CUI_FSH JA 2022_84_Redacted.pdf

CUI

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CUI

FAR Part 13 Justification and Approval for Other than Full and Open Competition

Office of the Judge Advocate General

Eclipse Warranty Extension and Software License Renewal

Controlled by: U.S. Army Controlled by: MICC–Fort Sam Houston (CCMI-CSH-SH) CUI Category: General Procurement and Acquisition Distribution/Dissemination Controls: FEDCON

POC:

CUI//SP-PROCURE//FEDCON

Control Number: MICC 2022-84 Contactor: Everbatim Inc.

Program/Equipment: Eclipse Warranty Extension and Software License Renewal

JUSTIFICATION REVIEW DOCUMENT

FAR 13.5 SIMPLIFIED PROCEDURES FOR CERTAIN COMMERCIAL ITEMS

SOLE SOURCE JUSTIFICATION AND APPROVAL

Program/Equipment: Eclipse Warranty Extension and Software License Renewal

Authority: Title 41 United States Code 1901 as implemented in Federal Acquisition Regulation (FAR) 13.501(a)(1)(ii), sole source (including brand name) acquisitions under the authority of the simplified procedures for certain commercial items.

Amount:

Prepared by:

Contracting Officer:

Technical:

Requirements:

Reviews

I have reviewed this justification and find it adequate to support other than full and open competition.

Program Manager: DSN: 260-8185

Date: See Digital Signature

Amount:

Reviews: I have reviewed this justification and find it adequate to support other than full and open competition.

Contactor: Everbatim Inc.

Program/Equipment: Eclipse Warranty Extension and Software License Renewal

Small Business Professional, Small Business Program:

Contracting Officer, Division Chief:

Director, MICC-Fort Sam Houston:

MICC Legal Counsel:

Assistant Director, Small Business Program:

Contactor: Everbatim Inc.

Program/Equipment: Eclipse

FAR 13.5 Simplified Procedures for Certain Commercial Items

Sole Source Justification and Approval

1. Contracting Activity: U.S. Army Mission and Installation Contracting Command – Fort Sam Houston (MICC-FSH), 2205 Infantry Post Road, Fort Sam Houston, TX 78234.

2. Description of Action: The U.S. Army Office of the Judge Advocate General (OTJAG) has a sole source requirement to extend the hardware warranty and renew the software license of its Eclipse Vox Automatic Speech Recognition (ASR) Court Reporting System. The Government projects award of a Firm-Fixed-Price (FFP) contract for September 2022 and FY2022 Operations and Maintenance, Army (OMA) funds will be used. An acquisition plan is not required because this procurement does not meet the threshold at Defense Federal Acquisition Regulation Supplement 207.103(d)(i)(B).

3. Description of Supplies/Services: The Eclipse Court Reporting System is currently being utilized by OTJAG to record and translate Army courts-martial, Article 32 hearings, and other hearings/investigations on courtrooms located worldwide. The hardware warranty will provide technical support and repair or replace audio components and/or computer hardware while the software license renewal will provide technical support, software maintenance and updates. The Eclipse hardware warranty and software specifications and quantities are outlined in the requirement’s Statement of Work (SOW).

Period of Performance (including all options) and value of this requirement is as follows:

Base Year: 25 Sept 2022 – 24 Sept 2023 Value:

Option Year 1: 25 Sept 2023 – 24 Sept 2024 Value:

Option Year 2: 25 Sept 2024 – 24 Sept 2025 Value:

Total Value:

4. Authority Cited: 41 United States Code 1901 as implemented in Federal Acquisition Regulation 13.501(a)(1)(ii), sole source (including brand name) under the authority of the simplified procedures for certain commercial items.

Contactor: Everbatim Inc.

Program/Equipment: Eclipse

5. Reason for Authority Cited:

a. OTJAG has been utilizing the Eclipse Vox ASR systems for approximately 3 years and this system has demonstrated to have capabilities currently not found on other court reporting equipment. The Eclipse System has the ability to produce near real-time transcripts of recorded audio with a 90-95% accuracy rate, and works independent of any sort of internet connection, making it easily deployable to combat locations. The system permits users to edit transcripts and redact both the audio and the written transcript simultaneously. The Eclipse Vox ASR System is currently the only court reporting system that offers an integrated solution that unifies all hardware and software components necessary to deliver a complete and turnkey court reporting system. The Eclipse System is comprised of software that unifies professional-grade computer and audio components and unidirectional-wireless digital microphones for the purpose of producing automated legal transcription.

