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FAR 8.402:  Federal Supply Schedules - Authorized Price List

Comptroller General - Key Excerpts

New When a concern arises that a vendor is offering services outside the scope of its schedule contract, the relevant inquiry is whether the services offered are actually included on the vendor’s contract, as reasonably interpreted. KPMG et al., supra, at 7. In this regard, our Office will consider whether the function being sought under a particular solicitation is the same as the function covered under a vendor’s schedule contract. Id. Here, as we explain below, we sustain the protest because the record demonstrates that DHS did not reasonably consider whether the cloud services offered by Knight Point through its subcontractors were within the scope of Knight Point’s GSA schedule contract. Rather, the agency considered only whether the cloud systems offered by Knight Point were listed by brand name on Knight Point’s GSA schedule contract, which was not a requirement of the solicitation.

It is undisputed that Knight Point’s GSA schedule contract does not list, by brand name, the [DELETED] cloud systems offered by Knight Point’s subcontractors. See AR, Tab 7c, Knight Point GSA Pricing Schedule, Vol. III, Tab B, 49-54. See also Protest at 2 (Knight Point’s “GSA schedule contract does not define its cloud service on a brand-name basis[.]”). Although Knight Point recognizes that some schedule holders offer the services of FedRAMP authorized cloud service providers by brand name, Knight Point does not structure its approach in this manner. Comments at 15 n.3. Rather, as Knight Point explained in its quotation, it adopts a “[DELETED]” approach, which allows “[DELETED].” AR, Tab 7b, Knight Point Business and Price Quote, Vol. II, Tab C, at 1. In other words, Knight Point’s schedule contract includes [DELETED]. AR, Tab 7a, Knight Point Technical Quote, Vol. I, Sec. 2.3, at 2.

Knight Point further explains its GSA schedule contract as follows: “[DELETED][.]” Protest at 15. As a result, “[DELETED].” AR, Tab 7c, Knight Point GSA Pricing Schedule, Vol. III, Tab B, at 49. In this regard, “[DELETED].” Protest at 16. Knight Point asserts that this flexible approach enables it to include all [DELETED] FedRAMP authorized cloud systems provided by its subcontractors while obviating the need to make constant updates to its GSA schedule contract. AR, Tab 7a, Knight Point Technical Quote, Vol. I, Sec. 2.3, at 2; Protest at 1.

With respect to the subject acquisition, Knight Point contends that the services and functions offered by its proposed subcontractors fall within the item numbers and categories on its schedule contract. Comments at 15. As noted above, the solicitation sought commercial, commodity-based IaaS cloud computing services. RFQ at 6; MOL at 3-4. Knight Point points out that its schedule contract lists generic product names and descriptions of cloud computer services that include the services the agency solicits here, such as: bandwidth to customer; data transfer; public IP; LAN to LAN IPSEC Tunnel; Gb storage; a la carte CPU and a la carte RAM; bundled compute resources; installation services, etc. Comments at 15. For this reason, Knight Point represents that the services and functions it offers in this acquisition are the same as those included on its schedule contract. Id. at 15-16.

In response, the agency does not dispute that the relevant inquiry is whether the services offered--as opposed to the brand names--are included on the vendor’s contract. Supp. MOL at 7 (“It is not a question of brand name, but more critically a review of the types of services that Knight Point is permitted to offer on their GSA Schedule contract.”); id. at 6 (“The specific inquiry by the Agency in this protest is not the brand name, but as provided in KMPG, a review of the GSA Schedule contract to determine if ‘the services offered are actually included on the vendor’s contract, as reasonably interpreted.’”) (citing KPMG et al., supra, at 7). The agency then contends, without further explanation, that its technical evaluation was reasonable because “Knight Point’s proposed subcontractor cloud services that are not offered on their schedule contract.” Supp. MOL at 6 (citing COS at 12).

Despite the agency’s contention, the record reflects that DHS failed to determine, or failed to document its determination of, whether the proposed subcontractors’ cloud services are within the scope of Knight Point’s schedule contract. Rather, the agency’s evaluators merely examined whether the [DELETED] cloud systems offered by Knight Point and its subcontractors were listed by brand name on Knight Point’s schedule contract, and, finding that they were not, the evaluators declined to credit Knight Point for [DELETED] of its [DELETED] FedRAMP authorized IaaS cloud systems. AR, Tab 13, Final Technical Evaluation Report, at 14 (concluding that “no credit for these [DELETED] [cloud service providers] was given under the factor for [cloud service providers], as they were not on the quoter[’s] GSA schedule contract[.]”).

To the extent that the agency is contending that “services” in the context of cloud computing services should be defined not as services, but rather as discrete brand name cloud systems, we note that the agency does not explicitly make this argument. Nor does the agency provide any authority for viewing cloud computing services in this manner. Moreover, we could not identify any support for defining cloud computing services in this manner in the solicitation. Importantly, GSA also does not make this argument, despite providing input on three occasions regarding this matter. See AR, Tab 17, Email from GSA Sr. Contracting Officer, Dec. 16, 2016; Tab 23, Email from GSA Sr. Contracting Officer, Mar. 23, 2017; Tab 24, GSA Comments, May 11, 2017.

We sustain the protest because the agency has failed to identify any requirement--either within the solicitation or otherwise--that would restrict a vendor’s use of IaaS cloud systems to those systems that were listed by brand name on the vendor’s GSA schedule contract. Instead, the agency simply assumes, without support, that in order for a GSA schedule holder to offer services through a subcontractor, it must include the brand name of the subcontractor’s services on its schedule contract. We have previously explained, however, that the relevant inquiry is whether the services offered are actually included on the vendor’s contract, as reasonably interpreted. KPMG et al., supra, at 7. The record here does not demonstrate that the DHS evaluators undertook this analysis.  (Knight Point Systems, LLC B-414183.3, B-414183.5: May 31, 2017)

T.S. Marshall argues that the agency improperly evaluated its quotation as technically unacceptable. The firm contends that if the content of the courses on its schedule contract are considered, not just their titles, it does offer the required courses. Protest at 1. The firm also asserts that it has labor hour rates for a course developer included on its FSS contract. Id.

When an agency announces its intention to order from an existing FSS contract, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. U.S. Investigations Services, Professional Services Division, Inc., B-410454.2, Jan 15, 2015, 2015 CPD ¶ 44 at 3.

Our review of the record, including T.S. Marshall’s quotation, confirms the agency’s conclusion that four of the five courses offered by the protester are not included on its schedule contract. Specifically, with the exception of the Leadership for Non-Supervisors course, T.S. Marshall’s FSS contract does not include any of the other required courses. The record also shows that T.S. Marshall’s FSS contract did not include any professional services labor hour rates for developing new courses or subject matter under SIN 874-4. Finally, although the protester argues that the underlying content being solicited by the agency is encompassed in the courses included on its FSS contract, a review of T.S. Marshall’s FSS contract shows that it is for the provision of “off-the-shelf training packages” that do not include the courses solicited by the agency.

The protest is denied.  (T. S. Marshall & Associates, Inc. B-413854: Dec 15, 2016)


As an initial matter, our review of the record confirms that the agency reasonably evaluated BCG’s quotation as providing services that were included on BCG’s schedule contract. BCG holds a MOBIS schedule contract with SIN 874-1, which offers three separate “teams” identified as Team B, Team C, and Team D. AR, Tab 12, BCG Schedule Contract, at 1-9. As relevant here, BCG’s schedule contract describes Team B as “an experienced three (3) person BCG team” that receives “guidance and project support from other resources, including partners and senior experts, research staff, graphic artist support, and administrative support.” Id. at 7.

Pursuant to the schedule contract, the support resources are included in BCG’s team rate. Id. at 9. In its quotation, BCG provided Team B from its GSA MOBIS schedule contract. AR, Tab11, BCG Quotation, Price Volume, at 6-11. Thus, the record reflects that BCG’s schedule contract identifies a Team B made up of various personnel; BCG provided Team B to perform the BPA; and the agency established the BPA with BCG for its Team B (and labor from teaming partner E&Y). Consequently, the protesters’ allegation that the vendor’s quotation provided services outside the scope of its GSA schedule has no merit.

Similarly, that BCG’s pricing template identified [DELETED] labor categories encompassed in Team B is unobjectionable. In this respect, BCG’s staffing plan identified the component team members included in Team B (and as utilized in one of the vendor’s experience examples), as well as the level of effort for those individuals. See AR, Tab 10, BCG Quotation, Technical Volume, at 18; RFQ at 26 (requiring a staffing plan of “core management team” and other labor categories to be utilized, as well as the level of effort for each category). In its pricing template, BCG re‑listed the personnel identified in its staffing plan under its Team B labor category “[f]or evaluation in the Government-provided [pricing] template.” AR, Tab 11, BCG Quotation, Price Volume, at 3, 6-10. BCG also provided detailed descriptions of each of the individual team members. Id. at 11-14. Significantly, the individuals listed on the pricing template are also described in BCG’s GSA schedule contract. Compare id. at 6-10 with Tab 12, BCG Schedule Contract, at 7. Given the flexible nature of the information vendors were permitted to submit in their pricing template, we see nothing improper with BCG having identified the makeup of Team B in its template.

Moreover, we agree with the agency that the solicitation was not limited to only those vendors that could provide individual labor categories at hourly labor rates. To the contrary, the RFQ simply required vendors to price all labor categories expected to be utilized as part of the engagement; it did not require hourly rates as a prerequisite to be eligible for consideration. RFQ at 27. In addition, vendors’ labor categories had to be authorized under their GSA schedule contract, and the prices for those labor categories could not exceed the GSA schedule rates. Id. at 27, 30. Furthermore, the RFQ expressly advised vendors that WHS expected “many different technical approaches” in response to the solicitation. Id. at 30 n.2. In this respect, the agency clarified that the RFQ’s pricing template--which contained 10 rows for labor categories and included a “rate” column--was only a notional example of what a vendor’s quotation could provide. AR, Tab 6, RFQ Q&A, at 2 (“The pricing template is just an example.”).

Here, the record reflects that BCG’s pricing template identified Team B as one labor category at a weekly rate of [DELETED] and with a level of effort of [DELETED] weeks, as well as [DELETED] individual labor categories from E&Y’s schedule contract. AR, Tab 11, BCG Quotation, Price Volume, at 6-10. Additionally, BCG provided its Team B at a weekly price that was lower than the weekly pricing identified on its GSA Schedule. Id.; Tab 12, BCG Schedule Contract, at 6. BCG’s quotation explained that its approach was different than the approach of most other schedule contractors because BCG’s labor categories “are defined as a team of individuals based on a weekly engagement.” AR, Tab 10, BCG Quotation, Technical Volume, at 18. While the protesters object to BCG’s pricing and team approach, we are unable to conclude that BCG’s decision to provide Team B was inconsistent with the terms of the solicitation or the vendor’s GSA schedule. Thus, we deny the protester’s contention that the agency should have rejected BCG’s quotation on this basis.

Equally unavailing is Deloitte’s assertion that BCG’s team pricing structure results in BCG personnel being unable to perform labor-hour or T&M task orders. In this respect, Deloitte maintains that because GSA has not approved hourly labor rates for the Team B personnel, only E&Y personnel will be available for orders requiring hourly rates. Deloitte complains that the agency did not recognize this concern during its evaluation of quotations.

By way of additional background, BCG’s technical solution noted that in addition to its own personnel, it could also provide staff from its team members and its teaming partner to perform task orders under the BPA. AR, Tab 10, BCG Quotation, Technical Volume, at ii. As noted above, Team BCG included its CTA partner E&Y and [DELETED] subcontractors (that were included in the Team B rate structure). Id. at 17. The CTA between BCG and E&Y identified BCG as the team leader and E&Y as a team member. AR, Tab 10, BCG Quotation, Technical Volume, CTA Appendix, at 1. Of relevance here, the CTA contemplated that task orders could be issued directly to either BCG or E&Y, and designated the company receiving the task order as the task lead. Id. at 5.

