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.