TITLE: Symplicity Corporation, B-291902, April 29, 2003
BNUMBER: B-291902
DATE: April 29, 2003
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Symplicity Corporation, B-291902, April 29, 2003
Decision
Matter of: Symplicity Corporation
File: B-291902
Date: April 29, 2003
Ariel M. Friedler for the protester.
Richard P. Rector, Esq., and David E. Fletcher, Esq., Piper Rudnick, for
TMP Worldwide, Inc., the intervenor.
Sandra Scholar, Esq., and Mark A. Robbins, Esq., Office of Personnel
Management, and Kacie A. Haberly, Esq., General Services Administration,
for the agencies.
Sharon L. Larkin, Esq., John L. Formica, Esq., and James A. Spangenberg,
Esq., Office of the General Counsel, GAO, participated in the preparation
of the decision.
DIGEST
1. Contracting agency's award of a task order to a firm pursuant to the
firm's Federal Supply Schedule (FSS) contract is improper where the agency
failed to consider whether the services offered by the firm are covered by
its FSS contract, and the record establishes that the firm's quotation was
based on providing personnel under labor categories not contained in its
FSS contract.
2. Agency's evaluation of quotations submitted in response to a
competitive procurement under the Federal Supply Schedule program was
unreasonable, where the record reflects that the protester included its
price for the performance of a particular task in its quotation while the
awardee's quotation used a pricing structure for that task that did not
provide a basis for a fair comparison of vendors' prices.
DECISION
Symplicity Corporation protests the award of a task order to TMP
Worldwide, Inc. (d/b/a Monster Government Solutions) under TMP's Federal
Supply Schedule (FSS) contract, pursuant to request for quotations (RFQ)
No. SOLO30000003, issued by the Office of Personnel Management (OPM), for
on-line federal employment information services.[1]
We sustain the protest because OPM did not adequately consider whether the
services TMP identified in its quotation were covered by its FSS contract,
and because OPM did not reasonably evaluate quotations with regard to the
vendors' proposed prices for system integration.
OPM currently operates and maintains USAJOBS, which is an automated
federal employment information system providing notice of job
opportunities in the federal government. The USAJOBS website *is accessed
by over 10,000,000 unique visitors each year,* and has available
*[a]pproximately 16,000 to 18,000 vacancy announcements . . . each day.*
RFQ at 6. The RFQ sought *significant enhancements* to the federal
government's employment information system to deliver *the best of the
next generation of on-line Federal employment information services.* For
example, while under the current system *a job seeker who wishes to apply
for 10 different jobs might be required to print a resume 10 times and
send it to 10 separate addresses, even if all 10 jobs are in the same
agency,* the RFQ anticipates that job seekers will be able to *[c]reate
their resumes in a common format, and send them to as many job openings as
they wish via the [new] Recruitment One‑Stop/USAJOBS website.* RFQ
at 5-6.
The RFQ contained task descriptions for web‑based services,
telephone-based services, as well as other services, and listed nine
*major* performance requirements as well as certain technical
requirements. RFQ at 8-17, 24. For example, the solicitation provided
that the *overall site design must continue to promote the idea of the
Federal Government as a corporate brand, and convey to job seekers the
diversity of Federal career opportunities and the values, rewards, and
benefits of public service,* and specified that the website and telephone
systems be accessible 24 hours per day, 365 days per year. RFQ at 8, 13.
Additionally, the solicitation included an appendix listing various
functional requirements, but noted that these functional requirements were
*generally described in terms of desired results, leaving open the
approach by which the objective will be achieved.* RFQ at 12-13, app. B.
The RFQ provided for the award of a 1-year fixed-price task order, with
four 1-year options, and stated that award would be made to the vendor
whose quotation was determined *most advantageous to the Government
considering primarily the contractor's demonstrated technical
excellence.* The solicitation set forth the following technical
evaluation factors in descending order of importance: soundness of
proposed technical approach, management capabilities, past performance,
and value of enhancements. The solicitation added that the *[t]echnical
evaluation factors, when combined, are significantly more important than
cost or price.* RFQ at 26, 27.
