Q A 3.doc

AVMI – SOLICITATION N00421-11-R-0055 – QUESTION COMPILATION

27 Jul 2012

39. Ref Attachment P6 Cost Spreadsheet. The RFP specifies the total labor hours and labor Categories. If a contractor elects to use subcontractor labor how are the subcontractor labor hours captured on Attachment P6 in order to balance the total labor hours in Cost spreadsheet row 70, Total without decrementing the RFP required total labor hours? Request clarification on how to propose prime and subcontractor labor hours. The RFP specifies the total labor hours and labor Categories. If a contractor elects to use subcontractor labor how are the subcontractor labor hours captured on Attachment P6 in order to balance the total labor hours in Cost spreadsheet row 70, Total without decrementing the RFP required total labor hours? Request clarification on how to propose prime and subcontractor labor hours.

Government Response: The P6 Cost Spreadsheet was designed to be a sample format since teaming arrangements will differ between offerors. Provided that the overall labor hour totals in the Base and Option Years match the hours in Section L, Table 1 of the RFP (as currently shown in the P6 Cost Spreadsheet attachment), the layout of the P6 is determined by each offeror. Prime contractor labor rates, as well as company burdens (Fringe, G&A and OH), may appear at the top of the spreadsheet, as shown in the P6 attachment, while subcontractor “built up” rates may appear below the prime contractor rate information. Fixed fee, subcontractor handling and subcontractor pass thru rates must be listed separately towards the bottom of the P6 attachment. Required costs for materials and travel, as well as company burdens for each (if applicable), may be placed below prime and subcontractor Labor but above the Grand total of all CLINs row. Section L, Cost section, will be updated to add additional instructions related to the P6 attachment.

40. Ref Attachment P6 Cost Spreadsheet.

The RFP specifies the total labor hours and labor Categories. If a contractor elects to use subcontractor labor how are the subcontractor labor hours captured on Attachment P6 in order to balance the total labor hours in Cost spreadsheet row 70, Total without decrementing the RFP required total labor hours? Request clarification on how to propose prima and subcontractor labor hours.

Government Response: See Government Response to Question #39.

41. Ref: RFP page 98, AVMI Specific Cost Proposal Instructions:

2.0 Contractor Rates for Cost Reimbursement Labor (CLINs X001):

The contractor shall provide rate information used in the proposal in this section. Due to the proprietary nature of company rates, this information may be presented separately for each contractor and subcontractor (if necessary). Show traceability to Attachment P-1, CPFF Tab to ensure proper use of the rates.

Q: Attachment P-1 to the RFP does not have a “CPFF” Tab. Will the tab be provided in an updated version of the attachment?

Government Response: The AVMI Specific Cost Proposal Instructions will be revised to delete any reference to the CPFF Tab. Since all labor CLINs are CPFF traceability to Attachment P1 remains in effect.

42. Ref Attachment P6 Cost Spreadsheet Does the Government intend for us to list each FTE associated with the specific labor category. For example, under the Instrumentation Tech IV labor category, there are 48,000 hours or the equivalent of 25 potential employees. Are we to list the Instrumentation Tech IV position 25 times?

Is it the intent of the gov’t to have individual’s names in all positions in column A, as opposed to listing Prime or Subcontractor employee?

Government Response: Attachment P6 is designed to accommodate either individual names for both Primes and Subcontractors per labor category or just the labor category itself for the prime and subcontractors. Due to the large workforce associated with this effort, an offeror may not be able to submit individual names, and may elect to submit labor categories instead and utilize a weighted labor rate per category. If this option is utilized, then the manner of calculating the weighted labor rate must be clearly identified. In addition, the offeror is cautioned that the total hours and labor categories of the Base and Option Years I, II and III remain consistent with Table 1 under the Cost section, within Section L of the RFP.

In addition, if a subcontractor of the offeror utilizes fully burdened rates in its proposal, the subcontractor shall provide its own P6 delineating the build up of those rates to the Government.

