Play the Hand You Dealt Yourself: FSS Schedule Holders Cannot Change Their Labor Category Descriptions to Meet Specific Task Order Procurements
February 3, 2016
By: Eric Whytsell
Procurements based on federal supply schedule (FSS) contracts can be tricky -- for the Government agencies conducting them as well as the contractors hoping to win a contract. The ease with which such contracting efforts can go sideways is particularly evident in the recent decision in AllWorld Language Consultants, Inc., B-411481.3 (January 6, 2016). The decision makes clear a fundamental rule that is too often forgotten: an offeror’s FSS labor category descriptions must align with a solicitation’s requirements or they do not meet those requirements and, therefore, cannot serve as the basis for issuing a task order to that FSS contract holder.
The case involved GSA’s issuance of a task order to SOS International, Ltd. (SOSI) under a request for quotations (RFQ) aimed at awarding – on a best-value basis -- a fixed-price task order to provide linguist services at various southwest Asia locations. The competition was confined to firms holding FSS contracts and involved the evaluation of quotations based on the following factors, listed in order of importance: technical approach, past performance, and price. GSA received a number of quotations, including those of SOSI and AllWorld Language Consultants, Inc. (Allworld). Allworld received a significant confidence rating for the technical approach factor and a high confidence rating for the past performance factor, and quoted a price of $31,953,248. In contrast, despite quoting the much lower price of $17,441,318, SOSI received high confidence ratings for both non-price factors. After GSA announced its award of the task order to SOSI and provided a brief explanation of its decision, Allworld protested.
The protest was based in part on the assertion that the agency had improperly found SOSI’s quotation technically acceptable despite its quoting an FSS labor category that does not contemplate providing personnel qualified to perform the solicited requirements. The RFQ’s performance work statement (PWS) required the linguists to be provided to (i) be capable of expressing themselves clearly and concisely both orally and in writing in English and the local language; (ii) produce idiomatic translations of non-technical material using correct syntax and speech in both English and the local language; and (iii) conduct consecutive, accurate translations of ongoing conversations and activities in both English and the local language. It also provided that the proposed linguists might be required to live and work in harsh desert environments under conditions that are essentially those of a war zone, with the attendant risks and stresses.
In the face of these requirements, however, SOSI quoted a single FSS labor category that does not include many of the linguist duties required by the PWS, including oral expression of translation capabilities, producing idiomatic translations using correct syntax and speech, and conducting consecutive, accurate translations of ongoing conversations and activities. In addition, SOSI’s quoted labor category was confined to providing written translations at a SOSI facility or site, and does not contemplate providing services under the warzone-like conditions set forth in the PWS. Allworld claimed that GSA’s acceptance of SOSI’s quote despite these disparities gave SOSI a competitive advantage by allowing it to quote hourly labor rates substantially lower than the rates for other SOSI FSS labor categories that arguably could meet the PWS requirements – and substantially lower than those quoted by the competition.
GSA claimed to have reasonably found SOSI’s quotation technically acceptable, explaining in part that because no contractor’s FSS labor categories align precisely with the requirements of any particular PWS, the agency looked to SOSI’s technical quotation to determine what duties the company’s proposed linguists would perform. According to the GSA, SOSI’s technical quotation offered a labor mix that would meet the PWS requirements and it had confirmed with SOSI that its single quoted labor category included all of the services required under the PWS.
The Government Accountability Office (GAO) found that GSA had acted unreasonably when it found the SOSI quotation acceptable under the technical approach factor. Central to this conclusion was the fact that the quoted labor category, on its face, did not mention a number of the necessary qualifications required for the proposed linguists to perform the services called for under the PWS. For example, it did not even contemplate providing oral translation services of any kind. While SOSI’s technical quotation reiterated certain RFQ requirements and identified three categories of linguists, “Senior Linguist/Site Lead,” Senior Linguist” and “Linguist”, its price quotation was based entirely on providing a single, low-cost FSS labor category of linguists that clearly do not possess the requisite qualifications to provide the services contemplated by the PWS. GSA claimed to have clarified the SOSI quotation during the acquisition, but the GAO held that there was no reasonable basis for GSA to have concluded, based on the asserted exchange, that SOSI actually would be providing linguists that met the PWS requirements.
As GAO explains, “GSA’s underlying premise--that SOSI could identify a labor category under its FSS contract that did not meet all of the requirements of the PWS and then somehow enhance or alter the narrative description and qualifications of that labor category through the technical portion of its quotation -- reflects a fundamental misunderstanding of the nature of FSS contracting. The labor categories identified and described in each firm’s underlying FSS contract are fixed, discrete, specific labor category descriptions that are contractually binding and not subject to alteration, just as the technical specifications for products available under a firm’s FSS contract are fixed, discrete, specific, contractually binding, and not subject to alteration.”
If a particular FSS labor category description does not, in the words of GSA, “align precisely” with the requirements of a given solicitation, the offeror may not properly alter that description through the terms of its quotation. In other words, regardless of what the procuring agency says, FSS schedule holders must rely on the labor categories in their FSS contracts. Keep this in mind when preparing a quote in response to a FSS schedule RFQ – and when assessing potential grounds for a protest.
Eric Whytsell is responsible for the contents of this Article.
© Jackson Kelly PLLC 2016