The General Services Administration (GSA) Federal Supply Schedule (FSS) program allows federal agencies to acquire services from pre-approved vendors via simplified acquisition procedures of Federal Acquisition Regulation (FAR) Part 8. When utilizing the FSS program, procuring agencies may not purchase “open market items,” which are any services not already listed on a vendor’s GSA schedule. At the same time, the services on a vendor’s schedule may not always directly correlate to the requirements of the solicitation. In such situations, the relevant inquiry is whether the required services are within the scope of the vendor’s schedule contract, as reasonably interpreted. In deciding whether their GSA schedule covers services being sought in the solicitation, contractors should determine whether the required function in the solicitation is the same as the function covered under their schedule contract. In this regard, services are not considered open market items if they are within the scope of particular line items on the FSS contract. Additionally, while the broader, general scope of a schedule contract and the description of its Special Item Numbers (SINs) are relevant in determining the scope of line items, such descriptions are not dispositive to resolve whether the services are covered by the schedule contract.

In solicitations that require the submission of key personnel resumes, the resumes are considered a material solicitation requirement. Thus, offerors have a duty to notify the procuring agency if one or more of their proposed key personnel become unavailable to perform. The procuring agency may proceed in one of two ways once it receives notification of the unavailability of a key employee from an offeror. It can either evaluate the offeror’s proposal as submitted and reject the proposal as technically unacceptable for failing to meet a material requirement, or the agency may open discussions with all remaining offerors to permit proposal revisions. An offeror must notify the agency of a key employee’s unavailability even when the employee signs a letter of commitment before proposal submission but subsequently resigns or retires during the evaluation period. Alternatively, in addition to the letter of commitment, the offeror must be prepared to present evidence of the employee’s reaffirmation of availability or willingness to return to the offeror’s employment. In this regard, the primary consideration is whether the offeror has actual knowledge of the key employee’s unavailability because the duty to notify the agency is not triggered otherwise. Notably, despite the employee’s resignation or retirement, the Government Accountability Office (GAO) will not find an offeror to have actual knowledge of a key employee’s unavailability if the offeror can advance a credible basis to deny such actual knowledge.

Unbalanced pricing exists when despite an acceptable total evaluated price, the price of one or more line items is significantly over- or understated. Federal Acquisition Regulation (FAR) 15.404-1(g)(2) instructs contracting officers (COs) to analyze offers with separately priced line items or subline items to determine whether the prices are unbalanced. If unbalanced pricing is detected, the FAR requires that the CO consider the risks to the government in making the award decision and whether the contract award will result in paying unreasonably high prices for contract performance. If the performance or pricing risks associated with unbalanced pricing rise to unacceptable levels, the procuring agency may reject the offer containing the unbalanced pricing. Alternatively, the agency may accept the offer with unbalanced pricing if, after conducting a risk assessment, it determines that the offer does not pose an unacceptable performance risk and that the government is unlikely to pay unreasonably high prices. The methodology and scope of an agency’s cost or price analysis are matters within the agency’s discretion, and the GAO only reviews the record to ensure that the evaluation is reasonable and consistent with the terms of the solicitation and the applicable law.