DATE: September 10, 2024
TO: Board of Supervisors
SUBMITTED BY: Edward Hill, Chief Operating Officer/Interim Director, Internal Services/Chief Information Officer
SUBJECT: Agreement with Commvault Systems, Inc.
RECOMMENDED ACTION(S):
TITLE
1. Under Administrative Policy No. 34 for competitive bids or requests for proposals (AP 34), determine that an exception to the competitive bidding requirements under AP 34 is satisfied and a suspension of competition is warranted due to unusual or extraordinary circumstances, and that the best interests of the County would be served by entering into an agreement with Commvault Systems, Inc. as the vendor currently provides maintenance, support, and licensing for their proprietary software which provides the backup and recovery systems for critical applications used through the County; and
2. Approve and authorize the Chairman to execute an Agreement with Commvault Systems, Inc. for maintenance, support, and licensing for software which provides the backup and recovery system for critical applications, effective September 17, 2024, for a three-year term, total not to exceed $354,114.
REPORT
There is no additional Net County Cost associated with the recommended actions, which will allow the Internal Services Department, Informational Technology division (ISD-IT) to suspend the competitive bidding process to continue using Commvault Systems, Inc. (Commvault) for the backup and recovery of critical applications. This item is countywide.
ALTERNATIVE ACTION(S):
Should your Board not approve the recommended actions the County would be without necessary backup storage or recovery systems, which would leave the County vulnerable to potential loss of, or damage to, critical files with limited ability to recover or restore the data. Your Board may direct staff to issue a competitive bid for a new vendor to provide backup and recovery solutions for the County, but this would result in increased costs associated with the transition, implementation, and data conversion to a new solution.
SUSPENSION OF COMPETITION/SOLE SOURCE CONTRACT:
It is requested that the County find, under AP 34, that an exception to the competitive bidding requirement is satisfied and a suspension of competition is warranted due to unusual or extraordinary circumstances, as Commvault is the only vendor capable of supporting the current backup and recovery software the County utilizes. Commvault’s products and licenses are propriety and can only be renewed, maintained, and supported by Commvault. While there are other companies that provide backup and recovery software solutions, replacing Commvault with another company would mean extensive fees in the form of implementation, conversion, and new software fees, as well as running a concurrent system for six years due to the mandated six-year retention schedule for the supported data. The Internal Services Department - Purchasing division (ISD-Purchasing) concurs with the request to suspend the competitive bidding process.
FISCAL IMPACT:
There is no increase in Net County Cost associated with the recommended actions. The maximum compensation for the recommended agreement is $354,114 and will be funded by chargebacks to user departments. Sufficient appropriations and estimated revenues are included in ISD-IT’s Org 8905 FY 2024-25 Recommended Budget and will be included in subsequent budget requests.
DISCUSSION:
On June 12, 2018, your Board approved agreement No. A-18-330 with Commvault for software, licensing, and support of the County’s enterprise backup and recovery solution for critical applications. The County has been using Commvault’s backup and recovery software for over 20 years to backup, and recover, key data including emails, databases, and applications data.
The recommended Agreement has a possible three-year term, which includes no extension terms. The total maximum compensation for the three-year term of the agreement is $354,114, which includes $319,114 for annual licensing, maintenance, and support and $35,000 for additional services, software, licensing, or other products.
The recommended Agreement deviates from the County’s standard language as follows:
• The recommended agreement allows Commvault’s data security terms to take precedence over the County’s standard data security terms. ISD-IT has reviewed Commvault’s terms and agrees that they are comparable to the County’s standards; accepting Commvault’s terms is an acceptable business risk.
• The recommended agreement incorporates limitation of liability language which limits the aggregate liability of Commvault to direct damages up to the amount paid in the previous twelve months.
• The recommended agreement incorporates indemnification language related to intellectual property indemnification and data privacy and security indemnification. This means Commvault will indemnify, defend, and hold the County harmless for third-party claims that Commvault’s products infringe on any patent, trademark or copyright. Similarly, Commvault will indemnify, defend, and hold the Count harmless against third-party claims arising from unauthorized, third-party access from unencrypted County data. Finally, the Agreement reads that the County will indemnify Commvault for any improper use of Commvault’s software by the County.
The Human Resources Department, Risk Management Division has reviewed the provisions and recommends the Agreement not include limitation of liability language or mutual indemnification. ISD-IT believes that the above deviations from the County’s standard language are acceptable business risks and has accepted similar terms in previous agreements with Commvault.
Approval of the first recommended action will suspend the competitive bidding process consistent with AP 34 for Commvault’s software, licensing, and maintenance of their proprietary backup and recovery solution. Approval of the second recommended action will approve the Agreement with Commvault for their software, licensing, and maintenance, effective September 17, 2024, for a three-year term, total not to exceed $354,114.
REFERENCE MATERIAL:
BAI #41, June 12, 2018
ATTACHMENTS INCLUDED AND/OR ON FILE:
Suspension of Competition
On file with Clerk - Agreement with Commvault Systems, Inc.
CAO ANALYST:
Ahla Yang