TITLE: B-298197; B-298197.2, Tarheel Specialties, Inc., July 17, 2006
BNUMBER: B-298197; B-298197.2
DATE: July 17, 2006
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B-298197; B-298197.2, Tarheel Specialties, Inc., July 17, 2006
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: Tarheel Specialties, Inc.
File: B-298197; B-298197.2
Date: July 17, 2006
Richard D. Lieberman, Esq., and Nicole S. Allen, Esq., McCarthy, Sweeney &
Harkaway, PC, for the protester.
Aaron T. Marshall, Esq., Department of Homeland Security, and Michael D.
Tully, Esq., General Services Administration, for the agencies.
Charles W. Morrow, Esq., Sharon L. Larkin, Esq., and James A. Spangenberg,
Esq., Office of the General Counsel, GAO, participated in the preparation
of the decision.
DIGEST
Protest of issuance of a task order to a vendor for support services
pursuant to its General Services Administration Federal Supply Schedule
(FSS) contract is sustained where the contracting agency improperly
determined that the services called for under the task order were within
the scope of the vendor's FSS contract.
DECISION
Tarheel Specialties, Inc. protests the award of a task order by the
Department of Homeland Security, Immigration and Customs Enforcement
(DHS/ICE) to USIS under that firm's General Services Administration (GSA)
Federal Supply Schedule (FSS) contract No. GS-07F-0385J. The task order
was issued pursuant to request for proposals (RFP) No. HSCEOP-06-R-00004
for services to support the agency's National Firearms and Tactical
Training Unit (NFTTU) Armory Operations Branch.
We sustain the protest.
The NFTTU, located in Altoona, Pennsylvania and New Brunswick, Georgia, is
responsible for the acquisition of all DHS/ICE firearms, ammunition, and
related equipment. These responsibilities include the testing and
evaluation of new technology and maintenance of a quality control program
for items purchased; the repair and modification of DHS/ICE firearms; the
disposal of excess firearms; the inventory management and control of all
DHS/ICE firearms and ammunition; the collection, analysis, and reporting
of all DHS/ICE shooting incidents; the training of field armorers; the
training of personnel involved in the "Firearms Inventory System"; and the
maintenance of several national databases critical to DHS/ICE's firearms
programs.
The RFP, issued on February 10, 2006, solicited proposals for
administrative and technical support for the NFTTU under a labor-hour,
task-order contract for a base period of 1 year with 4 option years. NFTTU
sought support related to its day-to-day operations, including
secretarial, administrative, occupational safety and health, logistics and
inventory management, material management, accounting, technical project
support, computer support, and course developer/instructor support for
firearms and defensive tactics training. RFP Performance Work Statement
(PWS) at 1.
The RFP's PWS identified the nine labor positions required to be provided:
site supervisor, course developer/instructor-firearms, course
developer/instructor-defensive tactics, secretary, administrative
assistant, material management specialist, ballistics engineering
technician, logistics and inventory specialist, and administrative support
specialist. RFP PWS at 10-15. For each labor position, the PWS detailed
responsibilities and experience/education requirements. These positions
and the estimated hours for each position constituted the contract line
items of the RFP for which vendors were to submit rates.
The RFP explained that "[DHS/ICE] intends to acquire these services by
awarding a competitive Task Order to one Offeror who has a current Federal
Supply Service Schedule with the [GSA]." RFP at 20. In this regard, the
RFP advised offerors that "the [offeror's proposal] must identify each
category of labor proposed for performance mapped to the applicable GSA
Schedule labor category, provide the GSA Schedule price, show the proposed
discounts for the rate, and the rate proposed for the particular labor
category inclusive of the discount."[1] RFP at 23.
The RFP provided for award to the vendor whose proposal was determined to
be the best value based on three evaluation factors: demonstrated
technical capability, past performance/experience, and price (including
discount terms). The evaluation scheme assigned equal importance to
demonstrated technical capability and past performance/experience and
assigned greater importance to the combination of these factors than to
price. RFP at 26.