43. Ref: RFP Page 98, AVMI Specific Cost Proposal Instructions:

2.0 Contractor Rates for Cost Reimbursement Labor (CLINs X001):

2.1 Direct Rates: The contractor shall provide the most current direct labor rates, for both the contractor and any subcontractors (if applicable) that are in effect at the time of proposal submission. This includes the current direct labor rates from Forward Pricing Rate Agreements (FPRAs), Collective Bargaining Agreements (CBAs), and Area Wage Determinations (AWDs), if applicable. The contractor shall identify whether the labor rates proposed are FPRAs, CBAs, AWDs, ACO/DCAA recommended rates, or contractor proposed rates. The contractor shall propose direct labor rates to be in compliance with the current hourly rates set forth in the Department of Labor Wage Determination for the applicable labor categories. If proposed labor rates are used, provide a payroll verification (by proposed employee name) for these labor rates.

Discussion: There are 25 non-SCA covered positions contained in the solicitation. Most Offerors will be submitting contractor proposed rates for these positions. Given that the majority of small business Offerors do not have a pool of pre-existing employees waiting in the wings to go to work direct on a contract, these positions will need to be filled by new, contingent or prospective hires for which no payroll history or verification will be available until after award. We do not understand why the government is requesting payroll verification by proposed employee name for contractor proposed rate positions. Requiring payroll verification for contractor proposed rates gives an unfair and unnecessary competitive advantage to the Offeror teamed with the incumbent contractor because the incumbent contractor currently has its workforce in place and can readily provide payroll verification. We believe that this is inconsistent with the requirement that the competition be conducted in accordance with the mandate of the Competition in Contracting Act of 1984 (CICA), 41 U.S.C. 253. Submitting payroll verification (by proposed employee name) on contractor offered rate positions puts all Offerors, except the Offeror teamed with the incumbent contractor, at a decided disadvantage.

Q: What is the Government’s justification for requiring payroll verification (by proposed employee name) for contractor proposed labor rates? Has the Government considered the effect on competition that this requirement would impose? Will the Government implement a recommendation that this requirement be deleted?

Government Response: Section L of the RFP will be amended to only require payroll verifications for currently employed proposed personnel.

44. Ref RFP: 5252.211-9507 PERIOD OF PERFORMANCE (NAVAIR) (MAR 1999) page 59 5252.215-9503 ANTICIPATED AWARD DATE (NAVAIR) (FEB 1995) page 102 Para L2.4 Transition Plan The RFP states an AWARD Date of 1 FEB 13, and a Contract Start Date of 1 APR 13. The offeror is required to submit a written narrative delineating a transition plan based on a 30 day transition period after award, which ensures a smooth workplace changeover from an incumbent. Question- Will a Transition period encompass 30 or 60 days? Will a Transition Labor CLIN be included in pricing and/or Section B.

Government Response: As stated in paragraph 2.4 (Transition Plan) in Section L of the RFP, the transition plan is based on a 30 day transition period after contract award. It is anticipated that the 30 day transition period will be the 30 days immediately proceeding the period of performance start date. A Transition Labor CLIN will not be included in either pricing and/or Section B. It should be noted that the anticipated award date and period of performance start date contained in the RFP are estimates.

45.

Responsibility to

Incumbent Workforce FBO.GOV Solicitation

Executive Order 13495

Final_RFP_for_AVMI

Section 2.1.1

Section 2.4

AES05

Relevant Text

FBO.GOV Solicitation

Air Vehicle Modification and Instrumentation (AVMI) Solicitation Number: N00421-11-R-0055

541 -- Professional, Scientific, and Technical Services/541712 -- Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology)

Final RFP Section 2.4

2.4 Transition Plan: The services under this solicitation are vital to the Government and must be continued without interruption. The offeror is required to submit a written narrative delineating a transition plan based on a 30 day transition period after award, which ensures a smooth workplace changeover from an incumbent. The plan should take into consideration the following elements as well as any additional elements deemed necessary by the offeror:

2.3.4.1 Work Turnover. The offeror shall provide a plan of action to effectively transfer tasked work that is in process at the expiration of the current contract from the incumbent to the successful offeror.

Executive Order 13495

Section 1. Policy. It is the policy of the Federal Government that service contracts and solicitations for such contracts shall include a clause that requires the contractor, and its subcontractors, under a contract that succeeds a contract for performance of the same or similar services at the same location, to offer those employees (other than managerial and supervisory employees) employed under the predecessor contract whose employment will be terminated as a result of the award of the successor contract, a right of first refusal of employment under the contract in positions for which they are qualified.