Because Deloitte’s assertion revolves around the flexibilities permitted pursuant to a CTA between two GSA schedule contractors, our Office requested the views of GSA on this issue. In its comments to our Office, GSA explains that BCG personnel can perform labor-hour and/or T&M task orders, and they can do so using E&Y’s individual labor categories and hourly rates. GSA Comments (May 11, 2016) at 2. More specifically, GSA explains that if DoD issues a task order that requires hourly rates, E&Y and BCG can establish a subcontracting relationship whereby “BCG personnel can be used and paid under E&Y’s pricing structure.” Id. In GSA’s view, BCG can act as both a team member at the BPA level and as a subcontractor at the ordering level. Id. Moreover, GSA notes that if such a relationship were to be established, the prime contractor/subcontractor relationship would need to be executed at the task order level. Id. at 3.

Based on GSA’s views regarding the flexibilities afforded to GSA contractors in CTAs, as well as our review of the CTA between BCG and E&Y, we find no merit to Deloitte’s assertion that BCG personnel would be precluded from performing certain tasks. Here, the CTA between BCG and E&Y expressly contemplated that task orders could be issued directly to either BCG or E&Y, and designated the company receiving the task order as the task lead. AR, Tab 10, BCG Quotation, Technical Volume, CTA Appendix, at 5. Additionally, BCG’s quotation represented that Team BCG employs a “‘best athlete’ approach to each task order,” meaning that the “firm that is best able to fulfill task order requirements will complete the respective task order.” AR, Tab 10, BCG Quotation, Technical Volume, at 17. Furthermore, the CTA framework between the two companies corresponds with GSA’s notion that if BCG were to perform as a subcontractor to E&Y, the relationship would need to be executed at the task order level. AR, Tab 10, BCG Quotation, Technical Volume, CTA Appendix, at 5. Thus, we disagree with Deloitte’s contention regarding the availability of BCG personnel for all orders. Moreover, the fact that WHS did not contemporaneously document the potential for BCG to act as a subcontractor to E&Y on some tasks does not, in our view, demonstrate a flawed procurement.

In sum, based on our review of the record, BCG’s quotation provided for services that were included on its schedule contract; the RFQ did not preclude vendors from providing a team-based approach to fulfilling the agency’s requirements; and BCG personnel will be available to perform all task orders pursuant to its CTA with E&Y. Thus, KPMG’s, Deloitte’s, and PwC’s bases of protest regarding the acceptability of BCG’s quotation are denied.  (KPMG LLP; Deloitte Consulting LLP; PricewaterhouseCoopers Public Sector LLP B-412732, B-412732.2, B-412732.3, B-412732.4, B-412732.5, B-412732.6, B-412732.7: May 23, 2016)  (pdf)


SOSI’s Proposed Labor Category

AllWorld argues that the agency improperly found SOSI’s quotation technically acceptable, despite the fact that it quoted a labor category that does not contemplate providing personnel qualified to perform the solicited requirements. In this connection, the solicitation’s performance work statement (PWS) provides, among other things, that the linguists to be provided must be capable of expressing themselves clearly and concisely both orally and in writing in English and the local language; produce idiomatic translations of non-technical material using correct syntax and speech in both English and the local language; and conduct consecutive, accurate translations of ongoing conversations and activities in both English and the local language. PWS at 5. The PWS also provides that the proposed linguists may be required to live and work in harsh desert environments, including living and working in temporary facilities such as tents; serve during a level of heightened state of threat; function effectively and efficiently during extended periods of high pressure and stress while maintaining a professional, functional demeanor at the scenes of crimes, many of which may be the result of violent or repugnant acts; function as an integral member of a team of highly trained professionals responsible for the safety and security of U.S. military and civilian personnel; and operate government-owned vehicles. PWS at 5-6.

AllWorld maintains that SOSI quoted just a single labor category that does not include many of the duties that the linguists are required to perform under the PWS, including oral expression of translation capabilities, producing idiomatic translations using correct syntax and speech, and conducting consecutive, accurate translations of ongoing conversations and activities. AllWorld notes that SOSI’s quoted labor category also is confined to providing written translations at a SOSI facility or site, and does not contemplate providing services in what essentially amounts to warzone locations with all of the attendant difficulties and stresses. Finally, AllWorld points out that SOSI was afforded a significant competitive advantage by the agency’s acceptance of its quoted labor category because the hourly rate for that category is substantially lower than the rates for other SOSI FSS labor categories that arguably could meet the requirements of the PWS.

GSA responds that it reasonably found SOSI’s quotation technically acceptable. Specifically, GSA maintains that no contractor’s FSS labor categories align precisely with the requirements of any particular PWS, and that, accordingly, the agency looked to the SOSI technical quotation to determine what duties SOSI’s proposed linguists would perform. According to the agency, SOSI’s technical quotation offered a labor mix that would meet the PWS requirements. GSA also points out that it confirmed with SOSI that its quoted labor category included all of the services required under the PWS.

We find that GSA unreasonably found the SOSI quotation acceptable under the technical approach factor. The RFQ’s technical approach evaluation factor required, among other things, that firms provide a staffing plan. The RFQ advised offerors as follows:

The Staffing Plan will be evaluated on how well the Quoter addressed and described the duties and responsibilities of each position and how the positions interface with . . . each other. It will also take into account the number of linguists by language, clearance level, and proficiency level. The Staffing Plan will measure . . . the Government’s confidence . . . [in] how well the Quoter demonstrates staffing the proposed personnel (to include the Base requirement and the Optional requirement).

RFQ Instructions and Evaluation Criteria at 6.

The record shows that SOSI quoted just a single labor category to perform all of the linguist duties, specifically, the category of “Translator Written Translation--All Languages” which is described narratively in SOSI’s FSS contract as follows:

Translates technical and non-technical documents, audio and video recordings, and other source media from and into English and the target language. Reviews and edits translations produced by others. Work performed at Contractor site.

AR, exh. 9b, SOSI FSS Schedule Labor Categories, at 1.

This labor category, on its face, does not enumerate a number of the necessary qualifications required for the proposed linguists to perform the services called for under the PWS. The “Translator Written Translation” labor category does not include providing oral translation services of any kind. It also expressly does not contemplate providing linguist services in any location other than a SOSI facility, nor does it contemplate providing those services under what amount to extremely stressful, war-zone-type conditions.

A review of the technical portion of the SOSI quotation shows that it restates certain of the PWS requirements relating to the services to be performed. AR, exh. 9, SOSI Technical Quotation, at 20. SOSI’s quotation also includes an organizational chart that identifies three categories of linguists, “Senior Linguist/Site Lead,” Senior Linguist” and “Linguist.” Id. at 11. However, these particular labor categories are not included on--or defined in--SOSI’s underlying FSS contract. Compare AR, exh. 9, SOSI Technical Quotation, at 11, with AR, exh. 9b, SOSI FSS Labor Category Definitions, and AR, exh. 9, SOSI Price Quotation, FSS Labor Categories, at 8.

A review of SOSI’s price quotation shows that it is based entirely on providing just one labor category of linguists, namely, linguists that meet the definition of the “Translator Written Translation” labor category quoted above. AR, exh. 9, SOSI Price Quotation, at 4-6. This amounts to a patent inconsistency in the SOSI quotation. On the one hand, the SOSI technical quotation describes various duties that correspond to certain PWS requirements, and identifies three discrete labor categories of linguists. On the other hand, its price quotation is based on the hourly rate for a labor category of linguists that clearly do not possess the qualifications necessary to provide the services contemplated by the PWS.

GSA claims that it clarified the SOSI quotation during the acquisition, and an examination of the interchange between GSA and SOSI demonstrates that GSA apparently recognized the inconsistency in the SOSI quotation described above. However, there was no reasonable basis for GSA to have concluded, based on that exchange, that SOSI actually would be providing linguists that met the requirements of the PWS. The record of the exchange is as follows:

In the Labor Mix of the Pricing Volume the labor categories and associated labor rates used are Translator, Written Translation, All Languages at a rate of $47.15 with escalation. The position description for the labor category in the Price List says "Translates technical and non-technical documents, audio and video recordings, and other source media from and into English and the target language. Reviews and edits translations produced by others. Work performed at Contractor site." However, in PWS section 4.1.1.1 (a) states "linguist shall be capable of: (a) Perform clear and concise expression orally and in writing (in both English and the local language).

SOSI Response: Yes.

AR, exh. 9d, Verbal Confer Memo to File. Other than this memorialization of a verbal exchange between SOSI and GSA, there is nothing in any of the materials that comprise the SOSI quotation that could be construed as a written representation on the part of SOSI to staff the task order with linguists qualified to provide all of the services contemplated under the PWS, or to utilize a labor category under its FSS contract that describes linguists that meet the RFQ’s requirements in terms of their qualifications.

We note as well that GSA’s underlying premise--that SOSI could identify a labor category under its FSS contract that did not meet all of the requirements of the PWS, but could somehow enhance or alter the narrative description and qualifications of that labor category through the technical portion of its quotation--reflects a fundamental misunderstanding of the nature of FSS contracting. The labor categories identified and described in each firm’s underlying FSS contract are fixed, discrete, specific labor category descriptions that are contractually binding and not subject to alteration, just as the technical specifications for products available under a firm’s FSS contract are fixed, discrete, specific, contractually binding, and not subject to alteration. See American Systems Consulting, Inc., B‑294644, Dec. 13, 2004, 2004 CPD ¶ 247 at 10-11.

To the extent a quoted labor category description under a firm’s FSS contract does not, in the words of GSA, “align precisely” with the requirements of a given solicitation, the firm may not properly alter the underlying labor category description through the terms of its quotation. Rather, where a firm’s quoted labor category description does not align with the requirements of the solicitation, it means that the quoted labor category does not meet the requirements of the solicitation, and therefore cannot serve as the basis for issuing a task order to the firm. American Systems Consulting, Inc., supra. at 10-11. In addition, to the extent that GSA seems to be suggesting that it was unobjectionable to issue the task order to SOSI because one or another of the labor categories under its FSS contract may include the services to be performed, that suggestion also misses the point because SOSI did not actually quote any of the other labor categories under its FSS contract. Id. at 10 n.4.

The record also shows that this inconsistency in the SOSI quotation provided the firm with a significant competitive advantage. The price per hour for “Translator Written Translation” labor category under SOSI’s FSS contract is $47.15. AR, exh. 9, SOSI Price Quotation, at 8. Other labor categories under the SOSI FSS contract are substantially more expensive. For example, the price for a linguist providing simultaneous/consecutive interpretation is $81.28 per hour.

(section deleted)

In the final analysis, it was unreasonable for the agency to have found the SOSI quotation acceptable under the technical approach factor because it was based on providing linguists from a labor category that was not qualified to perform the RFQ requirements. While it is possible that there are other labor categories under SOSI’s FSS contract that would meet the qualifications for linguists identified in the RFQ, SOSI did not actually quote any of these other labor categories. It follows that, regardless of the agency’s hypothetical recalculation of SOSI’s price, SOSI’s quotation could not properly form the basis for issuance of the task order. We therefore sustain this aspect of SOSI’s protest.  (AllWorld Language Consultants, Inc. B-411481.3: Jan 6, 2016)  (pdf)


AmeriGuard asserts that not all of the required guard services were part of Paragon’s FSS contract in time to properly receive an order for those items. In this regard, as a general matter, FSS procedures provide agencies with a simplified process for obtaining commonly used commercial supplies and services at prices associated with volume buying. Federal Acquisition Regulation (FAR) § 8.402(a). Section 152(3) of title 41 of the United States Code provides that the procedures established for the FSS program, although streamlined, satisfy the requirement for full and open competition in 41 U.S.C. § 3301(a)(1). 41 U.S.C. § 153(3); FAR § 6.102(d)(3).

However, non-FSS products and services--frequently termed “open market”--may not be purchased using FSS procedures; their purchase requires compliance with otherwise applicable procurement laws and regulations, including those requiring the use of full competitive procedures. Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89 at 4. Thus, where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. US Investigations Services, Professional Services Division, Inc., B-410454.2, Jan. 15, 2015, 2015 CPD ¶ 44 at 3; Science Applications Int’l Corp., B-401773, Nov. 10, 2009, 2009 CPD ¶ 229 at 2 n.1. The sole exception to this requirement is for items that do not exceed the micro-purchase threshold, since such items properly may be purchased outside the normal competition requirements. See FAR § 2.101; Maybank Indus., LLC, B-403327, B‑403327.2, Oct. 21, 2010, 2010 CPD ¶ 249 at 4.

