SAM JA.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

PR 2013-6812

Version 3.0 November 2020

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

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 and Operational Compliance Support on a basis other than full and open competition. The contractor must have experience with CBP internal policies and practices and enforcement and application of customs laws and regulations by CBP.

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

The CBP Office of Field Operations (OFO), Cargo and Conveyance Security, Trade Operations Division has a requirement for subject matter expertise and advisory support in the areas of regulatory analysis and operational enforcement compliance. CBP is seeking to award a sole source contract be awarded to Jeremy Baskin, Customs Penalties, LLC, 3800 Fairfax Drive, # 1101, Arlington, VA 22203.

2. Description of Supplies/Services.

The services to be acquired consist of expert advisory support in the areas of regulatory analysis and operational enforcement guidance that will support various U.S. Customs and Border Protection Programs. These areas include customs laws; 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 shall be required to review CBP statutes, regulations, and policies relevant to OFO’s innovation projects and initiatives to include the review with proposed recommendations of OFO project documentation. The list of project documentation includes capability analysis reports, mission needs statements, operational requirements documents, and various program-related documentation. The contractor shall be required to identify gaps in CBP’s regulatory authority and recommend potential changes that OFO could pursue in conjunction with the CBP Regulations and Rulings Office. The contractor must possess expert knowledge of CBP systems, regulations, and operations in order to gather data from various sources necessary to perform support related to both immigration (Title 8 authorities) and customs (Title 19 authorities).

Period of Performance

Labor Category

Rate

Hours

Estimated Cost

12 Mo Base Period Sep 10, 2023 – Sep 09, 2024

Consultant/SME $310.50 1040

Option Year 1 Sep 10, 2024 – Sep 09, 2025

Consultant/SME $321.37 1040

Option Year 2 Sep 10, 2025 – Sep 09, 2026

Consultant/SME $332.62 1040

Option Year 3 Sep 10, 2025 – Sep 09, 2027

Consultant/SME $344.26 1040

Option Year 4 Sep 10, 2027 – Sep 09, 2028

Consultant/SME $356.31 1040

Total Estimated Cost

3. 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)(1) implemented by the Federal Acquisition Regulation (FAR) Subpart 6.302-1 entitled, Only one responsible source was identified. No other company has the requisite experience to satisfy requirements in the statement of work. 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.

4. 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 because only one responsible source possesses the unique expertise to meet the requirements. Regulatory and operational enforcement concerns to be analyzed and supported in the SOW are not routine or general in nature, but are specific to internal CBP processes, programs, requirements and new initiatives. It requires experience and knowledge of CBP’s policies, regulations and systems to meet the agency’s requirements.

To meet the requirements in the SOW, it is imperative that the contractor possesses knowledge and an in-depth understanding of laws and regulations from a CBP-enforcement and policy perspective 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 source is capable of fulfilling the SOW requirements: Jeremy Baskin, Customs Penalties, LLC., has the CBP-specific expertise needed to conduct regulatory analysis and provide operational enforcement guidance within the CBP OFO.

Jeremy Baskin Customs Penalties, LLC, has subject matter expertise in the field of U.S.

Customs laws and regulations andover 35 years of experience . The contractor’s expertise includes but is not limited to: providing regulatory analysis and operational enforcement guidance to various CBP customs programs on numerous matters, including fines penalties and foreituires issues specifically with Parts 171 and 172 regulations; civil asset forfeiture;

Civil Asset Forteiture Part 162 which relates to the Civil Asset Reform Act (CAFRA):

Detention regulations (section 151.16); bonding including provisions of various bonds including basic importation bond (19 CFR 113.62), the custodial bond (19 CFR 113.63); the international carrier bond (19 CFR 113.64); the export consolidator bond; the marine terminal operator bond; the large yacht bond; foreign trade zone operator bond (19 CFR 113.74); airport security (part 122, subpart S of the regulation); centralized examination stations (part 118 of the regulations); bonded warehouses and duty free stores and container freight stations (part 18 of the regulations); has drafted regulator language for current projects including rail electronic export manifests, vessel electronic export mangifests and air electronic export manifests.

The contractor also has an extensive history and knowledge of the regulatory projects including the histories of predecessor regulations; description of other federal register notices pertinent to the regulatory projects involved including test notices, general notices, or interim final rules; proposed regulatory language whether it be completely new language or modification or revision of current language; descriptions of affected parties; chronicling of pertinent issues that will require input of other Government agency personnel or feedback from the affected trade; anticipated impact on the trade and Government processes; and possible objections or legal/operational issues that commenters to the proposed regulation might raise.

During the market analysis period, three law firms in the Washington DC area and three DHS contractors with regulatory analysis experience were sought and evaluated in an attempt to identify additional sources capable of meeting the SOW requirements. The three law firms do not have a history representing the federal government and instead focus on representing large private industries in the U.S. and foreign clients, against federal regulatory and statutory enforcement actions, and challenging federal agency actions under the Administrative Procedure Act and other federal laws to include challenging the constitutionality of legislative and regulatory schemes. The expertise of these firms was general in nature, covering a broad cross-section of public policy and regulatory issues both within the continental United States and abroad, but none involved direct internal analysis, support and advice relative to CBP and OFO policies, regulations and initiatives or direct experience with and knowledge of the elements of customs law described above. Knowledge and expertise of OFO operations is necessary to successfully meet the SOW requirements.

None of the indicated sources, demonstrated the capability to perform the SOW requirements, other than Jeremy Baskin, Customs Penalties, LLC.

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

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

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

The contracting officer has determined that the anticipated price(s) will be fair and reasonable based on market comparisons of sources providing similar work and sources providing similar support to other non-CBP Agencies.

7. Description of Market Research.

Market research identified eight potential sources that consisted of three law firms, three DHS contractor firms, one Washington DC consulting firm and one small business that could potentially meet the rerequirements in the SOW. The three law firms do not provide support or advise the Federal Government with any type of regulatory or compliance matters that are of the nature and scope needed to meet the requirements in the SOW; rather, their areas of expertise include advocating on behalf of large U.S. industry corporations and foreign governments and assisting them with challenging existing Federal Regulations and providing representation for regulatory and congressional investigations and enforcement proceedings.

The three DHS contractor firms and the Washington DC consulting firm do not have depth of experience specific to CBP’s regulatory compliance or operational enforcement guidance nor do they have experience in the specific environment of customs law as it relates to internal CBP processes, programs, requirements and initiatives. None possess an expert knowledge of CBP systems, regulations, and operations required to gather data from various sources necessary to perform analyses in support the various OFO programs and initiatives. This specific knowledge and subject matter expertise is needed to meet the requirements in the

SOW.

Only one of the eight sources was found capable of fulfilling the requirements in the statement of work. Jeremy Baskin Customs Penalties, LLC, a small business, has a vast amount of experience conducting regulatory reviews and operational enforcement guidance within the CBP OFO environment.

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

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

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

Acquisition.

None of the sources identified in the market research report have expressed written interest in this acquisition. A synopsis will be published in SAM.gov 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 Sam.gov pursuant to FAR 6.305.

14.