The Federal Supply Schedule (FSS) is supposed to be a way for agencies to streamline procurement. However, achieving the desired efficiency requires that the Government buyer use the right contract vehicle for a given requirement. If the Government uses the wrong schedule—or a contractor proposes to provide goods or services that are not available under its schedule contract, and the agency fails to perform a careful evaluation—litigation may effectively eliminate the desired efficiencies. A recent GAO decision, US Investigations Services provides a good example of how thing can go awry.
The FBI issued a task order for services in connection with its National Name Check Program to the awardee using the awardee’s FSS contract. Under the task order, the awardee would research FBI files, assist in responding to FOIA requests, and support the agency in making national security classification determinations.
The protester raised several protest grounds, and GAO sustained one: the labor categories required to perform the task order were not in the awardee’s FSS contract. The agency’s solicitation included four labor categories, and the awardee proposed a single labor category from its FSS contract to satisfy the requirements of three of the categories. GAO compared the labor categories required under the solicitation with the description of the awardee’s category and determined “that the duties, responsibilities and qualifications of the types of employees solicited by the agency are not encompassed within” the awardee’s labor category. The agency was looking for personnel with in-depth knowledge of FBI policy and functions, as well as experience in records management, declassification review, and paralegal services. The awardee’s labor category focused on general aspects of program management, such as developing business methods, identifying best practices, and creating and assessing performance measurements.
GAO noted that the contemporaneous evaluation record did not indicate that the agency considered whether the awardee’s FSS contract included labor categories that fit the task order requirements. And, in defending the protest, the agency focused on educational and experience requirements—and failed to explain how the awardee’s labor categories were purportedly consistent with the task order’s substantive requirements. GAO sustained the protest, and what should have been an efficient streamlined procurement using the FSS resulted in a sustained bid protest (and substantial delay) because an improper FSS contract was used for an agency requirement.
GAO’s recommendation is also worthy of a brief discussion. As GAO analyzed the awardee’s proposal, that offeror was ineligible for award. With the awardee out of the running, the protester was next in line for award. However, the agency had overridden the CICA stay and proceeded with performance; accordingly, terminating the awardee’s task order (and making an award to the protester) may not be feasible. In addition to the recommendation that the prevailing protester’s litigation costs be paid, GAO recommended that, in the event the agency determined termination of the awardee’s task order is not feasible, the agency should also reimburse the protester’s bid and proposal costs.