Here, the parties differ with regard to when Paragon’s FSS contract was required to include the items for which the order was issued. AmeriGuard asserts that a vendor must have prices for all job classifications and locations on its FSS contract by the closing date of the RFQ. Thus, according to the protester, Paragon’s request on March 19, 2015 to modify its FSS schedule to add services and locations being procured here (Modification PO-0102, effective March 22, 2015), AR, Tab 10, Modification PO‑0102, and its similar request on April 21 to further modify its FSS schedule contract to add a General Clerk III position for HHS’s Parklawn Complex facilities in Rockville, Maryland (Modification PO-0103, effective April 30, 2015), AR, Tab 10, Modification PO‑0103, should be ignored since both came after the March 19 closing date for initial quotations. The protester concludes that since Paragon’s FSS schedule contract did not include the quoted (and required) labor categories for the required locations by the March 19 closing date, the order to Paragon was improper. HHS, on the other hand, maintains that the order was proper because Paragon’s schedule contract had been modified to include the required labor categories/locations by April 30, the date of the order.

We agree with the agency. In this regard, we have previously recognized that when an agency conducts a procurement under the FSS program, all items ordered must be on the vendor’s FSS contract at the time the order is issued. See Hi-Tech Bed Systems Corp., B-406925, Sept. 27, 2012, 2012 CPD ¶ 283 at 4; AINS, Inc., B‑405902.3, May 31, 2012, 2012 CPD ¶ 180 at 8; Science Applications Int’l Corp., supra; Symplicity Corp., supra. We see nothing in the procurement here that would require application of a different rule.

AmeriGuard also asserts that while Paragon submitted its request to the GSA contracting officer to modify its FSS contract to add a General Clerk III position on April 21, prior to the issuance of the April 30 order, the GSA contracting officer did not sign the modification until May 8, after issuance of the order. AR, Tab 11, Modification PO‑0103. The protester concludes, therefore, that the General Clerk III position which Paragon quoted for the Parklawn Complex was not on its FSS schedule as of the time of award.

The applicable GSA regulations, however, state that where a vendor requests modification of its FSS contract, generally “[t]he effective date for any modification is the date specified in the modification, except as otherwise provided in the Price Reductions Clause at 552.238-75.” 48 C.F.R. § 552.238-81(c). Here, the “Effective Date” on the face of Modification PO‑0103 to Paragon’s FSS contract, adding the General Clerk III position, is April 30, 2015. AR, Tab 11, Modification PO‑0103. Accordingly, the record indicates that Paragon’s FSS contract included the General Clerk III position for the Parklawn Complex effective as of the date of HHS’s issuance of the April 30 task order.  (AmeriGuard Security Services, Inc. B-411513.2: Oct 2, 2015)  (pdf)


USIS raises several protest allegations, We have carefully considered all of USIS’s arguments, and sustain its protest for the reason discussed below. We deny the remainder of USIS’s allegations.

USIS alleges that issuance of a task order to FCi was improper because the labor categories required to perform the task order are not on FCi’s FSS contract. The protester maintains that the agency erred in finding that the labor categories included on the awardee’s FSS contract encompass the types of employees required to perform the requirement. We agree with the protester that the labor categories included on FCi’s FSS contract do not encompass the solicited services.

As a general matter, FSS procedures provide agencies a simplified process for obtaining commonly used commercial supplies and services, Federal Acquisition Regulation (FAR) § 8.401(a), and, although streamlined, satisfy the requirement for full and open competition. 41 U.S.C. § 259(b)(3); FAR § 6.102(d)(3). However, non-FSS products and services may not be purchased using FSS procedures; their purchase requires compliance with otherwise applicable procurement laws and regulations, including those requiring the use of full competitive procedures. Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89 at 4. Where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. Science Applications Int’l Corp., B-401773, Nov. 10, 2009, 2009 CPD ¶ 229 at 2 n.1; Tarheel Specialties, Inc., B-298197, B-298197.2, July 17, 2006, 2006 CPD ¶ 140 at 4. In the case of a services task order such as the one at issue here, all of the solicited labor categories must be on the successful vendor’s FSS contract. Tarheel Specialities, Inc., supra.

The RFQ here essentially included four principal labor categories: research analysts, program managers, general consultants, and legal administrative specialists. RFQ at 19-20.

(sections deleted)

Comparing the above-quoted definitions found in FCi’s FSS contract and the RFQ, we conclude that FCi’s program management analyst labor category does not include many of the requirements for the labor categories identified in the RFQ. For example, FCi’s labor category description makes no mention of experience with paralegal, records management, declassification review or historical research career fields, and also makes no mention of in-depth knowledge of FBI policy, functions, and familiarity with other government agencies’ functions. FCi’s labor category description also makes no mention of applying knowledge of administrative principles, practices, and techniques; organizing and maintaining files and database record keeping systems; preparing, writing, editing, and creating graphs and charts; or drafting, reviewing, evaluating, and processing technical and administrative documents.

Instead of the disciplines and career fields identified in the RFQ, the principal disciplines and capabilities described in FCi’s program management analyst labor category are the development of business methods, the identification of best practices, and creating and assessing performance measurements. The focus of FCi’s labor category appears principally to be the development of business techniques and organizational development activities. Simply stated, none of the responsibilities or activities described in FCi’s labor category description--identified as ‘key’ responsibilities in FCi’s labor category description--is germane to the work required under the RFQ.

The contemporaneous evaluation record does not show that the agency gave any meaningful consideration to the question of whether or not FCi’s FSS contract included labor categories that encompassed the requirements of the task order. In this connection, the agency’s individual evaluators did not prepare any narrative materials when reviewing the proposals. AR, exh. 9, Individual Technical Evaluations. The agency’s summary technical evaluation report and award determination similarly are devoid of any meaningful consideration of whether award could be made to FCi in light of the labor categories available under its FSS contract. AR, exh. 10, Determination of Technical Acceptability; exh. 14, Award Determination, at 3.

Finally, in responding to the protest, the agency states only generally that it gave consideration to whether or not FCi’s FSS contract included labor categories that encompassed the requirements of the RFQ. Even in responding to USIS’s specific allegations, the agency has not meaningfully or critically analyzed the question, or explained how it reasonably could reconcile the apparent divergence between FCi’s labor category description quoted above and the requirements of the RFQ. Contracting Officer’s Statement at 13; Legal Memorandum at 6. The agency focuses largely on the educational and experience requirements of the RFQ’s and FCi’s labor category descriptions, but does not explain how, substantively, the definitions can be compared. In light of these considerations, we sustain USIS’s protest on this basis.  (US Investigations Services, Professional Services Division, Inc. B-410454.2: Jan 15, 2015)  (pdf)


NFSTC contends that NEK’s FSS contract does not include all of the labor categories necessary for performance of the requirement. According to the protester, the RFQ’s scope of work is outside of NEK’s FSS contract and the agency therefore erred in issuing the firm a task order. In connection with this allegation, the protester urges our Office to consider not just the labor categories included under NEK’s FSS contract, but also the course offerings included under its FSS contract. According to the protester, an examination of just the labor categories alone is inadequate to determine whether or not NEK’s FSS contract includes labor categories that encompass the RFQ’s requirements.

We find no merit to this aspect of NFSTC’s protest. When a concern arises that a vendor is offering services outside the scope of its FSS contract, the relevant inquiry is whether the services offered actually are included on the vendor’s FSS contract, as reasonably interpreted. American Sec. Programs, Inc., B-402069, B-402069.2, Jan. 15, 2010, 2010 CPD ¶ 2 at 3.

As an initial matter, and as the agency correctly notes, the requirements here are not for the provision of any particular courses, but, rather, for instructors to teach courses designed and owned by the government. Thus, there is no basis to make any reference to the courses offered by NEK on its FSS contract, since that is not what the agency is procuring.

More importantly, the record shows that the agency specifically asked GSA whether the labor categories included under NEK’s FSS contract reasonably encompassed the types of instructors being furnished here. AR, exh. 24, Letter to GSA from the Army. In response, GSA advised the agency that the labor categories included under NEK’s FSS contract appeared to encompass the types of instructors being furnished here. AR, exh. 25, Response from GSA’s Contract Specialist, March 3, 2014.

In addition, during the course of the protest, our Office specifically asked GSA yet again whether the labor categories included under NEK’s FSS contract encompassed the types of instructors being furnished here. In response, GSA’s contracting officer for NEK’s FSS contract advised as follows:

The general scope of the MOBIS contract, SINs 874-4 is to procure Training Services: Instructor Led Training, Web Based Training and Education Courses, Course Development and Test Administration Learning Management, Internships. My understanding from reviewing the RFQ is that the procuring agency was seeking instructors and role players in various areas and with various qualifications. While I did not evaluate the proposals against the specific criteria contained in the RFQ, the four labor categories offered on NEK’s proposal of Program Manager II, Instructor II, SOF Instructor II, and Role Player II, are within scope and are labor categories awarded to the above mentioned MAS contract. Based on my review, it is my opinion that the requirements of the RFQ could appropriately be procured under the labor categories listed above.

Statement of the GSA Contracting Officer, July 18, 2014. The record therefore shows that GSA considered the question after reviewing NEK’s quote, the RFQ, and NEK’s FSS contract, and answered--not just once, but twice--in the affirmative, finding that NEK’s FSS contract encompassed the types of instructors being acquired here. Simply stated, we have no basis on this record to question GSA’s opinion, and NFSTC’s contentions amount to no more than disagreement with the agency and GSA. In view of the foregoing, we deny this aspect of the protest.  (National Forensic Science Technology Center, Inc.,  B-409457.2,B-409457.3: Jul 29, 2014)  (pdf)
 


Hi-Tech raised a number of allegations in its initial protest. In response to a dismissal request filed jointly by AVTEQ and the Corps, the protester narrowed its complaints to a single issue: that to be technically compliant with the RFQ requirements a vendor’s products had to meet GSA testing standards and be listed on GSA Advantage on January 27, 2012 (the date that initial quotations were due, pursuant to RFQ amendment 1). Protester’s Dismissal Response at 2-3. Hi-Tech argued that AVTEQ’s beds did not meet those requirements on January 27, and, therefore, the Corps should have deemed AVTEQ’s final quotation unacceptable. Id.

The Corps maintains, and we agree, that vendors’ final quotations were not limited to products that met the testing and listing requirements on January 27, the due date for the initial quotations. The Corps notes that, after determining that all three of the initial quotations were unacceptable, the agency advised each vendor of its quotation’s unacceptability, and requested revised quotations. All vendors, including Hi-Tech, were thus treated equally by receiving the same opportunity revise their quotations; the vendors were not prohibited from offering products that differed from their initial quotations. Contracting Officer’s Statement at 6; AR at 7.

Where, as here, an agency issues an RFQ to GSA FSS contractors under Federal Acquisition Regulation (FAR) subpart 8.4 and conducts a competition, we will review the record to ensure that the agency's evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Digital Solutions, Inc., B-402067, Jan. 12, 2010, 2010 CPD ¶ 26 at 3-4; DEI Consulting, B-401258, July 13, 2009, 2009 CPD ¶ 151 at 2. When an agency announces its intention to order from an FSS vendor, all items quoted and ordered are required to be on the vendor's FSS contract at the time the order is issued. AINS, Inc., B-405902.3, May 31, 2012, 2012 CPD ¶ 180 at 8.

Applying these principles to the procurement here, there was no requirement that, to be ultimately eligible for award, the items in AVTEQ’s initial quotation had to have been listed on its supplier’s schedule contract at the time initial quotations were submitted. Rather, the relevant date here, for an FSS order, is the date the order is issued. AINS, Inc., supra. Further, the terms of the RFQ at issue here did not impose such a requirement, nor did the RFQ otherwise restrict vendors from quoting different items in their revised quotations than those contained in their initial quotations. Thus, we see no basis to question the Corps’s evaluation of the revised quotation as acceptable because AVTEQ relied on a testing approval that referenced an FSS contract amendment for its supplier dated after the due date for initial quotations.

