FSS Scope Determinations: Does Anybody Really Know How to Evaluate Them?

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If the contracting agency utilizes a PWS that leaves the choice of proposed labor categories and amounts to each vendor, then the remainder of the rows in columns 1 and 2, at the time of solicitation issuance, may be blank. By contrast, if the contracting agency specifies the labor categories and amounts to be proposed by each vendor, then the remainder of the rows in columns 1 and 2 of the table may be prepopulated, at the time of solicitation issuance, with the required labor mix.

Next, regardless of how the ordering agency described its needs—in terms of tasks to be performed or “bodies” to be delivered—let’s assume that a proposing vendor completed and returned the aforementioned table as part of its quotation as follows:

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Using the information set forth in this table as an example, it is now possible to examine and to distinguish the different evaluations—technical, price, and scope—that take place as part of a competitive FSS procurement.

B. The Technical Evaluation

The technical evaluation of vendors’ quotations may involve different aspects and features as determined by the solicitation’s stated evaluation criterion. At a minimum, however, the technical evaluation must include determining whether the vendor’s proposed staffing (i.e., the proposed labor categories and amounts) is sufficient to meet the requirements of the solicitation. Likewise, in instances where a solicitation identifies the specific labor categories and levels of effort to be proposed, and does not permit alteration, the agency’s evaluation also involves determining whether the proposed labor categories and amounts comply with the requirements of the solicitation.

In sum, regardless of how the agency defines its needs, the technical evaluation concerns whether what the vendor is proposing (i.e., columns 1 and 2) is acceptable as compared to the RFQ’s stated requirements. It is also important to remember that the vendor is NOT proposing to deliver, and is not required to deliver, its mapped-to FSS labor categories (column 3). By way of example, let’s assume an RFQ requires a Program Manager with at least five years’ experience. A vendor proposes a Program Manager with five years’ experience (column 1), and also maps the proposed position to the vendor’s FSS labor category of Program Manager with ten years’ experience (column 3). The quotation here is technically acceptable because what the vendor has proposed (column 1) meets the solicitation’s stated requirements. Further, as the vendor is not proposing its FSS labor categories, neither is the vendor required to deliver a Program Manager with ten years’ experience as part of task order performance.

Finally, for purposes of the technical evaluation, a quotation’s failure to fully address the solicitation’s staffing criteria need not result in a determination of technical unacceptability. For example, an identified shortcoming or flaw in a vendor’s proposed staffing approach could result in an assigned weakness, as compared to a material failure of a quotation to meet an agency requirement that would result in an assigned deficiency. The assigned technical weakness, however, would not make the vendor technically unacceptable. In sum, as part of the agency’s technical evaluation, a staffing weakness may not result in a determination of task order-award ineligibility.

C. The Price Evaluation

The FSS program requires that all supplies and services be priced in fixed-price, or hourly-rate, terms. This requirement applies to both the prices listed on vendors’ FSS contracts as well as the task and delivery orders placed under FSS contracts.

The evaluation of vendors’ prices in FSS procurements can be multifaceted, as determined by the specific terms of the solicitation. As a preliminary matter, GSA has already determined the prices and rates under FSS contracts to be fair and reasonable. The ordering agency is therefore generally not required to make a separate price reasonableness determination except when required by FAR 8.405-2(d) (ordering procedures for services requiring a statement of work), or by agency procedures. However, when conducting competitive FSS procurements, contracting agencies routinely make price an evaluation factor upon which the task order award decision is based.

As set forth in the preceding table, a vendor’s proposed price is the byproduct of its proposed labor categories, labor amounts, and proposed rates (i.e., columns 1, 2, and 5). A vendor’s FSS rates (column 4), while of possible interest to the agency, are simply not relevant to computing the vendor’s proposed price. Likewise, the evaluation of vendors’ prices—as determined by the specific terms of the solicitation—is generally limited to the vendors’ proposed prices (i.e., column 5).