In response to the RFQ, vendors were to submit a *Technical Proposal* as
well as a *Pricing Proposal.* RFQ at 20. The RFQ specified that each
vendor's *Technical Proposal* was to address the vendor's approach and
methodology for accomplishing the work required, as well as the vendor's
approach to meeting the nine *major* performance requirements set forth in
the solicitation. RFQ at 23-24. The technical proposal section of each
vendor's quotation was also to include the roles and resumes of the
proposed key personnel, as well as past performance references. With
regard to past performance, vendors were to submit information on past
contracts *similar to those required by this contract,* and were informed
that past performance was going to be used to *[a]ssess how well the
contractor has performed in the past,* and to *[d]etermine how relevant
the work performed is to the requirement in this solicitation.* RFQ at
25, 27. Finally, the solicitation provided that the vendors determined
*to be best qualified* by OPM after the *initial evaluation of proposals*
may be *requested to make an Oral Presentation.* The RFQ provided that
the oral presentation would consist of a *30-minute presentation,*
followed by a question and answer period not to exceed two hours. RFQ at
21.
The RFQ was sent to nine different FSS vendors, including Symplicity and
TMP, that hold contracts under different GSA schedules under which OPM had
previously determined award could be made.[2] For example, Symplicity
holds a contract under GSA Schedule 70 (Information Technology Services),
and TMP holds a contract under GSA Schedule 738I (Marketing, Media and
Public Information Services).
Five vendors, including Symplicity and TMP, submitted quotations. OPM
evaluated the vendors' quotations, provided each vendor with *a set of
questions regarding their technical proposals,* and conducted oral
presentations with each of the five vendors. Agency Report (AR) at 3, 6.
The agency included the quotations of three vendors, including Symplicity
and TMP, in the competitive range, provided the competitive range vendors
with written discussion questions, and conducted oral discussions. AR at
6. OPM requested, received, and evaluated final revised quotations, and
selected TMP's higher-priced, higher-rated quotation for award of the task
order, valued at several million dollars. This protest followed.
Symplicity argues that the services sought under the RFQ cannot be
purchased from TMP under its Schedule 738I contract because the services
are outside the scope of the contract. Specifically, Symplicity contends
that TMP's Schedule 738I contract does not contain the appropriate labor
categories, and that labor may have been improperly included as *other
direct costs* (ODC) under this task order.
The FSS program, directed and managed by GSA, gives federal agencies a
simplified process for obtaining commonly used commercial supplies and
services. Federal Acquisition Regulation (FAR) S: 8.401(a). The
procedures established for the FSS program satisfy the requirement for
full and open competition. 41 U.S.C. S: 259(b)(3); FAR S: 6.102(d)(3);
Sales Res. Consultants, Inc., B-284943, B-284943.2, June 9, 2000, 2000 CPD
P: 102 at 3-4. Non-FSS products and services may not be purchased using
FSS procedures; instead, their purchase requires compliance with the
applicable procurement laws and regulations, including those requiring the
use of competitive procedures. OMNIPLEX World Servs. Corp., B-291105,
Nov. 6, 2002, 2002 CPD P: 199 at 4-5.
As noted above, TMP holds a contract with GSA under Schedule 738I,
Marketing, Media and Public Information Services. The task order here was
issued under TMP's Schedule 738I contract, special item number (SIN)
SIN-8, Full Service Marketing, Media, and Public Information Service. AR
at 8; Tab 8, Award of Task Order to TMP. Under SIN-8, vendors *provide a
broad range of services required by Federal Government agencies for short
and long term integrated marketing campaigns.* GSA Schedule 738I, SIN-8.
As the title and general description of SIN-8 suggest, it is a *catch all*
SIN, under which vendors can perform work covered by two or more of the
other 11 SINs set forth in Schedule 738I. [3] Id.; Hearing Transcript
(Tr.) at 15, 61.
TMP's contract under Schedule 738I, SIN-8 sets forth 19 labor categories,
such as *Account Supervisor* and *Programmer,* as well as a general
description of TMP's ODCs that support the services provided under SIN-8.
AR, Tab 4B, TMP's Final Quotation. These ODCs include such things as
research materials, telemarketing call centers, advertising media,
printing and photocopying.[4] Id.; TMP's Pricing Schedule, available at
.