DHS/ICE issued the RFP to several FSS vendors, including USIS--the
incumbent vendor--and Tarheel. Both Tarheel and USIS hold schedule
contracts on FSS 84, "Total Solutions for Law Enforcement, Security,
Facility Management Systems, Fire Rescue, Special Purpose Clothing, Marine
Craft and Emergency/Disaster Response." USIS has an FSS Federal Supply
Classification (FSC) Group 63, Part I, Special Item No. (SIN) 246-52
contract for "security consulting services," and Tarheel has an FSS FSC
Group 63, Part I, SIN 246-54 contract for "guard services."
Only Tarheel and USIS submitted proposals in response to the RFP. Tarheel
submitted the lowest-priced proposal at [DELETED] and USIS's price was
$7,363,949.89. After an initial evaluation, DHS/ICE entered into
discussions with both vendors concerning the deficiencies and weaknesses
in their proposals. DHS/ICE advised Tarheel during discussions that its
proposal failed to include signed resumes for each labor category
identified as key personnel and that it had not mapped its proposed labor
categories to its schedule contract, as required by the price evaluation
factor. USIS was advised that its price exceeded the independent
government cost estimate for this work.
Both vendors submitted revised proposals. The "Business Evaluation
Committee" (BEC) found that Tarheel's low-priced proposal was unacceptable
because none of the labor categories in the PWS were mapped to the
positions listed in Tarheel's schedule contract. On the other hand, the
BEC found that USIS's proposal at $6,591,012.36 properly mapped all the
labor categories to categories reflected in USIS's schedule contract.
Supplemental Agency Report, Tab C, BEC Report, at 7-8. Consequently, USIS
was awarded the task order. This protest followed.
Tarheel contends that its proposal should not have been rejected because
it had been led to believe that it did not need to show that the positions
were currently in its GSA contract.[2] In a supplemental protest filed
after receipt of the agency report, Tarheel argues that the vendors were
not treated equally because USIS's schedule contract also did not reflect
all of the labor categories required by the RFP.
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) sect. 8.401(a). The
procedures established for the FSS program satisfy the requirement for
full and open competition. 41 U.S.C. sect. 259(b)(3) (2000); FAR sect.
6.102(d)(3); Sales Res. Consultants, Inc., B-284943, B-284943.2, June 9,
2000, 2000 CPD para. 102 at 3-4. Where an agency announces its intention
to order from an existing GSA FSS contractor, it means that the agency
intends to order all items using GSA FSS procedures and that all items are
required to be within the scope of the vendor's FSS contract. See Armed
Forces Merchandise Outlet, Inc., B-294281, Oct. 12, 2004, 2004 CPD para.
218 at 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 para. 199 at 4-5.
As indicated above, Tarheel's FSS contract is for guard services and the
labor categories that it proposed in response to this RFP were not listed
in or mapped to the labor categories listed in Tarheel's FSS contract.
Thus, the agency properly determined that Tarheel's proposal was
unacceptable under this RFP, since the RFP required the labor categories
to be on an applicable FSS contract. See American Sys. Consulting, Inc.,
B-294644, Dec. 13, 2004, 2004 CPD para. 247 at 4-5. However, as discussed
below, the record indicates that USIS's proposal should have been regarded
as unacceptable as well because USIS's FSS contract also did not contain
all of the labor categories that were required to perform the RFP
requirements.
As noted above, USIS holds an FSS contract under SIN 246-52. This contract
was limited to providing "Security Consulting Services at hourly labor
rates."[3] See Agency Report, Tab F, USIS's SIN 246-52 FSS Contract, at 1
and 9-10. USIS's FSS contract lists six personnel positions--program
manager, security consultant, security specialist, functional analyst,
administrative specialist and computer forensic analyst--at various
experience levels for a total of 21 labor categories. The contract
specifies the "minimum/general experience," "functional responsibility,"
and "minimum education" for each labor category as well as the applicable
labor rate. Id. at 11-22.
Although DHS/ICE found that USIS properly mapped its proposal to its FSS
contract, the agency has not adequately explained why the labor categories
under the RFP were within the scope of USIS's FSS contract, particularly
since USIS's contract specifically states that the labor categories are
limited to performing security consulting services at hourly labor rates.
