JA Redacted.pdf

JUSTIFICATION FOR OTHER THAN FULL AND

OPEN COMPETITION (OTFAOC)

Federal Acquisition Regulation (FAR) Part 6 Justification & Approval (J&A), Supporting Procurements under FAR Part 12, and FAR Part 15

Funding Document Numbers: N3220520MP64004 Contract Number: To be determined (TBD) Task/Delivery Order Number: TBD Procurement Title: Viasat MD-1324A(C)/U Modems Statutory Authority: FAR 6.302-1

Justification for OTFAOC

Upon the basis of the following justification, I, as the Contracting Officer, hereby approve the use of other than full and open competition of the proposed contractual action pursuant to the authority of 10 United States Code (U.S.C) 2304(c)(1) and FAR 6.302-1(a)(2), only one responsible source and no other type of supplies or services will satisfy agency requirements.

This is an acquisition that specifies a particular brand name product, peculiar to one manufacturer.

1. REQUIRING AGENCY AND CONTRACTING OFFICE:

Requesting Agency:

Military Sealift Command (MSC) Commander Military Sealift Command (COMSC) Electronic Key Management System (EKMS) Manager East 9276 Third Avenue, Building LP-26 Bay-2 Norfolk, Virginia 23511

Contracting Office:

Defense Information Systems Agency(DISA)/Defense Information Technology Contracting Organization (DITCO)/PL8321 2300 East Drive Scott Air Force Base, Illinois 62225

2. NATURE/DESCRIPTION OF ACTION(S):

The nature of this action is to procure the proprietary, commercial off-the-shelf, brand name Viasat MD-1324 modems in support of the MSC. This procurement will be awarded as a firm-fixed-price purchase order to Viasat, Inc., the original equipment manufacturer (OEM). Viasat, Inc. has proprietary rights and is the sole provider of the required modems via the open market.

The period of performance is estimated to begin 240 days after the date of award with a 1-year warranty. Due to high demand, the required product are on back order. Fiscal Year 2020, Navy working capital funds have been provided on a Military Interdepartmental Purchase Request Number N3220520MP64004. The applicable

Viasat MD-1324 modems

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North American Industrial Classification System code is 334290, Other Communications Equipment Manufacturing, with a size standard of 750 employees.

3. DESCRIPTION OF SUPPLIES/SERVICES:

The objective of this contracting effort is to upgrade the MD-1324U modems with MD-1324A (c)/U modems due to end of support by the manufacturer. The MD-1324A(c)/U provides modulation and/or demodulation to airborne, ship, shore, and transportable terminals operating over ultra-high frequency (UHF) 5 and 25-kilohertz (kHz) non-processed transponders. The MD1324A(c)/U interfaces to UHF satcom radios (with a 70 megahertz (MHz) transmit interface) and fully supports the Legacy modes of operation. The small, lightweight design is particularly well suited to aircraft, ships, transportable terminals, or other UHF satcom applications with limited space and/or weight requirements. The MD-1324A(c)/U modems are mission essential to maintain secure communications within the MSC information systems enclave.

4. IDENTIFICATION OF STATUTORY AUTHORITY:

Only one responsible source and no other supplies or services will satisfy agency requirements, 10 U.S.C.2304(c)(1). (FAR 6.302-1/DFARS 206.302-1)

5. DEMONSTRATION OF CONTRACTOR’S UNIQUE QUALIFICATIONS:

a. Description of events. This acquisition requires brand name Viasat MD-1324A(c)/U modems to replace the currently implemented MD-1324U due to end of life.

b. Justification.

(1) Minimum Government requirements. The minimum Government requirement is for software and support as identified in section 3.c. above. Viasat modems are the only brand of hardware that meets the required need for support and compatibility within the MSC’s information systems enclave. Viasat, Inc. owns the hardware with all legal rights, privileges, and ownership contained therein. No other brand name products can seamlessly integrate with the existing infrastructure without making significant changes to the current architecture. No other product can meet or be modified to meet the Government’s needs without significant program and operational risk to the MSC’s architecture. In order to protect the MSC’s current environment and provide continuity of operations, the required Viasat products must be procured and maintained to meet the Government’s organizational needs.

The Viasat modems are proprietary and only available from Viasat, Inc., and no other brand name modems will satisfy the agency requirements.

(2) Proposed sole source contractor. Viasat, Inc. is the sole manufacturer of the required, Viasat MD-1324A(c)/U modems, and is the only source capable of satisfying the Government’s requirement.

