Redacted J and A.docx

Date: 4/21/2021

COVER PAGE FOR OFFICE OF ACQUISTIONS

OFFICE OF ACQUISTION POLICY

mc 04/22/2021

kb 04/22/2021

3. Tiffani Redding (Concurrence)

04/22/2021

TR

DRD

04/22/2021

Name of Action: ACF Amended Class Justification & Approval ***Expedited Review Requested***

Review Comments:

Return to: Mary Coleman

Thank you for your assistance. Please feel free to contact me with any questions or concerns.

FROM: (Name / Organization or Title) Mary Coleman Contact Info

Class Justification for Other Than Full and Open Competition Unaccompanied Children, Office of Refugee Resettlement, Urgent Requirements Source Selection Information – See FAR 2.101 and 3.104

1. Identification of the Agency and Contracting Activity

a. Federal Agency U.S. Department of Health and Human Services (HHS)

b. Sponsoring Organization Administration for Children and Families (ACF)

c. Contracting Activity HHS/ACF Office of Government Contracts Services HHS Program Support Center

2. Nature and/or Description of the Action being Approved

This is a class Justification & Approval (J&A) in accordance with FAR § 6.303-1(d) and 6.302-2, Unusual and Compelling Urgency, FAR § 8.405-6(a)(1)(A), Limiting Sources, and FAR § 16.505(b)(2)(i)(A), Exceptions to the Fair Opportunity Process for contract actions to facilitate the efforts necessary to address the influx of Unaccompanied Children (UC). The Office of Refugee Resettlement (ORR) is seeking to provide support to UC in the custody of U.S. Department of Health and Human Services (HHS) who are housed temporarily at an ORR Influx Shelter Site(s).

This class J&A is essential to respond to urgent requests for immediate support to respond to the increased UC capacity to alleviate backups on the U.S. border. This will allow ORR to accept referrals from U.S. Border Patrol and limit the time UC may have to spend in Border Patrol facilities. This class J&A negates the need for individual J&As for contract actions to facilitate the recovery efforts necessary to address UC.

A copy of the class J&A must go in the contract file for all requirements processed under the authority of this class J&A and each contracting office must maintain a log of all contract actions awarded under the authority of this class J&A.

a. Acquisition Purposes and Objectives This class J&A applies to requirements for supplies and services to alleviate backups of UC on the U.S. border. Under the Homeland Security Act of 2002 and the Trafficking Victim Protection Reauthorization Act (TVPRA) of 2008, ORR is responsible for providing care and custody of all UC who have been referred by the U.S. Department of Homeland Security (DHS) within 72-hours of apprehension.

In late January 2021, the ORR confirmed an increase in UC volume and the critical need for additional support to address UC. HHS/ORR has custody and must provide care for each UC, defined as a child who has no lawful immigration status in the United States; has not attained 18 years of age; and, with respect to whom, there is no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide care and physical custody. See 6 U.S.C. § 279(g)(2).

The current pandemic brings additional challenges for the capacity number of UC per facility. The Government must ensure there are no gaps in the provision of care for UC. HHS requires the flexibility to meet the increasing demand.

b. Project Background This justification for unusual and compelling urgency is due to decreasing capacity and support for UC care, which has been impacted because of Public Health Emergency declaration and the National Emergency declaration made by Proclamation 9994, concerning the coronavirus disease 2019 (COVID-19) pandemic. Facilities are operating at reduced capacity, which has led to the need for additional facilities, providers, and solutions that are required to address the needs of UC in ORR custody. It is anticipated that ORR will not be able to operate facilities at full capacity until the COVID-19 public health emergency has been resolved.

To accommodate previous increases in UC referrals, ORR has increased the number of beds in its permanent network to the highest level in history as well as retained access to two influx locations which can provide an additional 3,000 beds. Notwithstanding these efforts, the effects of the COVID-19 pandemic on available bed space has been dramatic. CDC-mandated social distancing requirements and local public health directives have limited available capacity within ORR’s locations. In addition, ORR implemented a 14-day quarantine period for all new UC to limit exposure to the general public. Due to these restrictions, on average, nearly 40% of ORR funded beds have been unavailable since the beginning of the pandemic.