Sec. 5. Contract Clause. The following contract clause shall be included in solicitations for and service contracts that succeed contracts for performance of the same or similar work at the same location:

"NONDISPLACEMENT OF QUALIFIED WORKERS”

"(a) Consistent with the efficient performance of this contract, the contractor and its subcontractors shall, except as otherwise provided herein, in good faith offer those employees (other than managerial and supervisory employees) employed under the predecessor contract whose employment will be terminated as a result of award of this contract or the expiration of the contract under which the employees were hired, a right of first refusal of employment under this contract in positions for which employees are qualified. The contractor and its subcontractors shall determine the number of employees necessary for efficient performance of this contract and may elect to employ fewer employees than the predecessor contractor employed in connection with performance of the work. Except as provided in paragraph (b) there shall be no employment opening under this contract, and the contractor and any subcontractors shall not offer employment under this contract, to any person prior to having complied fully with this obligation. The contractor and its subcontractors shall make an express offer of employment to each employee as provided herein and shall state the time within which the employee must accept such offer, but in no case shall the period within which the employee must accept the offer of employment be less than 10 days.

Final RFP Section 2.1.1 Workforce Qualifications Spreadsheet.

2.1.1 The offeror shall complete the attached Workforce Qualifications spreadsheet (Attachment P1) for each current, contingent, and prospective hire employee proposed under this effort. All contingent hires (key and non-key) shall have a letter of intent submitted under Volume 4. The letter of intent is a separate written agreement signed by the potential employee(s) to work for the offeror effective at Contract award. Subcontractors and team members shall provide this information either separately or included in the prime contractor’s submission of this document.

The following definitions apply to section 2.1.1: A “contingent hire” is an individual who has committed, under a signed letter of intent, to being employed by the offeror if the offeror is awarded the Contract. A “prospective hire” is an individual that the offeror has committed to hiring if the offeror is awarded the Contract whose identity may not be known until after Contract award.

Note: The offeror is forewarned that it may receive a weakness if it proposes the predominance of a labor category or Performance Based Statement of Work (PBSOW) section tasking using prospective or contingent hire employees and the evaluation team deems this a risk to successful performance.

Comment

It is reasonable to conclude that the AVMI contract (subject of this acquisition) is a service type contract covered by provisions of the Service Contract Act (as amended). It is classified as a service-type contract in the FBO publication; more than 85% of the labor hours contained in Table 1 are to be performed by skill codes covered by the Service Contract Act; and the Government published Department of Labor Area Wage Determination Tables as attachments to the RFP.

It is also reasonable to conclude that the AVMI contract is successor to an existing contract for performance of the same or similar services at the same location.

If true, the AVMI contract is also covered by Executive Order 13495, which states:

“Except as provided in paragraph (b) there shall be no employment opening under this contract, and the contractor and any subcontractors shall not offer employment under this contract, to any person prior to having complied fully with this obligation. The contractor and its subcontractors shall make an express offer of employment to each employee as provided herein and shall state the time within which the employee must accept such offer, but in no case shall the period within which the employee must accept the offer of employment be less than 10 days.”

And also states:

“Sec. 5. Contract Clause. The following contract clause shall be included in solicitations for and service contracts that succeed contracts for performance of the same or similar work at the same location: "NONDISPLACEMENT OF QUALIFIED WORKERS…”

Nevertheless, the Final RFP does not contain a “NONDISPLACEMENT OF QUALIFIED WORKERS” clause.

Instead, Final RFP Section 2.1.1requires that contractors complete the Workforce Qualifications Spreadsheet, providing data on all current, contingent, and prospective hires. Moreover, the Final RFP states that if a contractor “may receive a weakness if it proposes the predominance of a labor category or Performance Based Statement of Work (PBSOW) section tasking using prospective or contingent hire employees and the evaluation team deems this a risk to successful performance.”

Competitors need immediate clarification of Final RFP requirements related to hiring and workforce evaluation.

If provisions of the Service Contract Act and Executive Order 13495 DO NOT apply, then competitors need a clarifying statement to that effect from the acquisition authority so that they can proceed with necessary hiring without constraint.

If provisions of the Service Contract Act and Executive Order 13495 DO apply, then the only party that can satisfy these provisions while satisfying the requirement to complete the Workforce Qualifications Spreadsheet with a predominance of current employees is the incumbent Large Business working under subcontract to a small business. This circumstance perpetuates the role of the incumbent Large Business, gives that one small business an unfair advantage, and places all other small businesses at an unfair disadvantage.

