Questions and Answers 16 Sept 2009.pdf

SbAST RFP FA8530‐09‐R‐22309 Questions & Answers

Question 5: Reference L‐900 2.a.vii, L‐900 2.f.ii, and M‐900 1. Is the cross reference matrix in L‐900 2.a.vii (RFP Attachment 13) the same cross reference matrix in L‐900 2.f.ii and M‐900 1?

Answer 5: Yes

Question 6: Reference L‐900 2.a.vii (RFP Attachment 13). Since the RFP Attachment 13 cross reference matrix only covers Section L and the Minimum Capabilities Matrix (MCM), is the submission of a proposal in response to this RFP considered the Offeror’s self‐certification that they meet all requirements of the PWS with no separate documentation or narrative to be submitted (the same as it was done for F2AST)?

Answer 6: No. Self‐Certification consist of the completed SbAST Minimum Capabilities Matrix(MCM) and C‐130 Peculiar Ground Handling Equipment(PGHE) list that will be submitted to WR‐ALC/PKE by 29 September 09 for verification by DCMA, and offerors written technical proposal that will be submitted by 27 October 09. The submission of these items will meet the technical volume requirement of the SbAST RFP

Question 7: Reference L‐900 2.c. The table indicates that a Completed MCM and PGHE is to be submitted on 29 September 2009. We assume that this submission includes only the spreadsheet (RFP Attachment 6) and that the documentation evidencing is to be included in the Volume II: Written Technical Volume submittal due 27 October 2009. Is this assumption correct?

Answer 7: Yes

Question 8: Reference L‐900 2.c. Will the Completed MCM and PGHE submitted 29 September 2009 (RFP Attachment 6) be signed by the appropriate DCMA representatives and returned to the Prime for submittal with the Volume II: Written Technical Proposal? Will the MCM and PGHE (RFP Attachment 6) be counted as part of the 100 page limit for the Volume II: Written Technical Proposal?

Answer 8: No. The completed MCM (Minimum Capabilities Matrix) and PGHE (Peculiar Ground Handling Equipment) signed by DCMA will be returned to WR‐ALC/PKE and will be placed in the offeror’s file. The Capabilities Matrix Summary and C‐130 PGHE Matrix Summary found in the Minimum Capabilities Matrixes will count against the 100 page limit. The other Matrix pages will be required for verification purposes but not counted against the 100 page limit.

Question 9: Reference L‐900 2.c. If DCMA is unable to verify a critical subcontractor’s capability as submitted in the Completed MCM and PGHE (RFP Attachment 6) due 29 September 2009 will the prime be able to substitute another critical subcontractor for DCMA verification and inclusion in the Volume II: Written Technical Volume submittal due 27 October 2009?

Answer 9: Changes or updates to early submittals will be accepted up to the closing date of the RFP. Following the 27 October closing date, the Government reserve the right to award contracts without opening discussions.

Question 10: Reference paragraph H.3 in the Subcontractor FACTS Sheet (RFP Attachment 14) regarding compliance with FAR 52.219‐8 where it states, "This is applicable to all offerors." Since a subcontractor is not an "offeror", we request this paragraph be deleted from the subcontractor FACTS Sheet. In addition, all other references to "offeror" in the subcontractor FACTS Sheet should be changed to "Subcontractor" or "Critical Subcontractor" to be consistent with RFP Section L and M language.

Answer 10: The wording in FACTS sheet (Attachment 14) will be changed as follows: “offeror” will be replaced with the word “critical subcontractor”. This change will be made by Amendment to the RFP.

Question 11(a): Section L‐900, paragraph 2.a.iii states margins no smaller than one inch. Both Prime and Subcontractor FACTS Sheet margins are set at 1.25" left and 0.88" right. Is it permissible to change the FACTS Sheet margins to be one inch left and right?

Answer 11(a): All Government‐provided forms/documents are to be completed and returned in the same format as provided by the Government.

Question 11(b): Also, is it permissible to remove the FACTS Sheet instructions from each FACTS Sheet?

Answer 11(b): Yes

Background: On page 75 of the RFP, paragraph f.iii. states in part, “The Government will do a size status determination for each Offeror”. FAR

19.301 (a) and (b) are quoted below in italics.

a) To be eligible for award as a small business, an offeror must represent in good faith that it is a small business at the time of its written representation. An offeror may represent that it is a small business concern in connection with a specific solicitation if it meets the definition of a small business concern applicable to the solicitation and has not been determined by the Small Business Administration (SBA) to be other than a small business.

