T-2017_QAs.pdf

Questions and Answers to Draft T-2017 RFP

DHA has considered comments submitted in response to the draft T-2017 RFP. With the limited exceptions below, the Agency will not respond to questions seeking clarification on the draft RFP language. Offerors will have the opportunity to submit questions regarding the RFP after its release, and DHA’s response will be made available to all potential offerors.

At this time, DHA provides the following answers to questions regarding exclusion of sources (section L.2.2), use of former employees in proposal preparation (section L.2.9), organizational conflicts of interest (section L.2.8), and non-Government advisors (section L.3.6).

Exclusion of Sources, Section L.2.2:

Question: In Section L.2.2., further clarification is needed on the General Instructions for Offerors, as it is not clear if it is the Government’s intent to permit one company or business entity to be a prime Contractor in one region and to be a subcontractor in the other region.

Question: Can a company be a prime contractor for one region and a key subcontractor to another prime contractor in the other region?

Answer: Yes, a company can serve as the Prime contractor in one region and a subcontractor in the other. Section L.2.2. will be revised to clarify.

Use of Former Employees in Proposal Preparation, Section L.2.9:

Question: Please confirm that the requirement herein is established in and accordance with DFARs 252.203-7005(b). If additional restrictions apply, please include those requirements in the final RFP.

Question: Could this clause be limited in time to relevant past performance data requested under the solicitation? For example, non-public performance information of current TRICARE MCSC contractors learned in the last three years in accordance with L.7.1. How is "competitively useful" defined? Is it limited to the items listed (a competitor's performance on past or current contracts with similar requirements or source selection sensitive information)? For purposes of compliance with this clause, does a contractor's proposal preparation start at the release of the RFP? How long does the Government's Contracting Officer have to respond with a decision related to a Contractor's use of former DoD/DHA employees and Uniformed Service Members?

Question: Please confirm that this unfair competitive advantage or appearance thereof would also apply to former Legislative and Executive branch staff who had access to non-public, competitively-useful information in his or her former position, such as proprietary information of competitor’s performance on past or current contracts with similar requirements or source selection sensitive information pertaining to this procurement.

Answer: While there are some overlapping principles underlying the instruction at section L.2.9 and DFARS 252.203-7005(b), the requirements are separate and distinct. The DFARS clause establishes a requirement for the hiring contractor to ensure that the former Government employee obtains a written opinion from the agency Ethics Counselor regarding the applicability of post-government employment restrictions, i.e. criminal proscriptions established under Title 18 United States Code and standards established by the Office of Government Ethics. The Procuring Contracting Officer (PCO) has authority independent of these ethical proscriptions to safeguard the integrity of the procurement process. See generally FAR 3.101 and 9.505 in this regard.

Thus, the PCO may disqualify an offeror if the offeror uses, in its proposal preparation, a former TMA or DHA employee (including active duty service members) who had access to non-public “competitively useful” information, i.e., the information could assist the offeror in obtaining the contract. This can occur even if the employee has not violated the post-government employment rules addressed in the Ethics Counselor’s written opinion. Further, such disqualification is not dependent on a finding that the competitively useful information was actually used in the proposal preparation. The PCO must ensure the integrity of the process and has an obligation to avoid even the appearance of impropriety in the procurement.

With respect to former employees/members, the primary categories of information of concern are as listed in section L.2.9—contractor proprietary information and source selection sensitive information. See FAR 9.505(b). General and in-depth knowledge regarding the TRICARE Program and Military Health System does not give rise to an unfair competitive advantage and is expected of offerors.

Whether information is competitively useful must be determined on a case-by-case basis. There are no specific cut-off dates for when information ceases to be competitively useful. Thus, the Agency will not stipulate a time period limit, as suggested. With respect to the question regarding when proposal preparation begins, that is in the hands of the offeror. Although the draft RFP is subject to change, if an offeror begins proposal preparation based on the draft RFP, the offeror will not be permitted to circumvent the principle stated above, by limiting use of former employees/members to proposal preparation prior to RFP release.

With respect to legislative branch staff, the clause will not be amended. However, offerors should bring to the PCO’s attention specific situations which they believe negatively affect the integrity of the procurement. If potential offerors have any questions regarding specific situations in reference to section L.2.9, you are strongly encouraged to submit a determination request to the PCO in advance of RFP release, and as soon as possible. The PCO will respond as expeditiously as possible.

Organizational Conflict of Interest, Section L.2.8:

Question: This section identifies companies that, due to the nature of their performance with DHA, have an actual or potential organizational conflict of interest, which must be avoided, neutralized, or mitigated.

Does this prohibition apply to the parent company of a potentially conflicted company or subsidiary? Are there existing guidelines for “neutralizing” or “mitigating” a conflict of interest? Are conflicts of interest handled purely at the organizational level or do they address issues at an individual leader/executive level? Would a firewall between the parent and subsidiary eliminate the perceived risk of an OCI? And how would such protections be defined and enforced?

Answer: With respect to the companies listed in section L.2.8, the actual or potential conflict of interest extends to the parent and affiliates of the identified companies. With respect to the additional questions, whether the OCI can be mitigated and what measures would be sufficient depend on the particular facts and circumstances. The PCO will make a determination on a case-by-case basis. Any potential OCIs should be brought to the attention of the PCO as soon as possible.

Non-Government Advisors, Section L.3.6:

Question: Will prospective bidders have the opportunity to vet Non-Government advisors hired by DHA to preclude possible conflict of interest

Answer: We are not certain what is meant by “vet” in regard to hiring Non-Government advisors. If the question is asking if prospective offerors will have any authority over hiring Non-Government advisors for the T2017 procurement, the answer is no. However, offerors may present objections of Non- Government advisors to the PCO in accordance with the process identified in L.3.6.(e).