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Superior knowledge


rsenn

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That the Government has a duty to disclose superior knowledge to a contractor is established law.  I find nothing that says the Government should disclose superior knowledge to offerors, however. 

Is there anything that says that the Government should disclose superior information to offerors?

I am thinking in particular to about the clause at 52.222-17, Nondisplacement of Qualified Workers.  The Government would usually know the names of the people it wishes to protect with that clause, and have relevant contact information, while most offerors would not.  An incumbent might, but others probably not.

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rsenn, I think you have misunderstood what constitutes superior knowledge.  One of the elements is that the government has knowledge of information that is vital to bidding or proposing but does not disclose it.  Thus, the government's obligation is to disclose superior knowledge before contract award so that offerors can make whatever use of that knowledge that they see fit. 

As for 52.222-17, have you read paragraph (d) of that clause?  It seems to address your concern.

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Thanks, Retreadfed.

      The clause talks to passing information from the outgoing contractor via the government to an incoming contractor.  It does not provide that offerors should get the information early enough to be useful in proposal preparation.

       As to the vital to bidding or proposing aspect, I guess it depends on your idea of vital.  If a proposal can be submitted, no matter how blindly or ill informed, is the information vital to bidding or proposing?

       The clause imposes an obligation on the incoming contractor, which each of the offerors intends to become.  This information would certainly be helpful when proposals are prepared, and usually the government has knowledge of who the incumbent workforce is, especially when they work on government site.  

      This looks very much to me to be relevant superior information that the government has.   Now, is there anything that directs that the government provide it to offerors?  If there is I'd like to find it and use that information to call for the incumbent workforce information when I'm proposing.

     

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As a general rule, a solicitation must be drafted in a fashion that enables offerors to intelligently prepare their proposals and must be sufficiently free from ambiguity so that offerors may compete on a common basis. Raymond Express Int’l, B-409872.2, Nov. 6, 2014, 2014 CPD ¶ 317 at 9. However, there is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror; to the contrary, an agency may provide for a competition that imposes maximum risks on the contractor and minimum burdens on the agency, provided the solicitation contains sufficient information for offerors to compete intelligently and on equal terms. Phoenix Environmental Design, Inc., B-411746, Oct. 14, 2015, 2015 CPD ¶ 319 at 3.

rsenn:

When I read your post, the above quote from a GAO decision crossed my mind.  You will see the same or similar verbage, depending on the protest circumstances, over the years.  If this is the kind of information you are looking for, look here

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If one thinks about it carefully, the incumbent contractor's employees are its resources, possess institutional knowledge and represent a firm's intellectual property. They are not the government's resources. There is no reason why the government should be compelled to share or require an incumbent contractor to share that information with competitors before award of a follow on contract to another firm.  It's as simple as that in my small mind.  

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There is a disconnect in FAR 52.222-17 between what a successor contractor is required to do and how it is to get the information it needs to comply with the clause.  A successor contractor's primary obligation under the clause is to offer employment to "those service employees employed under the predecessor contract whose employment will be terminated as a result of award of this contract or the expiration of the contract under which the service employees were hired."  However, the clause does not say how the successor is to know this.  That information would seem to be almost exclusively within the knowledge of the predecessor contractor and it may not become apparent to the predecessor contractor until some time after the new contract is awarded.

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I agree with Retreadfed here, except that I don't see the disconnect that he referred to above. The clause doesn't necessarily contemplate or compel sharing employment information during a follow on competition  

The clause is meant for the primary benefit of displaced employees, not for the predecessor or successor contractors. Yes, the predecessor contractor might have other assignments available. Only it would know that information, not the government. 

There is no real basis to claim superior knowledge by the government here, in my opinion.  

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I agree with the conclusion that it is not a matter of superior knowledge.

I would add that FAR subpart 22.12, and Its supporting EO also provide a benefit to the government in that use of predecessor employees could be concluded as being efficient.  The government should be concerned in the process of solicitation of the need that the incumbent does not start robbing (my term) employees in the preceding period to possible new contract to shelter them from the requirement of first right to a possible new contractor.

Also the new contractors approach to the service may actually have less staffing.  So might the incumbent for that matter.

All in all in my view since there are so many considerations  for each contractor to make as well as the government I just don't see how superior knowledge fits.

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Thanks, Guys.

     I still believe the identities of of the people in the current workforce (along with what they are doing and their contact information) is relevant and when the government has it (as they would whenever the workforce works on government site), it is superior knowledge. 

    Evidence that it is relevant is that offerors spend considerable time and effort trying to find out this information.  Most of the companies that I have worked for make that a task of the recruiting team to try to figure it out.  And, when they have been the incumbent, have tried what they can to keep others from finding it out.  It's advantageous to know, and advantageous to keep competitors from knowing.

    And, especially when the workforce works on government site, the government has the identities of the workforce members, along with information about what they are doing and much of their contact information.   

    Since it is relevant, relevant enough to have an impact on the offerors' solutions, and the government has it, I believe it qualifies as superior knowledge.