In sum, the vendor is not offering—and the contracting agency is not buying—the FSS labor categories (column 3) at either the vendor’s FSS rates (column 4) or its proposed rates (column 5). Rather, the vendor is offering—and the contracting agency is buying—the proposed labor categories (column 1) at the proposed rates (column 5). Moreover, a vendor’s proposed rates are fixed ones and are not dependent upon other aspects of the agency’s evaluation. Even if the technical evaluation concludes that the vendor’s labor mix and level of effort (i.e., columns 1 and 2) are lacking as compared to the solicitation’s staffing requirements, the vendor’s prices (both labor rates and overall price) remain unchanged. Likewise, even if the contracting agency finds the proposed labor categories are outside the scope of the vendor’s FSS contract, the vendor’s price for its proposed effort is unaffected. As with the technical evaluation, the price evaluation is a distinct and separate assessment.

D. The FSS Scope Evaluation

As set forth above, the FSS program gives federal agencies a simplified process for obtaining commonly used commercial products and services, and buying FSS products and services using FSS procedures, which satisfies the statutory requirement for full and open competition. By contrast, non-FSS products and services—also referred to as “open market items”—may generally not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement statutes and regulations, including those requiring the use of competitive procedures. Stated otherwise, where an agency announces its intent to order from an existing FSS contract, all goods or services being quoted must generally be present on the vendor’s FSS contract as a precondition to that vendor receiving the order. This assessment has often been shorthanded and referred to as whether all of the quoted items are within, or beyond, the scope of the vendor’s FSS contract.

As a preliminary matter, even where a solicitation’s stated evaluation criteria do not expressly include an FSS scope evaluation, it is nonetheless required as part of the ordering agency’s award determination. It is essentially a prerequisite to an FSS vendor’s eligibility for award, just like having an FSS contract that covers the entire duration of the order being issued. The failure of contracting agencies to view the FSS scope evaluation as completely separate and distinct from both the technical and price evaluations, and to detail it among the solicitation’s stated evaluation criteria, may be the cause of this problem.

“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 [or technically able] to provide the services that the agency is seeking, but whether the services or [labor] positions offered are actually included on the vendor’s FSS contract as reasonably interpreted.” This is not a question of a vendor’s ability to provide the required services, which is a technical evaluation determination. Rather, when an agency chooses the FSS as its procurement method, and limits competition consistent with FSS procedures, it is generally precluded from procuring items outside the scope of the awardee’s FSS contract. Thus, for purposes of its scope evaluation (in procurements involving labor categories), the ordering agency is essentially comparing columns 1 and 3 of the preceding table.

At times, when performing the FSS-scope evaluation, a vendor’s proposed labor category name and mapped-to FSS labor category name may be identical. For example, in the table above, Vendor A’s proposed “Program Manager” was mapped to an FSS labor category bearing the same name. This commonality in position title may support a contracting agency’s determination that the proposed labor category is within the scope of the vendor’s FSS contract. On other occasions, a vendor’s proposed labor category and its mapped-to FSS labor category may have names that are not the same. For example, in the table above, Vendor A’s proposed “Software Developer” is mapped to a FSS labor category named “Developer,” while its proposed “Database Administrator” is mapped to a FSS labor category named “Service Desk, Sr.” The labor category names, however, are not per se determinative. In such circumstances, it is necessary for the contracting agency’s scope evaluation to “look behind” the labor category names and review the job duties, skill sets, and education and experience requirements associated with the proposed, and FSS, labor categories, to determine whether the former are encompassed by the latter as reasonably interpreted. Quite simply, for an agency’s scope evaluation to be found reasonable, a review that goes beyond the labor-category nomenclature may be required.

The FSS scope evaluation must also be cognizant of the fact that the crosswalk, or mapping, between proposed and FSS labor categories is but a tool and not a test in itself. It is one manner by which a vendor may demonstrate to the ordering agency that what it is proposing is within the scope of the vendor’s FSS contract. Even where a vendor is not required to—or does not—provide a mapping between proposed and FSS labor categories, the required scope evaluation remains unchanged. The ordering agency must still ensure that what the vendor is offering (column 1) and what the agency is buying (again, column 1) is not outside the scope of the vendor’s FSS contract.

Finally, even where a vendor maps a proposed labor category to an unsuitable FSS labor category (i.e., one that does not encompass the services being proposed), the relevant scope inquiry remains unchanged (i.e., whether the services or labor categories being offered actually are included on the vendor’s FSS contract as reasonably interpreted). Accordingly, an ordering agency could look to see whether a vendor’s proposed labor category is otherwise on the vendor’s FSS contract in another listed labor category. If the proposed labor category is encompassed by another of the vendor’s listed FSS labor categories, then the proposed labor category is within the scope of the vendor’s FSS contract.

