Atch_(3)_PPI_Response_19R6300_Amend_0003.pdf

Attachment (3): Pre-Proposal Inquiry Response –N4008419R6301 Amendment 0003

Solicitation No. N4008419R6301, Collection and Treatment Service for Collection, Holding and Transfer (CHT) and Disposal Services for Industrial Waste from Ships and Vessels at CFAS, Japan

Question No.

Reference (Sect/Para/Page)

QUESTION

GOVERNMENT RESPONSE

1.

RFP page 17

Factor-Past Performance

RFP states: “The Offeror shall complete and submit a maximum of three recent and relevant Past Performance evaluations. Past Performance submittals shall be in the form of either a completed Contractor Performance Assessment Reporting System (CPARS) or a Past Performance Questionnaires (PPQs) per Attachment (A). A recent contract is defined as a contract performed within the past three

(3) years of the date of issuance of the Request for Proposal (RFP).

For the purpose of this evaluation, a relevant project is defined as a project that is ¥50,000,000 or greater in value providing CHT collection and treatment services for black-water and gray-water generated from ships, submarines, or other vessels.”

Question: would the government consider expanding its definition of “relevant project” to include “CHT and other barge-based wastewater collection and treatment services of waste generated from ships, submarines or other naval vessels with value equal to or in excess of 50,000 gallons?”

Rationale: CHT collection and treatment is very similar to other types of wastewater treatment and uses substantially the same technologies and processes. Since prices will vary based on market factors, treatment volume provides a more reliable demonstration of performance than price totals.

No. The definition of a relevant project will not be revised.

All offerors are reminded that, in accordance with the EVALUATION FACTORS FOR AWARD, “In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available or is so sparse that no meaningful past performance rating can be reasonably assigned, the offeror may not be evaluated favorably or unfavorably on past performance (see FAR

15.305 (a)(2)(iv)). Therefore, the offeror shall be determined to have unknown past performance. In the context of acceptability / unacceptability, ‘unknown’ shall be considered ‘Acceptable.’”

Additionally, all offerors are reminded that, in accordance with the EVALUATION FACTORS FOR AWARD, the evaluation of Past Performance, “…is separate and distinct from the Offeror’s responsibility determination.”

As such, if an offeror does not possess or is uncertain if they possess a record of relevant past performance, they may state that in their proposal and, regardless, provide any Past Performance that they may have. The Government will make a determination regarding the relevancy of all past performance submittals and use them to rate the offeror accordingly.

Past Performance of any kind, including Past Performance submittals determined to be not relevant, may be used to evaluate a potential contractor’s responsibility in accordance with FAR 9.104.

2. PWS

Commercial Standards

We understand this solicitation was intended to obtain an “order for commercial items.”

We agree that the Navy should rely on commercial standards for performance and assessment. However, the Solicitation’s PWS extends to 265 pages, and relies on extensive non-commercial, Government-specific standards and assessments.

This is contrary to guidance found in FAR 12.208, which says contracts for commercial items are to rely on “contractors’ existing quality assurance systems as a substitute for Government inspection and testing before tender for acceptance, unless customary market practices for the commercial item being acquired include in-process inspection.” FAR 12.208 further states that any “in-process inspection by the Government shall be conducted in a manner consistent with commercial practice.”

If the procurement is to proceed under FAR Part 12, we believe the PWS should be extensively revised to meet these requirements for commercial items. NMCARS 5312.302 requires special waivers for the use of non-commercial terms such as these, and we respectfully request copies of any such waivers, including any supporting documentation.

The Contracting Officer carefully considered the question and reviewed the PWS. No changes to the PWS have been made.

Commerciality Determinations are made in accordance with DFARS 212.102. Determinations regarding commerciality are Source Selection Sensitive in accordance with FAR 3.104 and are therefore not able to be released via amendment to the solicitation.

Please note that NMCARS 5312.302 relates to tailoring provisions and clauses to be inconsistent with customary commercial practice; it does not pertain to the PWS.

For your awareness, Freedom of Information Act (FOIA) requests may be submitted directly to NAVFAC FE using

FOIA ONLINE.

(https://foiaonline.gov/foiaonline/action/public/home).

