TITLE: B-298197; B-298197.2, Tarheel Specialties, Inc., July 17, 2006
BNUMBER: B-298197; B-298197.2
DATE: July 17, 2006
**************************************************************
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).