In this regard, it is not clear that the services to be provided under
this RFP are security consulting services as covered by the labor
categories included in USIS's FSS contract. The RFP here instead called
for support for the day-to-day operations of the NFTTU.[4]
More specifically, the protester notes, and the record confirms, that USIS
mapped the site supervisor, material management specialist, and ballistics
engineering technician positions to the "Administrative Specialist-Level
II" labor category and labor rate in USIS's FSS contract. Tarheel contends
that the described attributes of these RFP-required positions do not
correspond to the description of the Administrative Specialist-Level II
labor category in USIS's FSS contract, and that these positions should
therefore not have been considered within the scope of that contract.
DHS/ICE maintains that the description of the Administrative
Specialist-Level II labor category in USIS's FSS contract was sufficiently
similar to the site supervisor, material management specialist, and
ballistics engineering technician positions required by the RFP and
offered in USIS's proposal. It contends that the RFP's labor categories
"were substantially administrative in nature" so that that these positions
could be filled with personnel meeting the qualifications of the
Administrative Specialist-Level II position identified in USIS's FSS
contract.
When a concern arises 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 that the agency is seeking, but whether
the services or positions offered are actually included on the vendor's
FSS contract, as reasonably interpreted. See American Sys. Consulting,
Inc., supra, at 5.
The Administrative Specialist-Level II labor category on USIS's FSS
contract for security consulting services is described as having the
following attributes:
Minimum/General Experience: This position requires six years of directly
related experience performing administrative support functions. Must be
highly organized and have excellent oral and written communication
skills. Must possess experience using word processing, project
management and desktop publishing application software and hardware.
Functional Responsibility: Functions as administrative support
specialist for an office or program. Performs all administrative support
functions required by the activity. Prepares final correspondence,
reports and other published material; prepares briefing material;
establishes and maintains program files; performs budget and finance
functions; and develops, analyzes and maintains administrative operating
processes and procedures.
Minimum Education: Associate's Degree. Eight years of directly related
experience, combined with completion of training courses relevant to
duties and functions of the requirement, may be substituted for the
degree requirement.
Agency Report, Tab F, USIS's SIN 246-52 FSS Contract, at 19.
However, the responsibilities and requirements for the site supervisor,
material management specialist, and ballistics engineering technician
positions required by the RFP do not appear consistent with the FSS
contract's Administrative Specialist-Level II labor category description.
The RFP described the site supervisor position as follows:
One Material Management Specialist assigned to the NFTTU -- Armory
Operations facility will occupy the position of Site Supervisor for all
contractor employees assigned to the NFTTU facilities. This person will
also hold the position of "team leader" for the Material Management
Specialist support. Supervisory duties include, but are not limited to
coordinating (with the appropriate Government team leader or supervisor
receiving contractor personnel support) all contractor administrative
matters such as scheduling of contractor personnel for vacation, sick
leave, meeting workload surge requirements, impending requirements and
contract employee performance issues, and serving as the first level of
management for any contract employee discipline issues.
Experience: A minimum of 3 years experience in the performance of
shipping and receiving duties. Experience in conducting physical
inventories of sensitive material. Working knowledge of maintaining and
entering data into a national database. Must be able to lift 35-50
pounds. Experience in the operation of a forklift.
Education: High school diploma or GED from a certified school.
RFP, PWS at 10-11. The material management specialist position was
described as follows:
The contractor will provide material management specialist support. The
Material Management Specialist assists in the control and accounting of
sensitive, capital, and other property that includes the entire life
cycle from acquisition to disposal. The contractor coordinates and
expedites the flow of material, parts and assemblies in accordance with
NFTTU standard operating procedures. The contractor is responsible for
the selection, packaging and loading of products onto common carrier
vehicles. The contractor works under general supervision on both routine
and non-routine tasks. Responsibilities include conducting physical
inventories at the NFTTU facility of all sensitive, capital and other
property, reconciling discrepancies in the NFTTU property inventory and
preparing inventory reports, including inventory levels, updating and
maintaining the national inventory database(s), reviewing schedules and
determining material required or overdue, requisitioning material, parts
and supplies, and establishing delivery sequences. This includes
researching multiple vendors and determining the availability and source
of required supplies. The contractor also coordinates shipping and
receiving; verifies shipping and receiving records with bills, invoices,
or other records, inspects material shipped/delivered to verify if the
items received were as specified, and prepares documentation needed to
support the purchase of equipment, supplies, and services. It is
estimated that 80% of the contractors work will be in the warehouse
area.
