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I am looking for the esteemed Demi-Gods of Govcon team's recommendations on the following:

FAR 16 Task Order procurement under an IDIQ among 6 holders.  Proposals submitted 10 months ago and oral presentations conducted 2 months ago but no award yet.   Key Personnel individuals had to be proposed by the offerors under one of the IDIQ labor categories (discretionary quals in one of the categories).   Evaluation Procedures did not specify that Key Personnel resumes would be evaluated but since the RFTOP required that Key Personnel be proposed, isn't it assumed that KP would be evaluated?    One of the offeror's proposed Program Manager Key Personnel informs the offeror that he is no longer available due to terminal illness.  Question:  does the offeror notify the Agency and propose new Key Personnel person of equal qualifications at this point?  Do they wait for the award?  If they notify the agency now, does the Agency have to open discussions in order to allow substitution even though this is FAR 16 procurement and no competitive range is established?  What do you recommend the offeror do in this case?

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Based on that, I wouldn’t do anything.  If you find yourself selected for award, approach the CO and COR with the issue and a qualified replacement.  It’s unreasonable to assume the same personnel are available almost a year later.

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...just to clarify, Tzarina...there is no key personnel solicitation and/or contract clause in the Section H Special Contract Requirements or elsewhere?

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49 minutes ago, Tzarina of Compliance said:

Thank you @formerfed Do you believe that this is okay because this is a Task Order and not a FAR 15 acquisition or just because the timeframe is unreasonable and the RFTOP does not specifically require evaluation of Key Personnel?

Chiefly because of the timeframe.  As long as you offer a comparable replacement, there shouldn’t be pushback. 

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29 minutes ago, Neil Roberts said:

...just to clarify, Tzarina...there is no key personnel solicitation and/or contract clause in the Section H Special Contract Requirements or elsewhere?

Section H Says Key Personnel :  Project Manager, Deputy PM and Third Position TBD (positions and personnel to be proposed by the offeror).    All replacements for Key Personnel will require approval of the CO.  

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47 minutes ago, Tzarina of Compliance said:

Section H Says Key Personnel :  Project Manager, Deputy PM and Third Position TBD (positions and personnel to be proposed by the offeror).    All replacements for Key Personnel will require approval of the CO.  

That’s standard procedures.  As I mentioned if you get the award, tell the CO the identified personnel aren’t available now.  But offer suitable and equally qualified replacements. 

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2 hours ago, Tzarina of Compliance said:

 Question:  1) Does the offeror notify the Agency and propose new Key Personnel person of equal qualifications at this point?  2) Do they wait for the award?  3) If they notify the agency now, does the Agency have to open discussions in order to allow substitution even though this is FAR 16 procurement and no competitive range is established?  4) What do you recommend the offeror do in this case?

1) With the usual caveats (do what the solicitation says, depends on the details of the specific case, etc.) - Yes, they definitely should notify and probably have to notify.   Change to key personnel would (might) be a material change to the proposal.  An evaluation and award, conducted when the winning proposal did not reflect a known material change, can be successfully protested. See Greenleaf B-293105.18. https://www.gao.gov/decisions/bidpro/29310518.pdf

2) What the solicitation states is important, and so forth.  But generally yeah, the Agency has to allow the substitution if notified and update their source selection process (like the evaluation part that covered KP) accordingly.   However, I could see circumstance where the CO could legitimately toss out the proposal, or allow everyone to update proposals.  The fact that proposals were submitted 10 months ago suggests the Agency should accommodate changes...but who knows. 

3) If I am the offeror, I tell them of the change and the circumstance around it.  I'd then look carefully at the proposal and figure out what has to change along with that KP (maybe nothing, maybe a lot of stuff).  I ask the CO if I can submit a revised proposal reflecting the change in KP and any other resulting changes to the proposal (maybe that KP's labor rate or LOE changes, and so all the pricing data needs to be updated).  If CO allows it, then I'd ask for any specific instructions about revising the proposal and check those instructions to make sure I can change everything I need to change.  

 

If I were the CO, and I find out about the KP post-award, I would be at the minimum be annoyed about it and would suspect I did not get notification for some nefarious reason.    

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If I were the CO, and I find out about the KP post-award, I would be at the minimum be annoyed about it and would suspect I did not get notification for some nefarious reason.    

A CO shouldn’t allow a procurement to take 10 months on a simple task order IDIQ contract without communicating status to offerors.  There is no excuse for that.  If there’s a delay with evaluations, the CO needs to escalate the matter within the agency.  If there’s a funding problem, the CO needs to let offerors know and place the action on hold.  Regardless the CO has a responsibility to communicate.  The CO should provide for adjustments by offerors.  It’s not a one way street.  Why should the CO be annoyed if an offeror didn’t provide notification if the CO didn’t demonstrate professional courtesy?

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39 minutes ago, formerfed said:

Any CO that allowed a procurement to take 10 months on a simple task order IDIQ contract without communicating status to offerors shouldn’t have a warrant.  There is no excuse for that.  If there’s a delay with evaluations, the CO needs to escalate the matter within the agency.  If there’s a funding problem, the CO needs to let offerors know and place the action on hold.  Regardless the CO has a responsibility to communicate.  The CO should provide for adjustments by offerors.  It’s not a one way street.  Why should the CO be annoyed if an offeror didn’t provide notification if the CO didn’t demonstrate professional courtesy?

