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American Warehouse Systems, B-402292, January 28, 2010

  • By GCPC GovCon Legal Team
  • February 4, 2010
  • Beyond the ScopeConstruction ServicesFSS Contract

Link: GAO Opinion

Agency: General Services Administration

Disposition: Protest denied.

Keywords: Construction services; GSA schedule; beyond the scope

General Counsel, P.C. Highlight: An order placed through the awardee’s schedule contract may not include any item or services that are not already included on the awardee’s GSA schedule contract.

—————————————————————————————————————————–

American Warehouse Systems (AWS) protested the issuance of an order to FedSource, Inc. under the firm’s General Services Administration (GSA) schedule contract on the basis that the order included labor services that were not on FedSource’s GSA schedule contract.

The acquisition was to be conducted in accordance with Federal Acquisition Regulation (FAR) subpart 8.4, which governs the Federal Supply Schedule (FSS) program. The RFQ required that vendors hold GSA “Schedule 56” contracts for “Building Materials/Industrial Services and Supplies,” but also identified that the supplies and services could be supplied under certain “applicable” Special Item Numbers (SIN). The RFQ stated that award would be made on a best value basis, considering technical, past performance, and price factors.

After the order was placed with FedSource, AWS protested by stating that FedSource’s GSA contract did not contain the applicable SIN to install the product, and therefore the agency could not purchase the services from FedSource. In particular, AWS argued that the installation of the mezzanine structure in question must be considered to be “construction” and that the procurement of the services from FedSource through SIN 361-30, which does not include construction, was inappropriate. AWS argued further that labor must be provided under SIN361-32, “Installation and Site Preparation for Pre-Engineered/Prefabricated Buildings and Structures,” which does include construction and which is not included in FedSource’s GSA contract.

While it is improper for an agency to use FSS procedures to purchase items that are not listed on a vendor’s GSA schedule without conducting a competition, GAO held that was not the case here. Due to the specific qualifications in the RFQ, GSA sought the installation of a free-standing mezzanine system that did not require construction, alteration, or repair of a building structure, rather it required that the structure be bolted to the floor. GAO held that general reference in the RFQ to International Building Code design and references to applicable codes and standards did not transform the order into one for construction services. Furthermore, GSA’s contracting officer had contacted representatives from other agencies and from FedSource and AWS prior to issuing the RFQ, all of which concluded that the services were assembly rather than construction. For the above reasons, GAO denied AWS’s protest.

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