Although Hi-Tech also argues that the product information in AVTEQ’s revised quotation does not provide “sufficient detail to show what product AVTEQ is required to provide,” Protester’s Comments at 4, Hi-Tech’s complaint provides no basis to sustain the protest. As described above, the revised quotation identified AVTEQ’s quoted bed model, provided evidence of successful testing of the quoted model, and included line drawings of the design of the quoted model, which the Corps found satisfactory in its final evaluation. AR, Tab 5, Technical Evaluations, at 4 (evaluation of revised quotations). Hi-Tech’s disagreement with the agency’s judgment regarding the sufficiency of the information AVTEQ submitted does not constitute a basis for sustaining the protest. TCBA Watson Rice, LLP, B-402086.6, B-402086.7, Sept. 8, 2010, 2010 CPD ¶ 229 at 7.

The protest is denied.  (Hi-Tech Bed Systems Corporation, B-406925, Sep 27, 2012)  (pdf)
 


APSS argues that the agency had no basis to eliminate its quotation because the RFQ did not explicitly require all labor categories and prices to be on an offeror’s FSS contract prior to the closing date. APSS asserts that it should have been allowed to update its FSS contract at any time prior to the issuance of a task order, and that such a modification would not violate the RFQ’s late quotation provision.

As a general matter, FSS procedures provide agencies a simplified process for obtaining commonly used commercial supplies and services, FAR § 8.401(a), and, although streamlined, satisfy the requirement for full and open competition. 41 U.S.C. § 259(b)(3) (2006); FAR § 6.102(d)(3). However, non-FSS products and services may not be purchased using FSS procedures; their purchase requires compliance with otherwise applicable procurement laws and regulations, including those requiring the use of full competitive procedures. Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89 at 4. Where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. Science Applications Int’l Corp., B-401773, Nov. 10, 2009, 2009 CPD ¶ 229 at 2 n.1; Tarheel Specialties, Inc., B-298197, B-298197.2, July 17, 2006, 2006 CPD ¶ 140 at 4; CourtSmart Digital Systems, Inc., B-292995.2, B-292995.3, Feb. 13, 2004, 2004 CPD ¶ 79 at 5; see ATA Def. Indus. v. United States, 38 Fed. Cl. 489 (1997).

Here, as noted above, the RFQ required that the vendor’s price quotation for each city (sub-CLIN) be in accordance with the labor categories and rates contained in GSA Schedule 84, SIN 246-54. The RFQ also cautioned that “[a]ll services performed under this request for quote must be provided by a vendor or vendors who possess a current GSA contract, and the RFQ contained a late quotations clause, expressly requiring that quotations be submitted, and final, by the closing time of the RFQ. We also note that GSA Schedule 84, SIN 246-54, provides the following information for adding locations, and incorporating new pricing data under a vendor’s FSS contract:

Information on Receiving Task Orders for new locations under SIN 246-54
The labor rates established in any contract for SIN 246-54 resulting from any offer against this Solicitation [are] subject to the limitations of scope for the applicable locations and Department of Labor wage determinations awarded under the contract. For any Vendor to properly quote and receive Task Orders that are within scope of their contract, the GSA Schedule contract must incorporate appropriate Wage Determinations and/or Collective Bargaining Agreements in effect at the facilities covered by the Task Ordering Agency's Request for Quotations by the closing date of the RFQ.

Agency Report (AR), Tab 10, at 5 (emphasis added).

In a related case concerning the same procurement and solicitation, we concluded that the agency reasonably excluded from consideration a vendor’s quotation where the vendor, like APSS, had included labor categories or prices that were not then on its underlying FSS schedule contract. See Spectrum Security Servs., Inc., B-406474, June 13, 2012, 2012 CPD ¶ 183 at 4-5. In reaching this conclusion we noted that the vendor had not quoted rates “in accordance with” its FSS contract as required by the RFQ--the rates were not actually on the firm’s FSS contract. We also noted that the vendor’s Schedule 84, SIN 246-54, FSS contract, like APSS’s contract, specifically advised that it “must incorporate appropriate Wage Determinations and/or Collective Bargaining Agreements in effect at the facilities covered by the Task Ordering Agency's Request for Quotations by the closing date of the RFQ.” AR, Tab 10, at 5 (emphasis added). The vendor’s FSS contract, like APSS’s FSS contract, did not comply with this instruction. As in Spectrum, we conclude that the agency reasonably excluded APSS’s proposal from further consideration upon recognizing that APSS had quoted items and rates not then found on its FSS schedule.

APSS maintains that its quotation was not improper, asserting that the Schedule 84, SIN 246-54, information statement concerning task orders for new locations is not binding, and that the RFQ in this case did not require offerors to be “compliant with all terms and conditions in their GSA Schedule Contracts.” Protester’s Final Comments, at 2. We disagree.

As explained above, where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. Science Applications Int’l Corp., supra. This is necessarily the case, because while FSS procedures satisfy the requirements for full and open competition, FSS procedures may not be used to procure items not on an underlying FSS schedule contract. Such items must be purchased in accordance with otherwise applicable procurement laws and regulations, including those requiring the use of full competitive procedures. Symplicity Corp., supra.

Accordingly, responses to an RFQ issued pursuant to FAR Subpart 8.4 must comply with terms, conditions, and procedures set forth in an underlying FSS schedule contract for the order to meet the requirements of full and open competition. Where a quotation is not consistent with an underlying FSS schedule contract, the agency may reasonably exclude the quotation upon discovery of that fact. Spectrum Security Servs., Inc., supra. In this case, when the agency discovered that the protester quoted items not incorporated in its underlying FSS schedule contract, it was not unreasonable for the agency to exclude that quotation from further consideration, notwithstanding the protester’s pledge to modify its FSS schedule contract.

The protest is denied.  (Asset Protection & Security Services, LP, B-406474.2, Jul 17, 2012)  (pdf)


BRCS argues that the agency improperly made award to an entity that was not a FSS 03FAC schedule contract holder as required by the solicitation. Protest at 5. BRCS maintains that Urban/Meridian is a joint venture and that GSA requires joint ventures to separately possess a schedule contract to be eligible for award. Comments at 1.

The protester maintains that specific provisions of the Urban/Meridian CTA create a joint venture and that the CTA did not comply with GSA's CTA document directives. Comments at 16. For example, the protester maintains that a provision of the CTA that empowers officers of both companies to negotiate with the government on behalf of both companies as a single entity is one of the hallmarks of a joint venture, wherein the acts of each joint venture bind both partners. Comments at 3.

The agency maintains that the task order was properly awarded to the Urban/Meridian team. Contracting Officer's Statement at 5. The agency responds that Urban/Meridian submitted a proposal as a team and submitted a CTA with their proposal that complied with GSA requirements. Id. The agency notes that both Urban and Meridian hold 03FAC schedule contracts and all of the services to be provided in response to the solicitation are contained on those schedule contracts. Id. The agency states that the Urban/Meridian agreement identifies the majority member, the roles and responsibilities of the parties, and the agency's understanding is that the CTA was for the purpose of providing services in response to the solicitation. Id. at 6. The contracting officer states that she reviewed the CTA and accepted it, and identified no deficiencies. Supplemental Contracting Officer's Statement at 2.

The FSS program, directed and managed by GSA, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. Federal Acquisition Regulation (FAR) sect. 8.401(a). When an agency conducts a formal competition under the FSS program, we will review the agency's evaluation of vendor submissions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. SI Int'l, SEIT, Inc., B-297381.5, B-297381.6, July 19, 2006, 2006 para. 114 at 11.

GSA encourages the use of CTAs as a means of maximizing a vendor's competitiveness. AR, Tab 9, GSA Schedules at 8. GSA requires that when CTAs are used, all team members must hold their own FSS contract for the specific requirements. Id. While GSA provides guidelines as to the elements of a CTA, GSA recognizes that CTA documents are necessarily tailored to individual team members. Id. Although GSA does not approve CTAs it does encourage ordering activities to review CTAs to ensure that the CTA clearly delineate team member responsibilities and provide for coordination and cooperation between team members. Id. at 9.

Our review of the record shows that the Urban/Meridian submission in response to the solicitation was specifically identified as a teaming agreement for the purpose of providing services in response to the solicitation. In addition, the CTA between Urban and Meridian identified the majority member and the roles and responsibilities of the parties. Given that both members of the Urban/Meridian team have the appropriate FSS contract and that the CTA defines each member's responsibilities to the satisfaction of GSA, we do not find GSA's award of a task order to Urban/Meridian to be unreasonable.

While the protester argues that the substance of the Urban/Meridian CTA has all the essentials of a joint venture and thus the protester maintains that the Urban/Meridian agreement created a joint venture.

We do not agree. Urban/Meridian's intent, as demonstrated in its agreement, was to create a CTA for the purpose of responding to this solicitation. In addition, Urban/Meridian appears to be following the guidance set forth in the questions and answers added to the solicitation by Amendment No. 2, i.e., the companies are adopting a teaming approach rather than establishing a new legal entity.

Each team member has the appropriate FSS contract and GSA has reviewed the CTA and determined that it adequately explains the team members' responsibilities. Thus, GSA's award to Urban/Meridian was reasonable.  (B-405327, Brooks Range Contract Services, Inc., October 12, 2011.  (Brooks Range Contract Services, Inc., B-405327, October 12, 2011)  (pdf)


Maybank complains that Modutech's FSS contract does not include a boat with a minimum overall length of 90 feet as required by the RFQ. Protest at 2; Protester's Supp. Comments at 2-4. The protester contends that Modutech's FSS contract only lists a passenger tour boat that measures 27 meters, or 88.58 feet, which would not satisfy the RFQ's minimum technical requirement. Protest at 2; Supp. Protest at 2.

The Navy responds that, at the time the order was issued, Modutech's FSS contract listed a 27-meter boat with an interchangeable ramp (IR) which had an overall length of 95 feet. See AR at 8-9. In this regard, the record includes Modutech's explanation to the agency that the "27 Meter Patrol Craft/Escort Boat Aluminum IR" on Modutech's FSS contract is part of the 27-meter boat family, but has been "stretched" to a minimum of 95 feet to accommodate the ramp. See AR, Tab 26, Modutech Email to Navy, at 2. GSA also notes that the naval architectural drawing, which Modutech provided to GSA for the 27-meter boat with an interchangeable ramp, showed an overall length of 95 feet. GSA's Comments at 3. In addition, the Navy points out that Maybank quoted an 85-foot boat from its FSS schedule, which Maybank also was apparently modifying to satisfy the RFQ's overall length requirement.

The FSS program provides federal agencies a simplified process for obtaining commonly used commercial supplies and services. FAR sect. 8.401(a). Non-FSS supplies and services may not be purchased using FSS procedures; instead, their purchase requires compliance with applicable procurement laws and regulations, including those requiring the use of competitive procedures. When an agency announces its intention to order from an existing FSS vendor, all items quoted and ordered are required to be on the vendor's FSS contract at the time the order is issued. See Tarheel Specialties, Inc., B-298197, B‑298197.2, July 17, 2006, 2006 CPD para. 140 at 3-4. The sole exception to this requirement is for items that do not exceed the micro‑purchase threshold of $3,000, since such items properly may be purchased outside the normal competition requirements in any case. See CourtSmart Digital Sys., Inc., B‑292995.2, B-292995.3, Feb. 13, 2004, 2004 CPD para. 79 at 5; Symplicity Corp., B-291902, Apr. 29. 2003, 2003 CPD para. 89 at 4; Pyxis Corp., B‑282469, B‑282469.2, July 15, 1999, 99-2 CPD para. 18 at 4; see also ATA Defense Indus., Inc. v. United States, 38 Fed. Cl. 489, 503 (1997).

In reviewing an agency's technical evaluation under an FSS competitive acquisition, we will not reevaluate the quotations, but, as with protests of negotiated procurements, we examine the record to ensure that the agency's evaluation was reasonable and consistent with the terms of the solicitation and the stated evaluation criteria. See CourtSmart Digital, supra, at 7; KPMG Consulting, LLP, B‑290716, B‑290716.2, Sept. 23, 2002, 2002 CPD para. 196 at 11.

