Just the other day my two-year-old daughter asked me to make pancakes for breakfast. Not that I didn’t want to, but I simply did not have the time. Instead, I put together a toddler charcuterie plate of chopped up grapes, sausage links, diced cheese and a big glug of milk. As I sang the tune of “Be Our Guest” from Beauty and the Beast, and presented the plate to my daughter, she took one look and shouted “n’cakes!!”— demanding the pancakes and waking her two-month-old brother up from his beastly slumber. Lesson learned.
While a protest is (usually) a far cry from a toddler tantrum, when an agency says they want pancakes, an offeror better give them pancakes. And, if an offeror doesn’t provide the agency with pancakes, the agency should not settle for chopped grapes.
The GAO recently came down with a fruitful decision explaining how the USDA unreasonably settled for services that were outside of the scope of the task order’s requirements.
USDA’s task order called for IT support services for the development, modernization, and maintenance of its conservation programs. These programs were directed at sustaining healthy ecosystems and helping landowners through conservation planning and assistance that would benefit the soil, water, air, plants, and animals. The task order was set aside for holders of USDA Blanket Purchase Agreements (“BPA”) under General Services Administration (“GSA”) Federal Supply Schedule (“FSS”) contracts. (holy acronym!)
Both TSPi, the awardee, and Spatial Front, Inc., the protestor, received high confidence ratings for prior experience and technical solutions. The difference maker was each offeror’s price; TSPi offered a price that was $11.5 million (16.5%) less than Spatial’s. So, TSPi was awarded the task order on a best value basis, which led Spatial to protest.
Spatial’s initial protest alleged that TSPi’s proposed labor categories were outside the scope of its FSS contract. In response, the agency took corrective action by reevaluating TSPi’s quote. During reevaluation, USDA found that although there were some minor differences in scope, the additional value to the government did not outweigh the price advantage of TSPi. The agency re-awarded TSPi the task order which resulted in Spatial filing an additional protest. In the subsequent protest, Spatial alleged that the agency was unreasonable when it failed to reject TSPi’s quote because TSPi repeatedly referenced labor categories for roles outside the scope of its FSS contract labor categories (i.e. TSPi implied it could make pancakes when in reality it could only cut grapes).
When an agency announces its intent to order from an existing FSS contract, all goods or services quoted by an offeror must be on the offeror’s FSS contract as a precondition to it receiving the order. In other words, when a protest alleges that a vendor is offering services outside the scope of its FSS contract, the relevant inquiry is not whether the vendor is willing to provide the services but whether the services or positions offered are actually included in their contract.
The record revealed that TSPi’s BPA labor category names were different from its corresponding FSS labor category names. For example, TSPi compared the BPA labor category role “Developer” to its GSA schedule labor category “Quality Assurance Engineer”. These are not the same roles, and TSPi failed to provide any functional descriptions of labor categories that would explain why or how a “Quality Assurance Engineer” was the same role as a “Developer”.
The agency alleged that its award decision was based on a review and comparison of how the BPA labor categories were mapped in relation to GSA categories. It also alleged that the task order did not require it to review how BPA categories corresponded to GSA labor categories. However, like my daughter did to me, the GAO made short strife of USDA’s reasoning. GAO held that the agency record was devoid of any documentation regarding the agency’s prior review of BPA labor categories and their relation to the FSS contract.
USDA’s issuance of any task order under an FSS contract cannot be awarded to a vendor who does not have all the proposed labor categories in its contract. Here, TSPi’s FSS contract did not contain the required labor categories. Despite TSPi’s proposal being the most affordable, the GAO sustained Spatial’s protest because the USDA’s award competitively prejudiced vendors with FSS contracts that were within the scope of the task order’s requirements.
Just as I learned my lesson about the tradeoff between time and pancakes, the USDA walked away with its own lesson about not settling for a cheaper deal.
If you would like an update on my pancake making skills or have questions about protesting an agency’s award decision, please email me directly or contact the office at (913) 354-2630.