PFD Solicitation Questions_AnswersRev5.docx

June 10

1. Can the Government please confirm our understanding that if a product offered is subject to patent protection and if the Government elects to exercise its option under CLIN 1030, the exercise of the option will result in the Government receiving/purchasing only the technical data rights included in the TDP exclusive of any patent rights?

Answer: Confirmed as now written CLIN 1030 covers technical data.

2. If the Government wishes to obtain rights under any patents, will those rights be negotiated under a separate license agreement for which separate consideration will also be negotiated?

Answer: Confirmed that it would require an additional license agreement covering the patent(s). It is expected that the contracting officer will have an opportunity to review the patent(s) and provide a decision on licensing of the patent(s) such that consideration will not be separate. Full disclosure of any patent(s) covering the item procured by the Government is expected in accordance with statutory requirements (e.g. 35 USC 271 et seq.)

3. If this is correct, the pricing to be offered under CLIN 1030 should not include any consideration for patent license rights?

Answer: Confirmed.

4. Can the Government also confirm our understanding that if a product offered is subject to any patent protection, the existence of such patent protection must be disclosed in the technical proposal?

Answer: Confirmed. The patent holder is under a duty to provide notification of patent protection by statute (see, e.g., 35 USC 287).

5. Regarding Data Rights (CLIN 1030):

a. When are data rights billed/paid? (e.g., With each order? Yearly? At the end of the 5-year contract? Other?)

Answer: CLIN 1030 Data Rights may be awarded only on one delivery order within the 5-year contract period. The amount paid will be the price quoted in the tier/step ladder price column for the total PFD quantities ordered up to and including the delivery order that includes CLIN 1030. Please note Attachment 0002 – Pricing ScheduleRev1 was revised to correct/clarify the calculation of the Data Rights price. For example, the price for Data Rights for quantities ordered in the first tier 1 unit to 7,500 units would likely be different (higher) than the price in the second tier 7,501-15,000. There is no difference in the CLIN 1030 Data Rights price if the total order to date was 9,000 or 15,000 as the quantity ordered fell within the same tier 2 bracket. CLIN 1030 was revised in Section B to eliminate any confusion on this.

b. If the government chooses to purchase the data rights, by when does it need to commit? (e.g., At the start of the contract? End of contract? Never? Other?)

Answer: CLIN 1030 Data Rights may or may not be awarded as part of a single delivery order within the 5-year contract period.

c. Is there (or can there be) a minimum price threshold for the data rights?

Answer: No

d. If no minimum (or greater purchase guarantee), what prevents the government from ordering only $5,000 worth of PFD’s and then getting the government data rights for an extremely low price? How would that be fair to the contractor?

Answer: The Offeror(s) should propose pricing based on the quantity ordered that they consider fair.

e. Depending on the answers to the above questions, without a larger purchase guarantee by the government or minimum price for the data rights how can an offeror put in a proper number on the Step Ladder Pricing for the first tier which starts at only one unit and goes to 7,500? (e.g., Since the government is required to purchase only a few units, if the contractor puts in a large unit price here to cover the event of a very low purchase volume and the government ends up purchasing a large quantity then the price to the government will be too high. Conversely, If a low unit price is put in by the contractor and the government only purchases a few units then the contractor gets very little remuneration for giving up the data rights [the situation in “1 d” above]).

Answer: With the step ladder pricing found in Attachment 0002 – Pricing ScheduleRev1 for CLIN 1030, the government anticipates that with additional PFD quantities ordered, the price of the data rights will decrease. The Best Estimated Quantity used for evaluating CLIN 1030 in the cost volume is 10,000 PFDs.

6. Are the Data Rights limited to the US Army or available to other branches as well? (e.g., If, after the Army acquires the data rights, another branch of service wants to have a competitive bid for a PFD, are they allowed to provide the drawings and other data to the offerors at that time?).

Answer: Data Rights will not be limited to the US Army.

7. It is clear the stepladder pricing for Data Rights (CLIN 1030) is based on the number of PFD's purchased during the course of the 5-year contract. However, it is not clear how those prices will be applied.

a. Will the tier level of the final cumulative quantity purchased (at the end of the contract) determine the price for data rights for ALL purchased units during the contract?

