The General Services Administration (GSA) directs and manages the Federal Supply Schedule (FSS) program, which allows federal agencies to obtain commercial products and services through a simplified acquisition procedure under Federal Acquisition Regulation (FAR) part 8. When procuring services through the GSA FSS, government agencies use established procedures to place orders to pre-approved vendors, satisfying the Competition in Contracting Act’s (CICA) full and open competition requirements. In obtaining the FSS contract, service vendors provide functional descriptions for labor categories (LCATs) for the services they intend to offer via the GSA FSS. When procuring services through the GSA FSS, federal government agencies must ensure that the services are within the scope of an awardee’s applicable FSS contract LCATs. If the services being procured on the FSS task order are outside the scope of the awardee’s proposed LCAT functional descriptions, the award may be protested for being outside the scope of the vendor’s underlying FSS contract.

The Government Accountability Office (GAO), in a May 2024 bid protest, sustained such a challenge alleging that the United States Department of Agriculture (USDA) improperly awarded a GSA FSS task order to a contractor that proposed LCATs that did not meet the functional requirements of the corresponding task order positions. The solicitation contemplated the award of a GSA FSS task order to develop, modernize, enhance, and maintain information systems, software applications, web services, and databases that directly or indirectly support conservation technical assistance to implement science-based conservation practices. The solicitation required vendors to provide a labor mix with cross-functional skills and specialized skillsets or subject matter experts (SMEs) in 14 diverse information technology (IT) areas. Notably, 9 of the 14 IT areas required identified skillsets involving some form of mapping, geospatial, or other engineering types of specialized IT expertise. The solicitation established a two-phased best-value evaluation methodology as the basis of the task order award. The contracting officer (CO), who also served as the source selection authority (SSA), evaluated the participating vendors’ prior experience and references in phase one of the evaluation. Meanwhile, phase two of the evaluation required vendors to provide an oral presentation answering pre-determined questions in the solicitation. The second phase also evaluated vendor pricing, which was assessed for reasonableness and balance.

Importantly, the price evaluation in the second phase of the solicitation included an assessment of LCAT mapping, which the vendors were required to submit as part of their quotations. The solicitation required the vendors to map each LCAT they proposed to meet a corresponding role listed in the RFQ. Furthermore, the definition of the proposed LCAT had to fit the corresponding role defined in the RFQ. The solicitation even cautioned interested vendors that if a quoted LCAT description in the vendor’s base GSA FSS contract did not adequately map to and fit the corresponding role on the task order, the quote may be deemed out of scope and ineligible for award. In June 2023, the protestor, who was also the incumbent service provider on the contract, had previously challenged the award of the IT services task order to the awardee with allegations relating to the awardee’s LCATs not meeting the scope of the task order. In response to that protest, the USDA submitted a notice of corrective action, which caused the GAO to order a dismissal of the protest as academic. Later that year, the USDA reissued the solicitation, this time removing the LCAT mapping requirement. In January 2024, after evaluating the revised quotations, the USDA again selected the awardee as offering the best value to the government. The protestor again timely protested the $44 million task order award at the GAO, alleging that while the awardee’s proposed LCATs were part of its underlying FSS contract, the functional descriptions of the awardee’s proposed LCATs did not encompass the specialized geospatial IT services required by the solicitation. According to the protestor, the USDA should have found the awardee ineligible for the award as the task order requirements were outside the scope of the awardee’s underlying GSA FSS contract.

In response, the USDA maintained that the awardee’s LCATs encompassed the entire scope of the IT skillsets required by the solicitation. However, the USDA acknowledged that it did not conduct any pre-award assessment of whether all the work under the task order was within the scope of the awardee’s proposed LCATs. This acknowledgment by the agency formed the basis of the GAO’s decision to sustain the protest. In support of its decision, the GAO explained that when a government agency announces its intent to order from a vendor with an existing GSA FSS contract, all products or services quoted must already be on the vendor’s schedule contract as a precondition to the vendor receiving the order. In this regard, it is of little consequence if a vendor states in its quotation that it is willing and able to meet the solicitation requirements. The relevant inquiry is whether the products or services are included in the vendor’s underlying FSS contract, and actually proposed by the vendor for the task order at issue before it may receive the order. Furthermore, it is the government’s obligation to make certain that all of those products or services are within the scope of the vendor’s underlying GSA FSS contract. In this case, since the government did not conduct any pre-award assessments regarding the functional scope of the awardee’s proposed LCATs, the government violated its obligation. The GAO further explained that while the government has a degree of discretion in determining whether the requirements of the solicitation are being satisfied by the vendor’s proposed LCATs, that discretion is reduced if the government fails to adequately document its evaluation and such an evaluation runs the risk of being found unreasonable in the face of a bid protest.

The GAO also rejected the government’s argument that the protest be dismissed as an untimely challenge to the RFQ amendment that removed the mapping requirement in response to the protestor’s initial protest. While the GAO agreed with the government that the amendment removed the requirement for vendors to provide LCAT mappings, it maintained that the removal of this requirement did not remove the government’s obligation to make certain that all services included in a vendor’s quotation are within the scope of the vendor’s FSS contract. To satisfy this obligation, the government must consider whether, as reasonably interpreted, the functional descriptions of the LCATs quoted by a vendor from its FSS contract include the services that the solicitation requires. If, after such an analysis, it is determined that the vendor’s LCAT functional descriptions are insufficiently aligned to the services required, then the LCATs did not meet the solicitation’s requirements. In such a scenario, the vendor would essentially be offering to perform open market services – which the government may not procure via GSA FSS contracts. Here, since the government acknowledged that it failed to conduct any pre-award assessment of whether all the work under the task order was within the scope of the awardee’s proposed LCATs, the record before the GAO was inadequate to show the reasonableness of the government’s determination that the awardee was eligible for the award, and therefore, the protest was sustained.

Contractors obtaining GSA FSS contracts should carefully review their LCAT functional descriptions to ensure they adequately reflect current capabilities and are broad enough to encompass the types of work they wish to perform on future task orders. To avoid the risk of potential protests, existing GSA FSS contractors should carefully review and map position descriptions of each task order to their underlying FSS contract LCAT functional descriptions to ensure the task order requirements are being adequately met. Contractors in slightly different situations, in which they map the task order position requirements to the incorrect LCATs but have the appropriate LCATs in their underlying GSA FSS contract, should request the procuring agency to open discussions and permit vendors to submit revised quotations. While opening discussion in this way will be at the government’s discretion, it may allow the contractor an opportunity to correct the LCAT mapping and submit a compliant quotation. In either case, contractors should ensure their GSA FSS LCATs adequately represent the scope of their capabilities and carefully map requirements when bidding on task orders to avoid the risk of a potential award being protested.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.