Here, the record shows that Modutech's 27-meter boat with an interchangeable ramp satisfied the RFQ's 90‑foot overall length requirement. As explained by the Modutech, the Navy, and GSA, the 27-meter boat on the firm's FSS contract was lengthened to 29 meters, or 95 feet, to accommodate the interchangeable ramp. See AR at 9; AR, Tab 26, Modutech Email to Navy, at 2; GSA's Comments at 3. Although Maybank generally complains that the lengthened boat is identified on Modutech's FSS contract as a 27‑meter boat, it does not address Modutech's or the agencys' explanations as to how Modutech's modified boat satisfied the overall length requirement. At best, Maybank's protest reflects mere disagreement with the agency's evaluation judgment, which does not show that the Navy unreasonably found that Modutech's boat satisfied the RFQ's requirements in this regard. We also note that Maybank quoted a boat on its FSS contract that was less than 90 feet, but which Maybank proposed to lengthen to 93 feet to satisfy the RFQ's requirements.

Maybank next complains that the Navy improperly accepted Modutech's modified 27‑meter boat, because the boat was added to Modutech's FSS contract after the receipt of quotations. We find no merit to this argument. The critical date for determining whether the supplies and services are on the vendor's contract is the date that the order is placed. See Science Applications Int'l Corp., B‑401773, Nov. 10, 2009, 2009 CPD para. 229 at 2 n. 1; Symplicity Corp., supra, at 5. Although Maybank argues that the Navy suggested to Modutech that it add its modified boat to its FSS contract prior to the agency's issuance of an order to that firm, it does not identify any law or regulations that the agency allegedly violated by informing Modutech that its quoted boat must be on its FSS contract before the issuance of an order.  (Maybank Industries, LLC, B-403327; B-403327.2,October 21, 2010)  (pdf)


Rapiscan asserts that the agency improperly issued the purchase order to SAIC because SAIC’s FSS contract in fact does not include three of the required items-- CLIN 7, freight; the installation required for the VACIS Gamma Ray System under CLIN 1; and the installation required under CLIN 8 for the replacement energy source.

The FSS program provides federal agencies a simplified process for obtaining commonly used commercial supplies and services. Federal Acquisition Regulation (FAR) sect. 8.401(a). FSS procedures satisfy the requirement for full and open competition. 41 U.S.C. sect. 259(b) (3) (2006); FAR sect. 6.102(d) (3). Non-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with applicable procurement laws and regulations, including those requiring the use of competitive procedures. Symplicity Corp., B-291902, Apr. 29. 2003, 2003 CPD para. 89 at 4. Where an agency announces its intention to order from an existing FSS contractor, all items quoted and ordered are required to be within the scope of the vendor’s FSS contract. Tarheel Specialties, Inc., B-298197, B‑298197.2, July 17, 2006, 2006 CPD para. 140 at 4. The sole exception to this requirement is for items that do not exceed the micro‑purchase threshold of $3,000, since such items properly may be purchased outside the normal competition requirements in any case. See SMS Sys. Maint. Servs., Inc., B-284550.2, Aug. 4, 2000, 2000 CPD para. 127 at 2; see also CourtSmart Digital Sys., Inc., B‑292995.2, B-292995.3, Feb. 13, 2004, 2004 CPD para. 79 at 5; Pyxis Corp., B-282469, B‑282469.2, July 15, 1999, 99-2 CPD para. 18 at 4.

With respect to CLIN 7, freight, the agency concedes that SAIC’s FSS contract does not include an item for freight, but argues that it nevertheless properly issued the purchase order to SAIC because its quoted price for the item does not exceed the $3,000 micro‑purchase threshold.

We find that CLIN 7 did not qualify as a micro-purchase item. SAIC’s initial quotation for CLIN 7 indicated that freight was an open market--rather than an FSS contract--item, and showed a unit price of $6,832. SAIC Quotation sect. 4.1. SAIC then submitted a revised quotation on June 13 that again showed a unit price of $6,832 for CLIN 7, but further indicated that this price was being discounted by $6,832, resulting in a CLIN 7 price of $0. However, the quotation also expressly stated that the price for CLIN 7 was “included in unit price of Item #1,” indicating a shifting of the initially quoted price for line item 7 to line item 1. Revised Quotation sect. 4.1. Based on this evidence, while SAIC’s quotation showed a price of $0 for freight, this price, in effect, was illusory; its quoted total price actually included an amount for freight that exceeded the $3,000 micro-purchase threshold. Under these circumstances, we find that CLIN 7 freight cannot be considered a micro-purchase item under SAIC’s quotation. It follows that, since freight was a required item and was not included on SAIC’s FSS contract, the purchase order could not properly be issued to SAIC. The micro‑purchase exception is a narrow one and was not intended as a means for vendors to provide non-FSS items as micro‑purchase items to avoid the general rule that all items under an FSS solicitation must be included on the successful vendor’s FSS contract. See SMS Sys. Maint. Servs., Inc., supra.

Based on the foregoing, we sustain the protest. We recommend that the agency cancel SAIC’s purchase order and issue a new order to the vendor next in line under the terms of the RFQ, and in accordance with this decision. If the agency determines that there are no acceptable quotations, it should cancel the RFQ and resolicit its requirements. We also recommend that Rapiscan be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2009). Rapiscan should submit its certified claim for costs, detailing the time expended and cost incurred, directly to the contracting agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).  (Rapiscan Systems, Inc., B-401773.2; B-401773.3, March 15, 2010)  (pdf)


Perot asserts that it was improper for the agency to exclude its quotation from award consideration. Specifically, the protester argues that, because the solicitation permitted vendors to propose pricing “derived from” their current FSS contract, it properly could quote rates different from those in its current contract, provided that the quoted rates were derived from that contract. Protest at 10. Perot maintains that its rates were acceptable under the terms of the RFQ because they were derived from its current GSA schedule contract.

FSS procedures provide agencies a simplified process for obtaining commonly used commercial supplies and services, FAR sect. 8.401(a), and, although streamlined, satisfy the requirement for full and open competition. 41 U.S.C. sect. 259(b)(3) (2006); FAR sect. 6.102(d)(3). GSA schedule contracts require all schedule contractors to publish an “Authorized Federal Supply Schedule Pricelist.” FAR sect. 8.402(b). The pricelist contains all supplies and services offered by a schedule contractor. Id. In addition, each pricelist contains the pricing and terms and conditions pertaining to each SIN included on the schedule. Id. Supplies offered on the schedule are listed at fixed prices. Services listed on the schedules are priced either at hourly rates (the case here), or at a fixed price for performance of a specific task. Because prices in FSS contracts already have been determined by GSA to be fair and reasonable, ordering activities are not required to make a separate determination of fair and reasonable pricing prior to issuing an order against an FSS contract. FAR sect. 8.404(d). Ordering activities may seek additional discounts before placing an order. Id.

While we find the RFQ language calling for prices “derived from” the contractor’s current GSA IT Schedule contract to be unclear (we assume it was intended to reflect permissible discounts from FSS contract prices), since this was an FSS acquisition conducted under FAR part 8.4, the RFQ must be read in a manner consistent with the FAR rules and regulations pertaining to FSS purchases. In this regard, vendors under FSS purchases must quote schedule prices that are published and that have been determined to be fair and reasonable by GSA. FAR sections 8.402(b) and 8.404(d). The only exception to this rule is that vendors may offer discounts to their contract prices. FAR sect. 8.404(d).

Perot quoted prices that were not on its current FSS contract and thus were neither published nor determined to be fair and reasonable by GSA. This being the case, Perot’s quotation was inconsistent with the terms and conditions of the RFQ and FSS regulations, and therefore unacceptable. Thus, GSA properly eliminated it from consideration.

Perot argues that the agency should accept its quotation because most of its prices were lower than the prices on its original FSS schedule and therefore, presumably, fair and reasonable, and that the few rates that were higher were not materially so. Protester Comments at 20. In this regard, Perot notes that the RFQ did not state that the “current contract” was a cap on rates. Id. at 13. In any event, Perot contends that its quotation should have been accepted because its total price is lower than EDS’s.

As noted above, when competing for task orders under the FSS, vendors are permitted to quote their approved and published contract rates, with or without discounts. Thus, a vendor’s approved and published rates do operate, in effect, as a “cap” on its prices. Here, even if Perot’s lower prices are viewed as permissible discounts to its current FSS contract prices, rather than as new, unapproved, unpublished rates, its quotation still would not be acceptable, since, as Perot acknowledges, some of its quoted prices were higher than its current contract prices. Since nothing under FSS regulations allows a schedule holder to propose prices higher than its current FSS contract prices--those higher prices have not been determined to be fair and reasonable by GSA--the higher prices in Perot’s quotation rendered it unacceptable.

Very simply, while discounts to FSS prices are permissible, the higher prices quoted by Perot are not schedule prices; an order based on non-FSS pricing under an FSS acquisition therefore would be improper. See generally Science Applications Int’l, B‑401773, Nov. 10, 2009, 2009 CPD para. 229 at 1 (under FSS acquisition, all items ordered must be included on vendor’s schedule contract).

Perot asserts that interpreting the RFQ as requiring that quoted prices be current (actual or discounted) FSS contract prices ignores the phrase “derived from,” and thus evidences a latent ambiguity in the RFQ. Protester Comments at 18. However, even if we agreed that the pricing instructions were ambiguous, any ambiguity was patent rather than latent. In this regard, to the extent the term “derived from” led the protester to interpret the RFQ as permitting prices higher than its current FSS contract, that interpretation was inconsistent with the FAR. Since Perot was on notice of the FAR, see Environmental Tech. Assessment Compliance Serv., B-258093, Dec. 13, 1994, 94-2 CPD para. 239 at 3, it should have known from the face of the RFQ that its interpretation was inconsistent with the FAR, since its prices had not been determined to be fair and reasonable. As such, this protest ground is untimely, since it was not raised prior to the deadline for receipt of quotations. 4 C.F.R. sect. 21.1(a)(1) (2009).  (Perot Systems Government Services, Inc., B-402138, January 21, 2010)  (pdf)
 


It is true that an agency may not use FSS procedures to purchase items that are not listed on a vendor’s GSA schedule without conducting a competition for those non‑schedule items. Firearms Training Sys., Inc., B-292819.2 et al., Apr. 26, 2004, 2004 CPD para. 107 at 9; Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD para. 89 at 4.

However, as discussed below, we find that GSA reasonably found that the required services were included in FedSource’s or its subcontractors’ schedule contracts and purchased under the appropriate SINs.

As AWS properly notes, FAR sect. 2.101 defines “construction” to mean “construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property.” However, the agency reasonably determined here that the RFQ did not contemplate construction services.[3] As the agency correctly notes, the RFQ seeks the installation of a free-standing mezzanine system that requires no construction, alteration, or repair of the building structure; it requires only that the mezzanine structure be bolted to the floor. According to the agency, the mezzanine structure is manufactured off site and assembled on site, and it can easily be disassembled and reassembled in another location. GSA Legal Memorandum at 4. The RFQ generally requires that installation occur “in accordance with [the] manufacturer’s specified installation procedures,” RFQ, Statement of Work, at 3, and does not include any FAR provisions concerning construction or Davis Bacon wage rates. Although the RFQ generally references “[International Building Code] design” in describing the width and rise requirements for the mezzanine stairs, id. at 2, and generally requires that design, fabrication, and installation of the mezzanine systems occur “in accordance with the applicable industry codes and standards,” id. at 1, these general provisions, in our view, do not transform this order into construction services as AWS contends.

In addition, GSA’s market research confirmed that the services are not construction.

In this regard, prior to issuing the solicitation, the contracting officer consulted with a project engineer from the Air Force, as well as representatives from AWS and FedSource. All three indicated that fabrication and installation of the mezzanine structure was not construction, but rather was assembly.[4] Contracting Officer’s Statement at 3, 7. Furthermore, we note that AWS’s website shows that it “designs, manufactures, and installs” mezzanine systems, and makes no reference to performing construction services. See www.aw-systems.com/mezzanine-systems.htm.