Experience: A minimum of 3 years experience in the performance of
shipping and receiving duties. Experience in conducting physical
inventories of sensitive material. Working knowledge of maintaining and
entering data into a national database. Must be able to lift 35-50
pounds
Education: High school diploma or GED from a certified school.
RFP, PWS at 13. And the ballistics engineering technician's
responsibilities and requirements were described as follows:
The contractor will provide ballistics engineering technician support.
The Ballistics Engineering Technician's duties include performing
testing and evaluation of firearms and ammunition for adherence to
Sporting Arms and Ammunition Institute (SAAMI) and military
specification standards. The contractor conducts market research studies
on firearms, ammunition, body armor and other specialized law
enforcement equipment. The contractor must possess the ability to
effectively communicate both orally and in writing, as additional duties
include developing and writing comprehensive test plans and test reports
for firearms and/or ammunition testing and evaluation projects conducted
at the NFTTU ballistics test laboratory. Additionally, the contractor
must be capable of developing and presenting technical test and
evaluation results to representatives of ammunition and firearms
manufacturers, and to other government agencies.
Experience: Knowledge of small caliber firearms used in law enforcement
and terminal ballistics test parameters for law enforcement and/or
military ammunition. Prior experience with a variety of test equipment
used for measuring pressure, velocity, accuracy and physical
characteristics of law enforcement ammunition.
Education: Associate degree in applied science or
pre-engineering/engineering technology or successful completion of at
least two years of college in a 4-year engineering program.
RFP, PWS at 14.
Based on our review, we find that the attributes and responsibilities of
the Administrative Specialist-Level II position in USIS's FSS contract do
not match the attributes and responsibilities of the site supervisor,
material management specialist, and ballistics engineering technician
positions required by the RFP.[5] The mere fact that some of the duties of
the RFP-required positions were administrative in nature is an
insufficient basis to determine that these positions match up to the FSS
contract Administrative Specialist-Level II position, particularly given
that the FSS contract was apparently limited to providing security
consulting services. In any case, from our review, it appears that many of
the duties of the RFP-required positions were not merely administrative.
For example, the site supervisor position requires the individual to act
as "team leader" and assume a number of supervisory duties relating to
personnel and workload management. None of these duties are suggested by
the Administrative Special-Level II labor category, which is limited to
performing routine "administrative support" functions such as preparing
correspondence and other written materials, maintaining program files, and
maintaining administrative operating processes and procedures.
Similarly, the material management specialist position requires a number
of non-administrative functions relating to material and inventory
management. Such activities include conducting physical inventories;
coordinating the flow of material, parts, and assemblies; requisitioning
materials and researching vendors to determine the availability of
supplies; coordinating shipping and receiving; and the ability to operate
a forklift. Again, these functions are unrelated to the general
administrative-type functions listed under the Administrative
Special-Level II labor category.
The ballistics engineering technician functions are also dissimilar to
that of the Administrative Special-Level II labor category. Unlike the
general administrative functions in the FSS labor category, the ballistics
engineering technician duties include testing and evaluating firearms and
ammunition, writing test plans and reports for firearms and/or ammunition
testing, and conducting market research studies on firearms and other
specialized law enforcement equipment. The ballistics engineering
technician is also required to possess specialized knowledge of firearms
and firearm test equipment.
In response to our request for comments, GSA stated its belief that the
Administrative Specialist-Level II position in USIS's FSS contract may be
used to fill the three positions discussed above because, in GSA's
opinion, there is some overlap in educational requirements.[6] GSA states
For example, the minimum education requirement for an Administrative
Specialist II in the USIS labor category description was an "Associates
Degree or eight years of directly related experience, combined with the
completion of training courses relevant to the duties and functions of
the requirement." In the RF[P], the requirement for a Ballistics
Engineering Technician was an "Associates Degree in applied science or
pre-engineering/engineering technology . . . " as it was specifically
tailored to the job required. Directly related experience, in this case,
appears to be the knowledge of firearms, test parameters, and the
ability to write test plans, organize, communicate and present results
to others, which comprises a combination of technical and administrative
functions.
E-mail from GSA to GAO (July 13, 2006).
