JA24-024 CUI -Electronically Stored Information Discovery Solution eDiscovery_Casepoint_HC108421C0002 P00008_Redacted.pdf

CUI

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

Purchase Request Number: To be determined.

Contract Number: HC1084-21-C-0002 Task/Delivery Order Number: Not applicable Procurement Title: Electronically Stored Information Discovery Solution (eDiscovery) Software as a Service (SaaS) Solution Estimated Value:

Statutory and Regulatory Authority: 10 U.S.C. §3204(a)(1) and FAR 6.302-1

Justification for OTFAOC Number: JA24-024

Upon the basis of the following justification, I, as Procuring Activity Competition Advocate, hereby approve the use of other than full and open competition of the proposed contractual action pursuant to the authority of FAR 6.302-1, only one responsible source and no other supplies or services will satisfy Agency requirements.

1. REQUIRING AGENCY AND CONTRACTING ACTIVITY:

Requiring Agency:

Office of Military Commissions (OMC) 4800 Mark Center Drive, Suite 11F09-02 Alexandria, Virginia 22350

Contracting Activity:

Defense Information Systems Agency (DISA)/Defense Information Technology Contracting Organization (DITCO)/PL8413 2300 East Drive, Building 3600 Scott Air Force Base, Illinois 62225

2. NATURE/DESCRIPTION OF ACTION(S):

a. The nature of this action is to increase the current ceiling of contract HC1084-21-C-0002 from to , an increase of . The increase will allow for additional brand name Casepoint eDiscovery software and subscriptions in support of the Military Commissions Defense Organization (MCDO)’s practice. Contract HC1084-21-C-0002 was solicited as a full and open competitive procurement under FAR Part 15 and was awarded to Casepoint, LLC, a small business, to provide Casepoint eDiscovery software and support solution.

Controlled By: DISA Controlled By: PSD/PL8413 CUI Category: PROCURE Distribution/Dissemination Control: FEDCON

Electronically Stored Information Discovery Solution Software and Subscriptions-JA24-024

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b) Justification.

The defense teams have hundreds of thousands of pages of electronic discovery documents and over 30,000 pages of transcripts required to be stored, sorted, analyzed, and retrieved in preparation for trial. In preparation for the upcoming trial, the eDiscovery tools are crucial for the defense attorneys to streamline the management of the electronic documents and data, making the process more efficient and accurate. Specifically, eDiscovery allows the defense teams to (1) pinpoint and isolate pertinent ESI from diverse digital sources; (2) safeguard against evidence spoliation; (3) assist in the secure preservation of data, which is vital in upholding the integrity of legal proceedings by preventing data tampering or destruction; (4) facilitate the collection and processing of ESI in a structured and efficient manner; (5) redact sensitive information and identify documents protected by attorney-client privilege, ensuring that only pertinent, non-privileged materials are disclosed; and (6) provide robust security measures to protect sensitive and highly classified data at every stage of the eDiscovery process, assuring data privacy and adherence to data protection regulations. Further, in a ruling dated October 9, 2023, the Military Commissions Trial Judiciary ordered MCDO to fund and implement Casepoint for the defense’s use by January 1, 2024.

Due to the massive volume of discovery documents and evidence, it is imperative for the defense attorneys’ teams to acquire eDiscovery to manage and analyze ESI, which is required for effective representation of their client effectively and efficiently. The absence of eDiscovery tools would result in the identification, collection, and processing of relevant electronic information becoming a time-consuming, resource-intensive, and potentially inaccurate task.

This inefficiency would significantly impede the progress of legal discovery.

Furthermore, there is an elevated risk of evidence spoliation if eDiscovery is not utilized.

Without the protective measures offered by eDiscovery, critical electronic evidence becomes more susceptible to inadvertent or intentional alteration, deletion, or tampering. This risk can compromise the integrity of legal proceedings and potentially lead to disputes over the authenticity of digital evidence.

Moreover, the absence of eDiscovery would compromise the efficiency of document review.

Manual document review can be labor-intensive and extremely challenging to examine through extensive sets of digital documents, which can lead to potentially overlooking essential information.

As a result, additional brand name Casepoint eDiscovery software and support in support of the MCDO’s practice are required.

c) Proposed sole source contractor.

Casepoint, LLC is the proposed sole source contractor. The Casepoint eDiscovery software and subscription solution is currently being utilized by MCDO’s practice. Casepoint, LLC is the original equipment manufacturer (OEM) for the Casepoint eDiscovery SaaS Solution. As the manufacturer, Casepoint does not authorize any other entities to support or resell their solutions.

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A sole source modification to the existing contract will allow the Government to continue to utilize this existing comprehensive solution, which is critical to the MCDO’s practice, overall mission, and to support the above-referenced ruling by the Military Commissions Trial Judiciary from October 2023, ordering MCDO to fund and implement Casepoint for the defense’s use by January 1, 2024.

d) Discussion regarding cause of the sole source situation.

