P03 JnA CommVault P00001 - Final Signed 1.12.2023_Redacted.pdf

Control Number VA-22-00024058

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, NJ 07724

2. Description of Action: The proposed action is for an out-of-scope modification to a firm-fixed-price Delivery Order issued under the National Aeronautics and Space Administration (NASA) Solutions for Enterprise-Wide Procurement (SEWP) V Government-Wide Acquisition Contract (GWAC) for renewal of brand name CommVault software licenses, maintenance support, and ancillary support services.

3. Description of the Supplies or Services: VA, Office of Information and Technology (OIT), Information Technology Operations and Services original requirement was to renew up to 11,000 terabytes (TB) of brand name CommVault data capacity term software licenses, maintenance support, and ancillary support services for data protection and backup in support of critical sites and the National Tapeless Backup Encryption (TBE) project. VA now requires an additional 2,000 TB per year for the base and both option years. The additional TBs are needed as VA is converting the existing perpetual licensing to subscriptions. Specific data was inadvertently omitted while sizing this requirement. Due to this capacity deficiency, VA has not fully converted from the existing perpetual-based licenses to the subscription-based capacity licenses originally procured. The 2,000 TB are required to address this deficiency and will be added through four new optional Contract Line Item Numbers (CLINs) for 500 TB each, priced for each year. The VA estimates this modification will cost increasing the total order value from to . CommVault software is currently installed and operating VA-wide in medical centers, Veterans Health Information Systems and Technology Architecture (VistA) Data Centers, and Non-Vista Data Centers performing centralized backup operations for all VA Medical Centers (VAMC).

This CommVault software and maintenance renewal is for existing software that is already established and serves the purpose of disaster recovery for all VAMCs. This renewal will ensure standardized backup, file replication, disaster preparedness and recovery time objectives of all OIT server-based data and applications in all VAMCs throughout the enterprise. The required CommVault software maintenance support shall include bug fixes, upgrade releases and enhancements and periodic updates. In addition, VA requires ancillary CommVault support services for Enterprise Support Program, project management, remote consulting, and pre-paid training units. The period of performance for the software and maintenance remains 12 months from the date of award with two 12-month option periods, along with the aforementioned optional tasks to procure additional TBs. The total estimated price of the proposed action inclusive of all option periods and optional tasks is .

4. Statutory Authority: Pursuant to FAR Subpart 16.505(b)(2)(i)(B), the modification requirement is justified and approved as an exception to fair opportunity under the statutory authority of Section 41 U.S.C. 4106(c)(2) as implemented by FAR Subpart 16.505(b)(2)(i)(B), entitled “Only one awardee is capable of providing the supplies or

CommVault Software and Maintenance Support Control Number VA-22-00024058 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 course for this action is Alvarez, LLC, 8251 Greensboro Drive, Suite 230, Tysons Corner, VA 22102.

Alvarez is currently providing brand name CommVault term software licenses, maintenance support, and ancillary support services. Commvault is currently used as the sole software architecture to backup and/or archive data VA-wide at approximately 170 VAMCs, including over 1,200 health care facilities. The current CommVault infrastructure is only compatible with the CommVault software licensing and software maintenance due to the proprietary elements of VA’s existing infrastructure, including CommVault’s proprietary source code. The extra 2TB of capacity required by the VA must be CommVault as all other data VA wide is supported by CommVault software and no other is compatible with CommVault. While other backup software manufacturers exist, no other manufacturers can access the CommVault source code in order to maintain and support the existing software already installed and operating VA-wide in all VAMCs. Further no alternative software is interoperable with VA’s current CommVault infrastructure. Due to proprietary constraints, use of any other brand name item or support would necessitate replacement of all existing CommVault hardware and software currently fielded including those that are not being renewed or replaced under this proposed action. The replacement would result in a delay of a minimum of two years to replace backups across the VA enterprise. This will result in duplicated costs for the hardware estimated at that will not be recoverable through competition.

This does not include the time and investment VA would need to incur to get another brand name software into production. These estimates are based on previous efforts for similar procurements. Additionally, new training for Infrastructure Operations Platforms Support (IOPS) staff would have to be provided if a different brand of software or software maintenance is used. This would multiply the support costs required by IOPS, require VA staff to be trained to learn the new application, and result in extensive delays and duplicated cost that would also not be recoverable through competition.

