FINAL_Justification_Super_Bowl_LMR_1_13_15.pdf

SOLE SOURCE JUSTIFICATION FOR COMMERCIAL ITEMS TEST

PROGRAM

FAR 13.501(a)(1)(ii)

1. Identification of the agency, contracting activity and specific identification of the document as a “Sole Source Justification for Commercial Items Test Program."

The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Procurement

Section proposes to enter into a sole-source contract with Motorola Solutions, Inc.

(Motorola) under the Commercial Items Test Program.

2. The nature and/or description of the action being approved.

This is a new procurement action under Federal Acquisition Regulation (FAR) §13.5. The

FBI anticipates award of a Firm Fixed Price (FFP) sole-source contract to Motorola for portable radios needed to support its public safety activities at the Super Bowl on February

7, 2016 in San Francisco, CA. Additionally, the FBI requires these radios for its coverage of the pre-Super Bowl events occurring in San Francisco beginning in January 2016.

3. A description of the supplies and/or services required to meet the agency’s needs

(including the total estimated value).

The FBI anticipates award of a one-time, single order for radios to support its efforts relating to Super Bowl coverage. To adequately prepare for and potentially respond to any threats or law enforcement incidents occurring in conjunction with the Super Bowl, the

FBI requires 200 radios. The FBI determined that this was the minimum number needed to carry out effectively the Super Bowl radio communications plan developed by the FBI’s

San Francisco Field Office in conjunction with the other relevant public safety entities that will be supporting the game. The value of this procurement is approximately $950,000.

Specifically, the FBI requires the following Motorola radios for this event:

190 APX7000 dual band portable radios

10 APX8000 quad band portable radios (to be used to interoperate with law enforcement agencies that operate in the VHF/UHF/700-800 MHz)

In accordance with FAR §13.5(a), the Contracting Officer reasonably expects, based on the nature of the supplies sought, and on market research, that offers will only include commercial items.

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

This sole-source procurement based on unusual and compelling urgency is entered into pursuant to 41 U.S.C. §1901, in accordance with the procedures of 41 U.S.C. §3304(e), and as specified under the commercial item test program procedures contained in FAR

Subpart 13.5.

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

a. The FBI has a compelling need to procure Motorola radios to protect national security at the Super Bowl

The threat of terrorism or other criminal incidents—particularly in crowded, public venues—is real and ever-present. As very recent examples, on November 13, 2015, multiple terrorists executed a coordinated attack on several public locations throughout

Paris, France—killing 130 people and injuring hundreds more. During the attack, suicide bombers specifically targeted a packed sporting event at France’s national soccer stadium with the goal of detonating bombs inside. Additionally, on December 2, 2015, terrorists attacked a social services center in San Bernardino, CA and left 14 people dead and 22 injured.

As the lead law enforcement agency for counterterrorism investigations, the FBI provides national security support during high-profile events in which a large number of individuals will be gathered in a confined location—particularly following the recent tragic events discussed above. For example, the FBI has historically provided coverage of public events such as the annual Super Bowl football game and will continue to do so for this year’s

February 7, 2015 game in San Francisco, CA. This year’s Super Bowl has been designated as a National Special Security Event (NSSE) for which the FBI is identified by regulation as one of three agencies with lead responsibility for the event’s security. See 32 C.F.R. §

183.3. NSSEs by definition “represent a significant danger, and therefore warrant additional preparation, planning, and mitigation tactics.” Id. (emphasis added). The FBI works in conjunction with both state and local police forces, as well as other federal law enforcement partners, to provide support at such events. To communicate with each of these entities, the FBI largely relies on portable radios.

When the FBI deploys to a particular location for an event such as the Super Bowl, it generally conducts radio communications with the state and local law enforcement agencies in the area using these agencies’ local radio infrastructures. The FBI requires direct radio communications with these other law enforcement agencies to enhance the effectiveness of its public safety exercises and investigations. The FBI estimates that among its law enforcement partners, over 1,290 use trunked radio systems for their radio infrastructure. Many of these trunked systems were developed using Department of

Homeland Security (DHS) grant money made available to state and local law enforcement entities in the aftermath of the September 11th terrorist attacks. Over 90 percent of these trunked systems procured were Motorola-proprietary trunked systems. Although the development of the “Project 25” (P25) trunking standard in the early 2000s was designed to provide a non-proprietary format to allow use of any P25-compatible subscriber radio on any manufacturer’s proprietary P25-compatible system, many state and local law enforcement agencies using legacy trunked systems have not upgraded their equipment to meet the P25 standard. As a result, the majority of these entities with previously-installed proprietary trunking systems based on Motorola’s SmartNet/SmartZone technology still operate these systems today.

