Protest challenging a solicitation’s requirements for quoting labor categories from vendors’ Federal Supply Schedule contracts is sustained, where the agency unreasonably concluded that the minimum years of experience defined in the FSS labor categories had to exactly match the agency’s requirements. GAO and GSA agreed with the protester that an FSS labor category providing skilled employees with a minimum of 10 years of experience was within the scope of the agency’s requirement for employees with 12 years of experience in the relevant area.
Grant Thornton LLC challenged the terms of a Department of Defense Washington Headquarters Services request for quotations for auditing support services, arguing that the solicitation, which was issued under the Federal Supply Schedule provisions of FAR 8.4, is unduly restrictive of competition because it requires vendors to quote labor categories from their FSS contracts that “align precisely” with the minimum years of experience in the RFQ.
The solicitation’s price evaluation factor required vendors to quote labor categories that “align precisely” with the PWS labor categories, stating that the “price list description of the corresponding FSS labor category must enumerate the qualifications and responsibilities contained in the definition of the PWS labor category. The pricelist description of the vendor’s quoted FSS labor category must align precisely with the requirements of the corresponding PWS-defined labor category.” For example, for a PWS labor category that required 12 years of experience and a Master’s Degree, offerors could not propose a labor category that provided for only 10 years’ experiences and a Master’s Degree, even if the price list description used wording such as “minimum 10 years’ experience.”
The CO explained that he interpreted previous GAO decisions to require agencies to evaluate proposals in this manner. Prior to the deadline for proposals, a prospective offeror suggested the agency alter this requirement to allow offerors to align their proposed employees to their most appropriate GSA labor category, while acknowledging that the proposed individual would meet the agency’s specific qualifications. The agency declined. Grant Thornton filed an agency-level protest, which was denied, and then filed with GAO.
The protester argued that the requirement, as written, is unduly restrictive of competition. While a vendor’s FSS contract may identify a minimum number of years of experience, the protester explained that this did not preclude an offeror from quoting employees with more years of experience, as the agency required.
GAO agreed, finding the agency erroneously relied on two of GAO’s previous protest decisions. In those cases, GAO sustained protests challenging the issuance of task orders for services that were outside the scope of the awardee’s underlying FSS contract or the quoted labor category. GAO explained that when a quoted FSS contract labor category does not “align precisely” with the solicitation requirements, the vendor may not alter the terms of its FSS contract by proposing employees or services to provide PWS requirements that are not within the scope of that contract.
GAO found the agency unduly restricted competition by requiring that the minimum qualifications in offerors’ FSS labor categories exactly match the minimum qualifications of the solicitation labor categories. GAO noted that Grant Thornton did not challenge the types of skills, capabilities, or education required, nor the number of years of experience, but only the requirement that the FSS labor categories align precisely with the solicitation. Rather, the protester argued that the solicitation term would unfairly require vendors to guess at future agency requirements when establishing the labor categories on their FFS contracts. Taken to the extreme, the protester argued that vendors would be required to establish labor categories that encompass the same skills, capabilities, or education, but with multiple years of experience.
GAO agreed that an FSS labor category requiring a minimum 10 years of experience for a certain skill set reasonably encompassed the agency’s requirement for an individual with a minimum of 12 years of experience in that skill.
DoD acknowledged that labor category requirements in solicitations do not always “parrot” FSS contract labor categories, and that agencies must exercise judgement in assessing whether a quoted FSS contract labor category is within the scope of a solicitation requirement. DoD noted that an agency could focus on whether the FSS labor category substantively encompasses a PWS attribute, even if the wording differs. However, the agency contended that years of experience is an objective, inflexible requirement for which no judgment can be exercised. For that reason, the agency argued that there is no difference between a labor category that offered a minimum 10 years of experience or one that offered exactly 10 years of experience.
In response to GAO’s inquiry, GSA agreed with Grant Thornton’s position, stating that the solicitation requirement does not provide vendors a fair opportunity to reasonably align their FSS contract labor categories to the PWS-defined categories. GSA agreed that the stated number of years of experience is material for assessing whether a labor category is within the scope of a solicitation requirement, but explained that a labor category setting a minimum requirement for years of experience did not prevent an offeror from proposing an individual with more years of experience.
GAO sustained the protest and recommended that the agency amend the solicitation and reimburse the protester’s costs.
Grant Thornton LLC is represented by Alexander J. Brittin of Brittin Law Group, PLLC, and by Jonathan D. Shaffer and Mary Pat Buckenmeyer of Smith Pachter McWhorter PLC. The government is represented by Stephan Piel, Department of Defense, and Sarah Park, General Services Administration. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