Finding a vendor’s proposed labor category to be present on its FSS contract, in other than the mapped-to labor category, offends none of the three aforementioned FSS evaluations. As set forth above, an agency’s technical evaluation is an assessment undertaken for the purpose of determining whether the vendor’s proposed labor categories and amounts (columns 1 and 2) are sufficient to meet the solicitation’s technical requirements, and a vendor’s mapped-to FSS labor categories are irrelevant to this determination. Similarly, with regard to price, as the vendor is offering the proposed labor categories in column 1 at the rates in column 5, the agency’s price evaluation is also unaffected by a vendor’s exact or inexact mapping. Finally, the scope evaluation is undertaken to ensure that what the agency is buying (column 1) is not beyond the scope of the awardee’s FSS contract as a whole, thereby constituting an improper open-market buy. In sum, a vendor’s inexact mapping of proposed and FSS labor categories is not controlling of whether the agency is buying beyond the scope of the vendor’s FSS contract, and without consequence to the technical and price evaluations.

III. A Sampling of GAO’s FSS Scope Decisions

As set forth above, the various evaluations—technical and price and scope—which take place as part of FSS procurements appear to be both distinct and straightforward in nature. The first three GAO decisions reviewed below exemplify instances where scope and “non-scope” evaluations were separate determinations. However, as evidenced by the next three decisions, GAO has, at times, conflated and confused the various FSS evaluations at issue.

A. Symplicity Corp.

In Symplicity Corp., GAO determined that although vendors were required to submit technical proposals and price proposals for evaluation, it was the agency’s scope evaluation—or lack thereof—that was the critical protest issue. The Office of Personnel Management (OPM) was procuring a “significant enhancement[]” to the USAJOBS.gov website using FSS procedures. The RFQ required the submission of technical proposals that included the vendor’s approach to meeting the solicitation’s major performance requirements as well as the labor categories of proposed key personnel. There was no dispute that awardee TMP Worldwide Inc.’s technical quotation contained two labor categories that were not on its FSS contract. “[T]he record reflects that OPM never performed an analysis of whether the quoted . . . labor categories . . . included in TMP’s quotation were within the scope of TMP’s [FSS contract].” GAO found “the acceptance of TMP’s quotation and award of a task order to [TPM] by OPM . . . improper because . . . an agency cannot lawfully use the FSS ordering procedures to order services that are not contained in the vendor’s [FSS] contract.”

The Symplicity protest did not involve a technical evaluation issue, as there was no concern regarding the awardee’s ability to provide the proposed labor categories at issue. Rather, the fundamental flaw was OPM’s lack of a scope evaluation, which thereby resulted in the issuance of a task order under a FSS contract to a vendor who did not have all proposed labor categories on its FSS contract. In sum, as OPM had chosen the use of FSS ordering procedures for its procurement, and as the awardee was proposing open-market items to meet the agency’s stated requirements, TMP was therefore not eligible for award.

B. American Systems Consulting, Inc. (ASCI)

In American Systems Consulting, Inc. (ASCI), GAO again determined that the protest turned upon an FSS scope, and not technical, evaluation issue. The Defense Information Systems Agency (DISA) was procuring software systems engineering support services using FSS procedures. The solicitation’s PWS detailed the job and education requirements for each personnel position and required that vendors’ “quotations . . . identify the labor category from their FSS contract that ‘most nearly equat[ed]’ to each PWS-defined position.” The awardee, ManTech Advanced Systems International, submitted a quotation which DISA found to be technically acceptable. ASCI argued, however, that the award to ManTech was improper because the “‘user support (customer assistance) manager’ position required by the [solicitation was] outside the scope of ManTech’s FSS contract,” and the FSS labor category which ManTech had identified in its quotation (task manager) did not “include user support functions or have the requisite background and experience to meet the PWS’s requirements.”