Regardless of where the FBI deploys for a mission, it must have pre-programmed radios that are capable of connecting to whatever radio systems the local law enforcement entities have in place—including SmartNet, SmartZone, or other systems. Due to the many technical limitations associated with using gateways that hinder operational effectiveness, the FBI has a minimum requirement for radios that connect natively to these systems (i.e.

without the use of gateways). Specific operational limitations of gateways include, but are not limited to the following: 1) gateways require frequent audio level calibration to ensure voice data passed through the gateway is loud enough to be heard, yet not so loud to become distorted; and 2) as an over-the-air interface, gateways are at greater risk of interference and loss of communicability.

As stated above, the FBI has a critical requirement to provide support for the February 7, 2016 Super Bowl in San Francisco, CA, in addition to covering pre-Super Bowl festivities for the week leading up to the game. As part of its mission, the FBI must be ready to respond immediately in the event of a law enforcement incident or crisis situation. An integral component of the FBI’s monitoring and response strategy includes having a sufficient number of pre-programmed radios on hand to facilitate seamless communications with its state and local law enforcement partners using these entities’ existing San Francisco-based radio infrastructure. The San Francisco city trunked radio

A “trunked radio system” is a complex type of computer-controlled two-way radio system that allows sharing of relatively few radio frequency channels among a large group of users. In two-way radio communications, trunking refers to the ability of transmissions to automatically connect to any number of channels. The availability of these channels is determined by algorithmic protocols. In contrast, in a

“conventional” (i.e., not trunked) radio system, users of a single service share one or more exclusive radio channels and must wait their turn to use them.

system is a legacy Motorola system. There are other legacy Motorola systems in the immediate surrounding areas.

Thus, to communicate with its state, local, and federal partners in support of the Super Bowl, the FBI has an operational mission requirement for radios with SmartNet/SmartZone trunking capability that can connect natively to the

Motorola legacy systems.

b. The FBI has been unable to buy radios for the past two years due to protest litigation.

The FBI’s need for SmartNet/SmartZone-compatible radios extends well beyond this

Super Bowl requirement, as most state and local law enforcement partners still use legacy

Motorola systems. In July 2014, the FBI tried to meet its enterprise-wide future radio requirements by issuing a solicitation for subscriber radios and infrastructure equipment to support all Department of Justice (DOJ) components (estimated value of $500 million over five years). In accordance with the publication requirements at FAR § 5.003, this solicitation was posted on the open market via FedBizOpps. Additionally, in accordance with FAR §§ 6.302-1(c) and 6.305, the FBI also publicized a written justification specifying the FBI’s need for Motorola-compatible radios and equipment.

During the time for public comment on the FBI’s justification, the FBI received four protests of its solicitation which, among other grounds, alleged that some limited types of supplies specified (e.g., batteries) could be manufactured by non-Motorola companies and still function within the FBI’s existing Motorola radios and equipment. Thus, the protests alleged that the FBI’s minimum requirements for these supplies did not include Motorola-proprietary equipment. After receipt of these protests, the FBI voluntarily canceled its solicitation and agreed to reevaluate its requirements. The Government Accountability

Office (GAO) dismissed the protests as academic on August 25, 2014.

In May 2015, the FBI released two new solicitations—one for subscriber radios (estimated value of $200 million over five years) and one for infrastructure equipment (estimated value of $135 million over five years)—via DHS’ Tactical Communications (TacCom) multiple-award Indefinite Delivery/Indefinite Quantity (IDIQ) contract vehicle. On June

26, 2015 and July 17, 2015, Harris IT Services Corporation (Harris) filed protests of the

FBI’s subscriber and infrastructure solicitations, respectively, with GAO. These protests

In addition to operating on San Francisco’s legacy Motorola systems, the FBI will have to operate on some

“Project 25” (P25) Common-Air-Interface (CAI) systems immediately surrounding the stadium where the

Super Bowl will be held. As the radios the FBI must procure to operate on Motorola legacy systems will also operate on P25 systems, the FBI’s Motorola radios will meet both requirements. On the other hand, a P25-compliant, non-Motorola radio, in our experience, will not operate effectively on a Motorola legacy system.

