FTSS V Industry Day QA_82_01.20.21.docx

Industry Question #82:

Following review of the recently posted Q&A #81 for FTSS V, a question has arisen regarding FCLs for Joint Ventures. In November, the SBA implemented new rules regarding Joint Ventures. One in particular, 13 CFR 121.103 (h) section 4 added FCL language to support unpopulated Joint Ventures. Contracts can be awarded to a joint venture even if the joint venture does not hold an FCL but the partners do. For your convenience I have added the wording below. Will NAWCTSD consider these new rules when awarding the FTSS V MAC and TOs? Thank you in advance for your review of this matter.

(4) Facility security clearances. A joint venture may be awarded a contract requiring a facility security clearance where either the joint venture itself or the individual partner(s) to the joint venture that will perform the necessary security work has (have) a facility security clearance.

(i) Where a facility security clearance is required to perform primary and vital requirements of a contract, the lead small business partner to the joint venture must possess the required facility security clearance.

(ii) Where the security portion of the contract requiring a facility security clearance is ancillary to the principal purpose of the procurement, the partner to the joint venture that will perform that work must possess the required facility security clearance

Government’s Response:

A follow-up question was posed regarding Facility Clearance Levels (FCL) for joint venture (JV) entities. The question seeks clarification re: whether or not the Government will consider the recent SBA regulation at 13 CFR 121.103(h) which allows a contract to be awarded to a JV even if the JV does not hold a FCL but the individuals partner(s) to the JV that will perform necessary security work hold a FCL. Specifically, 13 CFR 121.103(h) provides, “A joint venture may be awarded a contract requiring a facility security clearance where either the joint venture itself or the individual partner(s) to the joint venture that will perform the necessary security work has (have) a facility security clearance.” (emphasis added) The use of the word “may” is meaningful since it does not mandate contract award be made where the JV itself does not possess a FCL but the individual partner(s) to the JV that will perform the security works has a FCL.

In the Government’s response to question #81, it was identified that for a JV to receive a facility clearance, all member companies must have a FCL at the level of the contract. At the Industry Day in April 2020, the Government communicated that, “The current plan is that an offeror (per CAGE code proposing) must possess at least a Secret Facility Clearance (FCL) for FTSS V MAC award.” This continues to be the Government’s plan and position since it reflects the preponderance of the FTSS V MAC Lot 1 and Lot 2 task order requirements.

While our acquisition strategy is still being developed for the FTSS V MAC award, the Government continues to intend to require each Prime Offeror to meet the FTSS V MAC Secret FCL award prerequisite as follows:

The Prime Contractor shall provide, with their proposal, evidence that they currently hold a Secret, or higher, Facility Clearance. In the case of a Joint Venture, the Prime JV entity shall provide, with their proposal, evidence that they currently hold a Secret, or higher, Facility Clearance. The clearance must be in the name of legal entity identified in Block 15A of the Offeror’s SF33. This evidence shall be submitted with the proposal at the proposal submission date/time specified on Standard Form 33. The Secret, or higher, Facility Clearance shall be valid at time of proposal submittal. Any clearances that are pending or in process are not permissible.

While it is too soon to determine acquisition plans for the subsequent TO competitions, the Government anticipates they follow an approach similar to that of the MAC regarding FCLs.

As a courtesy, please find potential DRAFT language for the “FCL Prerequisite” which may be included in the Draft RFP Section L:

L.2.1.2 PREREQUISITE

1. Each Prime Offeror shall provide documentation to demonstrate that the Offeror meets the prerequisite listed below. The requirement will first be validated on a pass/fail assessment. Offerors who do not meet the prerequisite, will be deemed UNACCEPTABLE and will be eliminated from this competition. As such, their proposal will not be evaluated.

1. Secret Facility Clearance:

Lot I and Lot II: The Prime Contractor shall provide, with their proposal, evidence that they currently hold a Secret, or higher, Facility Clearance. In the case of a Joint Venture, the Prime JV entity shall provide, with their proposal, evidence that they currently hold a Secret, or higher, Facility Clearance. The clearance must be in the name of legal entity identified in Block 15A of the Offeror’s SF33. This evidence shall be submitted with the proposal at the proposal submission date/time specified on Standard Form 33. The Secret, or higher, Facility Clearance shall be valid at time of proposal submittal. Any clearances that are pending or in process are not permissible.