critical to the success and efficiency of the privilege team's work, as described further below.

The history of the privilege team process is important in understanding the unique and highly specialized services required. The requirement for a PT began in 2004 as part of the habeas corpus civil litigation involving challenges to the lawfulness of detention of detainees held at Guantanamo Bay, Cuba. The challenges were heard before the U.S. District COUlt for the District of Columbia and the Court of Appeals for the District of Columbia Circuit. The requirement for a MCPT arose as part of the government's prosecution of select unlawful enemy belligerents via military commissions for their allegedly unlawful conduct as defined by statute and the laws of war. The unique histories of these two separate legal systems include several changes in the procedures for protecting national security information and counsel access to detainees.

Additionally, both the civil litigation and military commissions developed out of and, in turn, created new law. In other words, in both instances, there was no existing law that adequately informed how the legal proceedings would be handled or, relatedly, how attorneys and detainees would be allowed to communicate in these two litigation schemes. Through the development of this litigation, the need for a "privilege team" was recognized and likewise newly defined. No comparable process or team exists in any other U.S. court system.

In June 2008, following a landmark Supreme Court decision (Boumediene v. Bush) the habeas PT was more clearly defined and its use became considerably more active. The Supreme Court decision allowed the habeas cases of detainees to proceed to trial, the U.S. Government was almost immediately required to respond to approximately 200 detainee habeas lawsuits, filed in the U.S. District Court for the District of Columbia, challenging the lawfulness of their detention.

Between 2004 and 2008, many of the cases had been dormant as the parties were engaging in litigation over the courts' jurisdiction to hear these cases. Boumediene ended that litigation. All of these cases involved classified and/or protected information and each of these detainees had one or more civilian lawyers who were provided security clearances by the U.S. government and required access to their detainee-clients at Guantanamo. Pursuant to the U.S. Government's request, the District Court issued two separate "Protective Orders" in September 200S2and

2 "Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba" (Attachment I)

Page 301'7

January 20093 to protect the national security information or documents involved in the cases, replacing the prior 2004 Protective Order.

These new Orders governed the storage, handling, and control of infOlmation which require special security precautions, a security clearance, and a forn1al acknowledgment of a "need to know" and provided extensive guidance on the processing of communications between detainees and their habeas lawyers, including the use of the privilege team. Collectively, the habeas Protective Orders consi t of 60 pages of special security precautions and access procedures, define what a "privilege team" is, and direct how the PT will perform its duties. The Protective Orders bind the attorneys for the detainees. In turn, the PT members must know the details of the Protective Orders in order to ensure they process detainee-attorney materials in compliance with the orders and to ensure the attorneys for the detainees are complying with their obligations under the orders.

While aspects of the Protective Orders are based to some extent on the Classified InfOlmation Procedures Act (CIPA), which is used in Federal Courts to govern use and handling of classified infOlmation in federal criminal prosecutions, the Protective Orders provide for a substantially ditTerent right of access to classified information and create a presumption that detainee communications to their lawyers are classified. The Protective Orders also seek to prevent detainee access to information that could pose other threats to security and installation force protection. The requirements in the Protective Orders were indeed novel, which required the members of the PT to learn and develop new internal processes and procedures to implement these orders on a daily basis. This requirement was heightened when many cases started moving to trial in 2008.

Similar to the habeas litigation, military commissions has a long litigation history, which has recently resulted in the creation of the MCPT.

the Commander, Joint Task Force-Guantanamo, issuing, on December 27, 2011, an "Order Governing Written Communications Management for Detainees Involved in Military Commissions" and an "Order Governing Logistics of Defense Counsel Access to Detainees Involved in Military Commissions." Those Orders directed the use of a MCPT for certain required actions involving detainee communications with their military commission defense counsel.

As a result, DoD decided to use separate individuals on the MCPT and PT.

Based on the foregoing, WHIAD has determined that TASC Inc. has developed unique knowledge and expertise pertaining to the prosecution of these orders and directives. WHS has determined that only TASC Inc. is capable of providing these critical service at the level of

3 "Protective Order for Habeas Cases Involving Top SecreUSensitive Compartmented Information and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, in Habeas Cases Involving Top SecreUSensitive Compartmented Information" (Attachment 2)

Page 4 of7 quality required due to their involvement in the development of the program's unique processes that are required to manage these highly specialized areas oflaw. No comparable services are perfonned by any entity within the U.S. government. These services are highly specialized because the judicial orders and other directives governing the work perfOlmed by the PT and MCPT have generated mission requirements that do not exist anywhere else. As a result, it would take another contractor months, if not years, to develop the expertise necessary to fully perfOlm the required duties. An award to any other source would result in substantial duplication of costs to the Government that would not be recovered through competition, and would create unacceptable delays in fulfilling these requirements. These services are provided in high profile court cases that are of critical significance to the government and our national security.