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(3) Discussion regarding cause of the sole source situation. Only Viasat, Inc., the OEM, will satisfy this requirement, as the Viasat MD-1324A(c)/U modems are proprietary. Viasat, Inc. does not authorize distributors or resellers to market or sell their products. Additionally, they do not authorize any third party to warranty.

The OEM owns the copyrighted source hardware with all legal rights, privileges, and ownership contained therein. No other contractor or distributor can legally obtain access to the hardware; nor can they make duplicate products, since copyright and patent laws protect it. In accordance with FAR 5.2, a notice of intent to award sole source announcement was posted on August 16, 2020 on the Contracting Opportunities (beta.sam.gov) website. No responses were received.

(4) Impact. Viasat provides several different means of controlling the modem. With the companion Viasat Control Indicator, users have complete control over terminal configuration in a small chassis that is designed for airborne avionics or other rugged field operations. Users also have the option to control the modem via a PC executing Viasat’s Network Terminal Control software equipment, no other vendor makes this product or has a product that would be sufficient to maintain the MSC ship to air system that it supports. Failure to procure this equipment would cause a serious interruption of secure communications with in the MSC’s information systems enclave could cause improper ship identification.

6. FEDBIZOPPS ANNOUNCEMENT/POTENTIAL SOURCES:

A synopsis/solicitation for this requirement will be published on the Contract Opportunities (beta.sam.gov) website, as required by FAR Subpart 5.2. A copy of the redacted justification will also be posted to the Contract Opportunities (beta.sam.gov) website.

7. DETERMINATION OF FAIR AND REASONABLE COST:

A determination will be made by the contracting officer that the contract represents the best value to the Government, as defined in FAR 2.101, and results in the lowest overall cost alternative (considering price, special features, and administrative costs) to meet the Government’s needs. The contracting officer will also determine the pricing information valid for comparative purposes. Certified cost and price data is not required for this commercial item acquisition, in accordance with FAR 15.403-1(b)(3). The contracting officer will determine whether the price is fair and reasonable, based on comparison of the proposed prices to the commercial price list and the independent Government cost estimate.

8. MARKET RESEARCH:

a. Market research was conducted. Market research included discussions with industry, reviewing historically similar acquisitions, internet research, and availability on any existing DISA-wide acquisition contracts and other Government-wide acquisition contracts. Based on current market research, in order to sustain the current operational configuration baseline, only the identified Viasat brand hardware will satisfy this requirement. Market research revealed only Viasat, Inc. the ability to meet the Government’s requirement to provide the Viasat MD-1324A(c)/U modems to the already established MSC’s information systems enclave.

Based on market research, the required Viasat modems are proprietary and are available from only

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Viasat, Inc.

b. Market research concluded Viasat MD-1324A(c)/U modems are not available through existing Government contract vehicles, to include the DoD Enterprise Software Initiative Blanket Purchase Agreement, National Aeronautics and Space Administration Solutions for Enterprise- Wide Procurement Government-wide acquisition contract, or General Services Administration Schedule. The required software support is only available via the open market, from the only known source, Viasat, Inc., a large business. Therefore, this requirement will be published on Contract Opportunities website as a sole source procurement.

9. ANY OTHER SUPPORTING FACTS: None.

10. LISTING OF INTERESTED SOURCES: The Viasat, Inc. is the only vendor that can provide the proprietary products to meet the MSC’s requirement/need. A combined synopsis/solicitation will be published as required by FAR 5.2.

11. ACTIONS THE AGENCY MAY TAKE TO REMOVE OR OVERCOME BARRIERS

THAT LED TO THE EXCEPTION TO FULL AND OPEN COMPETITION:

a. Procurement History. None.

b. At this time, only Viasat, Inc. can provide the required modems for the existing MSC’s information systems enclave. If Viasat, Inc. elects to surrender their legal ownership, copyright, and/or intellectual property hardware rights, and move toward providing an open source solution for the products being procured, then the MSC will seek open competition. Regardless, the Government will continue to search the marketplace, and alternative software solutions will continually be researched to determine if alternative solutions exist. If the Government should determine that the above brand name products are no longer required, the Government will seek a competitive acquisition approach for the required functionality. At that point, every effort will be made to compete it to the maximum extent practicable based on new technologies that will support the MSC’s information systems enclave.