SSJ-ROGC-24-00005_Relativity 08292024 Final-CO Signed.pdf

OPOAM 3013.501(a)(1)(ii)

Sole Source Justification (SSJ) FAR subpart 13.5, including Brand Name Template

SSJ No.: FY24-00306

Date: August 29, 2024 PR Number: ROGC-24-00005

Pursuant to the requirements at 41 U.S.C. 1901 as implemented by Federal Acquisition Regulation (FAR) subpart 13.5 and consistent with the content requirements of FAR 6.303-2.

1. Agency and Contracting Activity. Identification of the agency and the contracting activity, and specific identification of the document as a “sole source justification.”

The Department of Homeland Security (DHS), Office of Procurement Operations (OPO), on behalf of the DHS Office of the General Counsel (OGC), intends to award a sole source contract.

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

DHS intends to award a sole source contract to Alamo City Engineering Services, Inc., 101 Kendalia

Circle, Spring Branch, TX 78070-6621, using Commercial Test procedures without seeking competition. The action is to purchase software license upgrade and maintenance services for proprietary, brand name software. This action is being taken pursuant to FAR subpart 13.5.

3. Description of Supplies/Services. Describe the supplies or services to be acquired. Provide the estimated total value (including options, if any).

Period Term Unit Price Total

Base Year 12 mo $225,999.63 $225,999.63

Option Year 1 12 mo $225,999.63 $225,999.63

Total $451,999.26

OGC seeks to procure upgraded software licenses and maintenance support for

50 concurrent users of Relativity Server 2022 at a total cost of $451,999.26. These licenses are for use with OGC’s e-Discovery solution, Relativity. The licenses will facilitate the continued integration of information between the Relativity software and the infrastructure that DHS has built in its server environment and enable routine software upgrades to occur to ensure revisions, security patches, and feature updates are timely installed.

4. Identification of the authority. This action is being taken in accordance with 41 U.S.C. 1901, as implemented by Federal Acquisition Regulation (FAR) Subpart 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements.

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

OGC currently uses software licenses developed by, and proprietary to, Relativity, in order to process data in the e-Discovery context using the Relativity Server 2022 infrastructure that OCIO has built for

OGC in a DHS data center. OGC may only use Relativity licenses as the IT infrastructure that is http://uscode.house.gov/ currently in place to process litigation data was custom built for use with Relativity. Software licenses from other e-Discovery solution providers would be useless on the current infrastructure. For

OGC to pursue a different brand of e-Discovery license, DHS would need to procure new software licenses, contract for and employ IT SMEs to build the new IT infrastructure to support the new software, build out the new e-Discovery infrastructure environment, secure an Authority to Operate from OCIO, retrain OGC attorneys and paralegals on the new solution, and build out new processes and protocols. While the rebuild of the infrastructure took place, OGC would need to suspend all court-ordered litigation discovery production deadlines until the new solution was fully implemented.

For these reasons, only Relativity licenses can meet OGC requirements, without substantially increasing the cost of the procurement and opening the Department up to court-imposed sanctions because it is not able to honor court-imposed deadlines until a new system is in place.

6. Description of efforts made to ensure that offers are solicited from as many potential sources as is practicable. Alamo City Engineering Services, Inc. is the only Federal Supply Schedule contract holder authorized to resell Relativity Server 2022 licenses. Accordingly, no efforts have been made to solicit from other potential sources.

7. Determination by the contracting officer that the anticipated cost to the Government will be fair and reasonable. The contracting officer determines that the anticipated price(s) will be fair and reasonable based on commercial pricelists for the same/similar type of services that were compared with the contracts rates outlined on the current contract. In addition, GSA has already determined the price to be fair and reasonable.

8. Description of market research. Relativity is a software manufacturer and pursuant to a purchase order authorized by a governmental authority, will grant authorized resellers a limited non-exclusive license for the sole purpose of transferring such license to the Customer on a non-exclusive, non-sub-sublicensable, non-transferable basis. The license includes permission to deploy and use the products set forth in the purchase order.

Market research in February 2024 determined that Alamo City Engineering Services, Inc, is the only

Federal Supply Schedule vendor authorized to resell Relativity Server licenses and maintenance services.

Through the market research, OGC learned that Relativity and its third-party vendors own and shall continue to own the entire title and interest in and all intellectual property rights and other proprietary rights related to the software. All rights not expressly granted to the customer are reserved by

Relativity. The licenses are limited to the installation and execution of the software and does not include source code. Customers may not modify, reproduce, distribute, and/or combine with other software products. Consistent with 48 C.F.R. 12.212, the software and documentation are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted pursuant to the manufacturer terms and conditions.

9. Any other facts supporting the justification.

OGC must use the Relativity product in the short term to ensure interoperability with pre-existing software and the custom-built infrastructure housed in DHS data centers. The custom-built Relativity

Server infrastructure is only operable with Relativity software and the infrastructure meets DHS

OCIO system architecture and security requirements which are prerequisites to operate on the DHS

HQ Network. The use of other software products would result in interoperability, incompatibility, and interface issues that would effectively render the infrastructure useless and leave DHS unable to defend itself in litigation.

A solution other than Relativity would need to be capable of ingesting, recognizing, and processing years’ worth of litigation data that has already been processed in Relativity. Moreover, as stated earlier, a new solution would require DHS to procure new software licenses, secure an Authority to

Operate from the Office of the Chief Information Officer (OCIO), contract for and employ IT SMEs to build the new IT infrastructure to support the new software, build out the new e-Discovery infrastructure environment, retrain OGC attorneys and paralegals on the new alternative, and build out new processes and protocols. While the above took place, OGC would need to suspend all court-ordered litigation discovery production deadlines until the new solution was fully implemented.

Inevitably, DHS would not be able to timely collect, identify, review, process, and produce data which will result in costly court sanctions and, in the context of document productions to Congress, could result in the withholding of agency funding.

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

GovConnection Public Sector Solutions, which is a partner of a DHS FirstSource II contract holder, expressed an interest in the acquisition. However, FirstSouce II does not allow for a period of performance beyond September 29, 2025, and therefore it is not possible to include an option year via that contract.

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.

OGC intends to transition out of the Relativity Server software into a competitively awarded cloud-based e-Discovery solution by the end of September 2025 if possible and by the end of September

2026 at the latest. During the transition period, OGC will review, revise, and develop the technical specifications for the new requirements, and it intends to award a contact using competitive procedures.

OGC commenced acquisition planning for a competitive award in FY24 but was not able to compete the requirement due to unexpected difficulties and delays. The technical complexity of stabilizing and updating the current solution required more of OGC’s administrative resources than was expected. In addition, OGC came to learn that the technical aspects of transitioning to a new system, which will require a new ATO, will require additional expertise and support from OCIO.

OGC believes it has lined up the necessary support from its internal stakeholders, OCIO, and the

Office of Procurement Operations to make a competitive award in FY25. An option year will be included in the sole source award in the event that additional time is necessary to obtain the ATO, or in the event of other unanticipated difficulties.

12. DHS intends to post the requirement pursuant to FAR 13.501(a)(1)(iii) and 6.305(a) or for brand name FAR 13.501(a)(1)(iv) and 5.102(a)(6).

13. Technical/Requirements Personnel Certification. I certify this requirement meets the Government’s minimum need and that the supporting data, which forms a basis for this justification, is complete and accurate.

14. Contracting Officer Certification and Approval*

Digitally signed by CRYSTAL E LESESNE

Date: 2024.08.29 16:09:01 -04'00'

Contracting Officer: Not exceeding $750K Date

CRYSTAL E LESESNE