Further, as a result of policy changes made by DHS in early 2020, ORR received fewer referrals than normal during 2020. In late 2020, DHS changed its policy, which has resulted in a substantial increase in referrals in 2021. From October 1, 2020 through December 31, 2020 ORR received 7,207 referrals. In February 2021 alone, ORR received over 7,000 referrals. This is the highest level of referrals compared to any previous February. Daily referrals went from single digits to nearly 200 referrals per day in the course of a week. ORR recently received the highest number of referrals in a single day on March 6, 2021 at 567 referrals of UC. Since that time, average referrals per day have exceeded 450 UC.

As the pandemic worsened, the number of UC referred to ORR tested positive for COVID-19 increased, and the number of program staff reporting exposure increased, ORR providers reported significant challenges retaining staff and recruiting new staff to backfill positions. ORR received reports that applicants have expressed a fear of potential exposure by working in congregate settings, and local lockdowns and market conditions have reduced the pool of potential new candidates. As referrals increased and capacity tightened, ORR worked diligently with the CDC to adjust COVID-19 guidance to provide programs greater flexibility in expanding capacity while also working to mitigate risk of increased exposure to COVID-19 within ORR facilities.

Under the Homeland Security Act of 2002, Congress transferred the care and custody of these children to ORR from the former Immigration and Naturalization Service (INS) to move away from the adult detention model. In the Trafficking Victims Protection Reauthorization Act of 2008, which expanded and redefined HHS’s statutory responsibilities, Congress directed that each child must “be promptly placed in the least restrictive setting that is in the best interest of the child.” See 8 U.S.C. § 1232(b)(2).

ORR’s responsibility is to provide a safe and appropriate environment for children and youth who enter the United States without immigration status and without a parent or legal guardian who is able to provide for their physical and mental well-being.

3. Description of the Supplies or Services Required to Meet the Agency’s Needs (Including Estimated Value)

a. Project Title Unaccompanied Children, Office of Refugee Resettlement, Urgent Requirements Class J&A (UC Class J&A)

b. Contract Performance for UC Supplies and Services The period of performance for UC supplies and services will vary for each individual contract action; however, no contract action shall exceed 12 months.

c. Project Description Supplies and services to ensure ORR provides a safe and appropriate environment to children and youth who enter the United States without immigration status and without a parent or legal guardian who is able to provide for their physical and mental well-being.

· Requirement type(s)

1) Support Services Support Services (non-R&D)

2) Supplies/Equipment

3) Information Technology (IT)

4) Other (Specify): Additional requirement types as needed to support urgent UC requirements, subject to specific approval by the ACF Head of Contracting Activity and HHS Senior Procurement Executive for all contracts subject to statutes and regulations that apply to the purchase or lease of real property and all contracts that involve FAR Part 36, Construction and Architecture-Engineering Contracts.

· Type(s) of Actions

1) New Requirements

2) Follow-On

· Proposed Contract/Order Type

1) Contract type will be defined at the contract or task/delivery order level.

2) All contract types available under FAR Part 16 are authorized under this J&A and shall be documented as part of the contract file.

· Acquisition Identification Number

1) To be identified at the individual contract and task/delivery order level.

2) All contract actions made under this class J&A shall include a copy of this UC Class J&A in the contract file.

d. Total Estimated Dollar Value and Performance/Delivery Period

The estimated value of these supplies and services projected to exceed $8.2 billion, which currently exceeds the $2.6 billion based upon the approved appropriations provided by Congress. The period of performance for UC supplies and services will vary for each individual contract action; however, no contract action shall exceed 12 months.

4. Identification of the Statutory Authority Permitting Other than Full and Open Competition

This acquisition is conducted under the authority of Federal Acquisition Regulation (FAR) 6.302-2, Unusual and Compelling Urgency, and FAR 8.405-6(a)(1)(A). An urgent and compelling need exists and following the procedures would result in unacceptable delays. The agency need for supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays.

