00704 - JA20-0112 Adobe Connect Managed Licenses - Addendum - Redacted.pdf

Justification for an Exception to Fair Opportunity Addendum

Federal Acquisition Regulation (FAR) Subpart 16.5 Indefinite-Delivery Contracts

J&A Tracking No. JA20-0112

1. Identification of the agency and contracting activity: The Defense Health Agency, Enterprise Medical Support – Contracting Division (EMS-CD), plans to modify an existing

Delivery Order on an exception to fair opportunity basis, based on the statutory exception and supporting rationale provided herein.

2. Nature and/or Description of Action being approved: Approval is requested to award a modification for the purchase of 175 Adobe Connected Managed licenses (Adobe licenses) with corresponding support for the Military Health Services (MHS) Virtual Video Visits (V3) for one year, 30Sep20 through 29Sep21. The modification would be against the recently established

Delivery Order (DO) Number HT005019F0012, RedHawk IT, that initially purchased 125 firm-fixed priced (FFP) Adobe licenses effective 30Sep19 through 29Sep20 for a basic year with four

(4) option years.

The DO was initially solicited/awarded via National Aeronautics and Space Administration

Solutions Enterprise-Wide Procurement (NASA-SEWP) in accordance with Federal Acquisition

Regulation (FAR) 16.505 Ordering Procedures and FAR 16.505(a)(4)(i), an item peculiar to one manufacturer (e.g., a particular brand name, product, or feature to one manufacturer). In March

2020, the award was modified to purchase 450 additional licenses only through the end of the base year in support of an urgent COVID-19 response under the authority of 10 U.S.C.

2304(c)(2) and in accordance with FAR 16.505(b)(2) – “agency need for the supplies or services is so urgent that providing a fair opportunity would result in unacceptable delays.”

The Government now requests approval for purchase of 175 Adobe licenses to continue in the first option year of the delivery order. This quantity has been determined to sufficiently accommodate expected continued virtual video visit surge support that continues due to the ongoing COVID-19 outbreak.

The Government intends to award a modification to this recently established FFP DO to address the continued use of 175 licenses. FY 20 DHP O&M funds will be used for this procurement.

3. Description of Supplies/Services required to meet the agency’s needs (including the estimated value): DHA requires annual licenses and maintenance support services to maintain provider care to patients through a Virtual Video Visit capability. This Adobe Connect SW will be used to accommodate continued compelling surge support in response to the COVID-19 outbreak in support of patient visits throughout all DHA military treatment facilities. This is a web-based application providing critically needed face-to-face video exchange and which serves as an extension of an in-person office visit providing increased convenience and provider access within the current surge COVID-19 precarious treatment environment. As the use of Virtual

Video Visits expand across the Military Health system (MHS), Adobe Connect Managed

Services continues to be required until such time as an MHS enterprise V3 solutions is determined. In the current social distancing environment, V3 access must be accommodated as part of the Government’s effort to support the MHS community in a safe mode. A detailed description of the requirement is as follows:

Lic Base Yr OY 1 OYs 2-4 Total

Award 125 $ 186,057.50 $ 195,358.75 $ 646,663.75 $ 1,028,080.00

Mod 1 450 $ 351,648.00 $ - $ -

Mod Proposed 175 $ - $ $ -

Totals: $ 537,705.50 $ $ 646,663.75 $

Adobe Mfr Part #38054894JA

The requested effective date of award is 30Sep20 to ensure continued critical healthcare delivery to MHS beneficiaries is not jeopardized. FY20 O&M funds, , will be used to purchase 175

Adobe Connect Managed Services concurrent User Platinum Hosted (provides ongoing software maintenance and provides HIPPA compliance) in option year one of this order.

4. This acquisition is conducted under the authority of 10 U.S.C. 2304, and Regulatory

Authority: Under the authority of 10 U.S.C. 2304(c)(1) and in accordance with FAR 11.105

“Items Peculiar to One Manufacturer”, FAR 16.505(b)(1) – “orders under multiple-award contracts: Fair Opportunity”, and FAR 16.505(a)(4), consideration will be limited to a particular brand-name, product, or a feature of a product that is peculiar to one manufacturer because the particular brand name, product, or feature is essential to the Government’s requirements and market research indicates other companies’ similar products, or products lacking the particular feature, do not meet, or cannot be modified to meet, the agency’s needs due to the fact that the required license maintenance are needed to support an existing Adobe Connect Managed

Services software infrastructure. In order to receive the level of support required, a partner authorized by Adobe Connect is required.

5. Rationale Justifying Use of the Regulatory Authority Cited: The Adobe Connect

Managed Services is the only brand name that can meet the Government’s requirements to avoid unacceptable delays to the Government. The Adobe Connect Managed Services capability is currently in use and is providing critical provider-to-patient appointments today. Adobe Connect

Managed Services is FedRAMP compliant as confirmed on the FedRAMP Marketplace website

(https://marketplace.fedramp.gov/#/products). Adobe Connect Managed Services is the only approved and accredited solution that provides the required functionalities. Procurement of this brand name is essential to maintain already established standardization across the markets.