For all other small businesses, if provisions of the Service Contract Act and Executive Order 13495 DO apply, it is impossible to populate the Workforce Qualifications Spreadsheet with anything other than prospective entries without previously making an express offer of employment to each incumbent service-type employee. This cannot be accomplished without having a complete list of incumbent service-type employees provided by the incumbent Large Business contractor. Even with that information, the necessary “right of first refusal” job offers cannot be accomplished in the time available before the Final Proposal due date of 06 Aug.

Question

Given the absence of a “NONDISPLACEMENT OF QUALIFIED WORKERS” clause in the Final RFP, can competitors safely assume that provisions of the Service Contract Act and Executive Order 13495 DO NOT apply and can they be assured that they have no obligation to incumbent service-type employees.

Government Response: The requirement does fall under the Service Contract Act. In regard to the reference to Executive Order 13495, the Executive Order states “the order is effective immediately and shall apply to solicitations issued on or after the effective date for the action taken by the FAR Council”. To date, the FAR Council has not issued a clause in the Federal Acquisition Regulation (FAR) pertaining to the Executive Order nor has issued any guidance in regard to how to implement the Order. The proposed clause, “NONDISPLACEMENT OF QUALIFIED WORKERS”, does currently appear in the Federal Register and comments were requested by 2 July 2012. However, final direction has not been received from the FAR Council in regard to this proposed clause and the clause does not appear in the FAR. As a result, the Executive Order does not pertain to this solicitation, which was released prior “to the action taken by the FAR Council”.

46. Question: What is the Government’s justification for requiring resumes and letters of commitment from nonkey personnel? Has the Government considering the effect on competition that this requirement would impose? Will the Government implement a recommendation that this requirement be deleted or changed to provide Attachment P1 qualifications and the resumes/letter of intent for “key personnel” only as stated “5252.237-9501, ADDITION OR SUBSTITUTION OF KEY PERSONNEL (SERVICES) (NAVAIR)(OCT 2005).

Government Response: Resumes are only required for (KEY) personnel in accordance with Section L paragraph 2.1.1.4. Letters of Intent are only required for Contingent hires. Neither a resume nor Letter of Intent is required for prospective hires. To clarify the definition of prospective hires, when it states in Section L that a “prospective hire is an individual that the offeror has committed to hiring if the offeror is awarded the….”, that means the offeror is making a commitment to the Government that they will provide an individual that meets the minimum qualifications for each labor category and numbers of individuals for each labor category required in the RFP.

47. RFP, Page 90, Para L.2.1.1 –the government is requesting: Reference Para L 2.1.1 Workforce Qualifications Spreadsheet. The offeror shall complete the attached Workforce Qualifications spreadsheet (Attachment P1) for each current, contingent, and prospective hire employee proposed under this effort. All contingent hires (key and non-key) shall have a letter of intent submitted under Volume 4. The letter of intent is a separate written agreement signed by the potential employee(s) to work for the offeror effective at Contract award. Subcontractors and team members shall provide this information either separately or included in the prime contractors submission of this document. The following definitions apply to section 2.1.1: A “contingent hire” is an individual who has committed, under a signed letter of intent, to being employed by the offeror if the offeror is awarded the Contract. A “prospective hire” is an individual that the offeror has committed to hiring if the offeror is awarded the Contract whose identity may not be known until after Contract award. Note: The offeror is forewarned that it may receive a weakness if it proposes the predominance of a labor category or Performance Based Statement of Work (PBSOW) section tasking using prospective or contingent hire employees and the evaluation team deems this a risk to successful performance.

Discussion: Given that the majority of these positions are SCA covered and are not key personnel, we do not understand why the government is requesting commitments for an inordinate number of positions and including duplication of labor categories, given that in the event of award most contractors will retain the incumbent workforce. We believe that this is inconsistent with the requirement that the competition be conducted in accordance with the mandate of the Competition in Contracting Act of 1984 (CICA), 41 U.S.C. 253, We believe this is overly restrictive with an incumbent workforce in place, most likely these personnel would be retained. Executive Order 13495 requires that current employees on follow-on and/or successor contracts are given the right of first refusal for a job for which they are qualified. For a contractor to comply with the requirement to identify up to 194 contingent personnel beyond Key Personnel, the contractor must find qualified individuals and offer them a contingency letter of employment stating that if the contractor wins the contract they in fact have a job. These prospective hires will be committed for 8 months minimally until contract award. This also means the contractor would not be able to comply with the Executive Order and offer the SCA covered incumbent employee’s right of first refusal. This requirement gives an unfair and unnecessary competitive advantage to the incumbent team because they currently have its workforce in place. Submitting these 190+ letters puts all offerors, except the incumbent contractor, at a decided disadvantage and in potentially legal turmoil.

