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The NIH has long operated a series of popular governmentwide acquisition contracts through its Technology Acquisition and Assessment Center, or NITAAC. The solicitation for the new vehicle known as CIO-SP4 was barely out before it ran into protests. Since then NITAAC has issued eight amendments to the solicitation and it’s making industry scratch its head. To help sort it all out, one of the protesting attorneys and a partner at Piliero Mazza, Cy Alba, joined Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Mr. Alba, good to have you on.

Cy Alba: Glad to be here.

Tom Temin: And let’s review what your original grounds for protesting the solicitation were in the first place. This goes back, I guess, just barely a couple of months now.

Cy Alba: Yeah. So originally, what happened is they came out with the RFP, and came up with the draft like a year ago, then they came up with the original RFP, they allowed everybody to essentially rely on subcontractors to fulfill various requirements, pretty much every requirement, not just the prime. And then they came up with amendment three, which changed that and said, No, you can only rely upon the prime contractor. And in addition to that, even if you’re in a mentor-protege relationship, which is a special relationship blessed by SBA to allow large businesses potentially to team with small businesses, and they get special advantages, even in that context, you can only use one past performance reference per item from your large business mentor. And that is identical to essentially what they would allow in this amendment for everyone else. And the particular protest, that issue was that you’re not allowed to treat protegees the same as other offer orders. And so it was challenging that to increase it, which they then increased it to two and there were other changes. That was the original protest.

Tom Temin: So it sounds like they were wrong. In your view on two counts. One, they were changing the ground rules as they were going along. And second, they were in somewhat of a conflict with rules from the SBA, which should be governing all small business related procurements. That a fair way to summarize it?

Cy Alba: Exactly.

Tom Temin: So since then, then they have been putting out amendments. As we speak, it’s up to eight, which is got to be making everybody crazy. And in fact, a lot of vendors have said it’s making them crazy, because they have to basically, if you’re changing the basis of the point rating system by which you’re maybe getting a contract on CIO-SP4, that is a huge amount of work. I mean, these solicitations run hundreds of pages and detail. And then the short time periods that the NITAAC gave people to change their bids. Is that also part of the issue here?

Cy Alba: Yeah, I think from a business or practical perspective, that is the main issue that people are having. Because you put out the draft RFP in the summer of last year, almost a year ago today, people start putting teams together, start planning, then you drop the final RFP, then you give people like a month and a half to respond. Their teams are basically already together. And then you say, Well, you can’t use subcontractors, even though you allowed it four weeks ago or two weeks ago, now you change it now you can’t, you can’t change on a dime let like that. So forcing people to switch around is very difficult. And I think one of the main things too, is this idea of a CTA, which is listed all over the RFP, which is a contractor teaming arrangement. That is kind of the nexus of all the problems and all the ills here because it cites to a very particular section of the far which lists two types of CTAs. One is a partnership or joint venture. And the other one is just your standard prime contractor subcontractor relationship. The far is not meant to be like strict rules to follow and how to structure teams, they’re more guidelines for contracting officers, right. And that’s been an issue too, because that’s just they’re using it in a way that’s, that’s I think, inappropriate. And we’ve been called that out, by the way in the draft RFP and ask them through one of the local chambers of commerce here. Ask them to change that and stop using that term because it’s confusing.

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Tom Temin: We’re speaking with Cy Alba. He’s a partner at the law firm Piliero Mazza. Well, let me ask you this, in the larger sense, these big GWACs are open to dozens scores, sometimes hundreds of contractors. Are they being overly fussy and prescriptive in the first place? For something that’s basically a fairly wide open marketplace?

Cy Alba: Yeah, I think so especially because at the end of the day, you have to compete for every task order. So just winning this procurement just gets you it’s a hunting license, you get a seat at the table, and they’re going to be able to prescribe different rules for different task order procurements that come out every agency that orders off of it. Also, I think, if I were on their shoes, I would not be surprised that people are so upset because what’s been happening with category management that the idea of consolidating procurements into these giant procurements is you’re going to get everybody vying for these because if you don’t get a seat at this table, you’re out for five years or until they do some on ramp and that’s critical.

