Questions_and_Answers_9.18.15.pdf

1. Nellis ITAS System implementation (optional year 2): Would it be possible to obtain some workload data (lines of code, number of change requests, number of debriefs or sorties reported) on this program in order for offers to better estimate manning needs?

ANSWER: Performance Work Statement (PWS), as revised 24 August 2015 (see Amendment 0002), updated Appendix 8M to include additional information regarding estimates.

2. Nellis ITAS System implementation (optional year 2): Will there be a transition period? If so, where should offerors include transition costs?

ANSWER: The RFP has been updated to include CLIN 1103 for the Nellis transition for a 30 day period of performance. (See Amendment 0002)

3. Progress Payments Not Included: Section M (page 135) of the draft RFP includes the following FAR clause incorporated by reference: 52.232-15 Progress Payments Not Included (APR 1984). This appears to be in contradiction to the draft Performance Work Statement, Section 3.1.22.1 (page 37). Further, in reading this FAR clause it appears that it may be non- applicable to a small (section 8a) business set-aside award made through the RFP process. Please clarify.

ANSWER: FAR Clause 52.232-15 is not applicable and was not included in the final RFP issued on 21 July 2015.

4. Price Reasonableness Evaluation: The RFP, Section L-10.1.4, requires that the Offeror address Price Reasonableness. “Any inconsistency, whether real or apparent between promised performance / technical approach and price, shall be explained in the proposal.

The burden of proof as to price credibility rests with the Offeror.” The RFP also requires the Offeror to detail how they intend to “attract and retain” properly qualified personnel (Section L-8.4.1.1.2).

In writing to this requirement it is difficult to support whether wages that only meet the mandatory minimum as specified in the DOL Wage Determination are realistic in order to attract and retain properly qualified personnel on a project with the complexity and criticality of the Air Combat Training Systems (ACTS) Operations and Maintenance (O&M) program.

Specifically, there have not been any wage increases in most of the positions covered under this program for five or more years. Since we have not had any adjustments to the mandatory minimum wage on most of these positions, paying the mandatory minimum is getting us in a position where getting qualified personnel can be a problem and certainly will be a problem during the next contract cycle if we do not start seeing some increases.

In a recent GAO protest decision (see attached) for a Department of Navy contract, which was also highly complex and very labor-intensive (similar to the ACTS O&M program), the GAO determined that the Department of the Navy was required to give meaningful consideration to whether the Offeror’s proposed direct labor rates were realistic to attract and retain the personnel that would be required to perform the contract. Further, the GAO ruled that “simply checking to determine whether or not an Offeror has proposed the minimum Service Contract Act wage rate does not satisfy the agency’s burden of meaningfully considering whether the rates proposed are realistic”.

This analysis clearly shows that merely offering to pay the mandatory minimum as specified under the SCA may not be realistic in attracting and retaining skilled personnel for the more technical requirements, such as the ACTS program. Unfortunately, however, given a Low Price Technically Acceptable award process, the Offeror on the ACC ACTS program does not have any option other than to propose wage rates that only meet the mandatory minimum if we wish to have a reasonable chance to be successful.

Please clarify, or provide additional detail on how the Government will make a determination on Price Reasonableness.

ANSWER: FAR 15.404-1 describes the analytical techniques and procedures used by the Contracting Officer to ensure the final price is fair and reasonable. FAR 15.404-1(b)(2) provides examples of such techniques. RFP Section M, paragraph M-3.3.2 also states proposed price will evaluated to determine whether prices and consistent with the offeror’s technical proposal.

5. Past Performance: There appears to be a contradiction in the evaluation criteria as it relates to Past Performance.

Section M-3.2.2.3 states: “In order for Offerors to receive a final “Acceptable” rating for Past Performance, the combination of PPI contract references evaluated must meet all relevancy criteria in paragraph M-3.3.2.2” as follows:

• Managed the operations of a DoD Air Combat Training System contract;

• Performed operations and maintenance on Air Combat Training Systems;

• Performed operations and maintenance on electronic systems at both

CONUS/OCONUS locations;

• Performed mission support activities (mission prep, debrief, live monitoring)

• Obtained/maintained Secret/Special Access clearances

Section M-3.2.5 states: In the case of an Offeror without a record of recent and relevant past performance or for whom information on past performance is not available or so sparse that no meaningful past performance rating can be reasonably assigned, the Offeror may not be evaluated favorably or unfavorably on past performance. In the case of unknown past performance, an “Acceptable” rating will be assigned as stated in DoD Source Selection

Procedures.

