Link: GAO Opinion
Agency: Department of State
Disposition: Protest sustained.
Where solicitation limited competition to vendors holding Federal Supply Schedule (FSS) contract for required items, and successful vendor’s FSS contract did not include all required items, issuance of purchase order was improper; while non-FSS micro-purchase ($3,000) items properly may be purchased under an FSS solicitation, that was not the case here, since, while non-FSS items were priced at $0, quotation stated that price of non-FSS items was included in FSS item prices.
General Counsel P.C. Highlight:
SAIC asserts that the order improperly was issued to Rapiscan because two of the items quoted were not on Rapiscan’s FSS contract at the time the order was issued. GAO states that FSS procedures provide agencies a simplified process for obtaining commonly used commercial supplies and services, Federal Acquisition Regulation (FAR) sect. 8.401(a), and, although streamlined, satisfy the requirement for full and open competition. However, non-FSS products and services may not be purchased using FSS procedures; their purchase requires compliance with otherwise applicable procurement laws and regulations, including those requiring the use of full competitive procedures. Where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order.
The agency concedes that two items were not included under Rapiscan’s FSS contract at the time the order was issued, but principally argues that, since there was no requirement in the RFQ that all items be on the FSS at the time quotations were submitted or at the time the order was issued, this would not be a proper basis for rejecting Rapiscan’s quotation. The agency asserts that the order was properly issued because the items were added to Rapiscan’s FSS contract before the required delivery date. Since the solicitation here limited the competition to vendors holding a specified FSS contract, the agency was limited to issuing the purchase order to a vendor whose FSS contract included all of the required items. Since it is undisputed that Rapiscan’s FSS contract did not include all required items at the time the order was issued, the order could not properly be issued to Rapiscan. GAO rejects the agency’s position that it was proper to issue an order to Rapiscan because the ordered items will be added to its FSS contract prior to the delivery date. Since there is no way to determine with certainty whether a vendor’s FSS contract will include the ordered items in the future, clearly would undermine, if accepted, the requirement that non-FSS items be purchased using normal full and open competition procedures. The protest is sustained.