Failure to perfonn the duties appropriately could result in compromise of national security infOlmation, senior government officials being held in contempt of court, and/or delays in court proceedings. The expertise and experience of the existing contractor will ensure continuity in this extremely sensitive area where past experience and practice is invaluable. As a result, the involvement of a new contractor would cause a disruption in operations, resulting in a significant and negative impact on the Government's ability to comply with judicial orders issued by federal and military courts as well as other orders and directives issued by competent authorities.

FUlthennore, although the same individuals who have been performing the habeas PT work cannot serve on the MCPT, the expertise that they have garnered over the past five years of performance can be utilized to train the new MCPT members on how to perform related aspects of the work that will be done in the military commission context.

it is critical that the unique and specialized knowledge and expertise of the PT be imparted to the MCPT as part of their training. Furthennore, TASC has developed expertise and experience in this unique work, which will be of critical assistance in implementing the MCPT's duties and defending their actions as needed.

Additionally, all of the members of the PT and MCPT require a TS/SCI clearance adjudicated by the 000. All of the cun-ent contract PT and MCPT members hired by the contractor have gone through the adjudication process and hold the requisite clearances. A new contractor would have to submit all personnel for clearance adjudication which, on average, would take at least four to six month . TASC Inc. has been able to build, over time, qualified and cleared reviewers that meet the unique security needs.

V. Be t Value Determination

A detennination of price fair and reasonable will be made, prior to award. Actions anticipated to ensure reasonableness of the price will be accomplished with the procedures and criteria contained under FAR 8.404(d). Additionally, the Contracting Officer will rely on five years of historical data in costs to perform these etTorts and the pre-negotiated GSA rates that have already been determined to be fair and reasonable, to do a price analysis.

The Contracting Officer will evaluate the proposal in conjunction with the requiring activity to ensure that the overall price for the order represents the best value given the proposed technical

Page 5 of7 approach. The detailed documentation and justification of price reasonableness will be disclosed in the official Price Reasonableness Memo, to be prepared upon completion of any discussions or negotiations.

VI. Market Research

The qualifications of sources available under WHS/AD's contract vehicles and the qualifications of GSA Schedule holders were considered; however no sources other than TASC, Inc. were considered to have the highly specialized expertise to meet this requirement. The sources considered did have general intelligence/counterintelligence and security experience but they did not have the highly specialized experience that the agency requires.

VII. Other Facts Supporting the Justification

TASC Inc. has cultivated a network of subject matter experts who have developed processes, procedures, and technical knowledge that is instrumental for full compliance with this PWS.

Over the course of many years, TASC Inc. has formulated relationships with Department of Justice Special Litigation Counsel, personnel at GTMO, and other government officials that enable them to provide necessary continuity in implementing and complying with judicial orders issued by federal and military courts as well as other orders and directives issued by competent authorities. This unique experience allows TASC Inc. to readily provide the knowledge and experience necessary to conduct security inspections of classified and unclassified attorney-client privileged materials generated by detainees.

VIII. Actions to Remove or Overcome Barriers to Competition

Due to the extreme sensitivity of this mission; the need to maintain continuity of services; the need to protect national security information; the need to comply with judicial orders issued by federal courts and military commissions; and the need to comply with other orders and directives issued by competent authorities, the Department has determined that it would be in its best interest to retain the services ofTASC Inc. Therefore, no additional market research was conducted other than price related information.

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IX. Approval Authority

Technical Certification:

I certify that the Government's minimum needs and schedule requirements set forth as rationale forming the basis for this contract action is complete and accurate to the best of my knowledge and belief.

Date: 06 July 2012

Technical Sponsor

Contracting Officer Certification:

Based on the above, I hereby assert that satisfying the Government's need by other than full and open competition is justified. I hereby determine that the anticipated cost to the Go ernment for this action will be fair and reasonable. I hereby certify that the above assertions are accurate and complete to the best of my knowledge and belief.

Digitally ~i;!"!ed by KORNEGAY.ANG£lA$.l ~9i419W6 DN: o..us, ~U S. Governm.nt, ou="OoO, ou=PKI, o~v,'HS. ,n-<KG'RNEGAY.ANGfLA..5.1391~39Sf.l6

Oat..: 2012.07 09 17:25:2'1-04<(}(1

KORNEGAY.ANGELA.

5.1391439806 Date:-------------------- -----------

Contracting Officer

Legal Sufficiency Review:

Digitally ~19ned by KOZMVCZJ.'lARINAANN.'193185310 DN: (",us. o=US Government. 01.;:;:000, ou..Pll;I, c.o:=WHS, cn",KOIMYCZMAR1NAANN.129328S31>J Date: 2012.07.0614:43:01 ·04'00'

KOZMYCZ.MARINA.A

NN.1293285310 Date:-------------------- -----------

Marina M. Kozmycz WHS General Counsel

Competition Advocate Approval:

Y~~.tUL Date: --c....:-:..--f-JL- _

Competition Advocate

Head of Contracting Activity Approval:

Heaa of Contracting Activity, WHS/AD

Date:

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Foxju Typewritten Text 06 July 2012

Foxju Typewritten Text 09 July 2012

Foxju Typewritten Text Angela S. Kornegay