The brand name service being procured under this action is critical to continue executing virtual video visits by providers and beneficiaries. There are no identified alternatives available to the

Government to increase competition for this requirement as Adobe Connect Managed Services is the only solution provider that can provide the support required through HIPAA and FedRAMP compliance. The current MTFs must remain with the current product line to ensure continuity of operations, compatibility and consistency. Failure to utilize this brand name would jeopardize critical healthcare delivery to our beneficiaries. Adobe is the Original Equipment Manufacturer

(OEM) for the required brand name Adobe Connect Managed Services software license maintenance support. Adobe is the manufacturer of this software and owns the proprietary rights to their products. Only Adobe qualified resellers are authorized by Adobe to service Adobe products. Adobe software license maintenance is required to allow DHA to continue to use the current product/service without disruption to operation. A severe security risk would be present without Adobe Connect Managed Services. To maintain existing Adobe software infrastructure, only Adobe or one of its authorized distributors can provide the necessary software support, update fixes, and security patches, as these products contain Adobe proprietary source code, which is subject to patent and copyright laws.

6. Determination by the ordering activity contracting officer that the anticipated cost to the Government will be fair and reasonable: The Contracting Officer will determine that the anticipated cost to the Government is fair and reasonable through analysis of product/service information from appropriate schedules (NASA-SEWP), where this requirement was competed among multiple suppliers. The requirement was competed on NASA SEWP among Small

Business resellers with further discounts sought. In addition to the comparison of competitive pricing, the Independent Government Cost Estimate (IGCE) and historical pricing under previous contracts for the same or similar products was utilized in determining the cost to be fair and reasonable.

7. Description of the market research conducted among schedule holders and the results or a statement of the reason market research was not conducted: In accordance with FAR Part

10, market research was conducted for the required Adobe Connect Managed Services. During the Customer’s market research conducted via internet, early June 2019, multiple possibilities for

Adobe Connect Managed Services products and software were provided; but, all were deemed to not meet current requirements or were lacking of business workflow configuration capabilities as

Adobe Connect Managed Services does. Adobe Connect Managed Services products/software is the only product that can meet customer requirements and has an established history with military medical centers. On 06 August 2019, additional market research was conducted on

NASA SEWP, which demonstrates that there were 44 small business contractors that can potentially provide Adobe products. Therefore, in order to ensure adequate competition for the requirement, the requirement was posted on NASA SEWP as a 100% Small Business set aside to be competed among all Small Businesses. In addition, market research showed the NASA SEWP vehicle to be the most viable as NASA SEWP charges a contract access fee that is the lowest among GWACs including GSA, CHESS, NIGH/NITACC, and DITCO. The findings have not changed. This modification for short-term purchase of 175 Adobe licenses with Red Hawk IT will proceed on the basis of these recent findings.

8. Other Facts: None.

9. Actions to overcome barriers:

(a) Efforts to Obtain Competition. A competitive pool exists amongst Small Businesses on

NASA SEWP who are also authorized Adobe partners able to provide the products required.

(b) Actions to Increase Competition. Until such time as the infrastructure has changed away from the existing Adobe Connect Managed Services platform, there are no foreseeable efforts to overcome barriers to proprietary systems other than offering the requirement to certified/ authorized Adobe resellers.

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(c) Follow-on Order. The Government will continue to conduct market research each year to assess whether the conditions which limit competition to the Adobe Brand Name still exist, as well as ascertain if there are changes in the market place that would enable future actions to be competed.

COORDINATION:

10. Technical/Functional Representative:

I certify that the information provided in this justification, is accurate and complete to the best of my knowledge and belief.

DEMAREE.RICHAR Digitally signed by

D.ALAN.102843996 DEMAREE.RICHARD.ALAN.102 8/3/2020

9 Date: 2020.08.03 07:14:50 -07'00'

Richard A Demaree Program Analyst, Connected Health Branch, Medical Affairs

DHA

Date

11. Requirements Certification:

I certify that the information provided in this justification, is accurate and complete to the best of my knowledge and belief.

EATON.MELIN Digitally signed by

EATON.MELINDA.1232383417

DA.1232383417 Date: 2020.08.03 10:34:24 -04'00' 8/3/2020 LtCol Melinda Eaton Program Manager, DHA Virtual Health

Date

12. Fair and Reasonable Price Determination:

I have determined that the anticipated cost to the Government for this contract action will be fair and reasonable, in accordance with FAR 16.505(b)(2)(ii)(B)(5).

GARCIA.RAUL.J

Digitally signed by

GARCIA.RAUL.JOSE.112589524

Date: 2020.08.03 14:54:18 -05'00'

Raul J. Garcia Contracting Officer, Enterprise Medical Support – Contracting

Division

Date

13. Legal Review:

I have reviewed this justification and have found it to be legally sufficient.

Digitally signed by

TERRA.JOHN.G.1008954450

G.1008954450 Date: 2020.08.03 15:32:01 3 August 2020 John G. Terra Office of General Counsel

Date

14. Contracting Officer:

I certify that this justification is accurate and complete to the best of my knowledge and belief.

GARCIA.RAUL.J

Digitally signed by

GARCIA.RAUL.JOSE.112589524

Date: 2020.08.03 14:54:38 -05'00'

Raul J. Garcia Date

OSE.1125895243

TERRA.JOHN.

OSE.1125895243

Contracting Officer, Enterprise Medical Support – Contracting

Division

APPROVAL:

15. Competition Advocate:

Based on the foregoing justification, I hereby approve the procurement of brand name Adobe

Connect Managed Services software license maintenance on an other than full and open competition basis pursuant to the authority of 10 U.S.C. 2304(c)(1), FAR 16.505(a)(4), subject to availability of funds, and provided that the supplies and/or services herein described have otherwise been authorized for acquisition.

LEWIS.JAKE.LE Digitally signed by

LEWIS.JAKE.LENO.1061296944

NO.1061296944 Date: 2020.08.04 11:41:34 -04'00'

Jake Lewis Competition Advocate (J-4)

Date