(b) The contracting officer shall accept an offeror’s representation in a specific bid or proposal that it is a small business unless

(1) another offeror or interested party challenges the concern’s small business representation or

(2) the contracting officer has a reason to question the representation. Challenges of and questions concerning a specific representation shall be referred to the SBA in accordance with 19.302.

Questions 12(a): What process will the Government use to make its size determination of the offerors?

Answer 12(a): The government will utilize the process outlined in the FAR and CFR including the SBA “Seven factor test”.

Question 12(b): Why is the Government doing a size determination when FAR directs that the Government shall rely on the contractor’s self‐ certification except when the conditions in (b)(1) and/or (b)(2) exist?

Answer 12(b): The Government is following the FAR guidance as mentioned in the above response.

Question 12(c): What is the regulatory basis for this decision?

Answer 12(c): This is a Small Business Set‐aside and the Government is following the procedures outlined in FAR 19.301‐1.

Question 12(d): Has the Government received a formal waiver from these SBA and FAR regulations?

Answer 12(d): No FAR deviation nor SBA regulation deviation is being utilized so no waiver is required.

Background: On page 75 of the RFP, paragraph f.iii. states in part, “In the event of an Offeror that is not a joint venture, the size of the Offeror plus each of its critical subcontractors will be added together to determine the overall size status of the Offeror. In this event, the total number of all employees (Offeror plus critical subcontractors) cannot exceed 1500 employees (NAICS Code 336411 small business size standard).

(See RFP Section L‐900(2)(c) above.)”

This is a new requirement that has not appeared in any of the prior information releases. This will (1) unnecessarily restrict competition by reducing the number of qualified small business teams, (2) unnecessarily limit the number of qualified small businesses that will be able to participate in the SbAST small business set aside contract as either a prime contractor or subcontractor and (3) create last‐minute turmoil for contractor teaming arrangements that have been forming for several years based on the assumption that the SBA’s rules for affiliation for small business set asides would apply.

FAR 9.602(a) recognizes two types of contractor teaming arrangements “(1) Two or more companies form a partnership or joint venture to act as a potential prime contractor; or (2) A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisition program.”

FAR guidance does not indicate a preference for a JV arrangement over a prime/sub arrangement. This is a business matter for the team members to decide – not for the Government to dictate or influence by preferential treatment not in accordance with the SBA’s regulations.

Questions 13(a): Why is the Government offering unfair competitive advantage to joint ventures?

Answer 13(a): No competitive advantage is being afforded to joint ventures. The Government is following the procedures outlined in 13 CFR Part 121.103.

Question 13(b): What is the regulatory basis for this decision?

Answer 13(b): See Above

Background: The Government appears to be a making a blanket predetermination that “affiliation” exists between every prime contractor and its critical subcontractors for all teaming arrangements that are not joint ventures. FAR 19.101(7)(v) states:

“Size determination for teaming arrangements. For size determination purposes, apply the size standard tests in paragraphs (7)(i)(A) and (B) of this section when a teaming arrangement of two or more business concerns submits an offer, as appropriate.”

Paragraphs (7)(i)(A) and (B) are shown below for reference.

“(A) For bundled requirements, apply size standards for the requirement to individual persons or concerns, not to the combined assets, of the joint venture.

(B) For other than bundled requirements, apply size standards for the requirement to individual persons or concerns, not to the combined assets, of the joint venture, if—

(1) A revenue‐based size standard applies to the requirement and the estimated contract value, including options, exceeds one‐half the applicable size standard; or

(2) An employee‐based size standard applies to the requirement and the estimated contract value, including options, exceeds $10 million.”

Question 13(c): Why is the Government not following the FAR guidance above when making a size determination for teaming arrangements?

Answer 13(c): The Government is following FAR guidance and SBA regulations. The Government is currently working an RFP amendment to revise the language of RFP L‐900(2)(f)(iii) to the following: “In the event of an Offeror that is not a joint venture, the size of the Offeror plus each of its critical subcontractors may be added together to determine the overall size status of the Offeror, in accordance with 13 CFR Part 121.103. In this event, the total number of all employees (Offeror plus critical subcontractors) cannot exceed 1500 employees (NAICS Code 336411 small business size standard). (See RFP Section L‐900(2)(c) above.)”