5. Demonstration that the Proposed Contractor(s) Unique Qualifications or the Nature of the Acquisition Requires Use of the Authority Cited

a. Name and Address of the Proposed Contractor(s) Actions taken under the authority of this class J&A shall include documentation of market research performed and prospective sources of supply and services. Additionally, actions taken under the authority of this class J&A shall include evidence of the urgent and compelling nature of the particular action, reviewed and approved at a level above the Contracting Officer.

b. Nature of the Acquisition and Proposed Unique Qualifications of the Contractor(s) Actions taken under the authority of this J&A shall include documentation of the contractor’s qualifications and ability to perform the work as part of the Contracting Officer’s responsibility determination.

6. Description of the efforts made to ensure that offers are solicited from as many potential sources as practicable. Indicate whether a Contract Opportunities notice was or will be publicized in beta.SAM.gov, as required by FAR Subpart 5.2 and, if not, which exception under FAR 5.202 applies.

ACF intends to compete future contracts for the types of services covered by this UC Class J&A. However, full and open competition is not feasible to address all of ORR’s immediate needs. ORR is addressing an urgent UC crisis. The onset of the UC crisis occurred within a short timeframe and its magnitude was not anticipated, as ORR now estimates nearly 30,000 UC will require these critical services over the next few months. Additional details can be found in Section 9.

Regarding the FAR 6.302(c)(2) requirement to ensure that offers are solicited from as many potential sources as practicable, the required documentation will be completed at the contract or task/delivery order level.

The exception at FAR 5.202(2) applies. Accordingly, the notice has not been publicized. While notice will be publicized, it will not be publicized in accordance with the time periods specified in FAR 5.203. The Government would be seriously injured if the agency complies with the time-periods for publication specified in FAR 5.203.

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

The Contracting Officer will use appropriate and available information to review proposed prices and determine that they are fair and reasonable, and such documentation shall be included in the contract file. Other information that may be used includes Independent Government Cost Estimates (IGCEs), historical information, contractor’s invoice payments and commercial pricing that have been determined to be fair and reasonable.

All actions taken under the authority of this class justification shall include a documentation of the price/cost analysis conducted and that the proposed price is fair and reasonable.

8. Description of the Market Research Conducted (See FAR Part 10) and the Results, or a Statement of the Reasons Market Research was Not Conducted

The contract file shall include documentation of market research performed and prospective sources of supply and services considered for each contract/order awarded under this UC Class J&A authority.

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

Full and open competition is not feasible because of the evolving environmental factors. For example:

ORR has technical assistance to its grantees regarding establishing cohorts to maximize available bed space and worked with the CDC to ease quarantine restrictions to reduce the length of time UC spend in ORR care. Through these efforts ORR has been able to return nearly 2,000 beds that were previously off-line due to COVID-19 since December 2020. Notwithstanding, the referral rate in February 2021and into March 2021 has resulted in nearly 4,000 UC in Border Patrol stations waiting for designation to ORR care with less than 500 beds available network wide (including a temporary influx facility that was brought back online to augment capacity). This situation has turned into an urgent UC crisis as ORR estimates nearly 30,000 UC will require these critical services over the next few months.

10. Listing of Sources, If Any, that Expressed in Writing an Interest in the Acquisition

Sources and market research shall be defined at the contract or task/delivery order level and shall be documented in the contract file.

11. Statement of the Actions, If Any, the Agency May Take to Remove or Overcome Any Barriers to Competition Before Any Subsequent Acquisition for the Required Supplies or Services

ACF intends to compete future contracts for the types of services covered by this UC Class J&A. This class J&A shall be used to meet the urgent need and shall remain in place for the duration of the need to address the influx of Unaccompanied Children (UC) and the National Emergency as declared by Presidential Proclamation 9994, concerning the coronavirus disease 2019 (COVID-19) pandemic or until revoked by the Senior Procurement Executive (SPE).

REVIEW AND APPROVAL OFFICIAL: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Francine L. Hemphill -S Digitally signed by Francine L. Hemphill -S Date: 2021.04.20 18:32:52 -04'00'

Francine L. Hemphill Date Head of Contracting Activity

David R. Dasher 04/22/2021 David R. Dasher (Apr 22, 2021 09:25 EDT) David R. Dasher Date Senior Procurement Executive image1.png