Competition

Army Lawyer, Jan, 2007 by Ralph J. Tremaglio, III

Bausch & Lomb alleged that the J&A did not justify a sole source award, but revealed a lack of advanced planning. (66) The company went on to state that the agency's determination that only Alcon's machines could meet the requirement was inaccurate because its cataract machines were the "most advanced system on the market." (67)

While the GAO recognized an important need for a replacement machine, at least at the hospital where patients were getting eye infections, the agency failed to reasonably demonstrate why a limited competition including those firms expressing an interest was unreasonable. (68) Bausch & Lomb responded to the agency's request, yet there was no evidence that the VA ever considered the response. (69) Therefore, the GAO found the sole source award unjustified when the agency failed to consider the equipment of other interested vendors. (70)

When Ordering Off the Federal Supply Schedule (FSS) the Question Is Not "Is the vendor willing to provide the services sought?" But "Are the services/positions offered actually included on the FSS Contract, as interpreted?"

In a protest where Tarheel Specialties challenged its exclusion from a procurement, the GAO found that the awardee Was not qualified and should have been excluded also. (71) The protest revolved around services to support the DHS Immigration and Customs Enforcement (ICE). The RFP informed potential contractors that the agency intended to award a competitive task order to an offeror who had a current Federal Supply Schedule (FSS) with the General Services Administration (GSA) which included each of the applicable labor categories listed, and provided the best value to the government. (72) The ICE would make the best value determination based off of "three evaluation factors: demonstrated technical capability, past performance/experience, and price (including discount terms)." (73) The ICE issued the RFP to the incumbent (USIS) and to the protester (Tarheel), both who held FSS schedule contracts for law enforcement, security, and facility management systems. (74)

After entering discussions with both firms about their proposals, the agency determined that Tarheel's lower-priced proposal unacceptable because "none of the labor categories in the PWS (Performance Work Statement) were mapped to the positions listed in Tarheel's schedule contract." (75) Tarheel submitted a protest, claiming its proposal was wrongfully rejected. (76) Based upon its conversations with the GSA, Tarheel believed that the positions did not need to be in the present GSA contract, just added later as new categories on the FSS contract after award. (77) In a supplemental protest filed after receipt of the agency report, Tarheel alleged that it had not been treated equally because USIS's FSS contract also lacked the labor categories required by the RFP. (78)

In sustaining the protest, the GAO determined that while Tarheel's proposal did not adequately list or map all the labor categories to their FSS contract, neither did USIS. (79) Therefore, "USIS's proposal should have been regarded as unacceptable." (80) The contractor failed to explain why labor categories in the RFP were "within the scope of USIS's FSS contract." (81) The DHS maintained that the descriptions were "sufficiently similar" to those required in the RFP. (82) The GAO stated that "[w]hen 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." (83) The Administrative Specialist-Level II position listed on USIS's FSS contract did not match the attributes and responsibilities to the three positions in the RFP. (84) "The mere fact that some of the duties of the RFP required positions were administrative in nature is an insufficient basis" to map the positions to the Administrative Specialist position. (85)