We think GSA's argument here misses the point. We believe that the
relevant inquiry is not solely whether the minimum education required for
the FSS contract position satisfies the minimum education level required
for the RFP-required positions, but whether there is a match in job
function as well. Here, the job description for the Administrative
Specialist-Level II position is different from the RFP-required position
descriptions. As stated above, the Administrative Specialist-Level II
position is limited to administrative functions and experience, while, as
discussed above, the site manager, material management specialist, and
ballistics engineering technical positions require the performance of
non-incidental duties and functions that cannot reasonably be deemed
administrative.[7]
Thus, USIS's proposal, like Tarheel's, should not have been viewed as
having met the RFP requirement to possess a FSS contract with the
requisite labor categories. Consequently, it was not proper for the agency
to place the order against USIS's FSS contract. See American Sys.
Consulting, Inc., supra, at 4-5.
We recommend that DHS/ICE terminate the task order to USIS, assess its
requirements, and determine whether it is appropriate to obtain these
services under the FSS program, and then either resolicit under the FSS
program or by full and open competition.[8] We also recommend that Tarheel
be reimbursed its costs of filing and pursuing its supplemental protest,
including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1) (2006).
Tarheel should submit its certified claim for costs, detailing the time
expended and costs incurred, directly to the contracting agency within 60
days after the receipt of this decision. 4 C.F.R. sect. 21.8 (f)(1).
The protest is sustained.
Gary L. Kepplinger
General Counsel
------------------------
[1] The agency reports that "mapping is a term the agency uses in
procurements involving GSA Schedules that describes how the agency
verifies whether an offeror's proposed rates and labor categories are
derived from an applicable GSA Schedule." DHS/ICE Report at 5.
[2] GSA denies advising Tarheel that it could add new categories to the
FSS contract after award. GSA instead explains that although a vendor may
add labor categories to its FSS contract it should request a modification
to its contract prior to submitting a proposal or quotation, since the
goods or services are not on the contract until GSA has approved the
request and modified the contract. Letter from GSA to GAO (June 20, 2006)
at 1-2.
[3] SIN 246-52 groups vendors that have FSS contracts to provide
"professional security/facility management services," which according to
GSA "includes labor categories such as security consulting, program
management, training and facility management services, etc." E-mail from
GSA to GAO (July 13, 2006). According to GSA, the services covered by this
RFP "can be within the scope" of this SIN. Id. As indicated above, USIS's
SIN 246-52 contract by its terms is limited to providing security
consulting services. GSA has expressed no view regarding this limitation.
In our view, the question is not whether an FSS contractor could have
included particular items in its contract under a specific SIN, but
whether, in fact, those items are included within the scope of the
contract. That is, the scope of GSA's SIN could be broader than the scope
of a specific contract under that SIN.
[4] This same problem exists with regard to Tarheel's SIN 246-54 FSS
contract for guard services. Indeed, GSA has expressed the view that these
services cannot be ordered under SIN 246-54 and Tarheel should not have
been allowed to submit a proposal. E-mail from GSA to GAO (July 13, 2006).
[5] We also note that because USIS's FSS contract was for security
consulting services, other positions required by the RFP, such as course
developer/instructor and logistics/inventory specialist, also did not
directly correspond to the labor categories included in USIS's FSS
contract.
[6] GSA states that ensuring that the FSS contract labor categories are
properly mapped to those required by the RFP is the responsibility of the
agency purchasing contracting officer based on his or her knowledge of the
procurement. E-mail from GSA to GAO (July 13, 2006).
[7] Although the educational level of the Administrative Specialist-Level
II position does refer to "directly related experience," which GSA
suggests may be extrapolated to apply to the RFP-required positions, we
think that the only reasonably interpretation of this phrase is that it is
limited to administrative experience based on the responsibilities and
experience description of the Administrative Specialist-Level II position.
[8] On April 19, the head of the agency determined that proceeding with
the procurement was in the best interest of the government,
notwithstanding the stay of performance required by the Competition in
Contracting Act of 1984, 31 U.S.C. sect. 3553 (d)(3)(A) (2000). Where an
agency has authorized performance of a contract based upon a determination
that the best interest of the United States would not permit awaiting our
decision, we are required to make our recommendation without regard to any
cost or disruption from terminating, recompeting, or reawarding the
contract. 31 U.S.C. sect. 3554(b)(2).