CLARIFICATION TO QUESTIONS AND ANSWERS 22 SEP 22.docx

CLARIFICATION TO QUESTIONS AND ANSWERS

TEST AND EVALUATION TECHNOLOGIES FOR RANGES, ARMAMENTS, AND SPECTRUM (TETRAS) II

FA248722RA002

The purpose of this memo is to provide clarification to Question #1 in the Questions and Answers dated 30 Aug 22.

Question 1: TETRAS II Addendum to Section L 3 Jun 22, Page 2 of 18, Section L-1.2f, Participation by Foreign Firms states, “In accordance with the National Industrial Security Program Operating Manual (NISPOM), foreign firms or U.S. companies determined to be under Foreign Ownership Control or Influence (FOCI) will not be permitted to participate.

NISPOM states, "Foreign investment can play an important role in maintaining the vitality of the U.S. industrial base. Therefore, it is the intent of the USG to allow foreign investment consistent with the national security interests of the United States. 32 CFR Part 117.11 defines FOCI procedures for cleared U.S. entities to mitigate the risks associated with FOCI by ensuring that foreign firms cannot undermine U.S. security to gain unauthorized access to classified information."

Please confirm that a US Cleared Defense Contractor (CDC) who has mitigated risk through Defense Counterintelligence and Security Agency (DCSA) FOCI considerations through a Special Security Agreement (SSA) may participate.

Answer 1: After discussion with both Industrial Security and National Disclosure personnel, we have determined the FOCI procedures focus on specific and known security implementations and are not designed to support an effort like TETRAS where the disclosure and security context is unknown until a requirement is defined. At this time a foreign contractor with an approved FOCI will not be able to perform as a TETRAS II Prime contractor.

Additional Clarification Question: When answering questions for TETRAS II, the Government stated that foreign-owned companies were not allowed to submit a proposal. This decision is very unusual for an RFP leading to an IDIQ contract with no actual work and no known technical requirements. If the IDIQ RFP had any sensitive information, foreign-owned companies would not have been allowed to even obtain the RFP. After award of an IDIQ (even to entities that are foreign-owned), it is understood if FOCI concerns prevented participation in an actual task order/delivery order with known technical requirements. Therefore, given the different expectations at the IDIQ level (no technical requirements) and for each task/delivery order (with known technical requirements), will the Government consider applying FOCI concerns at the task order/delivery order level, thus allowing foreign-owned companies to participate in the IDIQ? To promote competition and to maintain the integrity of the procurement system, will the Government consider invoking the FOCI requirement at the task order/delivery order level vs. the IDIQ level?

Additional Clarification Response: The original question asked was if the FOCI process would allow a JV to propose with a non-US partner and the original response was phrased specifically to the implications of a JV with a non-US partner. Under the scenario where a US company and an international company propose as a JV, the original determination stands. This determination is based on disclosure criteria for potential STINFO concerns that cannot be mitigated before RFP information is released to Primes without critical delivery order delays for Government customers. If the US company proposes as a Prime (without a JV with an International company) and they meet JCP and FCL criteria, they are compliant with the TETRAS II RFP criteria. Then on a case-by-case basis, based on known technical criteria for each delivery order they could use an international partner for subcontracted work if approved by the requirements owner, the TETRAS PM, and the CO.