DISA, in its response, asserted that solicitation did not require a perfect matching of proposed and FSS labor categories and that the comparison of FSS labor categories to PWS requirements “ignore[d] the actual personnel qualifications,” which ManTech had identified in its quotation for the various positions. GAO found that DISA’s argument “misse[d] the point,” and confused the required technical and scope inquiries:

[W]hen 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 [or able] to provide the services that the agency is seeking, but whether those services are actually included in the vendor’s FSS contract as reasonably interpreted. . . . The fact that a vendor may state in its quotation that it is willing, and in fact is able, to provide such services does not obviate the agency’s obligation to [also] make certain that all of those services are within the scope of the vendor’s FSS contract. Where a portion of the services are outside the scope of that [vendor’s] FSS contract, then the agency must use [non-FSS] procedures to procure them.

In sum, the technical evaluation conducted by DISA was not a proper substitute for, and did not negate, the contracting agency’s requirement to also perform a proper scope determination, even if not expressly set forth in the solicitation’s stated evaluation criteria. Further, while ManTech may have in each instance identified the labor category from its FSS contract that “most nearly equat[ed]” with its proposed (and PWS-required) labor category, that did not mean ManTech’s proposed labor category was within the scope of its FSS contract.

C. Deloitte Consulting, LLP

More recently, in Deloitte Consulting, LLP, GAO again determined that the services proposed in the awardee’s quotation exceeded the scope of the underlying FSS contract, as reasonably interpreted. The GSA was procuring cybersecurity support services using FSS procedures, and the solicitation required vendors to submit fixed-price labor rates for labor categories on the vendors’ FSS contracts. The agency found the quotation submitted by Kearney & Company to be technically acceptable and determined that Kearney’s quotation represented the overall best value to the government.

Deloitte protested that Kearney’s quotation was based on providing services that went significantly beyond the scope of the FSS labor categories on which Kearney’s quotation was based. In support thereof, the protester noted substantial disparities in the functional responsibilities between Kearney’s proposed positions and the corresponding, mapped-to labor categories on Kearney’s FSS contract. While the agency argued that the FSS labor categories at issue were intended to cover a large variety of potential requirements and should be read broadly, GAO concluded that award to Kearney was improper because “some of the labor categories in Kearney’s FSS contract that formed the basis for award cannot be reasonably interpreted as including the services that were proposed by Kearney and are required by the solicitation.” In sum, insofar as Kearney’s quotation represented that it would provide services that exceeded the scope of its underlying FSS contract, GAO found the award to Kearney to be improper.

The three aforementioned decisions—Symplicity, ASCI, and Deloitte Consulting—reflect instances where the FSS scope determination was distinct from other aspects of the agency’s evaluation. This, however, has not always been the case.

D. ISHPI Information Technologies, Inc.

The GAO decision in ISHPI Information Technologies, Inc., reflects an instance where the awardee apparently did not know how to structure its quotation, which in turn affected the nature of the resulting protest evaluation issue. The Department of Energy (DOE) was procuring cybersecurity support services using FSS procedures. The solicitation required vendors to provide fully burdened labor rates for three specified labor categories and to map their FSS labor categories to the RFQ-specified labor categories. The solicitation established that the task order award would be made on a best-value tradeoff basis based on price and non-price (e.g., technical approach) factors. The record also reflects that the RFQ did not include a table (similar to the one described above) that vendors were to complete and submit as part of their quotations.

The awardee, AmVet Technologies, LLC, when submitting its quotation, did not propose the RFQ-specified labor categories and then map these to its FSS contract. Rather, AmVet proposed a range of labor categories from its FSS contract—it placed labor-hour amounts against various FSS labor categories—and then, in some instances, mapped these proposed FSS categories to the RFQ-required labor categories. Moreover, in multiple instances, the FSS labor categories that AmVet proposed did not meet the minimum qualifications for the positions specified in the RFQ.

ISHPI protested that DOE should have rejected AmVet’s quotation “because the firm did not quote labor categories from its FSS contract that met the minimum qualifications for the personnel specified in the RFQ.” In effect, because AmVet had mistakenly reversed the relationship between the RFQ-required and the vendor’s FSS labor categories, and had actually proposed the latter, ISHPI was forced to frame its protest as one concerning DOE’s technical evaluation (and there was no doubt that what AmVet had proposed was within the scope of its FSS contract).

