CIO-SP4 Amendment 10: More Changes and No Delay

Amendment 10 clarifies obligated dollar values, how to have subcontracted federal work counted, restrictions to contractor participation in task areas, evaluation of contractor program manager(s), establishing a static date from which to calculate the three-year look-back for corporate experience relevance, and evaluation of labor rates.

Needless to say, there is a lot of things packed into Amendment 10, and here’s the kicker, proposals are still due August 20th! With little time to digest, let alone alter, proposals in line with Amendment 10, NITAAC has left little room for offerors to catch up with the changes.

Catch up on my Amendment 7, Amendment 8, and Amendment 9 posts before digging in here. By the time this is over, we may issue an anthology of CIO-SP4 amendment greatest hits. Before we get to the sure-fire best-selling anthology, we have to deal with the elephant in the room.

At 6:12 PM Eastern on August 16, NIH hit double-digit amendments for CIO-SP4. What makes this one different, is it was not accompanied by any proposal deadline delay. Instead, offerors are left at the brink to digest 182 total pages in less than 72 hours.

Given the timeline, let’s get to the details.

Obligated Funds Clarification. Finally, we have clarification. Much as we thought, obligated means “funded.” This means exercised option years, and funded orders. For example, those with a 5-year contract with a total contract value of $10 million cannot automatically pencil in $10 million. The key here, is where the contractor can only claim the exercised option years. Let’s say the agency has picked up the first option year, so total there is the base-year plus one. The total obligated value is $4 million out of the total $10 million. When calculating the obligated funds, the takeaway is to only include “funded” amounts.

Subcontracted Federal Work. In Amendment 9, we saw NIH soften its stance, allowing for subcontracted experience to count toward experience metrics. However, for this experience to count, the proposal must include BOTH the subcontract and prime contract number. In our experience, most subcontracts don’t have numbers. Keep this in mind, and include both numbers, if possible, in your proposal.

Contract Program Managers. “Offerors that propose a Contract Program Manager with a proven track record of managing programs similar to CIO-SP4 in scope and magnitude will be evaluated more favorably.” The plan of action for this person is likely not known at this stage. However, for businesses who can afford to engage such a person at this late stage, it appears this will score unknown brownie points with NIH.

Past Experience Examples. Amendment 10 makes a welcome change to past performance examples. Previously, the three-year lookback was from the date proposals were due. We are now nearly three months from this originally envisioned due date. We can rejoice this requirement now has a static date, May 25, 2021. This is the date originally proposals were due, which makes sense. I have given NIH a lot of flak, but this is a common sense change and deserves applause.

Evaluation of Labor Rates. NIH has now given itself an out when it comes to labor rates. NIH can now line-item veto unrealistic or unreasonable labor rates. This keeps such rates out of the resulting contract. It does appear this could increase the chances of losing out on an award due to perceived unrealistic pricing. This gives additional protest grounds as well.

Responsibility Determinations. These determinations are made on a pass/fail basis, which seems redundant, but NIH has clarified this point.

Removal of FAR 52.207-6. NIH has apparently scrubbed all mention of this FAR clause from CIO-SP4. This is odd, considering FAR 52.207-6 has been included up until now. FAR 7.107-6 requires this provision for multiple-award contracts above the substantial bundling threshold. CIO-SP4 far exceeds this threshold, but NIH may be saying that it is not engaging in bundling as part of this solicitation, as it is a re-up of CIO-SP3, not combining other procurements. It is unclear the rationale for including this FAR clause for months, only to drop it at the last second, but here we are. Seemingly, most bundling would come at the task order level, but that has yet to be seen. The lack of rationale or explanation could leave more avenues for protesting solicitation terms.

The takeaway from Amendment 10, much like previous amendments, is that CIO-SP4 has some major ambiguous provisions. Unlike previous amendments, this one was not accompanied by a delay in the proposal due date. For CIO-SP4 to still be undergoing major substantive changes this late in the procurement process confirms that NITAAC did not have this solicitation ready for prime time. We are still waiting to see if NITAAC may take the drastic step of pulling back CIO-SP4 until all the major issues are ironed out.

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