We finally have NITAAC’s CIO-SP4 solicitation, complete with several amendments and a Q&A. So that means the anticipated offerors have the answers to all of their questions about this long-awaited GWAC procurement, right? Well, no. In fact, for anyone planning to team-up for CIO-SP4, there seems to be more confusion now than ever before.
Specifically, the draft and final CIO-SP4 RFPs have taken us on a rollercoaster ride regarding whether offerors can utilize the past performance, experience, and capabilities of their first-tier subcontractors (a.k.a. subcontractors of a prime’s FAR 9.601(2) CTA).
We first blogged on this topic a few weeks ago. As we explained, the draft RFP said that NITAAC would not consider the past performance of subcontractors at all. We raised concerns with this limitation under the guidance of FAR 15.305(a)(2)(iii), which says that agencies “should” consider the past performance of “subcontractors that will perform major or critical aspects of the requirement.” We also noted that, in some cases, this limitation could conflict with SBA’s rule at 13 C.F.R. 125.2(g), which states:
When an offer of a small business prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor(s) in the proposal, the head of the agency must consider the capabilities, past performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award.
But the final RFP (first released in late May) initially cleared up those concerns (albeit, it did raise some new concerns regarding the broad utilization of affiliates’ past performance as explained in the prior blog).
Section M.4.3 of that RFP said:
The government will consider and evaluate the past performance experience of affiliates, 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).
Section L.5.2.1 originally said:
All corporate experience examples must be from the last three years from the date the proposals are due for this solicitation. The examples may come from affiliates or members of an offeror’s CTA / JV, provided the examples establish a clear relationship between the offeror, their affiliates / CTA / JV members, the project, and the resources that were expended by each in accomplishing the project.
And section L.3.7.1 said: “Although the experience and abilities of the prime’s subcontractors may be used in the offeror’s proposal, only the prime contractor will receive a contract award.”
So the first release of the final CIO-SP4 RFP clarified that a subcontractor’s past performance would be considered–and a subcontractor’s corporate experience could be considered. But interestingly, it still appeared to potentially require a prior relationship for the agency to consider the corporate experience of affiliates, subcontractors and joint venture members.
Then, Amendment 2 to the RFP (released June 4) changed the corporate experience criteria in section L.5.2.1 to remove the prior relationship requirement for subcontractors and joint venture members (but keeping this requirement for affiliates), stating:
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 affiliates or members of an offeror’s CTA / JV. If the examples come from affiliates, a clear relationship must be established between the offeror, their affiliates, and the resources each expended in accomplishing the project. Each offeror’s example shall convey the offeror’s specific role in their experience example.
Given this deliberate change in the language, it appeared that NITAAC had intended to broaden the ability to submit subcontractor corporate experience (which was more in line with section M.4.3’s allowance of subcontractor past performance examples).
But the saga doesn’t end there!
Earlier this week, NITAAC released Amendment 3 to the final RFP, which included the Q&A, and essentially scrapped everything we thought we knew about this evaluation criteria. For one, it amended section M.4.3 to remove the consideration of affiliates’ and subcontractors’ past performance (only retaining the consideration of joint venture and mentor-protégé members’ past performance), as follows:
The government will consider and evaluate the past performance experience of
affiliates,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).
It also amended section L.5.2.1 on corporate experience, which now states:
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. However, for mentor-protégé arrangements, large business is limited to one example for each task area. If the examples come from any member other than the offeror submitting a proposal
affiliates, a clear relationship must be established between the offeror, their affiliatesteam 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.
Finally, it completely replaced the language quoted above from section L.3.7.1 with the following provision:
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).
Making matters worse, NITAAC’s answers in the Q&A contained some blatant contradictions on this topic. Question 21 asks if the corporate experience and certifications of team members under both FAR 9.601(1) and 9.601(2) CTAs can be used by the offeror to meet the RFP requirements. To this, NITAAC answered: “No. The solicitation will be amended to clarify that the Government will not consider the members of a CTA defined under FAR 9.601(2) for evaluation purposes except in the limited context of evaluating an Offeror’s proposal under paragraph L.5.6.2, Resources.”
To the contrary, Question 28 quotes the post-Amendment 3 final RFP, section L.3.7.1, asking whether the statement that “the experience and abilities of prime subcontractors may be used in the offerors proposal” applies “to all areas of Section L that requires corporate experience support?” And NITAAC simply says, “Yes.”
If your head is spinning at this point, you are not the only one! So, is there any light at the end of this tunnel? Well, there may be a glimmer of hope for clarity. Just yesterday NITAAC released a Letter to Potential Offerors. Notably, this letter was only released on one of SAM.Gov’s CIO-SP4 Contract Opportunity pages (it can be found here). This letter says that NITAAC will release a “future amendment” to the CIO-SP4 RFP that will address issues with Interested Vendor List access and errors in the J.5 Self Scoring Sheet formulas and (you guessed it) promises to provide clarification regarding CTAs. Importantly, it says: “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 and the future amendment will remove anything that contradicts this intent in the solicitation.”
So where are we now? Back in the waiting period it appears. It seems that many FAR 9.601(2) CTAs have already changed or considered changing their entire teaming structure in light of these potential limitations. But unfortunately, there may not be time for many to do this.
As you are probably aware, joint ventures (or FAR 9.601(1) CTAs) have many additional requirements to submit an offer, including the drafting and execution of a compliant joint venture agreement, being separately registered in SAM.Gov, having a separate EIN number through the IRS, and having a separate CAGE code through DLA. That is a lot of steps in very little time (given that Amendment 3 established a proposal due date of July 8, 2021, at 2:00pm ET).
Additionally, if the NITAAC does not “ease up” on these restrictions as it has promised, it is running some risk of noncompliance with SBA’s regulations, the guidance in the FAR, and potentially even the Competition in Contracting Act (CICA). You can read more about all of these potentially issues here. Let’s hope for the best! Otherwise, we can likely expect an abundance of pre-award protests from offerors affected by this competition restriction.
Need help with CIO-SP4 or another government contracting legal matter? Email us or give us a call at 785-200-8919.