Thus, for this reason, and for this requirement, the FBI cannot state with confidence that non-Motorola radios can meet its Super Bowl requirements.

alleged, among other grounds, that the structure of the FBI’s solicitations contemplated establishing an impermissible contract type under the existing TacCom vehicle. On

October 2, 2015, GAO sustained both protests and directed the FBI to reassess its requirements and strategy for meeting those requirements.

c. The FBI cannot provide adequate Super Bowl coverage without procuring new radios, and does not have sufficient time to properly test non-Motorola radios for compatibility with San Francisco’s legacy Motorola systems before February 7, 2016.

As a result of the previous two years of litigation surrounding its radio procurements, the

FBI has been unable to purchase new radios or infrastructure to meet any of its requirements. Thus, while the FBI would typically surge up its radio stores in preparation for a large event such as the Super Bowl, it is currently unable to do so because it has no contract in place. While the FBI has previously met some limited investigative needs by pulling radios out of field offices and shipping them to the scene of ongoing cases or events, it cannot do so with the Super Bowl due to the scale of the event and the heightened security concerns following the recent Paris and San Bernardino attacks discussed above. If the FBI pulled the 200 radios it requires for Super Bowl support from other field offices, it would leave those offices vulnerable in the event of another terrorist attack, law enforcement event, or other crisis situation. While the FBI could possibly divert a limited quantity of radios (e.g. 10-20) to meet some of its needs in San Francisco, pulling

200 radios from field offices would leave other areas of the nation without adequate coverage.

Accordingly, to support its bare minimum communications needs for the Super Bowl without weakening its communications abilities in other areas of the United States (and thus undermining the FBI’s ability to respond in the event of another terrorist attack or law enforcement event), the FBI requires 200 new Motorola radios. As discussed above, the

FBI must operate on San Francisco’s legacy Motorola system to support the Super Bowl.

Thus, the FBI requires the Motorola APX7000 dual band portable radios and APX8000 quad band portable radios specified herein as these radios can connect natively San

Francisco’s infrastructure and provide the FBI with the interoperability required to support the event.

While the FBI would prefer to fulfill its Super Bowl requirements by issuing a task order against a larger, competitively-awarded contract vehicle, the creation of such vehicle has been repeatedly delayed due to the protest litigation. As discussed further below, the FBI is evaluating a potential acquisition strategy in which it would attempt to test multiple vendors’ radios and infrastructure for compatibility with its existing environment. The FBI hopes to move forward with this strategy, but does not anticipate a contract award could be made before the end of Fiscal Year 2016.

In the meantime, the FBI must procure the 200 radios it needs for the Super Bowl immediately. Because the FBI has not yet had an opportunity to test the functionality of non-Motorola radios for compatibility with legacy Motorola systems such as those in San

Francisco, it is unable to determine whether this need can be met by other manufacturers.

Without confirmation that non-Motorola radios will function effectively in a Motorola environment (without the use of gateways or other devices that, in the FBI’s experience, do not meet the required functionality), the FBI cannot risk procuring radios that potentially will fail for this mission-critical requirement. As the Super Bowl is less than one month away and the FBI must begin programming radios well in advance of this date, it cannot execute a full testing and evaluation protocol in time to assess the interoperability of non-

Motorola radios for this event. Due to the urgency of the FBI’s need for radios to support the Super Bowl and its inability to test other radios within the limited timeframe, the FBI must procure these 200 radios directly from Motorola.

6. 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.

Due to the urgency of the FBI’s need to place an order in time for Motorola to deliver radios before the Super Bowl (and to allow the FBI time to program radios so they can be deployed in time for pre-Super Bowl festivities), it is not practicable for the FBI to solicit sources other than Motorola. As discussed above, the FBI does not have sufficient time to test non-Motorola solutions for compatibility with legacy Motorola environments.

Additionally, given the time constraints associated with quote preparation and expedited delivery, the FBI does not believe that Motorola resellers can fulfill this requirement in time to meet its needs.

The FBI is placing this order with Motorola on the basis of unusual and compelling urgency. Thus, in accordance with FAR § 13.501(a)(1)(iii), the FBI intends to make publicly available this justification on www.fedbizopps.gov not later than 30 days after an order is placed with Motorola. This procedure complies with the publication requirements at FAR § 5.102.