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rsenn, following your logic, the government would have to disclose labor rates, indirect cost rates, management plans and staffing plans of incumbent contractors to competitors.  I don't think you want to go that far, particularly in light of 18 U.S.C. 1905.  As Joel said, a contractor's employees are frequently the contractor's most valuable assets and they are generally desirous of protecting those assets from being pirated by competitors.  As such, in my experience, if a FOIA request is filed asking for the information you seem to be wanting, the government will deny it under exemption (b)(4) and sometimes (b)(6) depending on the request.  In regard to (b)(6), some of the information you are asking for could be covered by the Privacy Act so the government cannot release that information without the permission of the individual concerned.

If you read the cases concerning superior knowledge you will find that information concerning another contractor's performance, which includes its workforce, is not the type of information that is covered by that doctrine.  Instead, superior knowledge deals with aspects of the work to be done where the government knows something the contractor does not and the contractor cannot reasonably be expected to have that knowledge.  A prime example of this is it is necessary to have access to classified information in order to accomplish the contract, but the government does not disclose this information to offerors.  This is quite different from what you are talking about, particularly where you have a wage determination and a statement of work that describes what needs to be done so that you can determine what labor categories are required.  Further, if a T&M contract is contemplated, the government should be listing labor categories in the RFP.  Like Joel and Carl, I just don't see superior knowledge applying here. 

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On 5/5/2017 at 7:17 AM, rsenn said:

Is there anything that says that the Government should disclose superior information to offerors?

Cibinic, Administration of Government Contracts, 5th edition, chapter 3 Risk Allocation, B. Nondisclosures. Pages 241 - 251. "Government liability for nondisclosure of information is based on an implied duty to disclose information that is vitaal for the preparation of estimates or for contract performance." 

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Ok guys, let's look at a common enough situation.  The RFP is out, and the labor category descriptions are written to the incumbent workforce.  The RFP is clear enough in displaying that the government wants stability and continuity, not a new workforce.   Knowing who the current workforce is certainly seems to be vital information, and it is known to the government but not to offerors other than the incumbent and perhaps his subcontractors.  I call it superior knowledge that should be disclosed, although from earlier comments, it looks like most of you do not.

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13 hours ago, rsenn said:

labor category descriptions are written to the incumbent workforce

rsenn -   Are you sure?   

From experience of being a CO on a variety of service contracts or involved in others from tree planting , janitorial, commercial laundry, to a nationwide IT support  some how your quote does not ring true to me.   From my view the Government describes work to be done or now days the end result expected and the contractor develops the labor mix they feel will accomplish the work or in other words develops the labor category descriptions they expect.   Hopefully the contractor uses the most current Service Contract Directory of Occupations to assist so the employees are  properly categorized in the appropriate SCA wage occupation for the work they will be performing. 

By simple example the company running a nursery for the Government hires what they call a "forestry technician" but that position is truly  doing what the Directory calls a "tree planter, mechanical" and hopefully the contractor is paying at that rate (or more).  A successor contractor then decides not as many tree planters, mechanical  are needed but intends to use "tree planters"  (more of them probably) and makes offers to the incumbent employees to work at a lessor rate on the same contract, running the nursery.  

To me a simple example to my aforementioned "Also the new contractors approach to the service may actually have less staffing", or different staffing approach, so I get lost in how the superior knowledge applies.  It would seem the contractor has the superior knowledge of how they intend to perform the work.

Using my example it would seem to me that the only way your position would be supported is if the solicitation were to specifically state that a contractor must have X number of "tree planters, mechanical " to perform the work.  In this new world of performance based contracting I would think such a situation would be rare.  But again that is just how I see it.

Hope this helps.

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I don't think that this issue is resolvable through endless debate.  rsenn can invest in legal counsel and litigate the issue if rsenn wants to prove his/her point.

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I agree with Joel.  The way I see it, rsenn is not really concerned with government superior knowledge, but with a perceived competitive advantage an incumbent contractor may have.  If such an advantage exists, it would not be an unfair competitive advantage but merely an attribute of being an incumbent.  GAO has addressed this issue several times, and without doing a search to confirm this, my recollection is that GAO has always denied the protest.

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Guest PepeTheFrog
1 hour ago, Retreadfed said:

rsenn is not really concerned with government superior knowledge, but with a perceived competitive advantage an incumbent contractor may have

 

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1 hour ago, Retreadfed said:

I agree with Joel.  The way I see it, rsenn is not really concerned with government superior knowledge, but with a perceived competitive advantage an incumbent contractor may have.  If such an advantage exists, it would not be an unfair competitive advantage but merely an attribute of being an incumbent.  GAO has addressed this issue several times, and without doing a search to confirm this, my recollection is that GAO has always denied the protest.

I didn't want to continue the debate but the government should not have the right to share personal employee and company personnel information, even if it does have knowledge of contact information. Note that the clause referred to above in the discussion specifically concerns treatment of displaced employees, not all employees.  The employees generally would not be in a displaced status until after award of a follow on contract to another firm and then only if they arent going to transfer to other assignments with the same firm. 

If rsenn wants to determine if the government has a duty to share all employees' personal information and company information with the general public then rsenn  can pursue it through legal action. I think that it would be a waste of time and money though. 

 

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