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Vern Edwards

Are the rules for using GSA MAS/FSS schedule contracts too complicated?

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I'd like some opinions. Are the rules for using GSA MAS/FSS schedule contracts too complicated? Is anyone confused about how to use the schedules and about what you can and cannot do?

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I think they’re easy enough, but I believe there is a lot of hearsay about schedules, and little things an average CO wouldn’t know until they had a chance to procure such requirements.

For example, I didn’t know you couldn’t procure Architect/Engineering (A&E), and Design-Construction services as defined by the Brooks Act and FAR part 36 on GSA until I actually received my first procurement request for such a requirement.

Also, my very first protest was from a GSA schedule contractor who didn’t get the award. I remember many managers tried to talk me through my protest and several told me GSA procurements were not protestable.

For so many people in my office to think that, someone must have verbally told them as I couldn’t imagine it is written anywhere. Seems it was such a popular belief that GSA has posted on their website that GSA schedule orders may be protested.

http://www.gsa.gov/MASSTUDENT/section7_6.html

“Contrary to popular belief, contractors may protest GSA Schedule orders. The limitation for non-Schedule multiple-award IDIQs found in FAR 16.505(a)(9) does not apply to MAS contracts.”

FAR 8.404 (e) The procedures under subpart 33.1 are applicable to the issuance of an order or the establishment of BPA against a schedule contract.

Maybe at one time before I started this job they weren’t able to be protested, but ever since I’ve been here they have been.

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In addition to deaner's link on protests: https://interact.gsa.gov/wiki/are-schedule-orders-protest-proof

GSA does a good job on their website with intructions, videos, etc. They have a youtube channel.

Well, the fact that you have a youtube channel to explain how your MAS/FSS schedule contracts work could indicate your processes are too complex.

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I think that the lack of specificity in FAR 8.4 is what creates some complication. For a "streamlined" procedure, this allows the section to be more open to interpretation. For example, FAR 8.4 is:

- silent about what clauses to include. I have seen extremes on Task Orders with almost every commercial clause included and some with no clauses included.

- sparsely detailed with source selection guidance compared to FAR Part 13, 14, and 15.

- ambiguous, as results may vary with terms like "brief explanation."

- scattered, with requirements and limitations listed in multiple FAR Parts. For example, FAR Subpart 17.5 includes a requirement for a best procurement approach for GSA FSS orders over $500k. Why couldn't they have included this in Subpart 8.4?

If I were given the pen to rewrite the Subpart, I would try to consolidate all FAR 8.4 requirements; include a disclaimer about using other FAR parts like FAR Part 13 does; and include a section identifying what, if any clauses are required (or whether they flow down from the FSS. Further, I'd add the protest restriction that is in FAR Section 16.505.

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I think the Best Procurement Approach Document is a total waste of time. GSA FSS were invented for the Federal Government to use as an early form of Strategic Sourcing and I do not see why we should have to do a BPAD to use GSA FSS. Anyone who can think can justify using the FSS for whatever requirement they are buying so it is an exercise in writing and tree killing.

Once upon a time protests were not allowed but as we started awarding multi-million dollar delivery orders they became necessary. They should have about a $10M threshold.

I yearn for the days when I could call three companies that I knew I could trust, get a price from each, write it on a memo for file and award. Now it has to be approved by my OSDBU that I set it aside, post it on Ebuy, get bids from companies I don't know who all want to protest the award. Might as well go full and open.

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FAR 8.4 is overall streamlined in my opinion. However, there are some things that could be improved:

(1) Brief explanations should be defined. As a result, DHS does not recommend that strengths and weaknesses are provided to unsuccessful Quoters/Offerors, among other things.

(2) Advice provided on GSA Interact and on GSA’s website seemingly prohibits “discussions”. FAR 8.4 is silent on the issue. However, a good amount of complex FAR 8.4 procurements will likely require discussions, which puts COs in a position to make GSA procurements appear more like FAR 15 procurements.

(3) FAR 8.402 (f) needs to be reconsidered. This generally prohibits the CO from ordering open-market items that exceed $3,000.00 from GSA Schedule contracts. I suspect that for offers received for most GSA Schedule supply procurements exceeding 150k, a majority of offers will contain “open market items”, many of which will likely be unmarked by Quoters/Offerors. I think that it should be permissible to allow up to 10% of vendors’ quotes to contain open-market items so that vendors can best meet the Government requirements. To me it doesn’t make business sense to throw out a Quote on a $1,000,000 requirement because a single $4,000.00 quote item is considered “open market”. This actually really complicates Government IT procurements off of GSA.

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Cs123, good point about the confusion regarding open market items on FSS purchases. Both Vendors and COs get mixed up on this issue a lot. The Rapidscan case comes to mind when the CO tried to allocate the cost of open market services to an item on the FSS to get around the FAR Section 8.402(f) requirement (see B-401773.2; B-401773.3, Rapiscan Systems, Inc., March 15, 2010).

