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Breakout Session # 1101 James S. Phillips, Esq. Barbara S. Kinosky, Esq. Centre Consulting, Inc.

Bid Protests of GSA Schedule Buys: Why the Numbers are Up . Breakout Session # 1101 James S. Phillips, Esq. Barbara S. Kinosky, Esq. Centre Consulting, Inc. Date April 25, 2005 Time 11:00 am. Overview of GAO Protest - 2004. FY04 FY 03 Protests Filed : 1,485 1,352 +133

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Breakout Session # 1101 James S. Phillips, Esq. Barbara S. Kinosky, Esq. Centre Consulting, Inc.

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  1. Bid Protests of GSA Schedule Buys: Why the Numbers are Up Breakout Session # 1101 James S. Phillips, Esq. Barbara S. Kinosky, Esq. Centre Consulting, Inc. Date April 25, 2005 Time 11:00 am NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  2. Overview of GAO Protest - 2004 FY04 FY 03 Protests Filed: 1,485 1,352 +133 Merit Decisions: 365 290 + 75 Sustained: 75 50 + 25 Sustained Rate: 21% 17% + 4% NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  3. Why Are GAO’s Numbers Up? • More GSA buys are now being protested. • GAO aggressively granting protests for “out-of-scope” contracting. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  4. Why Are More Schedule Protests Being Filed? • Revisions to FAR Part 8.4 re GSA Ordering Procedures. • New Provision for Post- Award Notifications of Services Orders. • Increased Procedural Requirements. • Greater awareness of “scope” issues. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  5. Recent Revisions to GSA Ordering Procedures • Places GSA Ordering Procedures in FAR 8.4 • Provides detailed requirements for ordering products and services • Increased emphasis on competition and best value source selection. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  6. New Ordering Procedures for ProductsFAR 8.405-1 • Ordering Agency Must Solicit or Review at Least 3 Price Lists if Ordering Above Micro-Purchase Threshold. • Place Order with Schedule Vendor Offering “Best Value.” • Seek Discounts if Order Exceeds Maximum Order Threshold on Schedule. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  7. New Ordering Procedures for Most Services – FAR 8.405-2 • Requires creation of SOW and RFQ to solicit competition. • Preference that SOW be Performance Based. • Submit SOW and RFQ to at least 3 Schedule Vendors (if over Micro-Purchase). More if over Max. Order Threshold. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  8. New Ordering Procedures for Most Services – FAR 8.405-2 • Preference that Offers be Solicited on Fixed Priced Basis • Requires agency to request staffing info. and verify price is reasonable • Must Provide RFQ to Any Schedule Vendor that Requests It NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  9. New Ordering Procedures for Most Services – FAR 8.405-2 • Award to Vendor Providing “Best Value” • Agency Must Follow Evaluation Criteria Stated in RFQ. Starting to Mirror FAR Part 15! NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  10. Award Notifications for Services Orders.FAR 8.405-2(d) • FAR 8.405-2(d) states agencies “should” provide timely award notifications • FAR states that if requested, a brief explanation of the “basis for the award decision shall be provided” • FAR silent on when notification or explanation is to be provided NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  11. Increased Documentation RequirementsFAR 8.405-7(a) COs Must Document the Following: • The Schedule Contracts Considered. • If Less Than 3 Schedule Vendors Considered, a Justification for Considering Fewer. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  12. Special Documentation Reqts for Services Orders – FAR 8.405-7(b) COs Must Document the Following: • The evaluation methodology utilized to select the awardee • The rationale for any “tradeoffs” • If applicable, the rationale for using other than a firm-fixed price order or a performance based order NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  13. Recent GAO Cases: Scope IssuesAmerican Sys. Consulting, Inc., B-294644, 12/13/04 • RFQ req’d vendors to match SOW positions to labor categories on vendor’s schedule. • RFQ listed educational & experience levels for each position. • Protest sustained b/c awardee’s schedule labor categories did not exactly match SOW requirements. • Close was not enough! NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  14. Recent GAO Cases: Scope Issues Armed Forces Merch. Outlet, B-294281, 10/12/04. • RFQ solicited offers for garments with req’d material content (82% nylon/18% spandex). • Awardee submitted conforming sample. • Awardee had mod. request pending to add new item to Schedule. • Protest sustained b/c item was not on Schedule at time of award. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  15. Recent GAO Cases: Scope IssuesAltos Federal Group, Inc., B-294281, 10/12/04. • RFQ required items not available on Altos’ GSA Schedule. • Altos recruited subcontractor that had missing items on sub’s GSA Schedule. • Altos’ proposal disclosed intent to rely on subcontractor but did not call all subcontractor’s Schedule contract. • Protest sustained b/c CO had no ability to verify subcontractor had items on schedule. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  16. Recent GAO Cases: Evaluation of Offers • GAO has long held agencies must evaluate offers per the criteria stated in RFQ. Comark Fed. Sys., Inc., B-278343.2, 1/20/98. • Material deviations from stated criteria will provide basis to sustain protest. Id.; Computer Products, Inc., B-284702, 5/24/00. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  17. Recent GAO Cases: Evaluation of Offers FAR Part 15 Rules Being Applied to Schedule RFQs: • Crestridge, Inc., B-295424, 2/23/05: Protest sustained b/c agency decision to downgrade tech. proposal for lack of detail not supported by record. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  18. Recent GAO Cases: Evaluation of Offers FAR Part 15 Rules Being Applied to Schedule RFQs: • E-Lynxx Corp., B-293761, 12/03/03: Protest sustained b/c price/technical trade-off was flawed and could not be explained by CO at GAO hearing. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  19. Summary • New GSA ordering procedures for services require creation of SOWs: Leads to mini-FAR 15 procurements. • New rules provide for more post award notifications and explanations of awards. • New rules provide for more documentation requirements. • GAO is scrutinizing scope issues under GSA orders. NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

  20. Thank You! Jim Phillips: jphillips@centreconsult.com Barbara Kinosky: bkinosky@centreconsult.com NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise”

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