The GAO, given both the manner in which AmVet had proposed and the protest issue as raised by ISHPI, reviewed the matter as one of technical acceptability. Here GAO found that AmVet’s “proposed” FSS labor categories did not, in various instances, meet the minimum educational and experience requirements for the RFQ-specified labor categories. Finally, in response to DOE’s argument that it had determined that AmVet’s quotation had “implicitly promised” to provide personnel that would have the necessary education and experience, GAO held that where a vendor proposes labor categories with education and experience requirements far below those required by the solicitation, “there is simply no basis for the agency to presume that the personnel quoted to perform a requirement will actually meet the RFQ’s more stringent education and experience requirements.”

E. AllWorld Language Consultants, Inc.

The GAO decision in AllWorld Language Consultants, Inc., reflects an instance where no one—except maybe the protester—fully understood what was being proposed as well as the various FSS evaluations at issue. As a result, the AllWorld decision reflects both a flawed analysis and a questionable outcome.

The GSA was procuring linguist services on behalf of the Air Force using FSS procurement procedures. The PWS requirements were demanding ones and required that the linguists be capable of both oral translation and written transcription in English and the local language(s); live and work in harsh desert environments; serve during heightened threat levels; and “function effectively and efficiently during extended periods of high pressure and stress,” including at crime scenes. The contracting agency found the quotation submitted by SOS International, Ltd. (SOSI) to be technically acceptable, that the vendor had submitted the lowest price among all firms, and ultimately determined that SOSI’s quotation represented the overall best value to the government.

AllWorld protested the agency’s technical acceptability evaluation of SOSI and argued the awardee had “quoted a[n FSS] labor category” that did not contemplate providing personnel qualified to perform the solicited requirements. Specifically, AllWorld maintained that SOSI had quoted a single labor category from its FSS contract that did not include many of the duties the linguists were required to perform under the PWS. AllWorld’s argument here is unquestionably premised on the belief that what SOSI was proposing was its FSS labor category; consequently, the protest evaluation issue was framed as one regarding technical acceptability, rather than one involving the vendor’s eligibility for award for proposing labor categories beyond the scope of its FSS contract.

The GSA responded that it had reasonably found SOSI’s quotation to be technically acceptable. Specifically, the agency argued that it had looked at SOSI’s technical quotation to determine what duties SOSI’s proposed linguists (i.e., “Senior Linguist/Site Lead,” “Senior Linguist, and “Linguist”) would perform, and found that SOSI’s technical quotation offered a labor mix that would meet the PWS requirements. The record also evidences that SOSI’s technical quotation included and reiterated the various PWS requirements that its proposed linguists were to perform. The AllWorld decision clearly indicates that, in contrast to the ISHPI decision above, the awardee here was not proposing one or more of its FSS labor categories.

GAO found the technical acceptability evaluation of SOSI to be unreasonable, because it erroneously accepted the protester’s argument that what SOSI had proposed was an FSS labor category that did not meet the linguist qualifications required by the PWS. However, as detailed earlier, SOSI’s technical quotation indicates the awardee had not proposed any of its FSS labor categories, but had proposed the labor categories of “Senior Linguist/Site Lead,” Senior Linguist,” and “Linguist,” which the agency determined met the RFQ’s technical requirements. Inasmuch as SOSI had not proposed any of its FSS labor categories, the FSS labor category to which SOSI had mapped its proposed labor categories should have been of no regard to the technical acceptability of the awardee’s quotation.

Further, GAO was also mistakenly of the view that, because SOSI had proposed an FSS labor category that did not meet the PWS requirements, SOSI was afforded an unfair price advantage. The protester had argued SOSI received a significant (and improper) price advantage by GSA’s acceptance of SOSI’s “quoted” FSS labor category, because the hourly rate for that labor category was substantially lower than rates for other SOSI FSS labor categories that arguably could meet the requirements of the PWS. GAO accepted the protester’s argument in full, finding the price for SOSI’s cited FSS labor category to be substantially lower than the rates of other SOSI FSS labor categories that “would be more appropriate to provide all the services called for under the PWS.” However, as detailed above, SOSI was not proposing—and GSA was not buying—the vendor’s FSS labor category. Rather, SOSI was proposing—and GSA was buying—the labor categories set forth in the vendor’s technical quotation at its proposed price, which SOSI was required to deliver during task order performance irrespective of the vendor’s actual cost or listed FSS prices. In sum, by failing to understand what SOSI was and was not proposing, GAO incorrectly analyzed the issue as one of technical acceptability, rather than whether SOSI had proposed labor categories that were within the scope of its FSS labor categories.