Question 13(d): Does the Government believe that every critical subcontractor must be considered to be an ostensible subcontractor under the SBA affiliation rules?

Answer 13(d): No, the Government will utilize the SBA “Seven Factor Test” to determine if the critical subcontractor will be considered an ostensible subcontractor.

Question 13(e): Will the Government consider either removing this requirement or extending the due date for submission of “Listing of Prime Contractor and Critical Subcontractors” to allow contractor teams to reform based on this unusual requirement?

Answer 13(e): The Government will not remove this requirement. The RFP is being amended, as stated above. The government will evaluate all proposals received prior to the RFP closing date.

Background: On page 16 of the RFP, the last paragraph in H‐901(b) states, “In addition, a determination must be made prior to award that offeror is not large by affiliation in accordance with the 7 Factor Test for Affiliation. If offeror is determined to be large by affiliation, the offeror is not awardable for that particular D/TO.

Questions 14: The 14 May 2009 industry briefing slides 14 and 15 outlined the 7 Factor Test for ostensible subcontracting. This test addresses use of a large business subcontractor on a particular D/TO to determine if an ostensible subcontracting relationship and therefore affiliation exists on that D/TO. Please confirm that this test will only apply to use of a large business subcontractor.

Answer 14: This test will apply to both large and small business subcontractors.

Background: On page 16 of the RFP, the last paragraph in H‐901(b) states, “Additionally, if any offeror becomes a large business during performance of the basic ordering period or the option period, that offeror is no longer eligible for award of a D/TO under this contract.”

This is not consistent with the SBA regulations in13 CFR § 121.404.

Paragraph (g) states "A concern that qualified as a small business at the time it receives a contract is considered a small business throughout the life of that contract.” The SBA regulations clearly direct the Government to award D/TOs for the entire duration of the contract to any company that receives an award on this small business set aside.

In addition, FAR 19.301‐2 addresses recertification requirements for a contractor that represented itself as a small business concern before award of a contract. Except for long term contracts (more than five years in duration, including options), recertification is required only (1) after execution of a novation agreement or (2) after a merger or acquisition of the contractor that does not require novation.

Further, FAR 19.301‐2(e) says “A change in size status does not change the terms and conditions of the contract.”

Questions 15(a): Why is the Government requiring recertification of business size during the term of the contract which is not “more than five years”?

Answer 15(a): On this contract the Government will be required to determine small business size prior to the award of the basic contract, exercise of option and the award of all D/TOs.

Question 15(a): What is the regulatory basis for this decision?

Answer 15(b): 13 CFR § 121.404 (g)(3)(v), 13 CFR § 121.1001

Background: On page 22 of the RFP, H‐912 states, “In the event a prime contractor becomes a large business, for any reason, during the basic contract period, the Government may choose not to exercise the option on that prime contractor’s contract.”

This is not consistent with 13 CFR § 121.404 and FAR 19.301‐2. Paragraph

(g) of 13 CFR § 121.404 states "Where a concern grows to be other than small, the procuring agency may exercise options and still count the award as an award to a small business." As in FAR 19.301‐2(b)(1) through (B)(3), subparagraphs (1) and (2) of 13 CFR §121.404 address recertification requirements in the cases of contract novation and merger/acquisition respectively. Subparagraph (3) requires recertification for long‐term contracts (longer than 5 years).

The inconsistency is that except for contracts with durations of more than five years (SbAST is five years including options), both the FAR and SBA regulations indicate recertification is not necessary in the case where a small business becomes a large business through the process of growth.

This reflects the government intention that small business protections are aimed at stimulating growth in small businesses, and that small businesses ought not be discouraged or penalized for being successful.

For a small business that becomes a large business through growth, the SBA regulations and the FAR language indicate that the Government should exercise the SbAST options for years 4 and 5 and count the award towards its small business goals as an award to a small business.

Question 16: Please confirm that H‐912 is intended to address the cases where small businesses become large either through contract novation or merger/acquisition. In the case where a small business becomes large through the process of organic growth, please clarify that the option period will be exercised at the Government’s discretion provided that performance is otherwise satisfactory and the Prime has not fallen below 51% of the labor content performed.

Answer 16: Clause H‐912 is intended to address the case where a small business becomes large for any reason and states that, in this event, the Government may choose not to exercise the contractor’s option. Amendment to RFP is forth coming to clarify clause H‐912.