Updated: Jul 6, 2020
By Dick Lieberman, Consultant and Retired Attorney
The General Services Administration (“GSA”) manages approximately $40 billion a year worth of contracts through the Federal Supply Schedules (“FSS”). These schedule contracts provide agencies with a simplified process for obtaining commonly used commercial supplies and services, as set forth in Federal Acquisition Regulation (“FAR”) 8.401. Although simplified, the procedures satisfy the requirement for full and open competition in 41 U.S.C. § 259(b)(3). More than half the purchases bought under FSS are for services. Agencies frequently conduct limited competition for their requirements by issuing Requests for Quotations (“RFQ”) only to schedule holders.
There are, however, limits to using the schedule contracts, even when there is limited competition. As in all contracts, any purchase must be within the scope of the contract, and agencies may not use these contracts to purchase products or services that are not on the contractor’s schedule. Something that isn’t on the schedule is outside of the scope. In the case of a task order for services, all of the solicited labor categories must be on the successful vendor’s FSS contract. U.S. Investigations Serv, Prof Serv. Div, Inc., B-41054.2, Jan 15, 2015. If an agency seeks labor categories that are outside of the FSS contract, the agency cannot use the simplified FAR part 8.4 procedures, but must use full competitive procedures.
In U.S. Investigations, the Federal Bureau of Investigation (“FBI”) sought services for name checks and its Freedom of Information Act/Declassification programs. The FBI sought four principal labor categories:
(1) research analyst
(2) program manager
(3) general consultant
(4) legal administrative specialist
Both U.S. Investigations and FCi Federal bid, and FCi won the task order. U.S. Investigations protested, because, for three out of four labor categories (all except the “program manager” category), FCi proposed personnel from a single labor category in its FSS contract—“program management analyst”.
The Government Accountability Office (“GAO”) found that the duties, responsibilities and qualifications of the types of employees required by the RFQ were not encompassed within FCi’s “program management analyst” labor category. For example, FCi’s labor category description made no mention of experience with paralegal, records management, declassification review or historical research, or in-depth knowledge of FBI policy and functions, although these were specifically required by the RFQ. The focus of FCi’s labor category was the development of business techniques and organizational development. None of the key responsibilities described in FCi’s labor category descriptions were germane to the work required under the RFQ. Accordingly, GAO sustained US Investigation’s protest, holding that FCi was not eligible for award because the labor categories required to perform were not available under FCi’s FSS contract.
(1) If you hold an FSS contract, and want to bid on an FSS solicitation (RFQ) for labor services, be sure that your contract includes the specific services within its scope. Although the name of the labor service might be different, the actual responsibilities desired in the RFQ must reasonably match the descriptions in your schedule contract. If there is no match, then the agency is not permitted to consider your offer.
(2) Agencies must make a rational consideration of the required labor categories in the RFQ, the categories submitted in each proposal, and the categories in the underlying FSS contract. In U.S. Investigations, the GAO noted that even in responding to specific protest allegations, the agency did not meaningfully explain how it could reconcile the divergence between FCi’s labor category description and the requirements of the RFQ. GAO requires agencies to explain substantively how the definitions in the contractor’s schedule contract and proposal meet the requirements of the RFQ. Contracting Officers should carefully take note, and ensure that their contractor selection can withstand this type of scrutiny in a labor comparison, otherwise they risk a GAO protest.
Copyright 2015 Dick Lieberman, Permission Granted to the Maryland PTAC. This article does not provide legal advice as to any particular transaction.