CMS_QAs_11-16-18.pdf

Amendment 2

80JSC019R0041

Composite Manufacturing Services (CMS): Questions & Answers

1. What type of contract is anticipated? IDIQ? BPA?

Answer:

The Contract Type is Single Award Firm Fixed Price IDIQ.

2. Will this be winner take all or multiple parties on a master contract?

The Government intends to make a single award.

3. It is unclear to us how bidding is accomplished. Would we be quoting only the sample DO?

Please refer to 52.212-1 Instructions to Offerors – Commercial Items (OCT 2018) and Addenda (in red). Paragraph (b) “Submission of Offers” includes the relevant instructions for contents of offers.

The language in the RFQ inadvertently used the word “Addition” instead of “Addenda.”

This has been corrected in Amendment 2.

4. Please provide information of the materials and material properties required for each part and the quantities required. Please also ask the end user if they require First Articles for Testing.

All information regarding material/structural requirements/properties and quantities are in the sample task order statement of work and requirements documents.

5. Are there any drawings that show what these parts are connected to? Please provide more detail on what these parts will be used for.

Additional pictorial information has been uploaded as an attachment to the solicitation posting with Amendment 2.

6. This looks almost identical to 80JSC018Q0018. Has the prior award been voided or is NASA standing up a second effort on this project?

Answer:

The prior award has been cancelled. The requirements of 80JSC018Q0018 have been incorporated into this solicitation.

7. Is the intent here to have an overarching SOW which allows specific task orders to be executed?

Yes.

8. Was this intended to support the fabrication of additional suits post to the development suit once the design has been validated by NASA?

Answer:

The IDIQ contract type was chosen to provide maximum flexibility to meet potential future manufacturing requirements.

9. There are no travel costs allowed. This project will require fabrication of tooling and post machining of composite articles. It has been our experience with the previous Z2 program that interfacing with the machine shops will be required. Hence, travel will be required. Can that be added as an item in the tooling cost?

Answer:

The intention of this statement was to inform offerors that in the performance of this delivery order, the Government does not require any travel to JSC. Offerors should include all planned costs in support of this FFP effort. Sample Task Order 1 Statement of Work has been revised in Amendment 2.

10. The "Composite Manufacturing Services" fedbizopps notification states that Solicitation No.

"80JSC019R0041" is a "Request for Quotation". However, as indicated in the Solicitation Number, it contains an "R" thereby indicating that it is a "Request for Proposal" (See the applicable Procurement Instrument Identifiers). Block 14 of FORM 1449 states that this Solicitation is an "RFP". JSC 52.215-108 PROPOSAL MARKING AND DELIVERY THROUGH FEDERAL BUSINESS OPPORTUNITIES (FBO), subparagraph (a), states the Solicitation is an "RFQ". Finally, the EVALUATION CRITERIA make several references to "QUOTE EVALUATION CRITERIA" (3x) and "RFQ".

Questions/Comments:

a. Was this Solicitation issued as an RFQ or an RFP?

This solicitation was issued as an RFQ. The rationale for an “R” identifier has no bearing on the FAR procedures used. This is a solicitation for commercial items using simplified acquisition procedures in accordance with FAR 13.5 Simplified Procedures for Certain Commercial Items.

The electronic contracting system used by NASA has the limitation of requiring an “R” identifier in order to award an IDIQ Purchase Order/Contract. The SF 1449 will be corrected to reflect RFQ.

b. Assuming it is an RFP, shouldn't the terms and conditions be revised to incorporate the applicable provisions identified under FAR Part 15?

Per above, this solicitation is being conducted in accordance with FAR Parts 12 and 13.

11. FAR 52.212-4 CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS,

specifically subparagraph (h) states: "(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings. ". Whereas, under FAR 52.227-1 AUTHORIZATION AND CONSENT, there isn't any injunctive relief available, and there is no direct cause of action against a contractor that is infringing a patent or copyright with the authorization or consent of the Government (e.g., while performing a contract).

Questions/Comments:

a. Under FAR 52.227-1 AUTHORIZATION AND CONSENT, there isn't a direct cause of action against a contractor that is infringing a patent or copyright; whereas under FAR 52.212-4 CONTRACT TERMS AND CONDITIONS- COMMERCIALITEMS, specifically subparagraph (h) Patent indemnity, the contractor indemnifies the Government against liability for actual or alleged direct infringement of patents or copyrights. What is NASA's proposed remedy to this conflict/contradiction? Which of these clauses takes precedence assuming infringement of a patent were to occur?