Answer: No. CLIN 1030 Data Rights may be procured only once during the contract at the price based on the tier level of the total quantity of PFDs ordered at the time of the delivery order.

b. Will each tier level price be applied to each of the quantity of units at that tier level and then the sum of each tier level (quantity x price) added together to get the final price for the contract?

Answer: No. To be clear, Data Rights will only be procured once during the contract. This could occur early or late in the contract and based on the total quantity of PFDs ordered at the time of the delivery order. Data Rights WILL NOT be procured per unit. Attachment 0002 – Pricing ScheduleRev1 corrected and clarified the calculation of the Data Rights price.

May 29 – 1 June 2020 Questions and Answers

1. Based on your responses to the earlier questions, can you please confirm that our understandings of the following items are correct?

a. CLIN 1092 is only for the required TDP to be delivered under the terms of the contract.

Answer: Yes

b. Under CLIN 1092 the Government will receive the data in the TDP but will only have rights in the data to the extent such rights are not reserved by the offeror under its completion of the offeror’s assertions of restriction on the use, release or disclosure of technical data as permitted by DFAR 252.227-7017 as added to the solicitation.

Answer: Yes providing the assertions are in accordance with DFARS 252.227-7017

c. With respect to CLIN 1092, offerors may complete the DFAR 252.227-7017 assertions of restrictions on rights in data, and offer less than government purpose rights for the purposes of this procurement, exclusive of the CLIN 1030 option provisions.

Answer: Yes; it is now required that assertions, if any, in accordance with DFARS 252.227-7017 be provided.

d. CLIN 1030 is the option which the Government is reserving to purchase government purpose rights in the technical data included in the TDP (CLIN 1092).

Answer: Yes

e. If the Government elects to invoke the CLIN 1030 option and purchase the data rights, the Government will only be purchasing government purchase rights as defined in DFAR 252.227-7013(a)(13). If the Government elects to make the purchase under CLIN 1030, the Government will obtain such government purpose rights in perpetuity. Such government purchase rights will be subject to the Special License Agreement provisions of the solicitation at clause H-4. The government purpose rights will not convert to Unlimited Rights at any time.

Answer: Yes

2. If the Government elects to invoke the CLIN 1030 option and purchase the data rights, will such transfer of data rights have to include a limited license under any patents that relate to inventions developed prior to contract award and were developed at private expense?

Answer: At this time, the Government is unaware of any patents covering this technology. If there are any patents covering this technology, held or known by an offeror, it is requested that those patent/patent application numbers be provided to the Gov’t so those can be reviewed for possible licensing. There is no current draft language covering patent license(s) only that covering Technical Data (copyright and trade secret law).

3. Can the Government clarify whether the “From Quantities” and “To Quantities” for CLIN 1030 Step Ladder Pricing describe Units Ordered through the Contract or Units Remaining on the Contract? For example, the first tier shows from 1 unit to 7,500 units. Does this tier represent that the Government has already procured in this range at the time CLIN 1030 is exercised, or does that range represent the quantities remaining up to allowable contractual maximum quantity?

Answer: The tier represents the quantity the government has already purchased.

4. Can the Government confirm the unit of measure listed as ‘each’ in the Schedule B entry for CLIN 1030 describe the complete Data Rights as a unit of 1, and not per unit of the PFD system?

Answer: Data Rights are a unit of 1.

5. Given the complexity of these issues, and as new FAR Clauses were added to the solicitation today (May 29th, 2020), would the Government consider a two-week extension to the closing date, to allow offerors sufficient time to assess the new information and have the opportunity to ask follow-on questions?

Answer: The government agrees to a two-week extension.

6. As a non-manufacturer we are ISO certified, but will not be manufacturing the product ourselves. Our primary subcontractor is not ISO certified. Could you please confirm if the place of manufacturing is required to be ISO certified?

Answer: Yes, third-party certification is required at the point of manufacture.

7. We would like to request a two week extension to the proposal due date.

Answer: The government agrees to a two-week extension.

28 May 2020

Category 1 – Functional Overlaps between CLIN 1092 (Completed TDP) and CLIN 1030 (Data Rights)

The completed TDP required for CLIN 1092 is required to be sufficient to use for future competitive procurement purchases, and should be definitized “to the extent necessary for a competent manufacturer to produce an item, which duplicates the physical, interface, and functional characteristics of the original product”.

CLIN 1030 requires pricing for the grant of Government Purpose Rights in and to the technical data (which the Government may or may not exercise, at its discretion).

Given the TDP would allow the Government and any ‘competent manufacturer’ to whom the TDP is distributed to replicate the offeror’s system, and given the TDP is to be delivered ‘with Government Purpose Rights (Paragraph C.5.1.3 and H-4), pricing has to assume that it will include the grant of Government Purpose Rights to the Government under the sale of the TDP pursuant to CLIN 1092.

I. Is it the Government’s intent for the TDP (to be delivered under CDRL A020 CLIN 1092) to include Government Purpose Rights in accordance with DFARs 252.227-7013 (as stated in paragraph C.5.1.3) regardless whether the Government chooses to exercise CLIN 1030?

Answer: No. Payment of CLN 1030 creates the GPR in the TDP prior to which either, e.g., 252.227-7013 or a properly prepared and accepted data rights assertion in response to 252.227-7013, 7014 or 7017 that the TDP is delivered at less than unlimited rights would control.

II. Or is it such that CLIN 1092 is intended to be the price to prepare and deliver the TDP without Government Purpose Rights acquired and CLIN 1030 is to be the price for the Government to acquire Government Purpose Rights?

Answer: Correct.

III. If (II) is the intent, does the Government assure it will not use the TDP for the purposes of any future competitive acquisitions of the PFD system without entering a separate agreement to purchase such rights, or by exercising the right to purchase such rights under CLIN 1030?

Answer: The government is bound by 18 USC 1905 which is evidenced by any properly prepared data rights assertion (see above question I).

Category 2 – Scope and Pricing for CLIN 1030 (Data Rights)

CLIN 1030 requests pricing for the Government’s acquisition of Government Purpose Data Rights in and to the technical data. Government Purpose data rights extend for 5 years and then convert under the applicable clause to Unlimited Rights.

I. Is it anticipated the pricing to be entered at CLIN 1030 should cover whatever price the contractor wishes to charge for both the Government Purpose and subsequent Unlimited Rights in the technical data?

Answer: The premise that this changes from GPR to Unlimited Rights is incorrect. The H-clause while having a typo is intended to define GPR under 252.227-7013(a)[13] (not (a)(12)) which does not incur the change from GPR to Unlimited Rights reflected in 252.227-7013(b)(2).

II. If (I) is correct, does the Government anticipate the contractor is to determine a price for the outright sale of the technical data, and then calculate and reflect that total as a per-unit price over the life of the contract, which would yield an inverse relationship between Units and Price-Per-Unit in Stepladder Pricing (e.g. $100,000 for 1 unit in Block 1 of the Stepladder on page 11, $13.33 for 7,501 units in Block 2, etc.)?

Answer: See Category 2, I answer above.

III. Would the Government consider extending the terms for Government Purpose Rights to a period beyond the 5 years in the clause and then eliminating the follow-on Unlimited Rights Provision?

Answer: See Category 2, I answer above.

IV. While the solicitation provides that the Government will enter a Use and Non-Disclosure Agreement with any third parties to whom it distributes technical data, does the Government intend to continue entering such agreements after receiving Unlimited Rights?

Answer: This not a relevant question (see above I) unless a data rights assertion is filed asserting that the Gov’t has GPR. If a data rights assertion is filed asserting that Gov’t has GPR then after 5 years and under DFARS prescription (227.7103(7), the Gov’t would no longer be required to enter into a Use and Non-Disclosure Agreement with any third parties once it has Unlimited Rights to any technical data.

Category 3 – Patent Coverage and Limitations

There are two clauses incorporated into the solicitation, DFAR 252.227-7013 (Rights in Technical Data – Noncommercial Items) and FAR 52.227-14 (Rights in Data – General) for which it is not completely clear whether Patent Rights would be covered under each.

****************FAR 52.227-14 is being removed from this solicitation.

In 252.227-7013, there is no reference to any exception to patent rights; in 52.227-14, subparagraph (i) indicates that “Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government.”

Category 4 – Pricing of Revisions and/or Additions to Data

The solicitation anticipates that if during the course of the contract further developments or improvements to the PFD are realized, the contractor will provide such further developments or improvements to the Government in the deliverables under the contract.

I. If these developments or improvements are made at private expense, is it anticipated the contractor can charge for their inclusion in the deliverables?

Answer: A properly filed data rights assertion based on new information or inadvertent omissions may be made in accordance with 252.227-7013(e)(3) (after award). It is not anticipated that either of the foregoing occur, therefore, the contractor is pricing CLIN 1030 to cover GPR in a complete finalized TDP (deliverable under CLIN 1092) and development is covered under the contract pricing as provided for in 252.227-7013. Alternatively, negotiations may ensue to discuss such a contingency.

II. Does the Government expect these developments or improvements to be included in the Final TDP CRDL Report?

Answer: See Category 4, I answer above.

III. If (II) is accurate, will the Government permit an increase in the price for CLIN 1092 when such additions are made?

Answer: See Category 4, I answer above.

IV. Does the Government expect to receive rights under CLIN 1030 for these developments or improvements?

Answer: See Category 4, I answer above.

V. If (IV) is accurate, will the Government permit an increase in the price for CLIN 1030 when such additions are made?

Answer: See Category 4, I answer above.

Category 5 – Data Rights Assertion Chart

Clause 252.227-7013 contains, at subparagraph (e)(2), the data rights assertion chart.

I. May a contractor provide data rights assertions under that chart and still be deemed to be responsive under the solicitation?

Answer: The contractor must comply with DFARS 252.227-7017 which will be incorporated into the solicitation. This covers data rights assertions made prior to contract award. DFARS 252.227-7013(e)(3) covers data rights assertions made after award and a properly filed data rights assertion can only be based on new information or inadvertent omissions may be made after contract award.

a. May the contractor offer less than the rights requested by the terms of the solicitation?

Answer: No – the contractor may not offer less than the rights requested.

b. May the contractor except all patent rights from any transfer of technical data under the contract?

Answer: This is inapplicable to this contract as FAR 52.227-14 will be removed from the contract vehicle.

c. May a contractor except the conversion of the Government Purpose Rights to Unlimited Rights under the contract?

Answer: This not a relevant question unless a data rights assertion is filed asserting that the Gov’t has GPR. If a data rights assertion is filed asserting that Gov’t has GPR then after 5 years and under DFARS prescription (227.7103(7), the Gov’t would no longer be required to enter into a Use and Non-Disclosure Agreement with any third parties once it has Unlimited Rights to any technical data.

27 May 2020

1) On Page 87, Section L.2.3.2.1, Section 1 Management, Manufacturing, Para 2 it states that offerors need to include “current and historical working quality documentation demonstrating:

· Management Commitment

· Control of Documents

· Human Resources (Training)

· Internal Auditing

· Improvements (Corrective Action, Preventive Action and Continuous Improvement)”

Our company quality documents pertaining to these 5 categories are more than 25 pages in length alone. Can these documents we submitted perhaps in a volume II appendix such that they won’t count against the 25 page limit? If not how can we go about submitting this company documentation with our bid?

Answer: Offerors must adhere to the 25 page limit. If the offeror would like to refer to charts, graphs, tables, photos, etc. in Volume II of their proposal, these may be included as a reference in a volume II appendix. No text will be evaluated in the appendix.

2) Our Quality Management System (QMS) is not currently certified by an accredited 3rd party, however, we are willing to go through the certification process if it is a requirement for the contract. Is 3rd party certification of our QMS a requirement for contract award? Will our proposal receive a rating of “Unacceptable” or "Marginal" for not meeting the requirement to "present a 3rd party certification document" with our proposal since we are not currently certified and are unable to include a 3rd party certification document in our proposal?

Answer: 3rd party certification of the QMS is a requirement. Contractors without certification will be evaluated "Unacceptable" and will not be included in the competitive range.

21 May 2020

1) We need to know when the Log Demo will be scheduled and cannot find it. How many days after IDIQ should/will the Log Demo be scheduled?