Government Response: See response to Question 45 Contingent hires and prospective hires are different categories of hires. The Government has not requested a Letter of Intent for prospective hires. The requirement for Letters of Intent only applies to Contingent hires per paragraph 2.1.1 (Workforce Qualification Spreadsheet) of Section L of the RFP.

48. RFP, Page 90, Para L.2.1.1 –the government is requesting:

Reference Para L 2.1.1 Workforce Qualifications Spreadsheet. The offeror shall complete the attached Workforce Qualifications spreadsheet (Attachment P1) for each current, contingent, and prospective hire employee proposed under this effort. All contingent hires (key and non-key) shall have a letter of intent submitted under Volume 4. The letter of intent is a separate written agreement signed by the potential employee(s) to work for the offeror effective at Contract award. Subcontractors and team members shall provide this information either separately or included in the prime contractors submission of this document.

The following definitions apply to section 2.1.1: A “contingent hire” is an individual who has committed, under a signed letter of intent, to being employed by the offeror if the offeror is awarded the Contract. A “prospective hire” is an individual that the offeror has committed to hiring if the offeror is awarded the Contract whose identity may not be known until after Contract award.

Note: The offeror is forewarned that it may receive a weakness if it proposes the predominance of a labor category or Performance Based Statement of Work (PBSOW) section tasking using prospective or contingent hire employees and the evaluation team deems this a risk to successful performance.

Discussion: Given that the majority of these positions are SCA covered and are not key personnel, we do not understand why the government is requesting commitments for an inordinate number of positions and including duplication of labor categories, given that in the event of award most contractors will retain the incumbent workforce. We believe that this is inconsistent with the requirement that the competition be conducted in accordance with the mandate of the Competition in Contracting Act of 1984 (CICA), 41 U.S.C. 253, We believe this is overly restrictive with an incumbent workforce in place, most likely these personnel would be retained. Executive Order 13495 requires that current employees on follow-on and/or successor contracts are given the right of first refusal for a job for which they are qualified. For a contractor to comply with the requirement to identify up to 194 contingent personnel beyond Key Personnel, the contractor must find qualified individuals and offer them a contingency letter of employment stating that if the contractor wins the contract they in fact have a job. These prospective hires will be committed for 8 months minimally until contract award. This also means the contractor would not be able to comply with the Executive Order and offer the SCA covered incumbent employee’s right of first refusal. This requirement gives an unfair and unnecessary competitive advantage to the incumbent team because they currently have its workforce in place. Submitting these 190+ letters puts all offerors, except the incumbent contractor, at a decided disadvantage and in potentially legal turmoil.

Question: What is the Government’s justification for requiring resumes and letters of commitment from nonkey personnel? Has the Government considering the effect on competition that this requirement would impose? Will the Government implement a recommendation that this requirement be deleted or changed to provide Attachment P1 qualifications and the resumes/letter of intent for “key personnel” only as stated “5252.237-9501, ADDITION OR SUBSTITUTION OF KEY PERSONNEL (SERVICES) (NAVAIR)(OCT 2005).

Government Response: See response to Question 46

49. There are three different matrices called out with respect to Past Performance. Are Past Performance data to be formatted according to Past Performance Matrix, Attachment P4; subparagraphs (a) through (d), RFP pages 93 and 94 respectively; and paragraph 3.2 on RFP page 95?

Government Response: Yes. Offerors shall input information required in the Past Performance Matrix, Attachment P4, as that attachment is meant to be a summary of the submitted past performance data. In addition, Offerors shall submit past performance data in the format required in Section L, paragraph 3.1, subparagraphs a) through d) and in paragraph 3.2. This data shall be submitted in the Past Performance Volume. Offerors are encouraged to ensure consistency among the submitted documents.

50. Request the government clarify why SECTION C, paragraph 5.1.1 addresses the Structure Test Facility without including this facility in the Table in paragraph 4.0.3.

Government Response: The Structure Test Facility in the Table in paragraph 4.0.3 is Bldg. 2187 with approx. 20,000sf.