Contract HC1084-21-C-0002 was solicited as a full and open competitive procurement in accordance with FAR Part 15 and was awarded on January 4, 2021, to Casepoint, LLC (a small business) to provide an eDiscovery software and support solution. This contract included a PoP of a one-year base period plus four 1-year option periods.

Under this contract, the Casepoint proprietary commercial off the shelf software and support solution was deployed and is currently in use throughout the Office of General Counsel’s practice. Competition would not be feasible as no other OEM’s product can interface with or is compatible with the existing Casepoint eDiscovery software solution. Competing this requirement would result in substantial duplication of costs and effort to the Government that are not likely to be recovered through competition.

e) Impact.

This modification will provide an increased amount of storage required to support this ruling.

The massive amount of discovery that will occur, would put MCDO over the maximum amount of storage currently provided by this contract. Not procuring the additional Casepoint eDiscovery software and support would negatively affect the Defense Attorneys’ ability to effectively represent clients during the upcoming trial by potentially missing crucial evidence, reducing efficiency, increasing the potential for inaccuracies, risking legal sanctions, causing delays, and raising privacy concerns. Without the additional software and support, a lapse in this functionality would ultimately diminish the attorney's ability to provide effective and comprehensive legal representation, potentially compromising the client's case and their interests.

6. CONTRACT OPPORTUNITIES ANNOUNCEMENT/POTENTIAL SOURCES:

A notice of the proposed contract action, along with a redacted copy of the justification for OTFAOC, will be published on SAM.gov website, as required by FAR 5.2, with the intention to award a sole source contract modification to Casepoint, LLC.

7. DETERMINATION OF FAIR AND REASONABLE COST:

A determination will be made by the contracting officer that the order 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 determine that the resulting contract prices will be fair and reasonable, based on

Page 5 of 7 Pages comparison with the prices outlined below. 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:

a. Comparison of the proposed prices to historical and existing prices paid, whether by the

Government or other than the Government, for the same or similar items.

b. Comparison with competitive published price list and published market prices of the same commodities.

c. Comparison of proposed prices with the independent Government cost estimate.

8. MARKET RESEARCH:

Market research was not conducted for this modification requirement. The original requirement was competed and Casepoint eDiscovery was the best value solution offered. As a result, the contract was awarded to Casepoint, LLC.

There are no other products that can meet MCDO’s requirement. MCDO has already incorporated and is currently utilizing the Casepoint eDiscovery software and support solution into its practice. No other OEM’s product can connect to or is compatible with the existing Casepoint eDiscovery solution. Brand name eDiscovery software and support solution is only available from the OEM, Casepoint

It has been determined that only the aforementioned brand name eDiscovery software and support solution provided by Casepoint, can fully meet the Government’s need. Casepoint has confirmed it can support MCDO’s requirement in their IL5 environment.

This requirement is for proprietary products and product support and no competitor functional replacement products exist in the market currently to meet the Government's need. The Government will continue to conduct market research to determine if there are changes in the marketplace that would enable future competitive actions, i.e., there are similar products and/or product support in the marketplace that provides the same functionality, the original equipment manufacturer releases ownership rights of the product, or it is economically feasible to procure a new system.

9. ANY OTHER SUPPORTING FACTS:

None.

10. LISTING OF INTERESTED SOURCES:

None.

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

LED TO THE EXCEPTION TO FULL AND OPEN COMPETITION:

(a) Procurement History.

Contract Number: HC1084-21-C-0002 Contractor: Casepoint, LLC Basis for Award: Best Value Trade-Off Contract Period: January 4, 2021 – January 3, 2026 (Base + four 1-year Options) Contract Value:

Contract Type: FFP

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TECHNICAL CERTIFICATION: I certify that the supporting data under my cognizance which are included in the J&A are accurate and complete to the best of my knowledge and belief.

NAME: SIGNATURE/DATE:

TITLE/ORGANIZATION: Chief, Information Technology/Security / Military Commissions Defense Organization (MCDO)

PHONE:

REQUIREMENTS CERTIFICATION: I certify that the supporting data under my cognizance which are included in the J&A are accurate and complete to the best of my knowledge and belief.

TITLE/ORGANIZATION: Contracting Officer's Representative / Office of Military Commissions

(OMC)

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

TITLE/ORGANIZATION: DISA/DITCO/PL8413

PHONE:

PROCURING ACTIVITY COMPETITION ADVOCATE APPROVAL: I have reviewed this justification and find it to be accurate and complete to the best of my knowledge and belief. Since this justification does not exceed $15M, this review serves as approval and my written determination that the aforementioned FAR circumstances apply.

TITLE/ORGANIZATION: PACA, DISA

ALL QUESTIONS REGARDING THIS JUSTIFICATION ARE TO BE REFERRED TO: