“On June 22, 2021, the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) issued its third modification to the Chief Information Officer-Solutions and Partners 4 (CIO-SP4) Request for Proposals (RFP). Among other things, NITAAC made significant changes to how subcontractors and mentors in Small Business Administration (SBA) approved mentor-protégé programs are treated for purposes of the evaluation. The RFP appears to disallow the use of any subcontractor experience, past performance, or other qualifications, including from small businesses, and it severely limits the use of mentor experience. This 180-degree turn from the latest version of the RFP will impact small businesses seeking to use subcontractors and SBA-approved mentors when submitting their proposals.
Talking with many in the industry, companies all around the country shifted their CIO-SP4 strategies by forming prime / subcontractor relationships, shifting away from the use of joint ventures, and working more closely with their SBA-approved mentors. Now, however, all of those prime / subcontractor teaming relationships are effectively rendered useless, sending small businesses scrambling to reform joint ventures or give up pursuit of CIO-SP4 altogether. Unfortunately, because the Defense Logistics Agency (DLA) has been taking between 20 and 30 days right now to issue Commercial and Government Entity (CAGE) codes, many firms may not have sufficient time to create the joint ventures and secure the necessary CAGE code to successfully bid the work under this revised RFP. We have seen no rationale for these changes other than speculation that this is NITAAC’s attempt to artificially limit competition on CIO-SP4 in violation of the Competition in Contracting Act (CICA).
Specifically, Section L.3.7.1 of RFP was revised to remove language stating that ‘the experience and abilities of the prime’s subcontractors may be used in the offeror’s proposal,’ to now state that “only the prime will be considered in the evaluation for award of the GWAC except as specified under M.4.3 Contract Team Arrangement (CTAs).” Looking at M.4.3 (which is Factor 3 – Past Performance), however, NITAAC revised that provision as well to remove the language that allowed past performance from affiliates and subcontractors (although it remains in Section L.5.7). As such, the RFP now eliminates an offeror’s ability to rely upon subcontractors. There does not appear to be any legitimate justification for this restriction, even though CICA, as interpreted by the Government Accountability Office requires that all federal agencies ‘specify [their] needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs.’[1] Without any legitimate justification for why this is a necessary restriction, it arguably violates the law.
Further, this restriction makes no allowance for SBA’s new November 16, 2020, regulations, which require that ‘[w]hen an offer of a small business prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor[s] in the proposal, the head of the agency must consider the capabilities, past performance, and experience of each first-tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award.’[2] Clearly, the RFP directly contradicts this mandate, as it provides no exception for a FAR 9.601(2) arrangement where the subcontractor is a small business, and, as such, violates the law…” Read the full article here.
Source: New CIO-SP4 Modification – An Undue Restriction on Competition and a Violation of SBA Regulations? – By Isaias “Cy” Alba, IV and Meghan F. Leemon, June 23, 2021. PilieroMazza.