I have great concern regarding Section M-3.2.5 as follows:

• It allows an Offeror with absolutely no past performance for a highly complex, labor intensive, international contract to meet the “acceptable” criteria;

• It allows an Offeror with negative past performance (terminations for cause, debarment, etc.) to claim no past performance and still get an acceptable rating;

• It allows a small business prime contractor with no past performance to carry a large business subcontractor who will manage the contract, even though they may be the “employer of record” for less than fifty percent of the labor cost of the contract (thus meeting the limitations on subcontracting provisions of FAR 52.219-14.)

While I understand that the FAR requires that the agency “when evaluating past performance” cannot treat the lack of past performance either positively or negatively, as I stated in our meeting of this date it has been our experience that many of the DoD agencies for which we work are making Past Performance a criteria of “responsiveness”. Failure to provide the required number of Past Performance summaries renders the Offeror “non-responsive” and thus the evaluation of past performance criteria which is stated in section M 3.2.5 is inapplicable.

As offered, I am attaching a copy of a couple of recent Navy RFPs that mandate Past Performance as a condition of responsiveness for your review.

RSR EMAC (N62473-15-R-0813) POC: Pamela Sons 619-532-4624 RADEMAC (N62473-15-R-0811) POC: Beatrice Appling 619-532-2786

ANSWER: Final RFP issued 21 Jul 2015 deleted section M paragraph M-2.3.3.2. The basis for Section M paragraph M-3.2.5 is the definition of “Acceptable” as stated in table A-2 of the DoD Source Selection Procedures effective 1 July 2011. The Air Force has not supplemented this definition and we believe the past performance criteria outlined in the RFP conforms to current Air Force practices and procedures.

6. UK Labor regulations: The UK TUPE (Transfer of Undertaking Protection of Employment) laws require all contractors to pay the exact same amounts for the salaries & benefits that as the incumbent is currently paying. [Employees who are employed in the undertaking which is being transferred have their employment transferred to the new employer. Employees can refuse to transfer (or "opt-out"), but depending on the circumstances of the case, they can lose valuable legal rights if they do. TUPE states that "all the transferor's rights, powers, duties and liabilities under or in connection with the transferring employees' contracts of employment are transferred to the transferee". This all-embracing concept encompasses rights under the contract of employment, statutory rights and continuity of employment and includes employees' rights to bring a claim against their employer for unfair dismissal, redundancy or discrimination, unpaid wages, bonuses or holidays and personal injury claims etc. Employees therefore have the legal right to transfer to the new employer on their existing terms and conditions of employment and with all their existing employment rights and liabilities intact (although there are special provisions dealing with old age pensions under occupational pension schemes). Effectively, the new employer steps into the shoes of the old employer and it is as though the employee's contract of employment was always made with the new employer. For this reason it is essential that employers know all about the employees they might inherit if they are planning to take over a contract or buy a business and that they make sure that the contract protects them from any employment liabilities which arose before they became the employer. This is helped by the fact that the old employer is required to provide to the new employer written details of all employee rights and liabilities that will transfer. Any dismissals will be automatically unfair, where the sole or principal reason for the dismissal is the transfer. This is also the case where the sole or principal reason for the dismissal is a reason connected to the transfer, unless it is for an economical, technical or organisational reason (an "ETO" reason) requiring a change in the workforce. This ETO defence is narrow in scope and can be difficult to rely upon.

Even if the employer can rely upon an ETO defence and the dismissal is not automatically unfair, it may still be unfair for other reasons (such as a failure to consult properly in a redundancy situation). ]

Questions: The TUPE laws act in much the same way as a CBA does in CONUS SCA location but, as can be seen from the above quote, is even more stringent in terms of honoring the number of employees as well as the financial packages of the existing employees. In order for any non-incumbent contractor to accurately provide realistic pricing for the UK personnel at RAF Lakenheath, can the Government provide the number of employees as well as each employee’s exact financial packages?