Answer:

There is no conflict between these two clauses. The Authorization and Consent clause of FAR 52.227-1 makes reference to the insertion of a patent indemnity clause in 52.227- 1(a)(2). See FAR 27.201-2(c).The patent indemnity clause referenced in 52.227-1(a)(2) refers to 52.212-4(h).

12. FAR 52.249-1 Termination for Convenience of the Government (Fixed-Price) (Short Form) - the proscription clause [FAR 49.502(a)(l)] states in part: include this clause in solicitations and contracts when a fixed-price contract is contemplated and the contract amount is not expected to exceed the simplified acquisition threshold". In addition, the RFP also incorporates FAR 52.212.4 CONTRACT TERMS AND CONDITIONS- COMMERCIAL ITEMS, specifically subparagraph "(l) Termination for the Government's Convenience" and FAR 52.213-4 TERMS AND

CONDITIONS - SIMPLIFIED ACQUISITION (OTHER THAN COMMERCIAL ITEMS),

specifically subparagraph "(h) Termination for the Government's Convenience", which provide for slightly different rights and remedies than FAR 52.249-1 Termination for Convenience of the Government (Fixed-Price) (Short Form).

a. Which of these clauses takes precedence assuming a Task Order was terminated for convenience?

See answer below.

b. Should the RFP incorporate FAR 52.249-4 Termination for Convenience of the Government (Services) (Short Form), in lieu of FAR 52.249-1 Termination for Convenience of the Government (Fixed-Price) (Short Form), since this RFP is issued for "Composite Manufacturing Services for the xEMU project"?

Clauses FAR 52.249-4 and FAR 52.429-1 were inadvertently included and have been removed with Amendment 2. FAR 52.212-4, subparagraphs (l) and (m), provide guidance on the termination of commercial items.

13. The RFP incorporates FAR 52.212-4 CONTRACT TERMS AND CONDITIONS -

COMMERCIAL ITEMS, FAR 52.213-4 TERMS AND CONDITIONS- SIMPLIFIED

ACQUISITION (OTHER THAN COMMERCIAL ITEMS) and FAR 52.212-5 CONTRACT

TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE

ORDERS- COMMERCIAL ITEMS.

Questions/Comments:

a. FAR 13.302-5 CLAUSES, specifically subparagraph (d), implies that FAR 52.213-4 TERMS

AND CONDITIONS -SIMPLIFIED ACQUISITION (OTHER THAN COMMERCIAL

ITEMS) should only be incorporated in Solicitations/Contracts for the acquisition of "Other than Commercial Items". Based on the aforementioned, should this clause (e.g., FAR 52.213- 4); or clauses FAR 52.212-4 and FAR 52.212-5, be deleted from the Solicitation/Contract?

[Please note that these clauses have contradictions/conflicting provisions.]

FAR 52.213-4 is removed in Amendment 2.

b. FAR 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT

STATUTES OR EXECUTIVE ORDERS - COMMERCIAL ITEMS: (a) Under FAR 52.222- 42 Statement of Equivalent Rates for Federal Hires, does NASA intend to provide the information required therein? (b) Under FAR 52.222-41 Service Contract Labor Standards, will NASA be providing a "Wage Determination"?

Answer:

Based on historical acquisitions of similar items for the xEMU project, the Service Contract Labor Standards statue does not apply as the employees expected to perform the contract requirements are “employed in a bona fide executive, administrative, or professional capacity” as these terms are defined in Part 541 of Title 29, Code of Federal Regulations, as revised . The Service Contract Labor Standards requirements are removed in Amendment 2.

14. FAR 52.227-16 ADDITIONAL DATA REQUIREMENTS is not applicable to this Solicitation and/or any resulting Contract. FAR 27.409 -- Solicitation Provisions and Contract Clauses, specifically subparagraph (d), states in part: "Insert the clause at 52.227-16, Additional Data Requirements, in solicitations and contracts involving experimental, developmental, research, or demonstration work".

a. Since the referenced Solicitation is for the acquisition of "Commercial Manufacturing Services", as opposed to experimental, developmental, research, or demonstration work, shouldn't NASA delete FAR 52.227-16 ADDITIONAL DATA REQUIREMENTS from the Solicitation [as stipulated per FAR 27.409 -- Solicitation Provisions and Contract Clauses]?

