36C10B19R0029-001.pdf

Control Number TAC-19-55396

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

1. Contracting Activity: Department of Veterans Affairs (VA) Office of Procurement Acquisition and Logistics

Technology Acquisition Center 23 Christopher Way Eatontown, NJ 07724

2. Description of Action: The proposed action is for the issuance of a firm-fixed-price (FFP) contract for renewal of Dragon Medical Network Edition (DMNE) enterprise wide medical speech recognition software maintenance support from Nuance Communications, Inc..

3. Description of Supplies or Services: The Veterans Health Administration (VHA) has a requirement for the renewal of Nuance Communications, Inc. (Nuance) DMNE software maintenance support. Most of the clinical documentation in VHA resides in the Computerized Patient Record System; the VA’s highly regarded electronic health record. To ensure continuation of quality patient care, VHA seeks to maintain and support the existing Medical-Specific Enterprise-wide Front-End Speech Recognition System running DMNE for non-Radiology applications. DMNE improves productivity, accuracy and quality of medical documentation, and ultimately enhances patient-centered care. VHA currently owns perpetual licenses for DMNE with approximately 7,500 users installed on and operated from hardware servers at Sacramento, Orlando, Philadelphia, and VA Enterprise Cloud (VAEC). The Contractor shall provide project management, software maintenance, and customer service support for the current DMNE software. Under this proposed action, VA requires maintenance support to include updates, patches, and version upgrades, including security fixes, for its already deployed perpetual DMNE licenses. This proposed action is for software maintenance support, no software will be renewed or procured under this proposed action. The maintenance shall include 24/7/365 support to all licensed users and support personnel, live staffed support coverage from 7:00 a.m. to 7:00 p.m. Eastern Time, Monday through Friday, except for Federal holidays, on call support with two (2) hour initial response time outside these hours. The period of performance shall be one 12-month base period, with four (4) three (3) month option periods.

4. Statutory Authority: The statutory authority permitting other than full and open competition is 41 U.S.C. 3304(a)(1) as implemented by the Federal Acquisition Regulation (FAR) Subpart 6.302-1 entitled, “Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.”

5. Rationale Supporting Use of Authority Cited Above: The proposed source is Nuance Communications, Inc., 1 Wayside Rd, Massachusetts 01803-4609. Based on extensive market research, it was determined that Nuance is the only source capable of satisfying the VA requirements discussed above. VA requires maintenance and customer service support of its already-owned DMNE licenses.

DMNE Maintenance Support Control Number TAC-19-55396

DMNE is used by VA clinicians to increase productivity, and improve the accuracy and quality of medical documentation. This enterprise wide medical speech recognition software communicates through DMNE source code which is based upon Nuance proprietary data. Nuance, as the software publisher, is the only source capable of providing the required DMNE maintenance and customer support services. Access to the DMNE proprietary source code is necessary to perform the required maintenance services and only Nuance has this access. Source code proprietary to Nuance is required to develop and implement the required patches, fixes and upgrades. Access to this code is also required to ensure all the support provided is properly configured. Specifically, any source other than a Nuance would need this code to properly configure the DMNE product to ensure it is functional during the maintenance process. In addition, the required updates, patches and upgrades require a source to have access to this code to ensure they are properly patched, uploaded and configured to meet VA’s needs. Access to this code is the only way to ensure the currently fielded DMNE software is fully operational. Without these maintenance services, the VA-owned DMNE licenses would not receive the latest updates, patches, and security fixes, impacting the operational stability of the software and potentially impacting patient care as thousands of VA clinicians use DMNE as productivity tool when treating patients and documenting those interactions. Use of another contractor or software publisher to provide these services would require replacement of all currently fielded DMNE licenses, as no other software product would be able to communicate and function with DMNE due to proprietary constraints. Use of any other software would require a complete replacement of the existing DMNE licenses and hardware resulting in a loss of service to our Veterans for nearly two years while another system is brought online.

6. Efforts to Obtain Competition: Market research was conducted, details of which are in the market research section of this document. This effort did not yield any additional sources that can meet the Government’s requirements. There is no competition anticipated for this acquisition. Additionally, the proposed action will be synopsized on the Federal Business Opportunities Page in accordance with FAR

5.201. Any proposals that are received shall be evaluated.

7. Actions to Increase Competition: VA is currently in the process of conducting a competition for an enterprise wide medical speech recognition software solution to replace the existing DMNE licenses. VA anticipates award of this competitive solution on September 30, 2019. However, time will be needed to begin the implementation of a new solution. This includes testing, security reviews, and deployment. VA anticipates that this process will take between 12-24 months. If the new solution is in place before VA exercises the option periods under this proposed action, VA will cease use of this contract vehicle and transition to the competitive contract.

8. Market Research: Market Research was conducted on February 2, 2019 by releasing a Request for Information (RFI) number 36C10B19Q0203 to vendors on the Federal Business Opportunities (FBO) website. The FBO RFI closed on

February 22, 2019 and yielded four (4) responses. Responses were received from Nuance, 3M Health Information Systems Inc., Carahsoft Technology Corp., and Powers & Zahr Consortium Management Company (PZCMC). Of these four responses evaluated by the Government technical expert, it was determined that, as the source code required to issue the updates, patches and upgrades is proprietary, only Nuance Communications, Inc. (other than small company) is capable of providing the required DMNE maintenance support services. 3M Health Information Systems Inc., Carahsoft Technology Corp., and PZCMC only provided a complete replacement solution and did not address how they would support the existing licenses. VA technical experts advised 3M Health Information Systems Inc., Carahsoft Technology Corp., and PZCMC on July 15, 2019 that they could not meet VA’s needs. No objections were received.

Additionally, the Government contacted Nuance Communications, Inc in July 2019 and asked whether they would sell its DMNE technical data or source code. Nuance responded that “Nuance does not sell or provide a license to use our source code to anyone”. No other source has the capability of developing and issuing software updates and fixes for Nuance DMNE software necessary to support the functional requirements stated in Section 5 above.

9. Other Facts: None.

10. Technical and Requirements Certification: I certify that the supporting data under my cognizance, which are included in this justification, are accurate and complete to the best of my knowledge and belief.

11. Fair and Reasonable Cost Determination: I hereby determine that the anticipated price to the Government for this contract action will be fair and reasonable based on price analysis to include an analysis of the proposed price in relation to the Independent Government Cost Estimate and past historical prices paid for the same and/or similar requirements, and subsequent negotiations held as necessary.

12. Procuring Contracting Officer Certification: I certify that this justification is accurate and complete to the best of my knowledge and belief.

Approval

In my role as procuring activity Advocate for Competition, based on the foregoing justification, I hereby approve the acquisition of continue DMNE software maintenance support, on an other than full and open competition basis pursuant to the statutory authority cited in paragraph 4 above, subject to availability of funds, and provided that the services herein described have otherwise been authorized for acquisition.