The record establishes, and neither OPM, GSA, nor TMP argues otherwise,
that TMP's quotation here included two labor categories that are not on
its Schedule 738I contract, and that OPM recognized but failed to realize
the importance of this during its evaluation of TMP's quotation. AR, Tab
4B, TMP's Final Quotation, at 1; OPM's Post-Hearing Comments at 8-11;
GSA's Post-Hearing Comments at 7; TMP's Post‑Hearing Comments at
10-11; Tr. at 72, 101, 105, 136. The acceptance of TMP's quotation and
award of a task order to that firm by OPM was thus improper because, as
noted above, an agency cannot lawfully use the FSS ordering procedures to
order services that are not contained on the vendor's schedule contract.
OMNIPLEX World Servs. Corp., supra, at 5-6; The CDM Group, Inc.;
B-291304.2, Dec. 23, 2002, 2002 CPD P: 221 at 3-4. That is, as confirmed
by GSA, labor categories included in a vendor's quotation must be listed
on the vendor's schedule contract before a task order is issued. GSA's
Post-Hearing Comments at 2, 7; Tr. at 31-32, 80; The CDM Group, Inc.,
supra. We sustain the protest on this basis.[5]
This problem is symptomatic of OPM's approach to this procurement. In
this regard, the record reflects that OPM never performed an analysis of
whether the quoted services, labor categories, or ODCs included in TMP's
quotation were within the scope of TMP's Schedule 738I contract. Tr. at
101-03, 105, 108, 125-26, 189. In fact, OPM has represented that it
*could not come to any specific conclusion one way or the other* as to
whether TMP proposed services as ODCs in a manner that was consistent with
its Schedule 738I contract. [6] Tr. at 231.
Symplicity also protests that OPM's evaluation of its quotation was
unreasonable and inconsistent with the RFQ's evaluation factors. Under
the FSS program, agencies are not required to conduct a competition before
selecting a vendor that represents the best value and meets the agency's
needs at the lowest overall cost. FAR S: 8.404(a); Computer Prods., Inc.,
B-284702, May 24, 2000, 2000 CPD P: 95 at 4. However, where, as here, an
agency handles the selection of a vendor for an FSS order like a
competition in a negotiated procurement, and a protest is filed
challenging the outcome of the competition, we will review the agency's
actions to ensure that the evaluation was reasonable and consistent with
the terms of the solicitation. Computer Prods., supra, at 4-5.
Specifically, Symplicity argues that OPM erred in evaluating systems
integration costs. With regard to systems integration, the RFQ (at 25)
provided as follows:
The firm, fixed prices proposed must include all costs associated with
performing the services. OPM will also establish a Blanket Purchase
Agreement (BPA) under the underlying GSA Federal Supply Schedule to order
services necessary to integrate other Federal agency employment systems
and the Recruitment One-Stop system.
The agency subsequently provided the competitive range vendors with an
e-mail that listed *Assumptions for Integration* (such as the statement
that *[t]here are 76 Cabinet level Departments and Independent Agencies in
the Executive Branch*), and requested that each vendor *explain [its]
proposed approach for accomplishing this task, whether or not you have
included the estimated costs for accomplishing this task in your proposed
fixed price, and if not, what your estimated cost would be for performing
this activity and what the underlying assumptions you have made in
arriving at this estimate.* AR, Tabs 5A(4), 5B(4), 5C(4), E-mails to
Vendors (Dec. 6, 2002).
Symplicity included its price for systems integration in its final
fixed-price quotation, whereas TMP's quotation, as considered by the
agency, did not. AR, Tab 4A, Symplicity's Final Quotation, Updated
Pricing Summary, at 1; Tab 4B, TMP's Final Quotation, at R 19-22.
Symplicity contends in this regard that it was misled during discussions
with OPM into ignoring the above-quoted RFQ provision providing that
integration costs were to be purchased through a separate blanket purchase
agreement, and instead understood that it was required to provide in its
final quotation its price for systems integration. Tr. at 246.
We need not decide whether the protester was misled regarding the pricing
of systems integration during its discussions with OPM because we find
that OPM's evaluation of systems integration costs was flawed. The record
reflects that OPM recognized that Symplicity's price for systems
integration was included in its fixed-price quotation.[7] AR, Tab 6,
Procurement Summary Report, at 10; Tr. at 272, 286. The record also
reflects that the agency recognized that TMP's final quotation did not
fully include its price for systems integration. AR, Tab 6, Procurement
Summary Report, at 11; Tr. at 263.