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metteec - I can't help but disagree. Lack of specificity is opportunity for a CO to do what is right in a thoughtful way that satisfies a customer's need. If it is silent, then you can make it up. The clasues are already included, so there is no real necessity to include more clauses, just ensure that the clauses you require are addressed in the schedules contract. Unncessary redundancy to do so otherwise. And the source selection guidance (or lack there of)....this gives flexibility.

Boof - You can still do as you use to. There is no requirement to use eBuy. I often advise COs not to because there is no rule that states it, and if they are assured that they can get the three quotes, thereby satisfying the competition rules as indicated (3 or more...as practiable IAW 8.405). If you know you will get three quotes from three vendors, then why use eBuy?

cs123 - Where does it require that strengths and weaknesses be identified? This can be done as a courtesy, but all that is required is "timely notification" to unsuccessful offerors and the basis for best value decision if they ask. Interestingly enough, a sharp CO pointed out to me that there are none of these requirements for making an award against a BPA IAW 8.405-3, therefore you don't have to say squat (though it could be bad form...depending on the situation). As far as discussion go... you could use the following language in your RFQ "The government reserves the right to hold discussions with one or more of the quoters at any time after receipt of quotations. The government is not required to hold discussions with a quoter whose quote has no reasonable chance for award." Lastly, can you explain more of the logic for your position concerning 8.402(f). This is asked out of ignorance.

I think people make the rules in 8.4 more complicated than needed. Too much mixing in other parts of the FAR that are just inapplicable. There is alot of "wiggle" in 8.4 that makes things easier so long as we don't bog ourselves down with reading into it more than what it says.

2 cents.

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jonmjohnson, I am not sure what you disagree with me about. Did you disagree with the four areas that I said led to confusion or with the recommendations to improve clarity (or both)? Regarding the flow down of clauses, if the issue was so clear as you are making it out to be then there would not be Contracting Officers including tons of clauses in their solicitations and there would be no question to whether FAR Part 12 applied to a proposed Task Order against a FSS including FAR Clause 52.212-4 and 5 (see Health Data Insights, Inc.; CGI Federal, Inc., B-409409, April 23, 2014).

If you read my post again, aside from the protest limitation recommendation, none of my recommendations to improve FAR 8.4 clarity have a substantive affect on a Contracting Officer's flexibility. They merely serve as a instruction for issues that commonly mix up Vendors and Contracting Officers.

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metteec and cs123:

Any contracting person who cannot understand why you can't use an IDIQ contract to order something that's not listed in the contract needs to retake Contracting 101.

Now, can we get back to my question?

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"silent about what clauses to include. I have seen extremes on Task Orders with almost every commercial clause included and some with no clauses included."

My point - nobody should be including clauses that are already represented, and that list is extendive in terms of clauses explicitly stated and incorporated by reference. The silence is not a confusing factor...what CO's feel the need to do is.

"- sparsely detailed with source selection guidance compared to FAR Part 13, 14, and 15."

My point - how does this increase complication? A CO now has to use his/her head and is given tremendous flexibility to make their source selection determination.

"- ambiguous, as results may vary with terms like "brief explanation."

My point - ambiguitiy is a CO's most powerful friend as it allows language to be used most favorably to them in order to do their job efficiently and effectively.

Not picking a fight here...but every regulatory "fix" that has meant to "clarify" or "perscribe" takes away flexibility for COs to use their brain and use the language of regulation in a way that is compliant and most favorable to them. I can understand COs looking for less regulation, but rarely more.

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Vern: To answer your question, no.

I thoroughly understand fundamental IDIQ rules, I just think that the GSA Schedules could be made more flexible for the Government’s benefit (a change applicable only to GSA Schedule ordering).

jonmjohnson: Thanks for the RFQ language. The FAR or GSA’s guidance doesn’t discuss the strengths and weaknesses, but in some situations it could be beneficial to give this to vendors for their own benefit (especially small businesses), especially if provided beyond the protest window. I think 8.402(f) has been discussed in other forum threads.

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I think the rules are very simple, and my experience at GSA was that was exactly the problem when I spoke with other government agencies about using the Schedules program. I believe FAR 8.4 is written with the broadness it was on purpose so that contracting officers can use their best business judgement. Unfortunately, in today's spoon-feed-me contracting environment, that is often seen as ambiguous and confusing.

I have seen contracting officers put too many clauses in their solicitation (in some cases re-stating what was already in there, and in other cases conflicting with the clauses in the MAS contract). This is why GSA put in the Goldstar initiative a couple of years ago so that any customer agency contracting officer can view which clauses are in the contract.

Many attorneys with agencies are so protest-adverse they require FAR Part 15 debriefings when a FAR Part 8 is all that is required. The same is true with source selection methodology and application.