Now one could argue that the above analysis is a hyper-technical one, and merely turns the evaluation issue from one of technical acceptability into one regarding SOSI’s eligibility for award without any practical consequence (i.e., the PWS requirements were not within the scope of the awardee’s cited FSS labor category). Here, however, there were labor categories present on SOSI’s FSS contract that encompassed the PWS requirements, even if they were not the FSS labor categories mapped-to by SOSI. As detailed above, however, SOSI did not in fact “quote” any of its FSS labor categories; rather, SOSI proposed the labor categories set forth in its technical quotation and crosswalked them (poorly) to one of its FSS labor categories. This mapping, or crosswalking, of proposed and FSS labor categories aids the agency in determining whether the proposed labor categories are within the scope of the vendor’s FSS contract as a whole. However, an agency can certainly consider whether a vendor’s proposed labor categories are within the scope of any of a vendor’s FSS labor categories, and, if so, then the proposed labor categories are properly within the scope of the vendor’s FSS contract. In sum, understanding what the awardee in AllWorld was actually proposing, and properly assessing the evaluation issue as one of FSS-scope eligibility, rather than technical acceptability, may have resulted in a different protest outcome.

F. Grant Thornton, LLC

The GAO decision in Grant Thornton, LLC, involved a protest of an actual FSS solicitation; however, the decision here is also something of an advisory opinion for the procurement community. The Department of Defense (DoD) was procuring audit support services using FSS procedures. The RFQ required vendors to quote labor categories from their FSS contracts for each labor category in the PWS. Moreover, the solicitation required that, “in accordance with applicable case law,” “[t]he pricelist description of the vendor’s quoted FSS labor category must align precisely with the requirements of the corresponding PWS-defined labor category.” For example, for a PWS-defined labor category requiring a minimum of twelve years’ experience, a vendor could not properly quote an FSS labor category having “a minimum of ten years of experience.”

Grant Thornton protested that “the solicitation requirement that a vendor’s quoted FSS . . . labor categories ‘align precisely’ with the RFQ’s labor categories, with respect to the number of years of experience, . . . [was] unduly restrictive of competition.” The protester argued that where the solicitation’s labor category stated a requirement for a minimum number of years of experience, a vendor’s FSS labor-category contract that identified a “minimum” of a lesser number of years of experience did not mean the vendor could not quote (or would not provide) employees with the higher years of experience, and should therefore be considered to be within the scope of the solicitation.^, In something of a bow to reality, GAO agreed.

GAO first explained that, contrary to DoD’s view, “nothing within our [prior] decisions . . . state[d] that years of experience as set forth in the labor categories of a vendor’s FSS contract must be viewed as a hard cap for purposes of assessing whether the labor category is within the scope of a solicitation.” Further, consistent with GSA’s solicited views on the issue, GAO found that “[t]he terms of such a[n FSS] labor category provide a price for personnel with a stated minimum level of experience; but nothing prohibits the vendor—expressly or implicitly—from providing personnel with more than that level of experience.” GAO then concluded that “[w]e do not find that any of our prior decisions, or the statutes and regulations that apply to the FSS, are inconsistent with this understanding . . . .” In sum, in instances where a vendor’s FSS labor categories set forth minimum amounts of experience, GAO’s review of whether a vendor’s proposed services are included in the vendor’s FSS contract “as reasonably interpreted” accepts that such minimum amounts represent a floor and not a ceiling, and that, for example, providing personnel during performance with twelve years of experience is within the scope of an FSS labor category that specifies a minimum of ten years of experience.

IV. The Lessons and Take-Aways

It is said that “[e]xperience is a hard teacher because she gives the test first, the lesson afterward.” There is no need, however, for each student to repeat this process, but to instead benefit from what others have learned the hard way. Based on this review of FSS procurement evaluation process, including scope evaluations, many lessons and “take-aways” may be gained here.