b. Everbatim Inc. is currently the only source that can extend the system’s hardware warranty and renew the Eclipse Vox software licenses. Due to being the current contractor, Everbatim is the only provider of the hardware warranty extension and is also the only authorized reseller of the Eclipse Vox Software to the United States Armed Forces according to Advantage Software Inc., the original equipment manufacturer (OEM) and developer of Eclipse Vox Software. As such, Everbatim’s Eclipse Vox ASR system is currently the only court reporting system that has the capabilities required to meet OTJAG’s court reporting needs.

c. Alternatives. OTJAG’s previous court reporter program manager and other members of the Judge Advocate General’s Corps (JAGC) conducted research on other similar court reporting systems through online research and attending site visit demonstrations for similar technology solutions; however, none match the capabilities and functionalities of the Eclipse Vox ASR system. Previously, OTJAG was using For The Record (FTR), as their software program and several different laptops as their court reporting equipment. However, the combination of these two technologies proved to be an inefficient system because it had a slow production rate and suffered from various technical difficulties due to the incompatibility issues with the hardware and software.

d. Impact if this justification is not approved. If this justification is not approved, OTJAG Eclipse equipment comprised of 84 Transcript Laptops, 74 Editing Laptops, 76 unidirectional-wireless digital microphones will not be able to be repaired or replaced in the event the equipment wears out, malfunctions, or begins to experience technical difficulties. If the hardware warranty is not extended all repairs and replacements will be at current cost, to include shipping, hardware technical support, and any labor. Because the repair process varies according to the type of equipment these repair costs will vary, some repairs may be done on-site while others will require the shipment of a

Contactor: Everbatim Inc.

Program/Equipment: Eclipse replacement unit. Moreover, if the equipment cannot be repaired, OTJAG will incur additional cost of having to purchase new equipment due to the lack of warranty to be provided with a replacement. For example, the extension warranty for one transcription laptop is estimated at $2,340 per year while the purchase of a new transcription laptop without warranty is estimated at $6,000. Additionally, if this justification is not approved, the equipment’s Eclipse Vox software licenses will not be renewed which will result in the system not being able to obtain the updates, upgrades and software maintenance necessary for the system to receive the improvements and enhancements required to remain fully operational. Approximately 116 of OTJAG users will also lose access to the continuous customer service that is available 24 hours a day, 7 days a week in the event software technical support is needed. If the software licenses are not renewed the system will eventually fail and the software will gradually decrement until it is rendered obsolete. Without a fully operational Eclipse System, OTJAG court reporters will not have the ability to perform their court reporting duties of recording and translating Army courts-martial, Article 32 hearings, and other hearings and investigations. It will also significantly impact OTJAG’s ability to resource prosecutorial offices with equipment in fully working condition necessary to produce transcripts of special crimes in support of Secretary of Defense Memorandum dated 02 July 2021 directing the establishment of OTJAG offices.

6. Efforts to Obtain Competition: In an effort to identify other potential sources, a sources sought notice (SSN) was posted on the Government-Wide Point of Entry (GPE) from 28 July 2022 - 12 August 2022 through https://sam.gov/ and revealed one other interested source Although, . expressed their interest by contacting the contract specialist through email, they did not submit the information requested under the SSN to demonstrate that the company has the qualifications and capabilities to support this requirement.

7. Actions to Increase Competition: This is a follow-on requirement to contract W9124J-20-C-0027 which is set to expire on 24 September 2022. To increase competition, the requirement for the current contract was solicited as a brand name or equal through https://sam.gov/ as an unrestricted acquisition in an effort to give other sources an opportunity to offer their court reporting solutions. The request for quote (RFQ) that was released for the current contract received two (2) quotes (one quote from Everbatim and one quote from ). However, the quote from was found technically unacceptable because it failed to provide the required hardware and was unable to provide software equal to Eclipse Vox software.

Contactor: Everbatim Inc.

Program/Equipment: Eclipse

8. Market Research: Market research details are included below; however, full market research details are documented on the Market Research Report.

a. The Army’s Computer Hardware, Enterprise Software and Solutions (CHESS) program is the mandatory source for information technology (IT) commercial services, hardware and software purchases regardless of dollar value or appropriation IAW AFARS 5139.101-90 and HQDA (Under Secretary of the Army) memo dated 01 December 2020. However, the legal transcription software being requested under this requirement is not within scope of the CHESS Information Technology Enterprise Solutions – Software (ITES-SW2) IDIQ Contracts. The ITES-SW2 offers software solutions in the areas of IT Utility and Security, Modeling and Simulation, Multimedia and Design, and Program and Development. Additionally, the CHESS Information Technology Enterprise Solutions - 3 Hardware (ITES-3H) IDIQ Contracts do not provide the hardware that being requested under this requirement. The notebooks and workstations available through CHESS to do not come integrated with Eclipse Vox software. The hardware available through CHESS does not include wireless microphones and multi-channel audio components which are part of the Eclipse system.