3. RFP Page

Single Award IDIQ contract

FAR 52.216-1, at page 44 of the Solicitation, states that this is to be an IDIQ contract. Apparently constrained by the lowest-price award method, NAVFAC FE has announced that it intends to award a single contract.

Research indicates that NAVFAC FE has only two (2) possible providers—a very limited source of supply—for this unique service. Therefore, we believe this indefinite-delivery/indefinite-quantity (IDIQ) contract is inappropriately structured to be made on a single-award basis.

FAR 16.504(c) makes clear the legal presumption for multiple awards. Under that regulation, in planning the acquisition, the contracting officer “must, to the maximum extent practicable, give preference to making multiple awards of indefinite-quantity contracts under a single solicitation for the same or similar supplies or services to two or more sources.” That legal requirement has not been met here. The contracting officer is to consider and document

Prior to issuance of the solicitation, the Contracting Officer reviewed the requirement and considered the multiple award vs single award IDIQ approaches.

Determinations regarding single versus multiple award approaches are Source Selection Sensitive in accordance with FAR 3.104 and are therefore not able to be released via amendment to the solicitation.

For your awareness, Freedom of Information Act (FOIA) requests may be submitted directly to NAVFAC FE using FOIA ONLINE.

(https://foiaonline.gov/foiaonline/action/public/home).

several factors in determining the number of contracts to be awarded, including but not limited to the ability to maintain competition among the awardees throughout the contract’s period of performance. As the responses to NAVFAC FE’s sources-sought notice would have made clear, continuing competition could be available throughout the period of performance, but only if NAVFAC FE makes multiple awards.

Furthermore, pursuant to FAR 16.504, the decision not to make multiple awards must be appropriately documented, and we respectfully request a copy of the determination.

4. RFP

Page 15, Section 52.212-2 Basis for Award

The Solicitation, page 15, Section 52.212-2, Basis for Award, states per FAR 15.101-2, that the LPTA process is being used here, because best value is expected to result from selection of the technically acceptable proposal with the lowest evaluated price.

Department of Defense guidance on the use of the LPTA method contradicts that conclusion. DoD guidance per the proposed rule issued at 83 Fed. Reg. 62550 (Dec. 4, 2018), issued in conjunction with DFARS Case 2018—D010 confirmed that the Defense Federal Acquisition Regulation Supplement (DFARS) is being amended to implement provisions strictly limiting the use of LPTA award methods in the National Defense Authorization Acts (NDAAs), Pub.

Law Nos. 114-328 and 115-91. DoD guidance makes clear that Congress provided that the LPTA method may not be used where value will be realized from a proposal that exceeds a solicitation’s minimum technical or performance requirements. 83 Fed. Reg. at 62550. As the responses to NAVFAC FE’s sources-sought notice (April 15, 2019) would have showed, and the pending non-price proposals will make clear, technological advances in the industry— particularly those related to safety, environmental quality and compliance management—now offer substantial and important value.

Under the DoD guidance referenced above, award under an LPTA method would be improper, because award will require subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal without reference to technical advances in the industry over recent years or assessment of offerors’ relative technical proposals.

Prior to issuance of the solicitation, the Contracting Officer reviewed the requirement and considered the various source selection approaches. The Contracting Officer made a determination in accordance with FAR 15.101 that the LPTA source selection process is appropriate.

Determinations regarding selection of source selection approaches are Source Selection Sensitive in accordance with FAR 3.104 and are therefore not able to be released via amendment to the solicitation.

Please note that the referenced DFARS Case 2018—D010 is still pending and a final rule has not been issued as of 5 September 2019.

For your awareness, Freedom of Information Act (FOIA) requests may be submitted directly to NAVFAC FE using

FOIA ONLINE.

(https://foiaonline.gov/foiaonline/action/public/home).

Furthermore, there is no reasonable basis to conclude with any degree of confidence, as required by the DoD guidance and congressional mandate that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit.

These advances in the industry mean that additional innovation and future technological advantage to the Government will be realized by using a value-based source selection process, which assesses technical excellence.

