72051418R00006_(02)_-_Q&A.pdf

72051418R00006 (02) – Q&A

MEL Questions and Answers

1. We respectfully request USAID/Colombia to reconsider the answer for question 111 from Amendment 1, Attachment 1 (MEL Q&As) to “Yes”, based on the Final Rule that SBA issued June 30, 2016.

ANSWER: Based on further review of the cognizant regulations and recently issued SBA final rule, which stems from language included in the National Defense Appropriation Act for Fiscal Year 2013, USAID amends its previous response to Question #111 of Amendment 1, Attachment 1 (MEL Q&As). As per the SBA rule, if the Prime Offeror is a Small Business Concern and a relevant subcontractor (or subcontractors) under the award and is a “similarly situated entity” (i.e. also a Small Business Concern), then costs incurred by that entity can be counted towards the small business set-aside. USAID has incorporated the relevant FAR Clause 52.219-14 into the award, which addresses the limitations of small business set-asides. As per the SBA rule, “Concern” under this clause can be read to include both the prime Small Business Concern, as well as any “similarly situated entity” that is a subcontractor.

2. In follow up to Question #2 from Amendment 1, Attachment 1 (MEL Q&As), GAO protest decisions have affirmed that the exclusion from consideration of affiliate experience and past performance when the past performance being evaluated or considered demonstrates that the affiliated company(ies) have made a firm commitment for a meaningful involvement of contract performance is an unreasonable restriction of competition unless a reasonable justification by the agency is provided. Can you please provide your justification for the exclusion?

ANSWER: As stated in this recent GAO ruling, there is no requirement that an agency consider the experience or past performance of an offeror’s parent or affiliated company. As per the solicitation, USAID will consider past performance information for the Prime Offeror and each major sub-contractor. However, if, in the technical proposal, the offeror outlines how a "Sister company" will be substantially involved in performance of the contract and how it would share resources with the offeror, USAID may consider the past performance of such an affiliate. A letter of commitment alone would not suffice. USAID cannot make a determination about whether it would consider such past performance to be relevant until it has received and reviewed the offeror’s technical proposal.