Tom Temin: And is it fair to say that CIO-SP4 has unique opportunities for contractors that they might not have if their say on one of the GSA GWACs or NASA SEWP?

Cy Alba: Yeah, so they’re really focusing on health IT stuff here. But also NITAAC, and every agency that puts these out, they also want people to market it heavily. And they want everything. Ideally, NITAAC would love if every single it procurement the federal government ever made went through here because they get their cut, right. And it helps with their budget. So that just exacerbates this, like everyone’s pushing to consolidate. And at the same time, the agencies wants you to market it to other federal agencies to use it. So if that works, then the people on the outside are really on the outside.

Tom Temin: Sure. Well, on the surface, all of the operators of these GWACs get along together. They don’t say bad things about each other publicly, but they’re fighting tooth and nail, I think for some of the same dollars that could possibly go to any one of them. So is CIO-SP4 off the rails in your opinion? Can it be salvaged or is it simply just a matter of maybe giving contractors more time to reset all of the expectations based on the amendments?

Cy Alba: Yeah, I wish they would give more time, I think, because of the main issue is this, like reorganizing your teams, and this idea of CTAs and things, because the way the rules are set up, especially for small companies, they really need to form joint ventures is like separate entities, whether it’s a partnership, LLC, whatever, and you have to get a cage code. And right now, cage codes are taking 20-to-30 days for DLA to issue that, that’s the agency responsible to issue these cage codes. And if you just give people two weeks or 11 days, in this case, to scramble, there’s not enough time to set up a new entity and get it going, even if you do it perfectly.

Tom Temin: Well, the NITAAC people must know that. Doesn’t anyone ever call up and say, hey guys, what’s going on here? We need another 60 or 90 days and you know it.

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Cy Alba: Yes. And that’s exactly what’s happened. I’ve done that. I know a few colleagues at other firms who I work with who have done that other lawyers and PSC, Professional Services Council, they’ve also requested that, and I guess they’re just not listening.

Tom Temin: Interesting. And just I guess for purposes of background, can you characterize what it is they’re seeking on CIO-SP4 as service oriented as opposed to product oriented because when the first generation of all of these, SEWP and CIO and the others, it was highly product oriented – workstations and hardware, printers and so forth – have they devolved more, I should say evolved more, to service offerings and that’s why you need all of these teaming arrangements.

Cy Alba: Exactly. This one is very much service oriented. In fact, the RFP states that the contract that’s going to be issued will allow for product acquisition, but only if it’s incidental to the work being performed. So it’s really a service oriented contract IT services. So that makes the GSA General, multiple award schedules, which is now one big schedule, the place to go to sell and buy product even through all of this, right, you got SEWP, which is like your software resellers basically, IT value added resellers you got GSA, which really ideal for products, they have services, but it was really built for products. And then these like Oasis and CIO-SP4 for are really for your services, IT services

Tom Temin: And getting back to CIO-SP4 what now is the deadline. And what do contractors need to do as it stands today?

Cy Alba: So the deadline is the third of August. So Tuesday, not much time left, in the middle of the day, in fact, so just a few days left. And I think at this point, I’ve talked to a few people who have said, Wait, here’s our teaming strategy. Can we do this? And I’ve said, well, you’re not really following the JV rules for small businesses. So if your size protested, you’re going to get in trouble because you’re just kind of putting together an amalgamation of companies and not doing it the appropriate way. And I’m not sure there’s enough time, unless you find an LLC that no one’s using, which some people have, and then you just do a quick purchase agreement or something and do it that way. That’s kind of the only thing people have time for right now.

Tom Temin: Well, let’s hope for a rainy weekend. Cy Alba is a partner at the law firm, Piliero Mazza. Thanks so much for joining me.

Cy Alba: Yeah, thanks for having me.

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