We also know that, due to lack of previous competition, NAVFAC FE is evaluating ten years of pricing data from only two previous sole-source awards. We question whether such historical pricing information from those contracts provide a realistic “should cost” price for the service. We recommend competition through a task order process that will appropriately, over time, lead to better prices for both the customer and the competitors. Another single-award IDIQ base contract will only set a ceiling price that the awarded offeror will likely never discount. There is no incentive to do so.

The failure to meet any one of the criteria outlined above means that it is improper to use the LPTA method in this procurement.

Further, the referenced Defense Department guidance states that, where the LPTA method is used, the contract file is to contain a determination that the lowest price reflects full life-cycle costs of the services, and the contracting officer is to document the contract file describing the circumstances justifying the use of the lowest price technically acceptable source selection process. We respectfully request a copy of that determination and documentation.

5. RFP

Pages 44-45

Evaluation Criteria for Award of Task Orders

We believe the Solicitation as currently written fails to include evaluation criteria for award of task orders. Apparently constrained by the erroneous decision to award the master contract based on lowest price, NAVFAC FE has, in violation of the FAR’s presumption for multiple-award contracts, made this a single-award contract with errors compounded by FAR 52.216-22, at pages 44-45 of the Solicitation, which provides no evaluation criteria for award of task orders under the resulting contract. FAR 16.505(b) requires that where, as here, the use of multiple awards, the procedures to

The Government intends to award a single award Firm Fixed Price (FFP) Indefinite-Delivery Indefinite Quantity (IDIQ). FAR 52.216-1 has been updated to further clarify the Governments intent. Evaluation criteria for award of task orders does not apply to single award IDIQ contracts and, as such, is not included in the solicitation.

ensure fair opportunity to compete for awards must be included in the Solicitation.

When the Solicitation is amended to accommodate multiple awards (see above), we respectfully request that the procedures to ensure fair opportunity to compete for task order awards (including evaluation criteria) be set out in the amended Solicitation.

6. ADDENDU

M TO

52.212-4, RFP page 37 Number 10.

RFP states:

“10. SUBSTITUTIONS OF KEY PERSONNEL

The Contractor shall provide complete resumes for proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes should have comparable qualifications to those of the persons being replaced. The Contracting Officer will notify the Contractor within 15 days after receipt of all required information of the consent on substitutes. No change in unit prices may occur as a result of key personnel substitution.”

Please amplify why this paragraph is relevant to a commercial solicitation?

This is a requirement to ensure that the key personnel assigned or proposed to be assigned to the contemplated contract meet or exceed the requirements of the PWS.

7. Anticipated Water Treatment Facility, Sasebo

(Industry Day)

At the 9 August Industry Day meeting at NAVFAC FE location PWD Sasebo, a question was raised about NAVFAC expectations on the timing and capabilities of an anticipated water treatment facility near or in Sasebo.

Please explain the current NAVFAC expectations on the timing and capabilities of this anticipated facility.

NAVFAC does not have any current projects planned for a water treatment facility for ships and vessels at CFAS.

Generally, the U.S. Army Corp of Engineers has cognizance over new Military Construction in Japan. As such, NAVFAC is unable to provide any information regarding the timing and capabilities of a water treatment facility for ships and vessels at CFAS.

8. Delivery Information, RFP Page

11, CLIN

RFP states:

0001 POP 01-APR-2020 TO 31-MAY-2021

Question: please confirm or correct what appears to be a typographical error. POP should be 1 April 2020 to 31 Mar 2021?

CLIN 0001 POP has been updated.

9. On page 13, Instructions to Offerors.

4. b.

Proposal Requirements

It states that the offeror shall submit the following information:

(1) One (1) completed and signed SF1449 and Attachment (2) ELIN List.

(2) Three (3) copies of the technical (Non-Price Factors) proposal.

(3) One (1) electronic format of both (1) and (2) on CD /DVD.

However, on page 16, Evaluation factors for award. Price. 1.

It states that “Offerors shall submit 1 original and 1 copy of the price proposal in three-ring binders clearly marked as the price proposal”.

And on page 17, Evaluation factors for award. Non-Price Factors It states that “Offerors shall submit 1 original and 3 copies of their non-price proposals clearly marked as the non-price proposal”.

Question: Please clarify which instruction the offeror should follow.

ADDENDUM TO 52.212-1 has been updated.