Answer:

No. FAR 27.409(d) also states that this clause may “be used in other contracts when considered appropriate.” Not all of the data requirements are known at this time, therefore this clause is included.

b. Based on the supporting rationale stated above, why is FAR 52.227-16 ADDITIONAL DATA REQUIREMENTS incorporated in the Solicitation?

See the response to the previous question.

15. 1852.232-80 SUBMISSION OF VOUCHERS/INVOICES FOR PAYMENT appears to conflict with the invoice provision outlined under FAR 52.212-4 CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS, specifically subparagraph (g) Invoice.

Questions/Comments:

a. Which "Invoice" provision takes precedence? Assuming NASA identifies the applicable provision, does NASA intend on amending the Solicitation to delete the non-selected clause?

Answer:

1852.232-80 Submission of Vouchers supersedes the information in 52.212-4 with regards to invoicing. 52.212-4(g) is changed to reflect this in Amendment 2.

b. 1852.232-80 SUBMISSION OF VOUCHERS/INVOICES FOR PAYMENT, specifically subparagraph (a), states in part that the designated payment office is located at Stennis Space Center, MS. Is this the correct payment office?

Yes, as stated under subparagraph (a), NASA’s designated payment office is the NASA Shared Services Center (NSSC).

16. EVALUATION CRITERIA QUOTE EVALUATION CRITERIA states in part: "This evaluation will be conducted in strict accordance with the Federal Acquisition Regulation (FAR) Part 12.. .".

It further states: "The following factors shall be used to evaluate offers listed in descending order of importance:".

In regard to price, the EVALUATION CRITERIA QUOTE EVALUATION CRITERIA states:

"Price evaluation factor will be evaluated by reasonableness of total price. Price realism assessment will be performed utilizing the offeror's other than certified cost and pricing data.

Realism will be assessed to ensure the price is realistic for the offeror to successfully perform the effort in the manner proposed in the technical approach."

a. The proscribed guidance under FAR 12.301(c)(l) states in part: "Insert the provision at 52.212-2, Evaluation -- Commercial Items, in solicitations for commercial items". Since the evaluation of offers are to be "conducted in strict accordance with the Federal Acquisition Regulation (FAR) Part 12", why isn't FAR 52.212-2 Evaluation - Commercial Items incorporated in the Solicitation? More specifically, why isn't the following excerpt from FAR 52.212-2 Evaluation - Commercial Items included as part of the EVALUATION CRITERIA:

"Technical and past performance, when combined, are [Contracting Officer state, in accordance with FAR 15.304, the relative importance of all other evaluation factors, when combined, when compared to price.]"?

Answer:

In accordance with FAR 12.301(c)(2), a Contracting Officer may include a similar provision containing all evaluation factors as an addendum.

b. In accordance with FAR Subpart 15.305 [as prescribed per FAR Subpart 12.301 and FAR

52.212-2], "competition establishes price reasonableness. Therefore, when contracting on a firm fixed-price or fixed-price with economic price adjustment basis, comparison of the proposed prices will usually satisfy the requirement to perform a price analysis". Is NASA going to utilize/compare the offeror's prices to determine price reasonableness (e.g., "competition establishes price reasonableness")?

Answer:

Per the EVALUATION CRITERIA in the solicitation, 80JSC019R0041, the Government intends to perform comparative analysis of quotes. Price reasonableness and any price analysis techniques will be performed in accordance with the FAR evaluation procedures.

c. Also, in accordance with FAR Subpart 15.305 [as proscribed per FAR Subpart 12.301 and

FAR 52.212-2], Price/Cost realism analyses are not required for competitive fixed- price-type contracts. Based on the aforementioned, why is Price/Cost realism being evaluated/assessed under this Solicitation?

FAR 13.106(b)(1) states, “The contracting officer has broad discretion in fashioning suitable evaluation procedures. The procedures prescribed in Parts 14 and 15 are not mandatory. At the contracting officer’s discretion, one or more, but not necessarily all, of the evaluation procedures in Part 14 or 15 may be used.” The CO has determined a price/cost realism analysis will be beneficial in the evaluation of the offerors’ technical approach.