Yesterday, GAO published a sustained protest decision Spatial Front, Inc. B-420921.2, B-420921.3, Dec 21, 2022.  I had 2 immediate thoughts when I read the decision.  They are

1. Can we fairly eliminate not within the FSS contract issue in a protest?  
2. Accepting GAO's examples of items not within the FSS contract as facts, are you convinced that they are material ?

Even if you do not comment,  there is still something you can think about it your work.

Quote

For example, TSPi proposed a “Developer” labor category to support the development of software applications in the Prometheus agile release train. AR, Tab 20, TSPi Pricing Worksheet at 5, 7. It is clear that TSPi proposed the “Developer” labor category to fulfill the software development role on this call order. However, the FSS labor category--“Quality Assurance Engineer,” to which TSPi mapped this position--discusses only the “test[ing] of software to ensure proper operation and freedom from defects,” and gives no indication that the position includes the development of software. AR, Tab 35L, TSPi FSS Contract No. GS-35F-0128Y at 85. Also, to the extent USDA reviewed whether TSPi’s proposed “Developer” was within the scope of the mapped-to “Quality Assurance Engineer” FSS labor category--either when establishing the BPA or otherwise--USDA failed to adequately document its determination. FreeAlliance.com, LLC et al., supra at 14 (sustaining protest “because the record is not sufficient to allow us to review the agency's evaluation in this area for reasonableness”).

 

1 hour ago, bob7947 said:

1. Can we fairly eliminate not within the FSS contract issue in a protest?  

2. Accepting GAO's examples of items not within the FSS contract as facts, are you convinced that they are material ?

Bob, can you please clarify your first question?

Regarding question 2, part of the GAO recommendation was to

“…either: (1) reopen discussions with the vendors to facilitate the submission of revised quotations based on FSS labor categories that reasonably reflect the solicitation’s requirements, and issue a task order based on such revised quotations; or (2) conduct the procurement utilizing a competitive procedure that does not preclude the submission of non-FSS (i.e., open market) items.”

It appears that the solicitation required the vendors to use the FSS labor categories and did preclude open market items. So, yes here, the failure to provide numerous relevant FSS labor categories is material deficiency.

I can only view the GSA protest decision on my I-phone, which totally messes up the tables containing the factor ratings and prices. It appeared that Spatial Front’s quotation was $11.58 million lower than the other quote. However, the narrative stated that the winner’s (TSPI)  price advantage was $11.58 million.

So, it is possible that, had the solicitation not precluded the use of open market items, Spatial Front could have chosen to quote much lower priced labor for many labor categories like those TSPI apparently proposed to use open market labor categories and prices for the effort.

Maybe…maybe not. 

1. Can we fairly eliminate not within the FSS contract issue in a protest?  Yes.  However, COs have the latitude to allow “open market” items under FAR 8.402(f).  This may mean revising the approach to consider all the conditions in 8.402(f).  Another possibility is communicating with the contractor to either get substantiation that the work fits within the existing FSS contract or revise the quote or that it does
2. Accepting GAO's examples of items not within the FSS contract as facts, are you convinced that they are material ?  Not necessarily. In this case the labor categories might be appropriate but the agency didn’t document and justify their rational.