The National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC) issued yet another round of significant changes to the Chief Information Officer-Solutions and Partners 4 (CIO-SP4) Request for Proposals (RFP) under Amendment 12 to the RFP. These changes, explained below, will impact offerors in mentor-protégé arrangements and may require them to submit a proposal revision.
- Mentors: Experience Examples
Mentors in mentor-protégé arrangements, regardless of their size, may now only submit two experience examples for each task area. Prior to this amendment, only large business mentors were limited to two experience examples per task area. However, mentors in mentor-protégé arrangements can be small businesses. Therefore, before this amendment, small business mentors did not know how many experience examples were required per task area. Their best guess would be to submit a minimum of two, like the large business requirement, but it was ultimately unclear. Now, small business mentors who did not submit at least two experience examples for each of the task areas should submit proposal revisions before doing so.
- Protégés: Experience Examples
Similarly, there was a lack of instruction on how many experience examples protégés were required to submit, if any. Before this amendment, the experience examples could “come from members of an offeror’s CTA/JV, and/or Mentor-Protégé as identified in section L.3.7. and L.5.2.” This language allowed for mentors or protégés to submit experience examples to meet the two per task area requirement. Now, protégés are required to submit one experience example “overall for any of these experience areas (task areas 1-10 for corporate experience (L.5.2.1), leading edge technology (L.5.2.2), federal multiple award (L.5.2.3), and Executive Order 13779 work (L.5.2.4)).” In their proposal revisions, mentor-protégé arrangements should remember to submit a protégé experience example for at least one of the task areas to meet this new requirement.
- Amendment Consistent with GAO Recent Decision
GAO recently took up the CIO-SP4 solicitation in Comput. World Servs. Corp.; CWS FMTI JV LLC, B-419956.18, et al., Nov. 23, 2021, 2021 CPD ¶ 368. There, GAO sustained a protest in part, finding that NIH’s decision to place limitations on experience submitted by the large business mentor in a mentor-protégé arrangement was unduly restrictive of competition. GAO held that a solicitation may limit the experience submitted by the large business mentor in order to meaningfully consider the experience of the protégé member of the joint venture.
Prior to this amendment, the CIO-SP4 solicitation did not require a protégé member to submit any experience. Accordingly, in Comput. World Servs. Corp., GAO found NIH was unable to support limiting the large business mentor’s experience in order to meaningfully consider the experience of the protégé member since the protégé was not required to submit any experience. This amendment now requires a protégé to submit some experience and therefore NIH can use the amendment to defend its decision to limit mentor experience references. It does appear that this amendment is now consistent with the GAO’s reasoning in Ekagra Partners, LLC and Comput. World Servs. Corp.
It also now seems consistent with SBA’s view that protégé firms cannot be held to the same standards as their mentor firms but can and should be required to meet some evaluation or responsibility criteria. This is certainly not what many protégés were looking for and this protest seemed to backfire on protégés now requiring them to provide more than they were under the original RFP. The concern is that this modification may create a situation where some mentor-protégé teams, with new and small protégés, wasted months of time and funds chasing a CIO-SP4 RFP for which they may now not be eligible. Granted, this would only be for a protégé with zero experience or past performance in any of the functional areas (as the protégé need only provide one and it can be in any of the areas), but this could still impact certain teams. While this is an unfortunate scenario, it may be more in line with what GAO and even SBA would allow.
- Date and Manner of Submission
The date and manner in which to submit the proposal revisions was also changed. All proposal revisions are now due by 5:00 PM ET, January 21, 2022. Only those offerors who submitted a proposal as of August 27, 2021, may submit proposal revisions. The only proposal revisions that will be accepted are those which address changes to sections L.5.2.1 through L.5.2.4 and corresponding sections on the self-scoring sheet. Further, Amendment 12 removed the requirement that offerors submit their proposals via the NIH Secure Email and File Transfer Service. It is now unknown how to submit proposal revisions, but NIH provided that the “method of submitting a proposal revision (e.g., email address or any other method) will be provided to offerors through another amendment at a later date.” Therefore, offerors should stay tuned for the next amendment, which should notify them on how to submit their proposal revisions. Lastly, the amendment changed the Procuring Contract Officer (PCO) for agency-level protests from Rose Schultz to Ricky Clark.
- Important Takeaways
In conclusion, mentor-protégé arrangements with small business mentors that did not submit two experience examples per task order area—and/or with a protégé firm that did not submit at least one experience example for any of the task order areas should now submit a proposal revision to ensure they are fully compliant with the new requirements. Further, if a protégé is not experienced in any of the key areas, that could be a major problem for those teams making them ineligible to bid. These proposal revisions are due 5:00 PM ET, January 21, 2022, but the method of submission is still unknown, so mentor-protégé arrangements should be on the lookout for a future amendment describing how.
If you have questions concerning the CIO-SP4 RFP, please contact Cy Alba, the author of this Client Alert, or a member of PilieroMazza’s Government Contracts Group. Special thanks to Daniel Figuenick for his assistance with this Client Alert.