A. The Impact of the Grant Thornton Decision

First, the low-hanging fruit. In light of GAO’s decision in Grant Thornton, it makes complete sense for FSS contract holders to describe their labor categories’ experience requirements in terms of minimum amounts. As the protester in Grant Thornton recognized, it would be unfair and/or impossible for an FSS vendor to “guess” at each ordering agency’s requirements regarding position experience when establishing, at an earlier point in time, the labor categories on their FSS contracts. Likewise, if an FSS solicitation—like that in Grant Thorton—required a vendor’s FSS contract labor category to “align precisely” with the experience requirements in a solicitation’s labor categories, this would then essentially require vendors to establish FSS labor categories with the same skills, capabilities, and education requirements, but with different amounts of experience, e.g., labor categories specifying four, six, eight, ten, etc., years of experience for the same services. Thus, there would appear to be no downside to FSS vendors expressing position-experience requirements in terms of minimum amounts rather than in fixed amounts.

For purposes of the Grant Thornton decision, GAO considered only the solicitation’s experience requirements as compared to the minimum amounts in the protester’s FSS labor categories. However, work experience may not be the only aspect of a vendor’s FSS labor category qualifications where minimum amounts are utilized (e.g., educational degrees). It would thus seem logical that other aspects of a vendor’s FSS labor category qualifications could also be expressed in terms of minimum amounts, as it would again be unfair and/or impossible for an FSS vendor to guess at each ordering agency’s requirements regarding same when establishing the labor categories on FSS contracts.

B. Understanding What Is Being Proposed

Second, with regard to FSS procurements, government contractors, practitioners, contracting officers, and others must all understand what a vendor is—and is not—proposing. To begin with, vendors must recognize that what they are proposing in both the technical and price aspects of their quotations are labor categories (and amounts) that meet the solicitation’s PWS requirements, regardless of whether those requirements are set forth in performance-based or level-of-effort terms. For example, in those instances where the PWS sets forth the labor categories and amounts that all vendors are required to use, a vendor’s technical and price quotations should propose the exact PWS-required labor categories and amounts.

Related thereto, vendors must also realize that what they are NOT proposing is their FSS labor categories (which may have different names and/or descriptions than the positions called for in the solicitation). An ordering agency’s solicitation should likewise never request that vendors propose their FSS labor categories. Rather, to the extent the solicitation requires a vendor to identify its FSS labor categories, the quotation should make clear that the vendor is only to “crosswalk” or “map” its proposed/quoted labor categories to its FSS labor categories.

As introduced above, FSS solicitations could include a table similar to the one here that vendors are to complete as part of their quotations as follows:

It may in fact be beneficial for contracting agencies to routinely employ such a table as a way of distinguishing a vendor’s proposed labor categories (column 1) from its mapped-to FSS labor categories (column 3). Even where a table similar to the one here is not a part of the solicitation, it would remain helpful for an FSS vendor to nevertheless include one as part of its quotation so that it is clearly understood by the ordering agency what is, and is not, being proposed. The ISHPI and AllWorld decisions discussed above both reflect instances where FSS labor categories were improperly substituted for proposed labor categories, which affected both the resulting agency evaluations and protest outcomes.

C. Understanding the Three Different Evaluations

Third, government contracting participants must understand the different evaluations—technical, price, and scope—that take place as part of an FSS procurement, and that these evaluations are separate and distinct from each other. The agency’s technical evaluation is to determine only whether a vendor’s proposed staffing (i.e., the proposed labor categories and amounts in columns 1 and 2) is sufficient to meet the requirements of the solicitation; such an assessment remains unchanged regardless of whether the agency’s needs are described in performance-based or level-of-effort terms. As the vendor is not proposing to deliver its mapped-to FSS labor categories (column 3), that aspect of the table plays no part in the technical evaluation.

With regard to the agency’s price evaluation, it should be remembered that a vendor’s proposed price is a byproduct of its proposed labor categories, labor amounts, and proposed rates (i.e., columns 1, 2, and 5). A vendor’s FSS rates (column 4), while of possible interest to the ordering agency to know the size of any price discounts, are simply not relevant when computing the vendor’s proposed price. Likewise, the evaluation of vendors’ prices, as determined by the solicitation’s stated evaluation criterion, is generally limited to the vendors’ proposed prices (column 5).

