Taking Exception: Read the contract, not the label

Editor's Note: In her Feb. 21 Infotech and the Law column, "One decision, a wave of contracting consequences," Devon Hewitt wrote about a case in which American Systems Consulting Inc. protested a contract award to ManTech International Inc. Hewitt argued that the decision by the Government Accountability Office upholding the protest against her client, ManTech, could restrict inappropriately the flexibility of agencies to use the General Services Administration schedules. The following is a response from attorneys representing ACSI.

As attorneys representing American Systems Consulting Inc., or ASCI, we have a different view regarding GAO's decision in our client's contract protest. GAO's decision affirmed a simple holding: Agencies can use the simplified ordering procedures for GSA schedules, but only for those services listed.

In this case, ASCI protested the award of a blanket purchase agreement to ManTech for software services for the Defense Commissary Agency's worldwide inventory system. ASCI, a small business, has successfully provided these services to DCA for the past 13 years.

During the procurement, DCA decided to solicit quotes only from companies having GSA schedules, and to award under FAR 8.4 procedures. These procedures let agencies avoid normal competitive procedures if purchasing under GSA schedules.

Following submission of proposals, DCA rated both ASCI and ManTech as "acceptable" under the technical and management capability factor. DCA rated both companies as "high confidence" under the present and past performance factor. However, ManTech's price was lower, and it got the contract.

ASCI challenged the contract on several grounds. The decisive issue centered on the request for quote's "user support" position. For this critical position, ManTech proposed using a generic "task manager" from its GSA schedule. DCA, GSA and ManTech all argued that ManTech's task manager fit the bill for the user support position.

ASCI disagreed, noting that the RFQ's user support position was very specialized. The user support manager would need several years of relevant experience, two of which were to be in managing a help desk operation for 100 end users with 24 hour support. In ASCI's view, user support services were not listed on ManTech's GSA schedule.

Interestingly, DCA and ManTech argued that the language of the GSA schedule was irrelevant. Even if ManTech's GSA schedule did not specify user support services, they argued that the personnel proposed by ManTech met the RFQ's background requirements.

Secondly, DCA argued that user support services fit in the general classification of a GSA Schedule 70 contract -- that is, IT services -- therefore, user support services were within the scope of every Schedule 70 contract, including ManTech's.

GAO disagreed. To determine whether a service is covered by a GSA schedule, an agency must read the schedule and determine if it describes the specific services in the RFQ. The titles do not have to be identical, but the list of services in the GSA schedule should be comparable to those requested by the RFQ.

GAO emphasized that ManTech's task manager was focused on financial management and general administrative duties, but the RFQ wanted a manager for customer support services. Additionally, the task manager did not have the required two years of help desk experience as the RFQ required.

In short, ManTech was trying to fit a square peg into a round hole by using a task manager to fill a user support manager position.

GAO performs a key role in objectively reviewing agency action for compliance with legislative directives. In Congress's view, there is no need for "full and open" competition when needed services are listed on a GSA schedule, because prices already have been determined reasonable. But if services are not on the GSA schedule, then competitive procedures are necessary to ensure a reasonable price.

The significance of this GAO decision is clear: If an agency wants to use the simplified procedures in FAR 8.4, it must be sure that the services being procured are contained on the contract schedule.

William Wernet, an attorney with a background in computer and IT services, can be reached at wernet@wernetlaw.com. Dan Bellman, a former government attorney who has been practicing federal contract law for 25 years, can be reached at dbellman@alltel.net.

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