The contracting officer also reviewed the SIN descriptions for SIN 361-30 (“Ancillary Services Relating to Pre-Engineered/Prefabricated Buildings and Structures”) and SIN 361-32 (“Installation and Site Preparation for Pre-Engineered/Prefabricated Buildings and Structures”) under Schedule 56 to determine the appropriate labor SIN to use. These descriptions are as follows:

SIN 361-30, Ancillary Services Relating to Pre-Engineered/ Prefabricated Buildings and Structures -- Including services relating to and ordered in conjunction with products purchased under the supply schedule contract, such as, field assembly, training, consultation and design assistance. EXCLUDES Construction as defined by FAR 2.101; Architectural Engineering Services (A&E) under the Brooks Architect-Engineers Act as stated in [FAR] Part 36; and services applicable to the Service Contract Act.

* * * * *

SIN 361-32, Installation and Site Preparation for Pre-Engineered/ Prefabricated Buildings and Structures -- Applicable to installation and site preparation services ordered in conjunction with buildings and structures purchased under the supply schedule contract. SPECIAL ORDERING PROCEDURES, WHICH INCLUDE DAVIS BACON WAGE RATES AND CONSTRUCTION CLAUSES FOR INSTALLATION AND SITE PREPARATION APPLY TO THIS SIN. EXCLUDES Architectural Engineering Services (A&E) under the Brooks Architect-Engineers Act as stated in [FAR] Part 36.

Agency Report, Tab 23, SIN Descriptions; Contracting Officer’s Statement at 2.

As noted above, the agency has provided a reasonable basis for its determination that the installation services here are for assembly and not construction, and, therefore, are more appropriately procured under SIN 361-30. In this regard, the RFQ requirements were reasonably found to not involve construction, alteration, or repair of the building or building structures, and the RFQ does not contain any construction clauses or Davis Bacon Act wage rate requirements. Thus, we find that the agency reasonably determined that SIN 361-32 was not applicable. Since FedSource’s GSA schedule and its subcontractors’ GSA schedules contained SIN 361-30, and since of the services purchased were either on these schedules or purchased through competition as “open market” items, we find that the order placed with FedSource was unobjectionable.

The protest is denied.  (American Warehouse Systems, B-402292, January 28, 2010)  (pdf)


When a concern arises that a vendor is offering services outside the scope of its FSS contract, the relevant inquiry is not whether the vendor is willing to provide the services that the agency is seeking, but whether the services or positions offered are actually included on the vendor's FSS contract, as reasonably interpreted. See American Sys. Consulting, Inc., B-294644, Dec. 13, 2004, 2004 CPD para. 247 at 5.

As the category description above shows, SIN 246-54 includes the types of personnel necessary to staff security operations at a facility, or to support those personnel. While the support function category logically includes those personnel who assist the protective service occupations in carrying out their functions, it does not reasonably include individuals who would create the construction site security plan for the purposes of obtaining SCIF accreditation from DIA. Moreover, we have previously recognized the difference in the kinds of personnel available under SINs 246-54 and 246-52. See Tarheel Specialties, Inc., B-298197, B-298197.2, July 17, 2006, 2006 CPD para. 140, at 4-9.

The intervenor argues that SIN 246-54 does include a position--contract manager--that contemplates the type of services called for in the RFQ relating to development of the Construction Security Plan and related services. In this regard, CIS asserts that the Construction Security Plan "is a relatively simple and straightforward document, typically resulting in a checklist developed based on the particulars of each construction project," and does not require "an array of specialized experience apart from providing day-to-day construction site security." CIS Comments, Dec. 30, 2009, Attach. 1, Decl. of John S. Morris at 2.

In our view, the contract manager position description in SIN 246-54 does not include the functions contemplated under the RFQ here as they relate to development of the Construction Security Plan and the associated services to be provided by the contractor. SIN 246-54 describes the contract manager in relevant part as having "overall responsibility for implementing, monitoring, and upgrading the Contractor's quality control plan and . . . for ensuring that the Contractor's work force complies at all times with the contract requirements." AR, Tab 4, SIN 246-54, sect. 7.1C. With respect to the experience required for the position, the SIN states as follows: "project development and implementation from inspection to deployment; expertise in the management and control of funds and resources using complex reporting mechanisms; and demonstrated capability in managing multi-task Contracts or subcontracts of various types and complexity" Id. at sect. 7.1A. The experience and functions listed in the position description, while clearly managerial, are general in nature and, in our view, do not include the site-specific, detailed, ongoing management services called for under the RFQ here--including the development of a Construction Security Plan. We are unpersuaded by the intervenor's argument that development of the Construction Security Plan (and related services to be performed by the contractor here) should be regarded as a routine and inherent part of management of any construction site security work of the type called for under the RFQ, and thus that performance of these services does not require personnel other than the supervisory personnel included in SIN 246-54.[2] As noted above, the RFQ calls for a site-specific Construction Security Plan that depends on close coordination with numerous other entities, as well as ongoing services related to ensuring compliance with the Plan in order to obtain SCIF accreditation. RFQ sect. 2.6.1. These services are not within scope of the supervisory positions described in SIN 246-54.

In sum, CIS' quotation should not have been viewed as having met the RFQ requirement that the vendor possess an FSS contract offering all the services sought. Consequently, it was not proper for the agency to place the order under CIS' FSS contract.

In view of our conclusion that an order may not properly be issued to CIS under the RFQ here, we recommend that the agency issue the task order to the vendor next in line for selection under the terms of the RFQ. We also recommend that ASP be reimbursed its costs of filing and pursuing the protest. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1). The protester's certified claims for such costs, detailing the time expended and costs incurred, must be submitted directly to the agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).  (American Security Programs, Inc., B-402069,; B-402069.2, January 15, 2010) (pdf)


Since the solicitation here limited the competition to vendors holding a specified FSS contract, the agency was limited to issuing the purchase order to a vendor whose FSS contract included all of the required items. Tarheel Specialties, Inc., supra; CourtSmart Digital Systems, Inc., supra. Since it is undisputed that Rapiscan’s FSS contract did not include all required items at the time the order was issued, the order could not properly be issued to Rapiscan. We reject the agency’s position that it was proper to issue an order to Rapiscan because the ordered items will be added to its FSS contract prior to the delivery date. This position ignores our decisions, as well as the Court of Federal Claims’s decision in ATA, and, since there is no way to determine with certainty whether a vendor’s FSS contract will include the ordered items in the future, clearly would undermine, if accepted, the requirement that non-FSS items be purchased using normal full and open competition procedures.

The agency asserts, alternatively, that the order actually was issued to Rapiscan on the basis of full and open competition--and that the non-FSS item rule therefore does not apply--since all participants in the mobile intrusive gamma inspection unit marketplace hold FSS contracts, and all were permitted to submit quotations. We disagree because the agency’s argument is based on a flawed premise. Pursuant to the FAR, full and open competition is achieved only where all responsible sources are permitted to compete. FAR sect. 2.101. While the agency asserts that all potential vendors of the required items were permitted to compete because all hold FSS contracts, there is no evidence in the record--and we question whether sufficient evidence could be presented--showing that there are no vendors of the items that do not hold FSS contracts. Rather, under the circumstances here, the only way to ensure that all responsible sources are permitted to compete would be to conduct a competition without FSS restrictions. Moreover, the agency’s argument ignores the possibility that some FSS vendors chose not to submit a quotation because, like Rapiscan, they did not have all of the required items on their FSS contracts. Notably, in this regard, the agency reports that only 4 of the 46 FSS vendors notified of the solicitation requested a copy of it.

Based on the foregoing, we sustain the protest. We recommend that the agency cancel Rapiscan’s purchase order. Because there is a dispute in the protest record as to whether SAIC’s FSS contract includes all required items, we also recommend that the agency determine whether SAIC had all items on its FSS contract at the time the order was issued. If the agency determines that this is the case, and that SAIC’s quotation is otherwise technically acceptable and lowest-priced, the agency should issue a purchase order to SAIC. Otherwise, the agency should issue the purchase order to the vendor in line for award under the terms of the RFQ, and in accordance with this decision. We also recommend that SAIC be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2009). SAIC should submit its certified claim for costs, detailing the time expended and cost incurred, directly to the contracting agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).
  (Science Applications International Corporation, B-401773, November 10, 2009) (pdf)


Based on our review and comparison of the PWS with ManTech's FSS contract, we find that the user support manager services are outside the scope of ManTech's FSS contract. We reach this conclusion because the RFQ required ManTech to identify the labor category from its FSS contract that "most nearly equat[ed]" to each PWS-defined position, and the task manager labor category identified by ManTech does not appear to match the user support manager position defined in the PWS. For example, the task manager description does not include performing the help desk or systems support services described in the PWS. Rather, the task manager position is focused on financial management activities, with some general administrative management duties. The task manager experience level also does not include at least 2 years of help desk experience, as is required for the user support manager position. Since ManTech's "most nearly equat[ing]" labor category (i.e. , task manager) does not perform the services required for the user support manager, and neither the agency nor ManTech argue that a more closely related labor category exists on ManTech's FSS contract to fill the position, it appears that ManTech's quoted services are outside the scope of its FSS contract. The agency argues, however, that the matching of FSS labor categories to the PWS requirements ignores the actual personnel qualifications identified by ManTech in its quotation for the various positions. We think this argument misses the point; when concern arises that a vendor is offering services outside the scope of its FSS contract, the relevant inquiry is not whether the vendor is willing to provide the services that the agency is seeking, but whether those services are actually included in the vendor's FSS contract as reasonably interpreted. If the quoted services are not listed on the vendor's FSS contract, they cannot be purchased using FAR Part 8 procedures, but instead must be purchased using competitive procedures. Symplicity Corp. , supra , at 4-5. The fact that a vendor may state in its quotation that it is willing, and in fact is able, to provide such services does not obviate the agency's obligation to make certain that all of those services are within the scope of the vendor's FSS contract. Where a portion of the services are outside the scope of that contract, as is the case here, then the agency must use competitive procedures to procure them. (American Systems Consulting, Inc., B-294644, December 13, 2004) (pdf)


However, to the extent that the protester is instead arguing that the RFQ failed to advise vendors that only those firms that had all of the required SINs listed on their own, as opposed to their subcontractors', FSS contracts would be considered for award, and thus that it would have been improper for the agency to distinguish among quotations on that basis, we agree. Contrary to the agency's argument, an FSS contractor acting as a prime contractor may use a subcontractor to provide services not included within the prime contractor's FSS contract so long as the services in question are included within the subcontractor's FSS contract. [5] See OMNIPLEX World Servs. Corp. , supra , at 5. This is so because the items on the subcontractor's FSS contract, like the items on the prime contractor's FSS contract, were the object of competitive procedures prior to their inclusion on the vendor's schedule contract. What is not permitted is for a schedule contractor acting as a prime contractor to use a subcontractor to offer services not included in either its own or the subcontractor's FSS contract since this would mean that it was improperly including non-FSS goods or services in an FSS acquisition. Id. We nonetheless deny Altos's protest because, as pointed out by the agency, there is no mention in the protester's quotation that Altos will be subcontracting for performance of the SINs not listed on its own FSS contract or that any of its subcontractors has an FSS contract for the missing item(s). To the extent that the protester intended to use a subcontractor to provide services not included in its own FSS contract, it was incumbent upon it to identify the subcontractor in its quotation so that the agency could confirm that items missing from the protester's FSS contract were included on the subcontractor's schedule contract. The agency cannot be faulted for failing to consider in its evaluation information that was not included in Altos's quotation. In this regard, it is well-established that a firm runs the risk of not being selected for award if it fails to submit an adequately written quotation. Northwest Mgmt., Inc. , B-277503, Oct. 20, 1997, 97-2 CPD 108 at 5. (Altos Federal Group, Inc., B-294120, July 28, 2004) (pdf)