In our view, the agency, at a minimum, was required to evaluate offerors
on an equal basis and in a manner such that the total cost to the
government for the required services could be meaningfully assessed.[8]
See Lockheed Aeronautical Sys. Co., B‑252235.2, Aug. 4, 1993, 93-2
CPD P: 80 at 7 (*apples and oranges* cost evaluation *inherently
improper*); Dillon Supply Co.; Dept. of Energy--Recon., B-203937, Jan. 19,
1982, 82-1 CPD P: 41 at 3-4 (protest sustained where costs were excluded
from some vendors' quotations and not others). OPM's evaluation approach
here created a situation where OPM was in effect comparing *apples and
oranges,* in that it permitted vendors to choose whether or not to include
in their quotations a price for systems integration, which did not provide
a basis for the total cost of each vendor's approach to be meaningfully
compared.[9] Accordingly, we sustain the protest on this basis as well.
Symplicity also argues that OPM applied unstated evaluation criteria in
its evaluation of quotations in evaluating technical approach and past
performance, in that it considered the vendors' approaches to marketing or
promoting the contemplated Recruitment One-Stop/USAJOBS website and the
federal government as an employer, and the sizes of the vendors' past
contracts.
Vendors must be advised of the bases upon which their quotations will be
evaluated. This means that an agency may not consider evaluation criteria
that are not reasonably related to the evaluation factors set forth in the
RFQ. KPMG Consulting LLP, B-290716; B-290716.2, Sept. 23, 2002, 2002 CPD
P: 196 at 14. As explained below, we find that the agency's consideration
of the vendors' approaches to marketing and size of their past contracts
did not constitute the use of unstated evaluation criteria since these
considerations were reasonably related to the evaluation factors set forth
in the RFQ.
Specifically, the RFQ stated that under the soundness of proposed
technical approach evaluation factor the agency would *be looking for how
well the [quotation] shows an understanding of the[] tasks* identified in
section A.3 of the solicitation. RFQ at 27. Section A.3 provided, in
turn, that *[t]he page and overall site design must continue to promote
the idea of the Federal Government as a corporate brand, and convey to job
seekers the diversity of Federal career opportunities and the values,
rewards, and benefits of public service.* This section of the RFQ
continued by stating that *[t]he text and graphics on the page must
communicate the 'one-stop' concept.* RFQ at 8.
In evaluating quotations, the record reflects that OPM considered how the
vendors' competing technical approaches promoted the idea of federal
government employment. As illustrated above, this was reasonably related
to the RFQ's soundness of technical approach evaluation factor, in that it
involved the consideration of how well the quotations *promote[d] the idea
of the Federal Government as a corporate brand, and convey[ed] to job
seekers the diversity of Federal career opportunities and the values,
rewards, and benefits of public service.* See RFQ at 8, 27.
With regard to the past performance evaluation factor, the RFQ requested
that vendors provide *evidence of their ability to successfully perform
the work described in this solicitation.* RFQ at 25. Consistent with
this, the solicitation specified that the information provided would be
used to *[d]etermine how relevant the work performed is to the requirement
in this solicitation,* and that the evaluation would *focus on how well
the [quotation] documents and provides the requested information
concerning successful performance on previous projects that are related to
the Recruitment One-Stop.* RFQ at 25, 27.
Contrary to Symplicity's assertions, the agency's consideration of
contract size in its evaluation of the vendors' past performance is
unobjectionable, given that it is reasonably related to the *relevan[ce]*
of past contracts as well as the successful performance of previous
contracts that are related to this effort, both of which are
considerations under past performance factor. Indeed, our Office has
stated that it would be both illogical and unreasonable to presume that
that an agency will pay no attention to the size and similarity of past
contracts in its evaluation of past performance, since such factors are
germane to the relevance of the past performance information. Birdwell
Bros. Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD P: 129 at
6. Accordingly, this aspect of Symplicity's protest is denied.[10]
The protest is sustained. We recommend that OPM evaluate vendors'
quotations to determine whether the proposed services (including labor
categories and ODCs) are within the scope of their respective schedule
contracts. We further recommend that OPM reopen discussions with all
vendors whose quotations are in the competitive range,[11] and request and
reevaluate revised quotations. [12] OPM may also want to amend its RFQ to
further clarify its systems integration needs. We also recommend that the
protester be reimbursed its costs of filing and pursuing the protest. 4
C.F.R. S: 21.8(d)(1) (2003). The protester should submit its certified
claim for such costs, detailing the time expended and costs incurred,
directly to the contracting agency within 60 days of receiving this
decision. 4 C.F.R. S: 21.8(f)(1).
