The National Institute for Health Information Technology Acquisition and Assessment Center (NITAAC) released its draft request for proposals (the "Draft RFP") for the new $40 billion Chief Information Officer-Solutions and Partners 4 (CIO-SP4) Government-Wide Acquisition Contract (GWAC) (succeeding the popular CIO-SP3) earlier this year. The final solicitation is anticipated to be released soon, with proposals due early next year.
In the draft CIO-SP4 RFP, offerors will be required to self-score based on, among other items, corporate experience projects and management factor certifications. The Draft RFP does not allow for consideration of the qualifications of subcontractors of corporate affiliates. However, the Draft RFP indicates that the U.S. Government will consider all members of a contractor teaming arrangement under FAR 9.601(1) if the offeror submits all required documentation for the contractor teaming arrangement and each member has an adequate accounting system.
The Draft RFP's language about contractor teaming arrangements has caused confusion as contractors are generally more familiar with FAR 9.601(2) teaming arrangements – where a potential prime contractor agrees with one or more other companies to have them act as its subcontractors – than those under FAR 9.601(1) – where two or more companies form a partnership or joint venture (a "JV/Partnership") to act as a single potential prime contractor. Note that co-prime contractor teaming arrangements, which generally are possible under General Services Administration Federal Supply Schedule contracts, do not fall under FAR 9.601 at all and thus are not included as a possible bidding option for CIO-SP4 under the Draft RFP.
Given the potential advantages of a JV/Partnership team submitting a proposal as a potential prime contractor for CIO-SP4, potential offerors may want to consider this type of structure to enhance their offer.
Although joint ventures hoping to qualify for a small business award will continue to be limited to structures that meet the Small Business Administration's requirements in 13 C.F.R., other offerors should remember that large business joint ventures are not constrained by these same requirements (e.g., those applying to mentor-protégé joint ventures which we have addressed previously in this blog post).
Therefore, offerors considering forming a large business JV/Partnership team for CIO-SP4 or other competitions that favor these arrangements have more flexibility to decide how to address various issues including:
- Who will be the managing member or other point of contact to liaise with the Government?
- What limitations on the internal controls of the JV/Partnership will the individual members want to implement?
- What will be the form of the JV/Partnerships governance structure?
- Will the JV/Partnership be populated?
- What, if anything, will the individual member contribute to the JV/Partnership?
- How will proposal decisions be made?
- What will the work share be between the individual members and how will changes be made?
- How will the costs and profits of the JV/Partnership be divided?
- Can the individual members of the JV/Partnership leave or be removed from the JV/Partnership?
- How will the property of the JV/Partnership be furnished, treated, or shared among the members?
- What information will be reported out to the JV/Partnership's members?
- When and how will the JV/Partnership be terminated?
The list above is merely a preliminary list of items for the various offerors to consider and indicates just how far CIO-SP4 may stray from standard JV/Partnership team agreement fare.
Originally Published by Morrison & Foerster, December 2020
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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