In our view, this procurement cannot properly be termed an “FSS buy,” and thus the FSS procedures regarding the purchase of open market items have no application here. As described above, this procurement was conducted using full and open competition. Using a task order against the awardee’s FSS contract to implement the selection decision at the end of the competition is a matter of administrative convenience; it does not convert this procurement to an FSS buy, or raise the kinds of concerns normally associated with including open market items in an FSS purchase. See, e.g., Pyxis Corp., B-282469, B-282469.2, July 15, 1999, 99-2 CPD ¶ 18 at 3. The remaining requirements of FAR § 8.401(d) are administrative matters of little concern in this environment. (Firearms Training Systems, Inc., B-292819.2; B-292819.3; B-292819.4, April 26, 2004) (pdf)


1.  Here, it is undisputed that at least one item in York’s proposed system--the audio mixer--was not on York’s FSS schedule. York’s quotation identified the mixer as an item on an FSS contract of another vendor, Biamp Systems, with which York stated it had a “contractor team arrangement.”[2] However, the Biamp FSS contract identified in York’s quotation expired several years ago, and the Biamp mixer was, therefore, not an FSS item. Not only is the mixer a necessary component of the digital recording system being procured under this RFQ, but it is the most significant hardware item, with the highest total line item price that York quoted (the total extended price for the mixer is [DELETED] dollars and comprises almost [DELETED] percent of York’s total final price). Since the agency’s placement of the order with York was based on a digital recording system using a non-FSS mixer, the selection of York was improper. Symplicity Corp., supra, at 4-5; T-L-C Sys., supra.  (CourtSmart Digital Systems, Inc., B-292995.2; B-292995.3, February 13, 2004) (pdf)


The record establishes, and neither OPM, GSA, nor TMP argues otherwise, that TMP’s quotation here included two labor categories that are not on its Schedule 738I contract, and that OPM recognized but failed to realize the importance of this during its evaluation of TMP’s quotation. AR, Tab 4B, TMP’s Final Quotation, at 1; OPM’s Post-Hearing Comments at 8-11; GSA’s Post-Hearing Comments at 7; TMP’s Post-Hearing Comments at 10-11; Tr. at 72, 101, 105, 136. The acceptance of TMP’s quotation and award of a task order to that firm by OPM was thus improper because, as noted above, an agency cannot lawfully use the FSS ordering procedures to order services that are not contained on the vendor’s schedule contract. OMNIPLEX World Servs. Corp., supra, at 5-6; The CDM Group, Inc.; B-291304.2, Dec. 23, 2002, 2002 CPD ¶ 221 at 3-4. That is, as confirmed by GSA, labor categories included in a vendor’s quotation must be listed on the vendor’s schedule contract before a task order is issued. GSA’s Post-Hearing Comments at 2, 7; Tr. at 31-32, 80; The CDM Group, Inc., supra. We sustain the protest on this basis.  Symplicity also protests that OPM’s evaluation of its quotation was unreasonable and inconsistent with the RFQ’s evaluation factors. Under the FSS program, agencies are not required to conduct a competition before selecting a vendor that represents the best value and meets the agency’s needs at the lowest overall cost. FAR § 8.404(a); Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4. However, where, as here, an agency handles the selection of a vendor for an FSS order like a competition in a negotiated procurement, and a protest is filed challenging the outcome of the competition, we will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. Computer Prods., supra, at 4-5.  (Simplicity Corporation, B-291902, April 29, 2003 (pdf)


Notwithstanding the apparent disconnect between the services offered in B&W's proposal and the services covered by its FSS contract, there is no evidence that the INS ever considered whether the services B&W and its subcontractors offered to provide were covered by B&W's FSS contract. The INS appears to erroneously believe that it was not required to make this inquiry as long as B&W held a current FSS contract under schedule 738 X, SIN 595 21, see Agency Oct. 29, 2002 Response to GAO Questions at 4, and it has failed to address this question despite several requests from our Office to do so. In view of the fact that the BPA awarded to B&W appears to have exceeded the scope of that firm's FSS contract, we sustain the protest on this basis. See T-L-C Sys., supra; American Mgmt. Sys., Inc., B-216998, July 1, 1985, 85-2 CPD P: 3 at 7.  (OMNIPLEX World Services Corporation, B-291105, November 6, 2002)  (pdf)


After receiving quotes in response to a request for quotes for a fire alarm system, agency improperly placed an order under a Federal Supply Schedule contract including items integral to the system but not listed in the contract; agency's proposed corrective action of simply deleting the items from the order and otherwise procuring them, presumably on a noncompetitive basis from the awardee, does not render the protest academic, because the remaining FSS order does not meet the agency's need for a complete system, and the agency received and evaluated a significantly lower-priced, acceptable quote from a non-FSS vendor (the protester) to supply such a system.  (T-L-C Systems, B-285687.2, September 29, 2000)


As both OTS and the General Services Administration (GSA) recognize, non- FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. See Pyxis Corp., B- 282469, B- 282469.2, July 15, 1999, 99- 2 CPD para. 18 at 4; see also ATA Defense Indus., Inc. v. United States, 38 Fed. Cl. 489, 503 (1997). Our Office has rejected the notion that items not on a FSS contract may be purchased under that contract if they were "incidental" to the services or items being procured under that contract. 2 Pyxis Corp., supra, at 3- 4.  (SMS Systems Maintenance Services, Inc., B- 284550.2, August 4, 2000)


An agency may no longer rely on the "incidentals" test to justify the purchase of non-FSS items in connection with an FSS buy; where an agency buys non-FSS items, it must follow applicable acquisition regulations.  (Pyxis Corporation, B-282469; B-282469.2, July 15, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
T. S. Marshall & Associates, Inc. B-413854: Dec 15, 2016 New Knight Point Systems, LLC B-414183.3, B-414183.5: May 31, 2017
KPMG LLP; Deloitte Consulting LLP; PricewaterhouseCoopers Public Sector LLP B-412732, B-412732.2, B-412732.3, B-412732.4, B-412732.5, B-412732.6, B-412732.7: May 23, 2016  (pdf) AllWorld Language Consultants, Inc. B-411481.3: Jan 6, 2016  (pdf)
AmeriGuard Security Services, Inc. B-411513.2: Oct 2, 2015  (pdf) US Investigations Services, Professional Services Division, Inc. B-410454.2: Jan 15, 2015  (pdf)
National Forensic Science Technology Center, Inc.,  B-409457.2,B-409457.3: Jul 29, 2014  (pdf) Rapiscan Systems, Inc., B-401773.2; B-401773.3, March 15, 2010  (pdf)
Hi-Tech Bed Systems Corporation, B-406925, Sep 27, 2012  (pdf) American Security Programs, Inc., B-402069,; B-402069.2, January 15, 2010 (pdf)
Asset Protection & Security Services, LP, B-406474.2, Jul 17, 2012  (pdf) Science Applications International Corporation, B-401773, November 10, 2009 (pdf)
Brooks Range Contract Services, Inc., B-405327, October 12, 2011  (pdf) CourtSmart Digital Systems, Inc., B-292995.2; B-292995.3, February 13, 2004 (pdf)
Maybank Industries, LLC, B-403327; B-403327.2,October 21, 2010  (pdf) Simplicity Corporation, B-291902, April 29, 2003 (pdf)
Perot Systems Government Services, Inc., B-402138, January 21, 2010  (pdf)
 
OMNIPLEX World Services Corporation, B-291105, November 6, 2002  (pdf)
American Warehouse Systems, B-402292, January 28, 2010  (pdf) T-L-C Systems, B-285687.2, September 29, 2000
American Systems Consulting, Inc., B-294644, December 13, 2004 (pdf) Pyxis Corporation, B-282469; B-282469.2, July 15, 1999
Altos Federal Group, Inc., B-294120, July 28, 2004 (pdf)  
Firearms Training Systems, Inc., B-292819.2; B-292819.3; B-292819.4, April 26, 2004 (pdf)  
SMS Systems Maintenance Services, Inc., B- 284550.2, August 4, 2000  

U. S. Court of Federal Claims

With respect to the first question, plaintiff contends that the trailers added to Gerling’s GSA schedule contract by modification, after the RFQ was issued and after Gerling submitted its original quote in response to the RFQ, differed so greatly from the existing trailers on Gerling’s GSA schedule contract at the time the RFQ was issued as to render the trailers outside the scope of Gerling’s original GSA schedule contract. Plaintiff alleges that the Agency’s procurement violations included awarding the contract to Gerling when the procured items were not listed on its GSA schedule contract prior to Gerling submitting a quote and the Agency accepting a quote from [deleted] when it did not provide required documentation. In response, defendant asserts that the trailers added to Gerling’s GSA schedule contract were merely in-scope modifications of trailers already listed Gerling’s FSS contract. Defendant further contends that contractors may offer quotes for items not listed on their GSA schedule contracts, “so long as the item is on the FSS contract at the time the agency ordered the item,” in which case the award is proper.

In the instant case, Gerling’s FSS contract was modified before the award. The items which were the subject of the procurement, however, were not on Gerling’s FSS contract at the time Gerling responded to the RFQ and the RFQ had closed. In this regard, a Judge of the Court of Federal Claims stated in Eracent, “To place an order using the GSA FSS procedures, the contracting agency must certify that all items on the order are within the scope of the vendor’s FSS contract.” Eracent, Inc. v. United States, 79 Fed. Cl. at 430 (emphasis added). In Eracent, therefore, the focus was on when the order was placed. In Matter of Armed Forces Merchandise Outlet, B-294281, 2004 WL 2625027, at *4 (Comp. Gen. Oct. 12, 2004) the Government Accountability Office (GAO) stated:

[N]on-FSS products and services may not be purchased using FSS procedures; instead their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures.... [T]he solicitation did announce the agencys [sic] intention to order from an existing GSA contractor; in our view, this was sufficient to place vendors on notice that the agency intended to order all items using GSA FSS procedures and hence that all items were required to be within the scope of the vendors FSS contract.

Id. (citing Altos Federal Group Inc., B-294120, 2004 WL 1791349, at *3 (Comp. Gen. July 28, 2004)) (emphasis added). In Matter of Armed Forces Merchandise Outlet, the directive was to not purchase or order a non-FSS item using the FSS mechanism. In The CDM Group, Inc., B-291304.2, 2002 WL 31869253, at *2 (Comp. Gen. Dec. 23, 2002), the GAO stated “[a]n agency cannot properly select an FSS vendor for an order of items on the vendor's schedule and then include in the order items not included in that vendor's FSS contract….” (emphasis added).

Defendant’s position, to permit modification of an FSS contract up to the time the order is placed by an agency under an FSS, would permit an agency to procure a non-FSS item through the FSS by sending out a solicitation “feeler,” and then evaluate quotes for items that did not exist on GSA schedule contracts, with the hope that a selected contractor could modify its contract to include the items sought, thereby eliminating other non-FSS contractors from the competition. Defendant’s modification approach appears to allow targeted pre-selection of contractors outside the FSS system, which is inconsistent with the FSS system, as well as the general goals of fair and open competition espoused in CICA, at 41 U.S.C. § 253. CICA provides that an agency when involved in procuring property or services “shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this title and the Federal Acquisition Regulation….” 41 U.S.C. § 253(a)(1); see also T & M Distrib., Inc. v. United States, 185 F.3d 1279, 1282 n.2 (Fed. Cir. 1999). If there are no FSS qualified contractors, the agency is required to compete the award. See FAR 8.405-1(c)(1). If, in fact, CICA was violated by the Agency’s actions, then the instruction in 28 U.S.C. § 1491(b) that gives jurisdiction to this court to address “an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,” as well as FAR 8.404(c)(3), “Use of Federal Supply Schedules” (2009), which states: “Orders placed under a Federal Supply Schedule contract…(3) Must…be consistent with the requiring agency's statutory and regulatory requirements applicable to the acquisition of the supply or service,” would be in play.

In the case before the court, defendant concedes that the medical trailers were not offered through Gerling’s FSS contract at the time Gerling submitted its quote to the Agency in response to the RFQ. Defendant further acknowledges that submitting a modification request post-quote put Gerling in jeopardy of not being able to deliver on its quote, having submitted a quote for items it did not have listed on its FSS, in the event the GSA denied the modification request. The fact that the potential harm never materialized (i.e., the possibility of Gerling failing to deliver on the quoted offer) and that Gerling obtained the modification before the order was placed, does not excuse the Agency from violating, at a minimum, the spirit of CICA by accepting a quote on the FSS for an item that was not on Gerling’s GSA schedule contract at the time the quoted offer was submitted and the RFQ closed.