ANSWER: The Government believes the UK TUPE regulation may apply to this requirement. Due to the firm fixed price nature of the current contract, the Government has no information to provide regarding the number of employees or the associated financial or employment records of the contract employees at the Lakenheath site or any site associated with the ACTS requirement. Offerors are reminded to pay close attention to RFP Section I, DFARS Clause 252.222-7002 entitled Compliance with Local Labor Laws (Overseas), PWS paragraph 3.1.12.13 and RFP Section B, paragraph B-7a regarding compliance with host nation laws/regulations and adjustments to OCONUS locations.

7. With a fully funded transition of up to 3 months, we wanted to be sure that when comparing pricing for the incumbent vs. new proposers that the likely higher Transition amount for a new proposer would not be factored in to the total cost.

Question: Will the government exclude transition costs as part of the overall evaluated price?

ANSWER: Transition costs are included in the total overall evaluated price – see Section M paragraph M-3.3.1. Due to the nature of the process, incumbents always have an advantage over competitors whether it be with phase-in/transition or otherwise. Unless an incumbent's competitive advantage is the result of preferred treatment or other unfair action by the Government, an agency issuing a solicitation need not take steps to equalize the advantage. How an offeror proposes its transition costs to be competitive is a business decision that it must decide.

8. The following is the reference paragraph from the PWS:

3.1.12.13 The contractor shall, without any additional expense to the government, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable Host Nation, Federal, State, and municipal laws, codes, and regulations in connection with the performance of the work as specified in this PWS. The contractor must ensure adequate time is allowed for the approval of Status of Forces Agreements (SOFA), Technical Expertise Status Agreements (TESA) in Germany, Technical Representative (TR) in Italy, Country Work Permits, and Soggiornos (Italian Work Permits). The government estimates a minimum of 2 months is typically required to process these approvals. All of these documents will be vetted through the DoD Contractor Personnel Office (DOCPER) and submitted through the DCOPS website (https://acpol.army.mil/dcops-user/) after Govt Program Manager review. These are all unwaiverable requirements that must be completed before employees are issued an 1172 or 1172-2 (CAC Application). In addition, the contractor will be responsible for interfacing with Host Nation accounting and legal representatives to ensure their employees are adhering with local tax laws.

The ACTS solicitation establishes a phase-in time line based upon historical precedence to allow the above-referenced activity.

All bidding contractors for ACTS have the same expectations as defined in the PWS.

Unfortunately there has been a break-down in negotiations between the U.S. and German governments over intelligence related issues and, as of this date, the U.S. Government (“USG”) has been unable to get the Ministry of Foreign Affairs of the Federal Republic of Germany (“FRG”) to approve many awarded contracts. Therefore many contracts remain unapproved, resulting in contractors’ inability to hire regular full time accredited employees as would be the normal expectation and would form the basis of all bids.

At this time, there is no guarantee that the inter-governmental relations will improve by the ACTS Contract Award date and the subsequent Mobilization period. Our bid will be based on the PWS provision for Government Furnished Services that Contractor Logistic Support would be provided;

however, in order to submit such a bid, we will have to submit a “groundrule” stating that “should the SOFA/TESA not be in effect or approved, any resultant incurred costs would be reimbursable from the Government.”

The only exception to this situation would be the incumbent contractor whose employees could be provisionally “grandfathered” if they had started work in Germany under the previous agreement/contract approval process.

If the SOFA/TESA is not normalized by this contract’s start-date, then all other contractors would have to receive USAF permission now (during the bidding process) to include the above-mentioned groundrule.

Failing that relief, in order to comply with applicable labor laws to accomplish the PWS, those contractors would then be put into a position of bidding the use of a transient workforce, as well as paying higher than expected salaries and round-trip airfares to those rotational (every 90-days) individuals.

The net result is increased costs that the non-incumbent contractors will be forced to anticipate, and thus cause those bids to be other than Low Price, automatically higher than the incumbent contractor’s bid.

This situation will unintentionally reduce or eliminate all competition for this acquisition other than the incumbent: 1) because higher prices automatically eliminate the possibility of being the “Low Price” competitor, and 2) because the inherent financial risks in such an uncertain FFP bid would destroy most 8(a) companies if encountered after award.

ANSWER: The current ACTS contact is approved under Article 73 – Technical Expert and the fully expects any contract resulting from this RFP to be granted the same approval. The Government believes the information and concerns outlined above pertains to intelligence positions for Analytical Support under NATO SOFA. All offerors should propose with the understanding the contract will receive TESA approval.