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Roma

Sharing Incumbent Information - Where do you draw the line?

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Looking for some advice here... I'm a Contract Specialist with a pending competitive action under GSA FSS IT Schedule 70 for IT services.  We have two incumbents in place under four separate orders, and all will expire soon.  We are in the process of re-competing a single new order for the continued services. The RFQ has been posted to eBuy as a SB set-aside and we are currently accepting questions.  We have also included 52.222-17 non-displacement of qualified workers in the solicitation.  Of course, as a result, we are getting a lot of questions asking for details about the incumbent(s) and their previously provided effort, including details about their employees.  My question is, where do I draw the line?  What is acceptable to share, and what incumbent information should be protected?  Both of the incumbents are also eligible to compete for the new order.

The particulars that may be important in this scenario is that the new order is more all inclusive of services that had previously been provided under four smaller orders.  The previous orders had mostly been issued as Labor Hour contracts (but not all).  We have written the new requirements in a performance work statement format as FFP contract type with separately identified tasks.  So far, we have released the previous award numbers, incumbent company's names, the period of performance for each order, and the total awarded amount of each order.  Within the PWS for the new order we also included historical information such as "historically this task has been performed by 2 contractor FTE", etc.  But many of the questions we are getting are asking for far greater detail such as: "Are you satisfied with the incumbent workers (meaning the incumbent contractor's employees)? and if so, can you provide their POC detail and name so we can gain an understanding of what their desired compensation would be? Can you provide detail as to how long they have been supporting in this capacity?"  They have also asked for historical level of effort (in hours).

I'm trying to determine how much information we need to provide, how much should we provide, and how do we make or keep the playing field fair?  What is typical? What is not ok to reveal?  We are truly open to all interested parties, whether they be an incumbent or a new vendor, and I want to be sure to maintain the integrity of the competition.  What is your advice?

Thanks!

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A question first.   You indicate that 52.222-17 is in the solicitation but was the same clause in the preceding task order/contracts?

Also you may find this GAO decision helpful.   There are probably other decisions as well that others might refer you to.

https://www.gao.gov/products/D13030#mt=e-report

Edited by C Culham
To add GAO decision.

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Guest Vern Edwards
17 hours ago, Roma said:

we are getting a lot of questions asking for details about the incumbent(s) and their previously provided effort, including details about their employees.  My question is, where do I draw the line?  What is acceptable to share, and what incumbent information should be protected?  Both of the incumbents are also eligible to compete for the new order.

Make a catalog of the information that you have. Remember that just because you have information does not mean that you can or must disclose it.

After you know what you know, then:

First, talk to your attorney advisor, because you, personally, can get into a lot of trouble for disclosing something that the law prohibits you from disclosing.

Second, take a look at 18 USC 1905, Disclosure of confidential information generally:

Quote

Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311–1314), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.

Third, check with your FOIA representative about your agency's disclosure rules.

Fourth, check the Procurement Integrity rules in FAR 3.104.

Finally, think twice before releasing anything that you do not know to be public information.

17 hours ago, Roma said:

I'm trying to determine how much information we need to provide, how much should we provide, and how do we make or keep the playing field fair?

Fairness does not require that you disclose the incumbents' business information or information about your agency's relations with them. Disclose what you know about what you will require from the new contractor. But you may not be free to disclose information you have about the incumbents' policies and operations, their relations with their employees, and how they went about doing their work.

Quote

It is well-settled that a particular offeror may posses unique advantages and capabilities due to its prior experience under a government contract or otherwise and the government is not required to attempt to equalize competition to compensate for it, unless there is evidence of preferential treatment or other improper action. Gonzales Consulting Servs., Inc., B–291642.2, July 16, 2003, 2003 CPD para. 128 at 7. The existence of this advantage, as alleged here, does not by itself constitute preferential treatment by the agency, nor does it otherwise represent an unfair competitive advantage. Government Bus. Servs. Group, B–287052 et al., Mar. 27, 2001, 2001 CPD para. 58 at 10.

Matter of: Council for Adult & Experiential Learning, GAO B-299798.2 (Aug. 28, 2007)

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Since you referenced FAR 52.222-17, I presume that the order will be subject to the SCA and contain 52.222-41.  If that is the case, look at subsections (f) and (n) of that clause which might be helpful.

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3 hours ago, C Culham said:

A question first.   You indicate that 52.222-17 is in the solicitation but was the same clause in the preceding task order/contracts? 

Also you may find this GAO decision helpful.   There are probably other decisions as well that others might refer you to.

https://www.gao.gov/products/D13030#mt=e-report

The clause 52.222-17 was not specifically added at the order level for the previous orders, nor was it added at the BPA level (3 of the 4 orders were made under a multiple award BPA), however, it WAS included within the GSA Schedule contracts.

Thank you for that GAO decision - that is helpful!

1 hour ago, Retreadfed said:

Since you referenced FAR 52.222-17, I presume that the order will be subject to the SCA and contain 52.222-41.  If that is the case, look at subsections (f) and (n) of that clause which might be helpful.

Yes, the current contracting team believe that parts of the order are subject to SCA and include 52.222-41.  Thank you for drawing my attention to (n)!  Very helpful!  Unfortunately, the previous BPA & orders had not been let with the understanding that SCA applied due to the computer employee exemption; however, our contracting team has since changes hands, going forward, we (the new team) have reevaluated that approach and believe that although many positions within the requirements are exempt under the computer employees rule, not all of them are exempt, so we are being careful to also address SCA going forward.

 

Thank you all for your advice!  Greatly appreciate it!

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