Amendment 0003.pdf

SOLICITATION AMENDMENT 0003

FOR

REQUEST FOR PROPOSAL (RFP) N33191-23-R-4001: DESIGN-BUILD / DESIGN-BID-

BUILD MULTIPLE AWARD CONSTRUCTION CONTRACT (MACC) FOR THE

CONSTRUCTION, RENOVATION, REPAIR, AND DEMOLITION OF FACILITIES,

WATERFRONT, AIRFIELDS, OR OTHER RELATED INFRASTURE PRIMARILY AT

NAPLES SUPPORT ACTIVITY (NSA), NAPLES, ITALY

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The purpose of this Amendment 0003 is to:

1) Provide a Response to Pre-Proposal Inquiries (PPIs).

2) Revise Instructions to Offerors with a new Proposal Due Date.

1. RESPONSES TO PPIs:

PRE-PROPOSAL INQUIRY 30:

Solicitation, Part I (Section 00 21 00 Instructions), Section 1.5 ISOCIETA’ ORGANISMI D’ ATTESTAZIONE (SOA) CERTIFICATION, Page 6 of 68.

After a careful analysis of the legislation in force and a general assessment of the amendment held with the Legal Department and SOA Sector Experts, we inform you that, if the SOA certification requirement must be applied for participation in this bid, the relative legislation (as repeatedly mentioned and requested in the Solicitation) must be applied in full in accordance with the law without any derogation; impediments that may favor or disadvantage the participating companies cannot be applied. All companies must have the same opportunities (fair and reasonable), within the limits permitted by law.

The requirements modified by amendment #0002 go against and in violation of the Procurement Code D.L. 50 of 2016 (mentioned and requested in the Solicitation several times), against and in violation of Presidential Decree 207 of 2010 (Code Implementation Regulation) and against and in violation of the new Legislative Decree 36 of 2023 (New Procurement Code) in force since 01 April 2023 (transitional regime) and which will be definitively in force from 01 July 2023.

The legislation provides that there is only one Main category and more secondary categories.

Secondary or Sub-Categories can be subcontracted without any limitation whatsoever.

In all previous MACC or similar Bids carried out by the Government, the legislation has always been applied, but not limitations such as those indicated by amendment no. 0002 regarding SOA and subcontracting.

Furthermore, these limitations do not favor broad competition even to the detriment of the Government itself.

REQUEST FOR PROPOSAL (RFP) N33191-23-R-4001: DESIGN-BUILD / DESIGN-BID-

BUILD MULTIPLE AWARD CONSTRUCTION CONTRACT (MACC) FOR THE

CONSTRUCTION, RENOVATION, REPAIR, AND DEMOLITION OF FACILITIES,

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We would also like to point out another anomaly, as the current legislation provides for the possibility of participation also with an ATI that is being set up and not just already set up; therefore, all the relative registrations of the ATI, which require the necessary technical times, will then be defined and ratified after the final award of the bid.

Furthermore, the possibility of participating in the bid in an already established and notarized ATI, included in amendment no. 0002, it is in fact impossible to carry out. In fact, amendment No. 0002 substantially modifies the terms of participation in the bid 18 days after its original issue and without an extension of the times, in fact, it prevents its application just at 15 days of its presentation.

This change does not guarantee equal conditions for all possible participants by penalizing some of them.

To guarantee this, an extension of the proposal due date will be necessary.

In order to protect the interests of our company and participate in a bid that is open to fair and legal competition, we strongly recommend that you issue a new amendment that is in compliance with current legislation, restoring the possibility of subcontracting the secondary categories and the application of the regulation relating to the establishment of ATI in compliance with the requirements of the law, without harming anyone's interests and mainly in safeguarding the interests of the Government in order to favor broad competition and to avoid certain disputes / protest proposed with the competent authorities (GAO - Government Accountability Office -, ANAC - Authority National Anti-Corruption – Ombudsman Office, Etc.).

In the light of the above, we also ask you to extend the proposal due date of 18 days (from the issuing of the amendment) to allow for the reorganization of the preparation of the bid itself.

We look forward to a timely response to this.