Thanks all.   @formerfed made me look at validity of the offer and it expired at 9 months (!!!! last month) and no extension has been requested (🙄 typical), so this works with timing and also with any potential protests.   As always..... merci

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I like the initial wording of formerfed’s last response. Let ‘em have it. Looks like they either awarded and didn’t bother to notify anyone else or let the proposals expire...🤪

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@Tzarina of Compliance  this is not to disagree with anything posted in this thread but you mention IDIQ, Task Order, and RFTPO.  I am always reminded when I see questions regarding IDIQs that the terms and conditions  of the parent IDIQ rule with regard to "fair opportunity" process.   You and the several have mentioned what the RFTPO says or does not say but I highly suggest that you review the parent IDIQ as well.  It could in fact set the parameters of the key personnel evaluation and key personnel replacement and that is why the RFTPO simply asked for names.

With this said I am guessing the parent IDIQ is silent because it sounds like the agency managing has less than good hygiene in the IDIQs' utilization.   However you should still review the parent IDIQ, just saying it rules.   My starting point for saying the parent rules is FAR Clause 52.216-18 at paragraph (b)  that will usually be in all IDIQs.  

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57 minutes ago, C Culham said:

@Tzarina of Compliance  this is not to disagree with anything posted in this thread but you mention IDIQ, Task Order, and RFTPO.  I am always reminded when I see questions regarding IDIQs that the terms and conditions  of the parent IDIQ rule with regard to "fair opportunity" process.   You and the several have mentioned what the RFTPO says or does not say but I highly suggest that you review the parent IDIQ as well.  It could in fact set the parameters of the key personnel evaluation and key personnel replacement and that is why the RFTPO simply asked for names.

With this said I am guessing the parent IDIQ is silent because it sounds like the agency managing has less than good hygiene in the IDIQs' utilization.   However you should still review the parent IDIQ, just saying it rules.   My starting point for saying the parent rules is FAR Clause 52.216-18 at paragraph (b)  that will usually be in all IDIQs.  

Good point, looked at the IDIQ, nothing on evaluation except for this:

b) The Contractor must furnish key personnel as stated in task orders.

(c) The key personnel specified in task orders are considered to be essential to the work being performed thereunder. Prior to replacing any of the specified individuals, the Contractor must immediately notify both the Contracting Officer and USAID Cognizant Technical Officer reasonably in advance and must submit written justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the program. No replacement of key personnel must be made by the Contractor without the written consent of the Contracting Officer.

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20 hours ago, Tzarina of Compliance said:

One of the offeror's proposed Program Manager Key Personnel informs the offeror that he is no longer available due to terminal illness.  Question:  does the offeror notify the Agency and propose new Key Personnel person of equal qualifications at this point?

Would this be a revision to the task order proposal?  If so, what authorizes such a revision?

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2 hours ago, Retreadfed said:

Would this be a revision to the task order proposal?  If so, what authorizes such a revision?

I am genuinely curious about the answer to this question. There is a good presentation about unavailable key personnel here.  However, its grounded in FAR 15 and  relies on the concept of 'discussions.'  Under other, less rigorous procedures (say, 16.5 or 8.4) or in the case where the RFP did not have an explicit prohibition on late proposal modifications, I wonder discretion the CO would have to respond to a change in KP.

For example of something that would not fly under FAR 15 ( I think) -  Say we've done the technical evaluation considering KP.  Then GVT receives notice of change to KP.   Could the GVT then determine the two KP are equivalent and let the evaluation stand as is?  Perhaps allow for a revision to the proposal to update KP, without notifying or undertaking further negotiations with any other offerors?    

 

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1 hour ago, General.Zhukov said:

For example of something that would not fly under FAR 15 ( I think) -  Say we've done the technical evaluation considering KP.  Then GVT receives notice of change to KP.   Could the GVT then determine the two KP are equivalent and let the evaluation stand as is?  Perhaps allow for a revision to the proposal to update KP, without notifying or undertaking further negotiations with any other offerors?

I think something like that should be accounted for in the solicitation. If it goes to the GAO, they will probably fall back on their FAR part 15 case law to fill in the blanks.

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17 hours ago, General.Zhukov said:

I am genuinely curious about the answer to this question. There is a good presentation about unavailable key personnel here.  However, its grounded in FAR 15 and  relies on the concept of 'discussions.'  Under other, less rigorous procedures (say, 16.5 or 8.4) or in the case where the RFP did not have an explicit prohibition on late proposal modifications, I wonder discretion the CO would have to respond to a change in KP.

For example of something that would not fly under FAR 15 ( I think) -  Say we've done the technical evaluation considering KP.  Then GVT receives notice of change to KP.   Could the GVT then determine the two KP are equivalent and let the evaluation stand as is?  Perhaps allow for a revision to the proposal to update KP, without notifying or undertaking further negotiations with any other offerors?    

 

 

15 hours ago, Don Mansfield said:

I think something like that should be accounted for in the solicitation. If it goes to the GAO, they will probably fall back on their FAR part 15 case law to fill in the blanks.

Keeping in the realm of multiple award IDIQs there is the consideration of whether it would be GAO or the agency ombudsman which then reaches back to CO discretion that General notes. 

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