I believe that the Schedules program isn't perfect, but for many acquisitions it can be a useful tool in the toolbox if applied correctly.

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Vern - First direct to the question - No. Having read the thread I do not have anyting to add but a question is raised for me.

Could it be that under the current CO certification training requirements for both the DoD and civilian sides of the house that FAR Part 8.4 is simply brushed on and should instead be covered in a little more depth?

Admittedly I am not familiar with the content of all the required classes but as an old timer I still remember having to take a week long class way back on GSA-FSS. So what is happening now?

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No, I do not believe the rules are too hard. Generally, I speculate it is policy, legal and COs accustomed to operating within FAR 15 who make it hard. I have seen where people lack reverence for the flexibility which exists within the gray. Not saying FAR 15 is black and white, but certainly more so than FAR 8.4. I have seen where it appears policy and legal don't want to afford COs the autonomy to operate fully within FAR 1.102(d) and generally don't like "gray" as that means giving COs more judgement power.

The only piece of FSS that is too hard is FAR 8.402(f). My only wish is that it be re-written in such a way to afford it the same flexibility as any other IDIQ contract. Reference FAR 16.505 ( b )(3) Pricing Orders.

Perhaps if FAR 8.402(f) were re-written as follows, then the FSS program would truly be compatible (ease of use wise to accommodate a total solution) to the breath of fresh air afforded by the likes of the un-priced OASIS (whose ceiling rates are ONLY for sole source T&M orders).

REVISE FAR 8.402(f) TO READ:

(f) For administrative convenience, an ordering activity contracting officer may add items or services not priced on the Federal Supply Schedule to a Federal Supply Schedule blanket purchase agreement (BPA) or an individual task or delivery order only if--

(1) The items or services are integral to and in support of the primary Federal Supply Schedule priced items/services being acquired under the Order;

(2) The ordering activity contracting officer has determined the prices for the items or services not priced on the Federal Supply Schedule are fair and reasonable;

(3) The items or services are clearly labeled on the order as items not priced on the Federal Supply Schedule.

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The rules started out as simple. Then ordering was abused and some fixes are overly complicated - including items that aren't part of the contract, getting competition for orders (especially when the order value exceeds the simplified acquisition threshold), and the process when you limit sources.

It started out as being very simple but with the additions like I mentioned above, it is simple with elements of complexity thrown in. Its now to the point where too much confusion and misunderstandings exist - the dialogue in prior posts on discussions and debriefings are prime examples.

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No. 8.4 gives contracting officers an appropriate amount of flexibility and discretion. Unfortunately, too many 1102s don't want that--they want to be told what to do step by step allowing for neither flexibility nor discretion.

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I have seen where people lack reverence for the flexibility which exists within the gray. Not saying FAR 15 is black and white, but certainly more so than FAR 8.4. I have seen where it appears policy and legal don't want to afford COs the autonomy to operate fully within FAR 1.102(d) and generally don't like "gray" as that means giving COs more judgement power.

I appreciate this comment being made, and regret its truthfulness...

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No. The rules in Part 8 are not too complicated.

Personnel who can't grasp the simplicity of SAP and Part 8 too often feel a need to impose restrictions that aren't needed.

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You asked two questions, Vern:

1.Are the rules for using GSA MAS/FSS schedule contracts too complicated?

2.Is anyone confused about how to use the schedules and about what you can and cannot do?

My opinion:

1. Yes. GSA's multiple award schedule contracts were originally a rather innovative (for the time)- and surprisingly rational- vehicle and process for acquiring commercial products (later services).The method was procedurally rather simple and provided an efficient form of what is now called "strategic sourcing" for Government agencies.However, in the public arena, no good deed shall ever go unpunished.Years of misunderstanding,criticism, and tinkering by half-informed experts have resulted in the current system, which -in my opinion- is neither simple nor efficient.

2. No. If you can read, think, and are willing and able to take the time to do so, you can pretty much understand the current set of rules governing the program.However,those conditions may not always be present.

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Perhaps for experienced contracting officers, the GSA schedules aren't difficult. However, I just tried to put myself into the position of a low-level worker who's just been given a purchase card and told to buy some basic office supplies (e.g. pens and paper). This is the 1st GSA page that came up in my search: http://www.gsa.gov/portal/content/104721

I pity the person with no other guidance or someone looking over his shoulder who has to fulfill his objective from that page.

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I'd like some opinions. Are the rules for using GSA MAS/FSS schedule contracts too complicated? Is anyone confused about how to use the schedules and about what you can and cannot do?

To me, no, I do not believe the rules are too complicated. However, I believe some, not all, COs make it more complicated than the initial GSA MAS/FSS Program, of "a simplified process for obtaining commercial supplies and services at prices associated with volume buying." Could certain areas be further clarified, sure, as some have said. For me, I see and hear COs say, 'it's complicated,' as if we're in some weird dating circle. Just my opinion of course.

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