FSS vendors should also remember that the prices proposed in response to a specific solicitation do NOT become the vendor’s new FSS prices. At set forth above, any price discounts being offered from the vendor’s listed FSS rates are solicitation-specific in nature, need not be equal across labor categories, and do not become the vendor’s revised rates pursuant to the FSS contract’s Price Reductions Clause. A vendor’s mapping, or crosswalk, of its proposed labor categories to its FSS contract labor categories should therefore be without concern for the discount being offered in response to a particular solicitation. For example, in AllWorld, the awardee SOSI could have instead mapped its proposed labor categories to one or more of its FSS labor categories that clearly covered the proposed (and solicited) labor requirements, and just proposed greater rate discounts for the FSS labor categories on that particular occasion.

The fixed-price nature of FSS task orders also impacts this agency evaluation. As with fixed-price instruments generally, the issuance of an FSS task order requires the vendor to perform the stated PWS requirements at the agreed-upon price regardless of the vendor’s actual cost to perform such work. Stated otherwise, the vendor is required to deliver its proposed labor categories at the fixed rates proposed. And because a vendor is not proposing its FSS labor categories, neither does it receive any type of unfair price advantage for proposing labor rates that are less than the mapped-to FSS labor category rates, as GAO wrongly believed in AllWorld.

Finally, the FSS scope evaluation is used to determine whether a vendor’s proposed labor categories are within the scope of its FSS contract as reasonably interpreted. The FSS program provides federal agencies with a simplified process for obtaining commercial products and services, and procuring FSS products and services using FSS procedures satisfies the statutory requirement for full and open competition. Non-FSS products and services, by contrast, may generally not be bought using FSS procedures, and “their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures.” Stated otherwise, “when an agency announces its intent to order from an existing FSS contract, all goods or services quoted must be on the vendor’s [FSS] schedule contract as a precondition to it receiving the order.” Thus, for purposes of the FSS scope evaluation, the ordering agency is comparing columns 1 and 3 of the table set forth earlier.

As with quotations generally, “it is the vendor’s responsibility to submit a well-written quotation, . . . and a vendor that fails to do so runs the risk that its quotation will be evaluated unfavorably.” It is likewise the vendor’s burden to demonstrate that its proposed labor categories are within the scope of its FSS contract. There is, however, no one way for a vendor to do this. The vendor can crosswalk its proposed labor categories to one or more of its FSS labor categories. A vendor can provide additional information, especially in instances where the labor categories do not have common names, that the proposed labor categories are covered by the mapped-to FSS labor categories. Quite simply, it is in a vendor’s self-interest to make the agency’s evaluation of its quotation as easy as possible and to provide information clearly, showing that the proposed labor categories are within the scope of the FSS contract.

However, when conducting the FSS scope evaluation, the ordering agency is not limited to considering only whether the vendor’s proposed labor categories (column 1) are within the scope of the mapped-to FSS labor categories (column 3), but may also consider the vendor’s other FSS labor categories. The sole goal of the FSS-scope evaluation is to ensure the contracting agency is not improperly buying off the FSS schedule or procuring non-FSS products and services using FSS procedures. The contracting agency must therefore review whether each proposed labor category is within the scope of the vendor’s FSS contract, as reasonably interpreted. For an agency to limit that review only to a vendor’s mapped-to FSS labor category would essentially—and improperly—make what is a tool the test. There is also no harm or prejudice to the technical, price, and scope evaluations from the contracting agency considering whether a vendor’s proposed labor categories are otherwise within the scope of the vendor’s FSS contract generally, even if they are not covered by the mapped-to FSS labor category. While this factual situation may seem unusual, the AllWorld Language Consultants, Inc., protest shows that it does occur and can be the difference in finding a vendor eligible for task order award.

In sum, while the FSS program is intended to give federal agencies a simplified process for obtaining commonly used commercial products and services while also satisfying the requirement for full and open competition, FSS procurements are not without many different types of evaluations and evaluation issues. Vendors must ensure that the services and/or labor categories they propose are responsive to the PWS requirements while also being within the scope of the FSS contract. Likewise, as part of the analysis of competitive FSS quotations, ordering agencies and others must clearly understand that there is (1) a technical evaluation; (2) a price evaluation; and (3) an FSS scope evaluation, each with its own purpose. It is only by keeping these evaluations separate and distinct from each other and understanding what each entails can the FSS process ensure a proper task-order award determination.