7. A determination by the contracting officer that the anticipated cost to the

Government will be fair and reasonable. Note: dollar amounts may not exceed statutory limitations for the commercial item test program identified in FAR 13.500.

http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/05.htm#P67_10794 http://www.fedbizopps.gov/

The Contracting Officer determines that the anticipated prices will be fair and reasonable based on market research including receipt of both open market and DHS TacCom commercial pricelists from Motorola for the radios specified herein. The Contracting

Officer will ensure the price quoted by Motorola for this requirement does not exceed

Motorola’s open market pricing, plus reasonable shipping and handling costs, and is thus fair and reasonable.

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

In seeking to fulfill its previous subscriber radio requirement, the FBI conducted extensive market research that is relevant for this procurement. Before issuing its solicitation, the

FBI held a vendor day for subscriber radio equipment on April 22, 2015. The intent of this vendor day was to engage the vendor community, learn about their products, and discuss the FBI’s requirements. The FBI provided a presentation to introduce its requirement, followed by releasing draft versions of its Statement of Work (SOW), Technical

Specifications, and Test Plan to all vendor attendees. The FBI invited comments and questions from vendors on all of its draft materials. In addition to the vendor day, the FBI also reviewed commercial price lists for subscriber equipment from multiple vendors.

The FBI originally intended to procure radios to support its Super Bowl requirement

(among other requirements) via a contract established as a result of the subscriber radio solicitation it issued against the DHS TacCom vehicle. Thus, the market research completed in conjunction with those recent procurement efforts is relevant for the FBI’s

Super Bowl requirement. Accordingly, due to the urgency of the present need, the FBI did not conduct additional research specifically for the Super Bowl requirement—other than confirming that all required products are still offered by Motorola at a fair and reasonable price.

9. Any other facts supporting the use of other than full and open competition.

The FBI has an urgent need for Motorola radios to support its Super Bowl requirements.

The FBI has determined that delaying award of a contract for these radios could potentially inhibit its ability to interoperate in the event of an emergency situation during the Super

Bowl, possibly resulting in serious injury to the public.

As discussed above, the FBI has a mission-critical requirement for seamless interoperability with federal, state, and local law enforcement partners in support of its

Super Bowl coverage. Should an attack or other law enforcement event unfortunately occur in conjunction with the Super Bowl or pre-game festivities, the FBI must be able to fully interoperate with first responders and law enforcement partners to quickly and safely contain the situation. If the FBI is using radios that cannot interoperate with other radios on

San Francisco’s legacy Motorola system, it will be unable to successfully perform its investigative mission. If FBI agents and support personnel cannot adequately communicate with each other and with other state and local partners supporting the Super Bowl, the risk of harm to human life in the event of a possible law enforcement incident drastically increases. The FBI cannot accept this risk.

Finally, this one-time procurement is limited solely to the 200 radios (approximately

$950,000) required to fulfill the FBI’s mission critical support of the Super Bowl. The FBI anticipates that its larger long-term, permanent solution for subscriber radios (estimated

$200 million) will include a testing phase in which it will consider multiple vendors’ solutions.

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

As this requirement has not yet been publicized, no sources have expressed an interest in the acquisition.

11. A statement of any actions the agency will take to remove or overcome any future barriers to competition before any subsequent acquisition for the supplies or services required.

As discussed above, following GAO’s sustainment of Harris’ recent 2015 protests, the FBI is reevaluating its overall acquisition strategy and procurement options for DOJ-wide subscriber radio and infrastructure needs. For the reasons articulated above, the FBI’s minimum needs require compatibility with Motorola proprietary technology. As part of meeting these needs, however, the FBI is attempting to formulate a protocol to test any vendor’s solution to determine whether such compatibility exists outside of Motorola brand-name products. The FBI seeks to fulfill its requirements by fostering as much competition as possible in accordance with all applicable federal procurement laws and regulations, while still recognizing that it simply cannot procure radios and equipment that do not interoperate with its existing system or the systems used by its federal, state, and local law enforcement partners. The FBI would welcome the opportunity to test technology provided by all eligible vendors in response to any future FBI subscriber radio and infrastructure solicitations, and is currently examining various approaches for implementing such a test.