JA-eFOIA Protest Exception to Fair Opportunity Redacted.pdf

eFOIA Order Bridge Extension VA-25-00104280

JUSTIFICATION FOR AN EXCEPTION TO FAIR OPPORTUNITY

1. Contracting Activity: Department of Veterans Affairs (VA) Office of Procurement, Acquisition, and Logistics Technology Acquisition Center 23 Christopher Way Eatontown, New Jersey 07724

2. Description of Action: The proposed sole source action is for a contract extension modification to Contract Number NNG15SD26B, Delivery Order 36C10B22F0119 for Electronic Freedom of Information Act (eFOIA) Software with ThunderCat Technology, LLC (ThunderCat), 1925 Isaac Newton Square East, Reston, VA 20190.

3. Description of the Supplies or Services: The Department of Veterans Affairs (VA), Office of Information and Technology (OIT), Quality, Performance and Risk, Office of Quality and Compliance has a requirement for the continuation of 1,055 licenses of brand name AINS, Inc. FOIAXpress software and associated maintenance support to provide continued support of the eFOIA System.

The requirements of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 as amended By Public Law No. 110-175, 121 Stat. 2524 states that any person has a right of access to Federal agency records, except to the extent that such records are protected from release by a FOIA exemption or a special law enforcement record exclusion. Executive Order 13392 and the Openness Promotes Effectiveness in our National Government Act, which amended FOIA, requires VA to provide more customer-oriented service by improving the management and administration of its own FOIA program. VA’s web-based eFOIA system was created in response to these laws and directives. The Veterans Health Administration (VHA) currently uses AINS, Inc.

FOIAXpress software to process its FOIA requests. This software redacts sensitive and personal information from audio, video, and documents so that it can be released in accordance with United States Laws and VA Directives. Without this software, responding to FOIA requests would be a labor-intensive manual process. Each document and media file would have to have all sensitive information manually redacted. The maintenance support associated with this procurement involves software updates, responding to system outages, training, and help desk support.

Software automating FOIA requests is critical to VA’s mission and obligations under United States Law. The Delivery Order was awarded with a 12-month base period beginning on May 1, 2022, with two 12-month option periods. Additionally, there were two modifications to extend the period of performance.

On August 6, 2025, contract number 47QSMA18D08PU, Delivery Order 36C10B25F0194, was awarded for eFOIA Software-as-a-Service (SaaS) Solution. The award was made by the Technology Acquisition Center using competitive procedures with a performance start date of August 6, 2025. An unsuccessful offeror filed a Government Accountability Office (GAO) protest challenging the eFOIA SaaS Solution Delivery Order award, on August 18, 2025, resulting in the stay of contract performance of that award pursuant to 31.U.S.C. & 3553 (d)(3)(A)(ii). A decision on the protest from GAO is not expected until November 26, 2025 and as a result VA faces a gap in service for this critical support. As such, an extension to the eFOIA Software Delivery Order 36C10B22F0119 is being sought to ensure the continuation of support throughout the protest activities. This support is considered mission critical and must continue. Any gap in support would negatively impact schedule and create unnecessary risk and cost.

The period of performance for the extension being requested is date of award through December 31, 2025 to ensure the continuation of support in eFOIA services provided as the result of the protest activities. The extension request is comprised of the expected time to receive a GAO decision which can take up to 100 days, even if no corrective action is required. Additionally, the extension will allow time to restart and continue the transition and onboarding activities that were started prior to receipt of the protest. The total estimated value of the proposed modification is $.

4. Statutory Authority: The statutory authority permitting an exception to fair opportunity is Section 41 U.S.C. 4106(c)(2) as implemented by the Federal Acquisition Regulation (FAR) 16.505(b)(2)(i)(B), entitled “Only one awardee is capable of providing the supplies or services required at the level of quality required because the supplies or services ordered are unique or highly specialized.”

5. Rationale Supporting Use of Authority Cited Above: The proposed source for this action is ThunderCat Technology, LLC, 1925 Isaac Newton Square East, Reston, VA 20190. Based on market research, which can be found in Section eight (8) of this document, it was determined that ThunderCat is the only responsible source capable of satisfying VA’s eFOIA Software services at the level of quality required. No other source can provide the aforementioned support and continuity of services required because of the delays caused by the protest action. This extension will provide for the timely continuance of this critically needed support ensuring continued functionality while the resolution of the protest is pending.

ThunderCat is the only source capable of providing the continuation of services required as they have the staff in place and are currently providing the services. From a functional, technical, and administrative perspective, the ramp up time required to incorporate another contractor under a separate Contract/Delivery order to perform eFOIA Software services would require significant time to complete the transition and onboarding activities. These additional delays would severely disrupt the existing eFOIA Software services which have been mandated by EO 13392 and the OPEN Government Act and would introduce significant added financial costs and technical risks.

In summary, no other source can perform this requirement in the timeframe required as a result of the protest. This contract extension is essential to allow continuation of eFOIA Software services through the protest period.

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 could meet the Government’s requirements. Specifically, aside from

ThunderCat, there are no other sources capable of providing the services required at the level of quality required, including the ability to start work immediately and avoid disruption. There is no competition anticipated for this acquisition. In accordance with FAR 5.301 and 16.505(b)(2)(ii)(D), the award notice for this action will be synopsized on the Contracting Opportunities website, SAM.gov and the justification will be made publicly available within 14 days of award.

7. Actions to Increase Competition: The requirements under this effort were competitively awarded under General Services Administration (GSA) and VA is currently awaiting the decision of the GAO protest. Any future action is anticipated to be competed.

8. Market Research: This acquisition was recently competed as a set-aside among small vendors via GSA Multiple Award Schedule earlier in 2025. This was a two step competitive evaluation process resulting in many vendors being deemed capable. Furthermore, prior to award of the new contract the Contracting Officer had considered other contractors in the marketplace. Given that the current Delivery Order is nearing the end of its period of performance and the protest put a stay on the newly awarded competitive contract, the incumbent is the only source capable of providing the required services without delays associated with onboarding and transitioning. Additionally, use of any alternative software would also expose VA to risk of data loss and corruption.

9. Other Facts: None.

10. Technical/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.

James McCummings Date Government Information Specialist

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 comparison of the proposed prices with Independent Government Cost Estimates (IGCE). The IGCE was determined based on historical pricing and informal pricing previously provided at the time of the Base Award and were deemed to be fair and reasonable.

Patrick Hamilton Date Contracting Officer

12. Contracting Officer Certification

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

Patrick Hamilton Date Contracting Officer

Advocate for Competition Approval

In my role as procuring activity Advocate for Competition, based on the foregoing justification, I hereby approve the extension modification to Contract NNG15SD26B 36C10B22F0119 for Electronic Freedom of Information Act (eFOIA) Software with ThunderCat on an other than full and open competition basis pursuant to the authority cited in Section 4 above, subject to availability of funds, and provided that the property and services herein described have otherwise been authorized for acquisition.

Jason Bullen Date Advocate for Competition Technology Acquisition Center Office of Procurement, Acquisition, and Logistics Department of Veterans Affairs