b. IAW AFARS 5139.101-90(a)(2), any IT hardware or software purchase made outside of the CHESS contracts requires an Army Chief Information Officer (CIO)/G6 approved Information Technology Approval System (ITAS) Waiver. Supporting documentation must include documentation submitted with the ITAS Waiver request such as a CHESS Statement of Non-Availability (SONA) for items that are not available from CHESS or other rationale for not using CHESS. The SONA for this requirement was approved by CHESS on 19 August 2022 and the ITAS waiver to purchase this requirement outside the CHESS Program was approved by the Army CIO/G6 on 23 August 2022.

c. The Government will procure this requirement using the procedures outlined in FAR Part 13, Simplified Acquisition Procedures and will acquire this requirement as a commercial item under FAR Part 12, Acquisition of Commercial Items.

d. Pursuant to the above facts this requirement shall be sole sourced to Everbatim Inc.

IAW FAR 13.501(a)(1)(ii) and shall result in a firm-fixed-price (FFP) contract.

9. Interested Sources: Market research efforts identified one (1) source (Everbatim) that can satisfy the court reporting needs of OTJAG. Everbatim’s Eclipse Vox System has the hardware and software components necessary to provide a complete and unified automated court reporting system. Everbatim is currently the only known reseller of the Eclipse Vox Software to the U.S. Armed Forces which comes installed with the equipment to ensure full and optimal functionally of a complete and package system.

Everbatim offers an integrated solution that includes all the necessary hardware and software components, each of which has been carefully selected, tested, and the hardware that are being requested under this requirement. The notebooks and workstations available through CHESS to do not come integrated with Eclipse Vox software. The hardware available through CHESS does not include wireless microphones and multi-channel audio components which are part of the Eclipse system.

Contactor: Everbatim Inc.

Program/Equipment: Eclipse configured to successfully work as a complete system. As such, Everbatim is currently the only source that can provide an extension to the equipment’s warranty and renew the Eclipse Vox software licenses.

10. Other Facts: The current contract was awarded on 25 September 2020 and then on 30 September 2021 a similar contract was awarded for the purchase of additional Eclipse Systems due to a surge in court room proceedings. Thus, failing to extend the hardware warranty and renewing the software licenses on the current contract will negatively impact OTJAG mission by not having sufficient court reporting equipment to assist court reporters in processing the increase in workload in a timely and efficient manner.

Procurement history.

Current Contract: W9124J-20-C-0027 Contractor: Everbatim Award Date: 18 September 2020 Competitive Status: Brand Name or Equal Authority: FAR 13.5

10. Other Facts: The current contract was awarded on 18 September 2020 and then on 28 September 2021 a similar contract was awarded for the purchase of additional Eclipse Systems due to a surge in court room proceedings. Thus, failing to extend the hardware warranty and renewing the software licenses on the current contract will negatively impact OTJAG mission by not having sufficient court reporting equipment to assist court reporters in processing the increase in workload in a timely and efficient manner.

Procurement History.

a Current Contract: W9124J-20-C-0027 Contractor: Everbatim Award Date: 18 September 2020 Competitive Status: Brand Name or Equal Authority: FAR 13.5 a Current Contract: W9124J-21-C-0032 Contractor: Everbatim Award Date: 28 September 2021 Competitive Status: Brand Name or Equal Authority: FAR 13.5

Sole Source

Contactor: Everbatim Inc.

Program/Equipment: Eclipse

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

Court Reporter Program Manager

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

Legal Administrator

13. Fair and Reasonable Cost Determination: I hereby determine that the anticipated cost to the Government for this contract action will be fair and reasonable. This determination will be made using price analysis in comparison with the IGCE and comparison of the proposed price with prices found reasonable on previous purchase.

As a part of this basis, certified cost or pricing data is not required because the item and/or services being acquired are considered commercial.

Contracting Officer

Contactor: Everbatim Inc.

Program/Equipment: Eclipse

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

Contracting Officer

Contactor: Everbatim Inc.

Program/Equipment: Eclipse

Approval

Based on the foregoing justification, I hereby approve the procurement of Eclipse Vox ASR System extended warranty and software license renewal pursuant to the authority of the Simplified Procedures for Certain Commercial Items, Title 41 United States Code Section 1901 as implemented by Federal Acquisition Regulation Subpart

13.5. The estimated value of the contract is for a three-year period of performance consisting of a base year and two option years, from approximately 25 September 2022 to 24 September 2025. The approval is subject to availability of funds, and provided that the services or supplies herein described have otherwise been authorized for acquisition.

SCOTT D. KUKES

Alternate to the Command Advocate for Competition U.S. Army Mission and Installation Contracting Command, JBSA Fort Sam Houston, TX