GOVERNMENT RESPONSE 30:

1. As stated in this solicitation, this is “a Multiple Award Construction Contract (MACC)... This procurement consists of one solicitation with the intent to award approximately five (5) Indefinite Delivery/Indefinite Quantity (IDIQ) contracts to the offerors whose proposals, conforming to the solicitation, will be most advantageous to the Government resulting in the best value, price and non-price factors considered

REQUEST FOR PROPOSAL (RFP) N33191-23-R-4001: DESIGN-BUILD / DESIGN-BID-

BUILD MULTIPLE AWARD CONSTRUCTION CONTRACT (MACC) FOR THE

CONSTRUCTION, RENOVATION, REPAIR, AND DEMOLITION OF FACILITIES,

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… Successful offerors will compete for future work during the term of the contract”.

2. The published RFP never refers to any prevailing category and/or secondary categories. The RFP clearly states: ”the following qualification standards shall be met by the offeror for the overall MACC: …”. It is a clear indication that each successful Offeror MUST be qualified as indicated in the RFP.

4. During phase 2 of the solicitation the seed project will be identified and one of the four required SOAs will be used to classify the work.

5. Although the Government stated in Amendment 0002 in its answers to previous PPIs that it considers all requested SOA categories as “prevailing work categories,” the Government did NOT intend to differentiate between Prevailing and Secondary categories when utilizing that terminology. Instead, the Government’s intent was to re-iterate its expectation that all companies or JVs proposing for the MACC award must be certified in each of the four (4) requested SOA categories.

6. Amendment 002 corrected an unclear statement in the published RFP stating that “Offers from Associazione Temporanea d’Imprese (ATI) not legally established, or offers using a contract of availment (contratto de avvalimento), will not be accepted for this procurement and will be considered non-responsive to the solicitation.” . Please refer to the solicitation requirements identifying the requirements of a JV.

7. As already mentioned above, the published RFP never specified the value difference among the requested SOA categories. In the same way, the published RFP did not clearly say that the Prime could use a subcontractor’s SOA qualifications. While the RFP clearly stated: “In the case of a Joint Venture (JV), each member of the JV must have at least one of the required SOA Certifications. In the case of a JV, certification submitted by a subcontractor will not be accepted,” the same distinction was not as clearly stated for the Prime and a subcontractor. Therefore, the Government clarified its intention for the Prime and a subcontractor in terms of the required SOA certification through the Amendment by clearly stating that the Offeror must be independently qualified to apply to this procurement, and cannot rely on any subcontractor.

PRE-PROPOSAL INQUIRY 31:

After a careful analysis of Amendment 0002 issued yesterday 16 May 2023, we believe that the latter completely overturns the original Solicitation requirements. The changes made to the Section 1.5 COMPANY CERTIFICATION BODIES (SOA) CERTIFICATION, (page 3) as well as being in breach of the Codice degli Appalti D.L.

50 del 2016 (mentioned and requested several times in the Solicitation), in breach of DPR 207 del 2010 (Regulation implementing the Code) and in breach of the new D.Lgs. 36 del

REQUEST FOR PROPOSAL (RFP) N33191-23-R-4001: DESIGN-BUILD / DESIGN-BID-

BUILD MULTIPLE AWARD CONSTRUCTION CONTRACT (MACC) FOR THE

CONSTRUCTION, RENOVATION, REPAIR, AND DEMOLITION OF FACILITIES,

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2023 (New Procurement Code) in force from 01 April, these changes are also unprecedented limitations in MACC solicitations history.

In fact, the regulation provides that there is only one Main category and several secondary categories and the latter can be subcontracted.

We believe that these restrictions imposed by amendment 0002 are not conducive to fair competition especially when they are imposed less than 15 days from the Solicitation due date.

We therefore request either for the SOA Categories OG 3 and OG 6 to be lowered from III to I or submit an offer using a subcontractor (Commitment Letter).

Having said that, we also believe that given the significance of the Amendment 0002, we are still given the chance to participate in the solicitation , and therefore we request a time extension of at least 45 days, given that in order to set up a JV or ATI, there are technical times to be respected in order to be able to obtain certain documents, for instance: notary deed, notary deed registration, Chamber of Commerce Certificate request, sworn English translation of the notary deed made by a certified authority. Once the Chamber of Commerce Certificate of the JV has been obtained, it will be necessary to request the NCAGE, Duns Number, make SAM registration and, open an account with an American Bank.

All this to meet the requirements required by the Solicitation and to have it all prepared we shall need from 45 up to 60 days.

GOVERNMENT RESPONSE 31:

See Government Response 30.

2. INSTRUCTIONS TO OFFERORS:

Proposals shall be submitted no later than Wednesday, 7 June 2023, at 12:00 PM Central European Summer Time (CEST).

(End of SOLICITATION AMENDMENT 0003)