Protest decision details why pricing matters in OASIS+
Gettyimages.com / Martin Barraud
By
Ross Wilkers
Bidders for this massive professional services vehicle have to provide finer details on their rates, a move one protestor is opposing in court and is detailed in this denial by the Government Accountability Office.
Boston Consulting Group's decision to take its protest over the massive OASIS+ professional services contract vehicle to the U.S. Court of Federal Claims felt inevitable after the company's challenge fell short at the Government Accountability Office.
BCG is likely reiterating the arguments it lodged at GAO, which released a redacted version of its denial on Dec. 22. While BCG's lawsuit is sealed, the GAO document gives us a glimpse at the company's claims, plus how GSA both defended itself there and likely will do so to the court.
One key footnote in the decision stands out: BCG has submitted a proposal for OASIS+ and is the only company to have filed a protest challenging the terms of the solicitation. The possibility remains for BCG to receive an award even with its misgivings.
At the heart of BCG's protest is its insistence that for commercial items such as the services to be offered under OASIS+, GSA does not need to see everything that rolls up into the fixed price. GSA wants all proposals to include breakdowns of cost items such as direct labor rates, fringe benefits, general and administrative rates, and profit figures.
When considering this protest, it is also worth a reminder of how pricing was never intended to be in the evaluation criteria for OASIS+ at all to begin with.
GSA's intent was to have pricing determined at the task order level as opposed to it being important for determining the initial master contract awards.
The OASIS+ acquisition strategy shifted after a federal judge's decision in the spring that went against how GSA was running the Polaris IT vehicle for small businesses. Pricing was never intended to be a part of Polaris either, but GSA put it back in for that contract and did the same for the OASIS+ final solicitation released during the summer.
On the matter of OASIS+, GSA told GAO the requirement of including rate breakdowns was needed to ensure the price reasonableness of what a single company offers. GSA said having those finer details on rates was the acceptable method for making reliable and accurate determinations of price reasonableness.
OASIS+ will have 20 labor categories across eight domains, figures GAO called a "limited number" in its ruling. Offerors may bid for more than one domain, but have to submit individual proposals for each.
GAO found that GSA recognized that how companies apply the labor categories to different domains will result in widely varying rates, which makes comparing the rates to each other an unreliable practice.
GSA said it examined alternative methods for assessing price reasonableness, but found the widened scope for OASIS+ versus its predecessor and different offerors' definitions of labor categories were among the factors that led the agency to decide on the current path.
BCG claimed that the requirements violated Federal Acquisition Regulations and the Federal Acquisition Streamlining Act, the latter of which governs how agencies acquire commercial items. GSA apparently has determined that a majority of OASIS+ task orders will be for non-commercial services, as described in GAO's decision.
GAO's reminder of what FASA actually does is worth noting in case a similar argument re-emerges: that law establishes a preference, not a mandate, for the acquisition of commercial items.
For its part, GSA will not require bidders to go through a review of their accounting systems to be eligible for an award. GSA did so to accommodate commercial item contractors and GAO took note of that move in denying protest.
The decision also notes how GSA’s Multiple Award Schedule program is solely dedicated to acquiring commercial items. GSA's intent is for OASIS+ to have a considerably broader scope of requirements versus MAS.
As for the road ahead at the Court of Federal Claims: the General Services Administration is due to respond to BCG's lawsuit by Jan. 26 with a defense of how the agency is running OASIS+.
The full administrative record and series of motions from both sides of the case are due to all be filed by March 22. At some point, we should see a redacted version of BCG's complaint to the court.
GSA wants to make awards by the summer, but protests in the court go on their own individual timelines depending on how the judge sees fit.
More clarity from the judge on what a commercial item is, and is not, would be a big help to us all.