CIO-SP4 proposals are now due August 3, 2021. Currently, seven bid protests have been filed with GAO. These amendments are now coming fast and furious. Amendment 6 went live on July 9, 2021, and 10 days later we have another new amendment. Below are some of the key changes in Amendment 7.
Overall, it seems like CIO-SP4 amendment 7 shoots first, and then attempts to aim. Here are some of the areas where it appears to miss the mark.
Section L.3.7.3. Section L.3.7.3, which is under the Instructions to Offerors section, has some major changes. Prime-sub teams under FAR 9.601(2) in the small business category previously did not need to submit any additional documentation. This most recent amendment now requires those seeking a small business award with CTAs formed under this section to submit a copy of the written agreement required per FAR 52.207-6–commonly known as a teaming agreement–along with its proposal.
Section L.5.2. Moving to section L.5.2, the self-scoring worksheet has undergone an overhaul. The worksheet seemingly limits the use of prime-sub teams under FAR 9.601(2) to certain, cherry-picked sections. The limitations are not extended to joint venture arrangements under FAR 9.601(1). It does appear that small businesses may submit the experience, capabilities, business systems, and certifications from partners or members of both types of CTAs. Notably, small business awards have now swallowed all small business programs, I suspect in an effort to make the requirements more uniform.
Section M.1.1. Section M.1.1 adds the following language, “For a small business award, the Government will only consider the members of a CTA defined under FAR 9.601(2) for evaluation purposes if the Offeror includes a proposed team of small business subcontractors as defined in provision 52.207-6(a).”
Section M.1.1 also now requires prime-sub CTAs to submit full and complete copies of the agreement establishing their relationship (which would be a teaming agreement). This is a sea-change from previous amendments, which only required joint ventures to meet this requirement (by submitting the joint venture agreement).
So what does this all mean? It’s like a classic sitcom narrative, where at the beginning of an episode we find the main character in a precarious position, and the narrator says, “I bet you’re wondering how I ended up here.”
Interestingly, the new language allows for a small business to compete in other than small categories, noting the small business restrictions will not apply in that case. Plus, Amendment 7 now adds references to L.5.2 throughout the self-scoring worksheet directions alongside L.3.7. Seemingly, this is meant to incorporate both sections in determining whether the experience is applicable.
Here is where things start to get frustrating. Previously, small businesses could form a prime-sub team under 9.601(2) and include a large business as a teaming partner. The latest amendment appears to limit consideration of CTA members under this section to small business subcontractors only, not large businesses. This pulls the rug out from under many proposed teams which include a large business. The amendments still allow for large businesses to be part of a joint-venture team, but not get credit as a subcontractor.
This language is a GIGANTIC shift. Eliminating consideration of large business subcontractors at this late stage boggles the mind. Offerors that could have otherwise formed a mentor-protégé agreement with a large business mentor have now been tossed out in the cold. There is not enough time to get an approved mentor-protégé relationship prior to the new proposal deadline. I suspect we will have many bid protests on this section alone, as it seems to unreasonably limit competition.
Additionally, large businesses do not escape the wrath of Amendment 7. Under M.4, the government will now only consider prime sub teams under FAR 9.601(2) CTAs with respect to Factors 2-4. Factor 1 now apparently only considers the prime contractor capabilities and will not evaluate subcontractor capabilities. For those who formed these arrangements with subcontractors to meet Factor 1, you are now out of luck.
Glaringly, for small businesses, M.4 makes a critical omission in the evaluation factors. M.4 states, “The government will consider information from all CTAs members that is in compliance with 13 CFR 125 and L.3.7.” Notably, this does not include the major changes Amendment 7 made to L.5.7 and M.1.1. M.4 and M.1.1 now seemingly present conflicting information as to how proposals will be evaluated. As discussed above, the other language in the amendment appears to prohibit use of large subcontractor capabilities for evaluation. While I suspect another amendment is coming to fix this issue, until then, we are left with this glaring difference.
We suspect this will not be the last we hear of amendments and postponements of CIO-SP4. The procurement has been highly anticipated, and for good reason. However, the pretzel logic seemingly fueling these amendments has put mustard (or nacho cheese, or your dip of choice) on the shirt of CIO-SP4. While we know the personnel behind the scenes are working hard, and these inconsistencies are almost certainly unintentional, the strain on the industry is growing.
When major changes are made to evaluation criteria after release, it frustrates and harms the overall process. For large businesses, weathering a changing landscape may be a mere annoyance. For small businesses, clear guidelines and evaluation criteria to meet can mean the difference between success and failure.
With protests pending, and we suspect more to come, perhaps the best course of action is for CIO-SP4 to take a step back. It is clear it was not ready for prime time, and with billions of dollars on the line, even the smallest imperfection will be picked apart. Re-engagement with the industry is necessary, and clear guidelines from the outset allows for businesses to adequately prepare for this life-changing business opportunity. Fingers crossed we get some additional guidance soon. Until then, small businesses are racking up additional time (and potentially legal fees) to unravel these changes, adding strain and uncertainty.
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