FAR 16.5 Justification Exception to Fair Opportunity NRE EA Webmethods redact.pdf

FAR 16.5 Exception to Fair Opportunity

Justification for Exception to Fair Opportunity

United States Department of Agriculture

Federal Acquisition Regulation (FAR) Part 16.505

USDA Forest Service WebMethods Software Equitable Adjustment Settlement

1. Identification of the agency and the contracting activity.

The requisitioning activity for this requirement is the United States Department of Agriculture

(USDA) Forest Service (FS), Chief Information Office (CIO). The contracting activity is the

United States Forest Service, National Procurement Operations, Procurement and Property Services, Information Technology Contracting Branch (ITCB).

2. The nature and/or description of the action being approved.

This action is a Firm Fixed-Price (FFP) Delivery Order (DO) award for the negotiated equitable adjustment request under award number NNG15SC05B_12760420F0005 webMethods software subscriptions during previous years of performance.

New Award number: NNG15SC05B_12760425F0011

Contractor: .

3. A description of the supplies or services required to meet the agency’s needs (including the estimated value).

New award number NNG15SC05B_12760425F0011 will settle equitable adjustment request for webMethods Adapter for JDBC subscription and webMethods Integration Platform Processors subscription under the Bill of Material listed below with the period of performance of December 14, 2023 through December 13, 2024 for the total amount of $377,912.80 annually.

Below is the adjusted annual cost of Core Performance Class D services option years 4 table below:

4. Identification of the exception to fair opportunity and the supporting rationale:

FAR 16.505(b)(2)(C), The order must be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity to be considered for the original order.

is an authorized reseller of webMethods software subscription products for .

is a NASA SEWP Contract holder who has provided the USDA Forest

Service with webMethods software subscriptions since 2017.

This document finalizes a Request for Equitable Adjustment (REA) settlement agreement between the USDA Forest Service and Contractor, for webMethods software subscription under previous contract award number was NNG15SC05B_12760420F0005.

webMethods software subscription was for core performance class type

A services which was created for a base year and four option periods with the aggregate amount of

$1,487,610.55. See below the breakdown:

Base Year POP 12/14/2019-12/13/2020 $297,522.11

Option 1 POP 12/14/2020-12/13/2021 $297,522.11

Option 2 POP 12/14/2021-12/13/2022 $297,522.11

Option 3 POP 12/14/2022-12/13/2023 $297,522.11

Option 4 POP 12/14/2023-12/13/2024 $297,522.11

This Request for Equitable Adjustment (REA) settlement agreement began when

) , , stating they received an email, dated December 11, 2023 from United States Forest Service (USFS)

(SME), ,

December 11, 2023 is the actual date when the CS became aware of a change for core performance class type D, which may have occurred, and Option Period 4 had already exercised on November

20, 2023. At that time, the program did not provide a purchase request package for the change to

CORE D and stated no changes were made. CS and Contracting Officer Representative (COR) requested from the program documentation such as emails, or ticket submissions confirming core performance class type D and did not receive any such documentation.

Countertrade Products, Inc. pursued the change but could not provide any electronic tickets, emails, or supporting documents for this change to core performance class D, only an invoice and diagram explaining core performance classes A, B, C, D, E and F. It was during COR’s market research findings dated August 24, 2024, that the COR was told by Countertrade Products, Inc., , there are true-up cost for going from CORE A to CORE D, which were due to Countertrade

Products, Inc.

On October 30, 2024 a team meeting with the CS and FS program SME group confirmed server change from Red Hat Linux version 6 to Red Hat Linux version 7 which was completed, March 1, 2021 but no government employees could locate electronic tickets or documentation that an actual change occurred. The CS created a formal letter notifying a change occurred and requesting the following information:

• Specific detailed facts of change, such as functionality change;

• Date of event with timelines;

• Identify who made contact for change, what was the requested change; who accepted deliverables;

• Include any communications, electronic reports, order processing and troubleshooting tickets, and customer support service request(s);

• Identify any specific plan of effort.