In keeping with the original intent of this justification and the resulting order the VA intends to add the additional quantities to Contract NNG15SD19B, Order 36C10A22F0129. This will keep all software architecture backed up and/or archived data VA-wide under the same brand name term software license order for the purposes of efficiency and economy of scale. Additionally, if any other contractor, including any other reseller of CommVault products and services were selected for the additional TB licenses, maintenance, and ancillary support services, VA would realize additional administrative burden in managing an additional order. Further, selection of any other contractor, including any other reseller of CommVault products and services would require additional duplicative costs in order to deliver and manage the additional quantities. Specifically, these additional licenses and services must be co-termed with the same license key (from the same contractor), and a singular license server must be applied. Only Alverez can provide the required support needed to continue the perpetual to the subscription-based migration process to utilize a singular license server. If VA utilized any other vendor, including any other reseller of CommVault products and services, VA would not be able to utilize a singular license server. This would incur additional time and effort from a professional service and engineering perspective and would create duplicative efforts causing VA to consume an additional estimated 80 hours of professional services, hardware requirements, VMWare, and Microsoft SQL licenses. Additionally, and most importantly, the introduction of a secondary licensing server would be required and would introduce a significant amount of interoperability risk and would create undue risk which would put the entire VA’s Enterprise Data protection umbrella in jeopardy. This secondary server would also result in estimated duplicated costs for professional services, hardware, and software of approximately over the term of this action. These estimated duplicative costs are based on previous acquisition history and would not be recoverable through competition.

This is an expansion to the current TB licensing compacity needed as the VA is converting the existing perpetual licensing to subscriptions. These additional TBs were previously on contract through perpetual licensing and need to be converted to term.

The additional TB are under perpetual licenses that were not renewed as that VA’s intent was to include these TBs in the original award. Due to this there is sense of urgency get the remaining TB’s within compliance. The perpetual licenses are in danger of not being maintained which would cause impacts to patient care by not being able to adequately protect electronic medical records and critical application running VA medical centers.

6. Efforts to Obtain Competition: Market research was conducted, details of which are in section 8 of this justification. This effort did not yield any additional sources that can meet the Government's requirements. 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 System for Award Management Contract Opportunities Page and the justification will be made publicly available within 14 days of award on System for Award Management Contract Opportunities Page.

7. Actions to Increase Competition: The Government will continue to conduct market research to ascertain if there are any changes in the marketplace that would enable future actions to be competed.

8. Market Research: VA technical experts conducted Market research in December 2022 and January 2023 via verbal and email communication with CommVault and review of the NetBackup, Veritas Backup Exec and CommVault websites to determine if other resellers are available and to ascertain the ability of other, similar software licenses, maintenance support, and ancillary support services to meet VA’s needs. The extra 2TB of capacity required by the VA must be CommVault as all other data VA wide is supported by CommVault software and no other is compatible with CommVault. While other backup software manufacturers exist, no other manufacturers can access the CommVault source code in order to maintain and support the existing software already installed and operating VA-wide in all VAMCs. Further no alternative software is interoperable with VA’s current CommVault infrastructure. Due to proprietary constraints, use of any other brand name item or support would necessitate replacement of all existing CommVault hardware and software currently fielded.

Additionally, if any other reseller of CommVault products and services were selected for the additional TB licenses, maintenance, and ancillary support services, VA would realize additional administrative burden in managing an additional order and would require additional duplicative costs. Only Alverez can provide the required software licenses and support required to continue the perpetual to the subscription-based migration process to utilize a singular license server and avoid the duplication of effort and cost as detailed in Section 5 of this justification.

Therefore, at present, there is no other alternative brand item or support available in the marketplace that can meet this requirement. In addition, the Program Manager contacted CommVault to determine whether its proprietary source code was for sale and on December 28, 2022, the CommVault representative responded that this data is not for sale and CommVault has no plans to sell its source code. Based upon the above market research, the Government’s technical experts have determined that only CommVault brand name term software licenses, maintenance support, and ancillary support services can meet all of VA’s requirements.

9. Other Facts: None.

10. Technical and 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.

Date: ________________________________

Division Chief Signature:

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 NASA SEWP V GWAC prices have previously been determined fair and reasonable.

Additional price analysis may be performed in accordance with FAR 15.404-1(b).

Date: ________________________________

Procuring Contracting Officer Signature: ___

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

Date: ________________________________

Procuring Contracting Officer Signature: ___

12 January 2023

Approval

In my role as procuring activity Advocate for Competition, based on the foregoing justification, I hereby approve the acquisition of brand name CommVault software licenses, maintenance support, and ancillary support services on an other than fair opportunity 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.

Date: ____________ Signature: _________________________________

Advocate for Competition Technology Acquisition Center Office of Procurement, Acquisition, and Logistics