Answer: 105 days after contract award, and two days of contractor support.

2) D-7 – Unique Identification (UID) Requirements - We’ve reviewed the referenced FAR/DFAR 211-274-6(a), 252.211-7003, and 252-211-7006; there are several applicable options for which we are seeking clarification.

Is Radio Frequency Identification required at the item, carton, and/or pallet level?

Answer: No, the proposed individual dollar value per PFD will not exceeds threshold for this requirement, but at a minimum, RFID/UID are on the pallets and shipping boxes. The shipping information should be included in the Peckham Shipping instructions. (See attached)

3) C.12.2 – Lot Traceability - Section C.12.2 Lot Traceability directs contractors to “maintain complete and accurate records of the system serial numbers that correspond to each lot produced…”.

Will the Government provide an example of or guidance to the serialization composition and format required?

Answer: No, there are several types of serial numbering systems that can meet this requirement. It is key that product traceability from the end product back through supplier or operator is maintained to reduce product nonconformance inspection.

4) C.8.1– Quality Management Systems (QMS) / C.8.1 and General / L.2.3.2.1 – Proposal Submission Instructions Section C.8.1 states “The contractor shall maintain, operate and continually improve a QMS acceptable to the government in accordance with ISO 9001:2015 or equivalent.”

Section E-1.1 states “Any exceptions to ISO 9001:2015 shall be clearly stated.”

L.2.3.2.1 states “The offerors shall present a 3rd party certification document” in reference to “Proposals shall describe, in detail, the offeror’s Quality Management System (QMS).”

One can infer an inconsistency between these statements; can the Government clarify if 3rd party certification of the QMS is required?

Answer: The supplier will be rated from what is requested in section L of the contract. We are requesting that suppliers meet a 3rd party audit and provide some detailed information to help support their quality system management commitment. There seems to be a consistent overarching theme.

5) Several events, timelines and obligations are triggered after or upon “contract award”.

On the Required Delivery Schedule table (page 45), Time of Delivery is stated as some number of days “after IDIQ award” for several CLINs.

Section C-7.1 states “The contractor shall attend and participate in a technical conference with government contracting and program management technical personnel to be conducted within 30 days after contract award [...]” Section E-1.1 states “After contract award the government will visit the offeror’s manufacturing site to perform an audit of the facility and its manufacturing processes including Process, Logistics, and Quality Management System (QMS)”.

Can the Government clarify whether the references to “After contract award” in sections C-7.1 and E-1.1 is synonymous with the phrasing “after IDIQ award” used in the Required Delivery Schedule?

Answer: After contract award is synonymous with after IDIQ award.

6) As you are no doubt aware, there is an awful lot to do in response to this solicitation in a relatively short time. Could you please extend the due date? Another month would allow us, and the other offerors, sufficient time to properly address all the items required Answer: The government is not extending the solicitation due date at this time.

15 May 2020

1) Is an Integrated Master Schedule (IMS) required with the proposal submission?

Answer-Yes

a. If so, for what period? (e.g., year 1 only[?] since that has most of the items and years 2-5 are the same production activities).

Answer-For the duration of the contract.

b. At what level of detail?

Answer-Sufficient to outline what the vendor determines are critical tasks and milestones affecting and driving the proposed schedule.

2) For the final production product, will manuals need to printed as hard copies or is electronic version all that is required?

a. If hard copy printing is needed, how many manuals will need to be printed?

Answer: From CDRL A003- The First, Second, and FRC submissions may be delivered to the Government representative electronically. Each submission shall be sent with a letter of transmittal on Contractor letterhead with appropriate signature blocks completed and will be considered a draft until accepted by the Government.

3) Since the solicitation talks about all things required throughout the entire lifecycle of this contract, at times it is difficult to determine exactly what you want delivered with the proposal submission. For example, some things are only relevant at the Design Validation (DV) phase and the same thing for the Development Testing and Operational Testing DT/OT) phase. Can you please provide a checklist of what items are currently required for each of the five Volumes?

Answer: Please follow the general instructions in Section L.

4) How many offerors will be selected to proceed to the Design Validation (DV) phase?

Answer: There is no set number of offerors that will be determined to be in the competitive range for DV.