• Detailed invoice breakdown per Option Period (OP):

OP 1 (03/01/2021 – 12/13/2021)

OP 2 (12/14/2021 – 12/13/2022)

OP 3 (12/14/2022 – 12/13/2023)

OP 4 (12/14/2023 – 12/13/2024)

On December 6, 2024, CS received a response in the form of a Request for Equitable Adjustment from ., claiming the deployment of the webMethods software subscription to Core Performance Class D processors was provided to USDA Forest Service, on

March 1, 2021, with total amount due being $1,430,891.70. The calculated adjustment during

Option Year 1 considers that it was not for the entire Option year; see cost breakdown below:

Option

Year Date

Annual Contract

Core A and Paid

Revised Annual

Contract Core D total cost

Annual D Core

Adjustment due

OY1 12/14/20 - 12/13/21 $ 297,522.11 $594,675.39 $ 297,153.28

OY2 12/14/21 - 12/13/22 $ 297,522.11 $675,434.91 $ 377,912.80

OY3 12/14/22 - 12/13/23 $ 297,522.11 $675,434.91 $ 377,912.80

OY4 12/14/23 - 12/13/24 $ 297,522.11 $675,434.91 $ 377,912.80

$1,190,088.44 3,296,415.03 $1,430,891.70

On December 6, 2024, the CS sent the Request for Equitable Adjustment (REA) from to the program to review and validate. Forest Service CS and program office reviewed the REA but did not have enough solid evidence, and the group had questions. The CS sent a few emails to Countertrade Products Inc. requesting the full end users licensing agreements, a question about the verbiage of licenses in REA but only received agreements between or their Limited Licensing Agreement amendments. This information was sent to the program and as a group we discussed, but again felt we did not have substantial information to solidify that a change to core performance class D processors had occurred on March 1, 2021.

On December 20, 2024 the CS received an email from of stating team, was willing to hold the discounted previously provided REA adjustment price until 12/31/2024, after that date if the matter is not fully resolved with an equitable adjustment the price will increase to the standard market price of $4,212,656.00. Also on this date, the , , and met with , , and offered a settlement amount of $377,912.80. The settlement amount offered is based on the date of December 11, 2023, as the genuine date the government was put on notice that a change had occurred under option period four for award number NNG15SC05B_12760420F0005.

On December 27, 2024, . accepted FS offer of $377,912.80 to settle their

REA, if a delivery order was presented by close of business on December 31, 2024. On December

30, 2024, the CS emailed requesting a time extension due to the need for an acquisition plan and higher-level funding documentation approvals; .

granted an extension till January 9, 2025.

This document asserts the Forest Service sought a mutual agreement of equitable adjustment to as the provider of webMethods software subscription products, per previous order number NNG15SC05B_12760420F0005, with a one-time payment of $377,912.80 under new order number NNG15SC05B_12760425F0011.

5. A determination by the Contracting Officer that the anticipated cost to the Government will be fair and reasonable.

Market research found that NASA SEWP, GSA and USDA Stratus Basic Ordering Agreements are government vehicles available to procure webMethods software products in which fair and reasonable prices have already been established. Also, based on the historical cost used to develop the Independent Government Cost Estimate, and recent pricing established on a renewal contract for webMethods Adapter with JDBC subscriptions and webMethods Integration Platform Processors subscriptions under a competitive environment, the settlement price is anticipated to be fair and reasonable.

6. Any other facts supporting the use of other than full and open competition.

None.

7. Actions the agency may take to remove or overcome any barriers to increasing fair opportunity before any subsequent acquisition for the supplies or services:

The Forest Service has done its due diligence to ensure that the procurement actions are providing fair opportunity to the maximum extent possible under the Federal Acquisition Regulation. The intention of this requirement is a one-time equitable settlement for specific webMethods software subscription product that had already been provide during Option Period four and was brought to the Governments attention.