You can't get just anything you want at the FSS restaurant

Apologies to Arlo Guthrie.

This is not an accurately complete rendition of the GAO's decision. Read that at the link.

Matter of: US Investigations Services, Professional Services Division, Inc.: B-410454.2, January 15, 2015

DIGEST: Protest against issuance of a task order to a vendor for support services pursuant to its General Services Administration Federal Supply Schedule contract is sustained where the record does not support contracting agency’s determination that the services called for under the task order were within the scope of the vendor’s contract.

US Investigations Services, Professional Services Division, Inc. (USIS) protests the issuance of a delivery order to FCi Federal, Inc. under request for quotations (RFQ) issued by the Department of Justice, Federal Bureau of Investigation (FBI), for services in connection with the agency’s Name Check and Freedom of Information Act (FOIA)/Declassification programs. The Delivery Order was issued under FCi’s Federal Supply Schedule (FSS) contract.

The RFQ contemplates the award of a fixed-price delivery order for a 12-month period of performance. The successful contractor will provide personnel to perform services in connection with the agency’s National Name Check Program. Under that program, the successful contractor will provide research, analytical, and reporting services for authorized federal agencies. Essentially, contractor personnel research FBI files to provide available and appropriate information within legal and policy constraints. The RFQ also contemplates services in connection with the agency’s FOIA/Declassification program. Under that program, the successful contractor will provide services to the agency in connection with responding to FOIA requests, and also in making determinations regarding the appropriate classification of national security related information.

The agency received three quotations in response to the solicitation. All three quotations were found technically acceptable, and all three firms also received past performance ratings of good. FCi submitted the lowest price of $13,298,366, followed by USIS and the third firm. The agency made award to FCi because it submitted the lowest price.

After being advised of the agency’s issuance of a task order to FCi, USIS filed this protest. 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 and, although streamlined, by regulation, satisfy the requirement for full and open competition. 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.

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. 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.

The RFQ here essentially included four principal labor categories: research analysts, program managers, general consultants, and legal administrative specialists. For three of the four labor categories -- research analysts, general consultants, and legal administrative specialists -- FCi proposed a single labor category from its FSS contract, program management analyst. FCi’s FSS contract includes the following description of its program management analyst labor category:

Plans and provides analytical support for facilitation, methodology development and evaluation, business management techniques, and organizational development. Supports business process improvements and modernization projects. Key responsibilities include: Developing modern business methods, identifying best practices, and creating and assessing performance measurements.

An examination of the labor categories required under the RFQ, however, shows that the duties, responsibilities and qualifications of the types of employees solicited by the agency are not encompassed within FCi’s program management analyst labor category.

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. 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.

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.

[But here, the GAO ran into an obstacle preventing the usually implemented remedial recommendation, because the FBI pulled a quicky ("urgent and compelling") stay override.]

In light of our discussion above, we conclude that FCi is ineligible for award because the labor categories required to perform are not available under FCi’s FSS contract.

Ordinarily, our Office would recommend that the agency terminate the task order issued to FCi because FCi is ineligible for award. However, during the pendency of the protest, the agency elected to override the automatic stay of performance of the FCi task order based on urgent and compelling circumstances.

Accordingly, we recommend that the agency consider the feasibility of terminating the task order awarded to FCi. Should the agency conclude that it is not feasible to terminate FCi’s task order, we recommend that USIS be reimbursed the costs associated with preparing its quotation in response to the RFQ. In addition, and regardless of whether or not the agency decides to terminate FCi’s task order, we recommend that USIS be reimbursed the costs associated with filing and pursuing its protest, including reasonable attorneys’ fees. In the alternative, if the agency determines that it is feasible to terminate FCi’s task order, we recommend that the agency make award to the concern next in line for award, if otherwise proper.

It is perhaps worth reminding here that the GAO, which hears most protests in federal government contracting, has no enforcement power, thus "recommends" remedial actions it finds appropriate. The overwhelming majority of these recommendations are, however, adhered to by agencies.

Also, though not directly related to the focus of the decision, the GAO's decision included a very instructive footnote, as well as a "zingy":

[1] USIS alleges that the agency improperly found FCi’s prices reasonable. According to the protester, because FCi did not propose labor categories that were required by the RFQ, the firm’s proposed hourly rates were unreasonably low. There is no merit to this aspect of USIS’s protest. In a fixed-price contract setting, determinations of price reasonableness relate to whether a firm’s proposed prices are too high, not too low. An allegation that a firm’s prices are too low does not provide a basis for our Office to object to the agency’s price evaluation.

USIS also challenges the agency’s evaluation of its past performance. We have considered this aspect of its protest and conclude that USIS’s allegation amounts to no more than disagreement with the agency’s evaluation findings in the area of past performance. USIS’s disagreement with the agency’s evaluation, without more, does not provide a basis for our Office to find the agency’s evaluation unreasonable.

[4] It would appear that USIS is the next firm in line for award. In considering whether or not award to USIS is otherwise proper, the agency will be required to find the firm responsible. In a recent decision of our Office, we specifically questioned an affirmative determination of USIS’s responsibility made by the Department of Homeland Security, U.S. Citizenship and Immigration Services, because the record demonstrated that the contracting officer there failed to consider specific allegations of fraud advanced by the Department of Justice (DOJ) in a civil suit filed against USIS’s parent company, USIS LLC; failed to consider the relationship between USIS and its parent concern; and applied an incorrect legal standard in determining whether USIS was responsible. FCi Federal, Inc., B-408558.4, et al., Oct. 20, 2014, 2014 CPD ¶ 308 at 11. [See also, The responsibility to consider all factors to make a determination of responsibility]