In fact, before the GSA approved Gerling’s modification request, GSA criticized Gerling for quoting items that were not on Gerling’s GSA schedule contract. After the contract specialist inquired, and was informed by Gerling that the items it sought to add to its contract had already been quoted to the Agency, the contract specialist responded:

[I]n the future you can not [sic] quote items that have not been approved under contract as a schedule purchase. If the products have not been approved under contract you must quote them as open market items. If this occurs again, Gerling’s contract will be in noncompliance of the contract terms and conditions.

Gerling responded, acknowledging that it was improper to quote items that were not on its schedule and stated:

Yes I understand, [sic] My sales staff did not previously understand the process of Ebuy [sic] and how it works with having approved products on the schedule. I have been very clear with them, that they can no longer quote items from ebuy [sic] without having the product previously approved to be added to the schedule. Gerling and Associates does understand that we can only quote items on ebuy [sic] if they are already approved and added to our schedule. We will follow the correct procedures for all future ebuy [sic] quotations.

To determine whether an item offered by a contractor is a non-FSS item, “the relevant inquiry is not whether the vendor is willing to provide the services that the agency is seeking, but whether the services or positions offered are actually included on the vendor's FSS contract, as reasonably interpreted.” See Tarheel Specialties, Inc., B- 298197, 2006 WL 2820577, at *4 (Comp. Gen. July 17, 2006) (citing Am. Sys. Consulting, Inc., B-294644, 2004 WL 2985207, at *5 (Comp. Gen. Dec. 13, 2004)). In this case, after providing its quote to the Agency, Gerling requested modification of its FSS contract to include: a Citadel Operation Room Trailer, a Citadel Endoscopy Room Trailer, and a Citadel Recovery Room Trailer, items which were not already listed on its GSA schedule contract. At the time of its quote, Gerling offered a Citadel Class Dual Expanding Trailer on its GSA schedule contract that was described as a:

53’ Smooth Side Aluminum Mobile Command Trailer, 51’ Expanding Side, 60” throw, 60,000 GWR, king pin, sweep out style aluminum storage bay system, custom rub rail system, custom fleet white DuPont paint, four (4) man doors with custom aluminum stairs and handrails, 5-point manual jack system, two (2) 25-gallon water tank plumbing system, scene lighting, emergency lighting, operations, conference room, work stations, fully insulated ceiling, floors and walls, carpeted interior walls, rubber flooring custom oak cabinetry and storage, custom countertops and conference tables, galley, lavatory, microwave, coffee maker, refrigerator, toilet, two (2) sinks, Sani-Dex wipe system, vanity mirror and sink, two (2) 4-ton wall mount air conditioning system with 5,000 kW heat strips each, 150 amp shore power system, and 12V DC system.

The contracting officer contended, in response to MMIC’s original GAO protest, that the new trailers “merely modified the already available [Citadel Class Dual Expanding Trailer] with in scope customizations the [Agency] required.”

The suggestion has been made by defendant that the modification may have related to the only medical-type trailer listed on Gerling’s pre-quote FSS contract, a Citadel Mobile Lab24 described as:

53’ Great Dane Mobile Laboratory Trailer, 60,000 GVWR, king pin, sweep out style steel storage bay system, custom rub rail system, 4-point manual jack stabilization system, custom fleet white DuPont paint, two (2) 4-ton air conditioning system with 5,000 kW heat strips each, custom passage way for trailer to trailer walk thru, one (1) entrance door, one (1) security door, two (2) rear swing doors, one (1) passage way door, diamond brite aluminum platform and stair system, twelve (12) Scene Lights, eight (8) exterior windows, ten (10) tie down rings, fully insulated ceiling, floors, walls, FRP interior walls, rubber flooring, drop ceiling, custom power system Including main power, air conditioning power, and shore power, plumbing system, holding tanks, 12 gallon electric hot water heater, cable raceways for communication equipment, internal LAN wiring, telephone wiring, weather emergency radio antenna, safety equipment, optional room selection including, Lab room, Phlebotomy room, Dental room, Staff room, Interview room, Spiro Room, Vision room, Exam room, Physical room, Anthro R[oom].

The question remains whether a modification creating a mobile surgical, mobile endoscopy, or mobile recovery room is within the scope of either the Citadel Class Dual Expanding Trailer or the Citadel Mobile Lab, as “reasonably interpreted,” or whether the new trailers were entirely new items which, in order to qualify under the FSS, should have been added to Gerling’s GSA schedule contract before a quote for them was submitted to the Agency in response to an outstanding RFQ.

In its quote in response to the RFQ, Gerling had offered to provide three operating room trailers, two endoscopy procedure room trailers and one recovery room trailer with specifications required by the Agency in its RFQ. The operating room trailer included:

an operating room, nurse’s call system, clean and soiled utility rooms with sinks, integrated medical gases, dual surgical light, double panel x-ray illuminator, pre-vacuum steam sterilizer, ultrasonic cleaner, equipment and utility connections to provide mop sink, nurse’s station sink, scrub sink, bathroom sink, soiled utility room sink, clean utility room sink, and sterilizer, medical gas system, anesthesia station, restroom, and cabinetry.

The endoscopy procedure room trailer included:

two procedure rooms, pre and post op recovery areas with room for three patient care stations, a nurse’s call system, a clean utility room, integrated medical gasses, a double panel x-ray illuminator, pre-vacuum full steam sterilizer, equipment and utility connections to provide mop sink, nurse’s station sink, scrub sink, bathroom sink, soiled utility room sink, clean utility room sink, and sterilizer, medical gas system, anesthesia station, restroom, and cabinetry.

The recovery room trailer included:

pre and post op recovery area with room for six patient care systems, a nurse’s station, nurse’s call system, utility room, integrated medical gas zone, equipment and utility connections for nurse’s station sink, bathroom sink, and utility room sink, medical gas system, restroom, and cabinetry.

In addition, all trailers would include:

insulation, two (2) 4-ton air conditioning units, 5,000 kW heating units, a HEPA filter system, 208V three phase 60 Hertz power system, 200A power source, two (2) Hevi-Duty SOLA Isolation Transformers, analog meters, three phase 208V main power distribution panel boards, grounding, 12V DC system, one (1) 10 KVA APC UPS backup power system, one (1) Kohler 20 kW Diesel Generator, one (1) 50’ 200 amp 208 volt three phase 5- wire Shore power cables, one (1) 50’ 200 amp 208 volt three phase 5-wire extension cable, 20 amp circuits, hospital grade receptacles twelve (12) exterior and eight (8) general purpose, 2x2 115v fluorescent lamp fixtures, fire detection and suppression system, drainage system, 16 gallon electric hot water heater, water supply system for city water hookup, water filter system, city connection pipes, 3 holding tanks, cable raceways, 25-par Cat 5 Telecom cable, internal LAN wiring, telephone service, telecommunications unit, synchronized time system, alarm system, weather emergency radio, and safety equipment.

Taking a liberal view of the trailers offered by Gerling on its modified GSA schedule contract, it would appear that the modified trailers differ significantly from the original expanding trailer and lab trailer on Gerling’s original GSA schedule contract. Many of the basic hookups may have been similar, such as for the safety equipment, electricity, water, heat, and air conditioning, but the trailers are dissimilar in other significant ways. The only medical aspects of Gerling’s original GSA schedule contract trailers are in the names of the mobile lab unit and the optional rooms therein. None of the equipment contained within the optional rooms, however, compares to the equipment in the modified trailers on Gerling’s modified GSA schedule contract. The optional lab room for the original Citadel Dual Class Expanding Trailer contained cabinetry, countertops, one sink with auto faucet, one eyewash station, and a mobile file cart. The optional exam room was nothing more than an 8’ x 10’-12’ room with a pocket door. The optional dental and phlebotomy rooms had cabinets, countertops, one sink, a pass-through door for specimens, a pocket door, and fold up seat. Neither of Gerling’s original trailers had the integrated equipment necessary to perform surgery, take x-rays, or sterilize medical equipment, unlike its new Citadel surgical room (designed for surgery, x-rays and sterilization) and an endoscopy room (designed for x-rays and sterilization). Gerling’s original trailers did not have air filtration systems, sterile environments, plumbing, or the internal wiring necessary for a surgical room, modifications that would require changes to the structure of the trailer itself, not just to the mobile internal components.

The new Citadel Recovery Room Trailer offered by Gerling on its modified GSA schedule contract comes within the closest fit of the original trailers, the only significantly differing items being the medical gas system and nurse’s call station. Regarding the surgical and endoscopy trailers, however, Gerling’s modifications transformed the original trailers from mere shells, fit for general office use, to medical units comparable to sophisticated emergency rooms. Indeed, the original trailers seem suitable for little more than general office use. Outfitted with a coffeemaker, refrigerator, conference tables, and restroom with vanity mirror, the Citadel Class Dual Expanding Trailer evokes images of the stereotypical office, and the Citadel Mobile Lab Trailer, at best, reminds one of a Red Cross bloodmobile.

Beyond comparing the technical outfittings of Gerling’s original and modified trailers, other aspects of Gerling’s modified GSA schedule contract indicate that Gerling’s modified trailers were not simple adjustments to the trailers on its original GSA schedule contract. For instance, Gerling’s original expanding trailer and mobile lab trailer were listed with a 125-day turnaround time. In contrast, Gerling’s surgical, endoscopy, and recover room trailers are listed with a 240-day turnaround time, which is nearly double the time it takes to produce one of its original stripped down trailers. That Gerling posited the production and delivery time of its new trailers at nearly 100% greater than for its original trailers strongly confirms that the new trailers are far more than mere in-scope modifications of the original trailers. Significantly, Gerling did not complete and deliver the trailers within 240 days. On day 237, June 2, 2010, the contracting officer indicated that Gerling had completed only production of the basic trailer components (i.e., the shell, axles, and expanding sides), and that only the trailer shells had been completed, but not the “guts” (the subject of the modifications to Gerling’s FSS contract). Additionally, according to the contracting officer, on June 2, 2010, Gerling was still waiting for the government’s approval of its final engineering designs for the plumbing, electrical and mechanical drawings.

Gerling’s GSA contract modification request included more than seventy-five pages of technical specifications and design details of the three trailers it wished to add to its FSS contract. The sheer volume of the modification request, and the fact that Gerling conceded it was adding a completely “new item” to its GSA schedule contract, further illustrate that the new Gerling medical trailers were not in-scope modifications of trailers already listed in Gerling’s GSA schedule contract. In sum, Gerling was offering non-FSS items in response to the FSS RFQ, although its FSS modifications were later approved. The modification to Gerling’s GSA schedule contract departed so far from its original schedule as to render the modified Gerling trailers, certainly with respect to the surgical and endoscopy trailers, outside the scope of its FSS contract as reasonably interpreted. As a result, but for other issues raised by the record, the exception to the standing requirement under which non-FSS contractors may challenge the award of non-FSS items through the FSS would be met in this case. See Eracent, Inc. v. United States, 79 Fed. Cl. at 431 (a non-FSS contractor may challenge the award of what are actually non-FSS items, which were nevertheless included in an FSS award).

Although plaintiff has established that the modifications of Gerling’s trailers were not within the scope of Gerling’s original quote in response to the RFQ, MMIC cannot demonstrate that, but for the Agency’s procurement choice to use the FSS, plaintiff would have prevailed in a competitive procurement and, therefore, that plaintiff was prejudiced. MMIC is unable to meet the second prong of the standing test, that of demonstrating prejudice.  (Mobile Medical
International Corporation v. U. S.
, No. 10-148C, Issued November 16, 2010) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
DSD Laboratories, Inc. v. U.S., No. 00-177C, April 14, 2000 Mobile Medical International Corporation v. U. S., No. 10-148C, Issued November 16, 2010) (pdf)  (Protester wins on issue but fails for lack of prejudice)
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