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Situation 1: My agency is allowing the block 16 signatory to be the person with this title "Head, Information Security/Assistant Security Manager" which is fine. However, the agency is allowing this person to use the title "Contracting Officer for Security" in Block 16b. I found this be a little odd and inquired about it to the person. The response was that our higher command appointed this person as a contracting officer for the purposes of signing the 254. This person does not fit the FAR 1.6 criteria or the DAWIA standards to have a warrant. This person does not ever award contracts, obligate funds, etc, etc. This person does not work in the contracts division and has no valid reason to be a contracting officer. Please tell me if I'm crazy (no reference or puns to my handle here, please).

Situation 2: The above person has suddenly changed course to a well established and long held ANGENCY procedure that a vendor can be granted a facility clearance after award to the opposite "... that a facility clearance cannot be granted until a contract has been awarded." When we solicit for a new action that requires a DD 254 (and is clearly stated in the RFP) we usually get several proposals from companies that do not have a facility clearance. We always state in Section M of the RFP that all interested parties should have the ability to fulfill this requirement in XX number of months before being allowed to begin work in any classified part of the resultant contract. Now the Head, Information Security/Assistant Security Manager will not allow a contract to be awarded until the facility clearance is granted. It is my opinion that this is going to restrict competition...are we to state that ONLY vendors with approved facility clearance will be evaluated for award? Please render your thoughts.

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Sit 1: FAR 4.403??Responsibilities of contracting officers. Emphasis added

(a ) Presolicitation phase. Contracting officers shall review all proposed solicitations to determine whether access to classified information may be required by offerors, or by a contractor during contract performance.

(1) If access to classified information of another agency may be required, the contracting officer shall?

(i) Determine if the agency is covered by the NISP; and

(ii) Follow that agency?s procedures for determining the security clearances of firms to be solicited.

(2) If the classified information required is from the contracting officer?s agency, the contracting officer shall follow agency procedures.

(b ) Solicitation phase. Contracting officers shall?

(1) Ensure that the classified acquisition is conducted as required by the NISP or agency procedures, as appropriate; and

(2) Include?

(i) An appropriate Security Requirements clause in the solicitation (see 4.404); and

(ii) As appropriate, in solicitations and contracts when the contract may require access to classified information, a requirement for security safeguards in addition to those provided in the clause (52.204-2, Security Requirements).

(c ) Award phase. Contracting officers shall inform contractors and subcontractors of the security classifications and requirements assigned to the various documents, materials, tasks, subcontracts, and components of the classified contract as follows:

(1) Agencies covered by the NISP shall use the Contract Security Classification Specification, DD?Form?254. The contracting officer, or authorized representative, is the approving official for the form and shall ensure that it is prepared and distributed in accordance with the Industrial Security Regulation.

(2) Contracting officers in agencies not covered by the NISP shall follow agency procedures.

Sounds like your agency has guidance that designates the Security Manager to be the CO's rep. Since it is a CO responsibility to approve the form, I would hope that the CO is the one to designate their authorized rep for security matters.

Sit 2

NISPOM states

2-100. General. An FCL is an administrative determination that a company is eligible for access to classified information or award of a classified contract. Contract award may be made prior to the issuance of an FCL. In those cases, the contractor will be processed for an FCL at the appropriate level and must meet eligibility requirements for access to classified information. However, the contractor will not be afforded access to classified information until the FCL has been granted. The FCL requirement for a prime contractor includes those instances in which all classified access will be limited to subcontractors.

Contractor who doesn't have a clearance should request sponsorship during solicitation and CO should prepare and submit the sponsorship letter, citing the RFP as the reason. That allows the contractor to begin discussions about getting the FCL with their supporting DSS office while proposals evaluations are ongoing. If the contractor does not receive the award, the CO should withdraw the sponsorship request. One thing we do is prepare the sponsorship request if asked but we don't submit it to DSS until and unless the contractor actually submits a proposal. It's a form letter so we include information in how to request sponsorship if needed in our solicitation cover letter.

Your Head, Information Security/Assistant Security Manager is wrong and should re-read the NISPOM. However - if schedule is a critical performance factor, the delay that would result from waiting for an awardee to be granted their FCL could be evaluated as a risk or weakness from the technical side. It could not be seen as a deficiency since it's a chicken and egg process with DSS and you can't get the FCL unless you have work that requires it.

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Situation 2: The above person has suddenly changed course to a well established and long held ANGENCY procedure that a vendor can be granted a facility clearance after award to the opposite "... that a facility clearance cannot be granted until a contract has been awarded." When we solicit for a new action that requires a DD 254 (and is clearly stated in the RFP) we usually get several proposals from companies that do not have a facility clearance. We always state in Section M of the RFP that all interested parties should have the ability to fulfill this requirement in XX number of months before being allowed to begin work in any classified part of the resultant contract. Now the Head, Information Security/Assistant Security Manager will not allow a contract to be awarded until the facility clearance is granted. It is my opinion that this is going to restrict competition...are we to state that ONLY vendors with approved facility clearance will be evaluated for award? Please render your thoughts.

Take a look at this decision B-297825, Allied Protection Services, Inc., March 23, 2006. You can see it here:

http://www.gao.gov/decisions/bidpro/297825.htm

Here is an extract:

Quote

The Competition in Contracting Act of 1984 requires that agencies specify their needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. 10 U.S.C. sect. 2305(a)(1)(A)(i) (2000). The determination of a contracting agency's needs and the best method for accommodating them is a matter primarily within the agency's discretion. Tucson Mobilephone, Inc., B- 250389, Jan. 29, 1993, 93-1 CPD para. 79 at 2, recon. denied, B-250389.2, June 21, 1993, 93-1 CPD para. 472. Where a requirement relates to national defense or human safety, as here, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest level of reliability and effectiveness. Caswell Int'l Corp., B-278103, Dec. 29, 1997, 98-1 CPD para. 6 at 2; Industrial Maint. Servs., Inc., B-261671 et al., Oct. 3, 1995, 95-2 CPD para. 157 at 2. Generally, the fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency's needs. Computer Maint. Operations Servs., B-255530, Feb. 23, 1994, 94-1 CPD para. 170 at 2.

Unquote

Notice the last sentence. If you have a rational basis for requiring that the contractor possess a clearance at the time it submits its proposal, you will be OK. The Allied Protection decision sets out the agency's rationale for requiring the contractor to possess a clearance at the time of proposal submission.

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I think a key point in the decision is this

QUOTE

In support of the RFP provision at issue here, the agency states that the lengthy process involved in obtaining a facility clearance, and the possibility of a negative outcome that would render a potential awardee unable to perform the contract, could make the agency vulnerable to delays in contract performance. Given the agency?s need to implement increased security for the Pentagon and other facilities as soon as possible, which requires minimizing delays in awarding the contract and expeditiously completing the transition to the heightened security standards, we think that the record establishes that the facility clearance requirement and the agency?s refusal to sponsor potential awardees for the facility clearance are reasonably related to the agency?s needs.

UNQUOTE

The agency had a choice as to whether or not to allow companies without a clearance to bid. They had the justification to support their choice of not allowing to bid based on the negative impact of a delay in performance. For me, the decision of requiring facility clearance at time of proposal would all be based on the work involved and whether I could adequately describe the harm to the Government should performance be delayed. Or think about it in these terms - if someone protests your RFP as being unduly restrictive would you be able to justify proceeding with an award IAW FAR 33 to your HCA? If so, you've probably got a good case for requiring the clearance at time of proposal.

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