This protest is sustained.
Anthony H. Gamboa
General Counsel
------------------------
[1] Because a protective order was not issued in connection with this
case, the language in our decision, which is based in part upon source
selection sensitive and confidential information, is necessarily general.
[2] Collectively, these vendors hold FSS contracts under four different
schedules.
[3] Schedule 738I is comprised of the following 12 SINS: SIN 1-Market
Research, Media Analysis and Related Services; SIN 2-Web Site Design and
Maintenance Services; SIN 3-Trade Shows/Exhibits and Conference and Events
Planning Services; SIN 4‑Press and Public Relations Services; SIN
5-Public Education and Outdoor Marketing and Media Service; SIN 6-Radio,
Television, and Public Service Announcements Services; SIN 7-Introduction
of New Products or Services; SIN 8-Full Service Marketing, Media, and
Public Information Service; SIN 9-Direct Mail Services; SIN 10-Commercial
Photography Services; SIN 11-Commercial Art and Graphic Design Services;
and SIN 12-Videotape and Film Production Services. GSA Schedule 738I.
[4] A full description of TMP's ODCs, as defined in its contract, is as
follows: *Research Materials, Release, Focus Group, Survey, Polling,
Testing, Telemarketing Call Center, Advertising Media (print, voice,
web/Monster, outdoor, etc.), Mail Lists, Color Laser Prints and Scans,
Scans, Photography, Image and Music Rights, Film and Veloxes, Storage
Media, Printing & Photocopying, Miscellaneous Production Expenses, Trade
Show Exhibits, Conference, Exhibits, Postage and Mailing Services,
Messengers/Express Mail, and Telephone Charges.*
[5] OPM contends that Symplicity was not prejudiced, since TMP could have
taken steps that would have corrected the labor category deficiency had
discussions occurred. Although the agency may be correct that TMP could
have corrected this deficiency in its quotation had it been raised during
discussions, the fact is it did not do so. The agency's position here
does not, in our view, address the fundamental flaw that OPM awarded a
task order under a FSS contract to a vendor who did not have all the
required services in its contract and whose quotation was therefore
unacceptable, which prejudiced vendors who submitted quotations based on
their FSS contracts. See T-L-C Sys., B-285687.2, Sept. 29, 2000, 2000
CPD P: 166 at 4.
[6] Symplicity appears to challenge the use here of Schedule 738I, arguing
that the RFQ requires services inappropriate for purchase under that
schedule. We think this argument is irrelevant to the pertinent inquiry,
which is whether the particular terms of TMP's Schedule 738I contract
included all services ordered here. As stated above, OPM failed to
conduct a meaningful analysis of this issue.
[7] OPM concedes that Symplicity's price for these services included in
its quotation is readily calculable.
[8] The agency may want to clarify for vendors its needs regarding systems
integration services as part of its corrective action, in order to provide
for a fair and equitable competition. COMARK Fed. Sys., B-278343,
B-278343.2, Jan. 20, 1998, 98-1 CPD P: 34 at 5; Haworth, Inc.; Knoll N.
Am., Inc., B-256702.2, B-256702.3, Sept. 9, 1994, 94-2 CPD P: 98 at 5-6.
[9] It does not appear that the vendors' costs for systems integration
would necessarily be comparable.
[10] Simplicity also argues that OPM failed to apply the Buy American Act
surcharge to TMP's quotation, based upon Symplicity's speculation that TMP
utilizes the services of a foreign company. The record provides no
support for Symplicity's assertion here.
[11] Had OPM properly evaluated TMP's quotation, the apparent deficiency
with regard to labor categories should have been raised with TMP during
discussions. However, as indicated, TMP was not informed during
discussions that its quotation was deficient in that it included labor
categories that were not listed on TMP's GSA Schedule 738I contract.
[12] In view of this recommendation, we need not address Symplicity's
protest that the agency's evaluation of quotations and conduct of
discussions under the management capability and past performance factors,
and its best value analysis, were unreasonable and improper.