Last night, NITAAC released Amendment 4 to the CIO-SP4 RFP. The amendment removes the language expressly restricting the use of first-tier subcontractors past performance, capabilities, and experience, which was previously added by Amendment 3. Let’s take a closer look.
We have been following NITAAC’s treatment of first-tier subcontractors’ past performance, capabilities, and experience under the CIO-SP4 RFP since day one. And it has been a wild ride! Check out our prior blogs on this topic here and here.
According to NITAAC, Amendment 4 “addresses the concerns pertaining to Contractor Team Arrangements (CTA).” NITAAC’s Cover Letter for Amendment 4 reiterates that “it is not NITAACs intent to remove the ability of offerors to utilize first tier subcontractors that are part of a CTA as defined in FAR 9.601.” According to NITAAC, Amendment 4 “removes language in section L.3.7, L.5.2, M.1.1, and M.4.3 that may impede an offeror from utilizing first tier subcontractors.”
Specifically, it completely removed from section L.3.7.1 (Instructions for CTAs, JVs, and Mentor-Protégé Agreements) the following language: “An offeror may enter into Prime/Subcontractor arrangements as defined under FAR 9.601(2); however, in this type of arrangement, only the prime will be considered in the evaluation for award of the GWAC except as specified under M.4.3 Contract Team Arrangements (CTAs).”
NITAAC removed language from section L.5.2.1 on corporate experience, completely doing away with the prior relationship requirement altogether. Now, it reads as follows:
All corporate experience examples must be from the last three years prior to the date the proposals are due for this solicitation. The examples may come from members of an offeror’s CTA / JV, and/or Mentor-Protégé as identified in section L.3.7. If provided, work done by each partner or member of the contractor teaming arrangement will be considered.
If the examples come from any member other than the offeror submitting a proposal , a clear relationship must be established between the offeror, their team members (as identified in section L.3.7), and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example.
NITAAC’s intent to remove the prior relationship requirements is echoed in Amendment 4’s changes to section L.5.2.2 (Row 9 Leading Edge Technology Experience), section L.5.2.3 (Row 10 Federal Multiple Award Experience), and section L.5.2.4 (Row 11 Executive Order 13779). It removed the following language from each of those sections:
If the examples come from any member other than the offeror submitting a proposal, a clear relationship must be established between the offeror, their team members (as identified in section L.3.7), and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example.
Under section M.1.1 on CTAs, Amendment 4 removed additional restricting language. Now, it reads as follows:
As stated in paragraph L.3.7, the Government will consider all members of a FAR 9.601(1) CTA for purposes of evaluation under the contract, provided that the Offeror submits a full and complete copy of the document establishing the CTA relationship containing at least the minimum information required by the solicitation closing date.
The Government will not consider the members of a “Contract Team Arrangement” defined under FAR 9.601(2) for evaluation purposes for the contract except in the limited context of evaluating an Offeror’s proposal under paragraph L.5.6.2, Resources.”
Finally, in section M.4.3 on past performance, NITAAC actually replaced some of the language that it had previously removed (via Amendment 3). Amendment 4 revised that section as follows:
The government will consider and evaluate the past performance experience of members of the offeror’s 9.601(1) CTA (if applicable), subcontractors of the prime’s 9.601(2) CTA, members of the offeror’s JV (if applicable), and all members of the offeror’s mentor- protégé arrangement (if applicable).
In the end, Amendment 4 did not directly reverse all of the changes imposed by Amendment 3. For one, it appears that NITAAC does still intend to restrict the use of affiliates’ past performance, capabilities, and experience. But Amendment 4 does seem to effectively remove the restrictions on the use of a first-tier subcontractor’s past performance, capabilities, and experience that had been imposed via Amendment 3. So it looks like NITAAC was pretty true to its word on this one. However, there may still be some questions as to why NITAAC had so much back and forth on this one and as to how its evaluation will actually look in this respect (given that back and forth). There, only time will tell.
Notably, Amendment 4 also confirms that the proposal due date is still July 8, 2021, at 2:00pm ET. Also, be sure to review the full amendment carefully if you do plan to bid, as it also changes some of the post-submission registration requirements (in section L.3.1) and submission format requirements (in section L.5) too.
Need help with CIO-SP4 or another government contracting legal matter? Email us or give us a call at 785-200-8919.