Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Federal Supply Schedule Contract; Competition
General Counsel P.C. Highlight: FAR§ 8.405-6 exempts orders placed under the Federal Supply Schedule Contract program from the full and open competition requirements, but requires that an ordering activity justify its action when restricting consideration of schedule contractors to fewer than three competitors.
STG, Inc. protests the Department of Veterans Affairs (VA) issuance of a four-month task order for maintenance and support services for the VA’s Electronic Contract Management System (eCMS).
This protest follows an earlier protest by STG, objecting to the issuance of a task order the incumbent, for services to develop, support, and maintain the eCMS under a request for quotations (RFQ). GAO dismissed that protest as academic after the agency notified us that it was terminating the original awardee’s task order, reassessing the agency’s requirements, and resoliciting the procurement. The next day the agency issued a four?month task order to the original awardee to provide maintenance and support services for the eCMS while the agency was undertaking corrective action.
STG argues that the agency improperly issued the short-term task order to the original awardee on a sole-source basis without allowing STG an opportunity to compete for the task order. GAO states that the four-month task order was placed against the original awardee’s Federal Supply Schedule (FSS) contract. FAR sect. 8.405-6 exempts orders placed under the FSS from the competition requirements of FAR Part 6, but requires that an ordering activity “justify its action when restricting consideration of . . . schedule contractors to fewer than required in [FAR sections] 8.405-1 or 8.405-2.” Circumstances justifying such a restriction include where an urgent and compelling need exists and following the ordering procedures would result in unacceptable delays. Where an ordering activity restricts competition on the basis of an urgent and compelling need, the contracting officer is required to document the circumstances in writing. Where the proposed order is over $550,000 but not over $11.5 million, the justification must be approved by the competition advocate of the activity placing the order.
The agency determined that it was critical that maintenance and support services for the eCMS remain uninterrupted and seamless during the time period in which the agency reviews its requirements and resolicits the procurement. In support of this determination, the agency explained that interrupted service would have a “deleterious effect on the health and well being of Veterans” who receive “vital” services from procurement activities impacted by eCMS. To this end, the agency executed a justification and approval (J&A) for a limited source award under the FSS on an urgent and compelling basis. The agency recognized that there were other sources available for this requirement, including STG, but the agency concluded that only the original awardee, the incumbent, possessed the specialized experience specific to eCMS and the VA’s needs necessary to continue to provide the critical maintenance and support without a break in service. The agency stated that any new contractor would most likely need to hire and train new employees, as well as obtain the required security credentials. The agency also estimated that it would take a new contractor at least one month to begin learning the processes and the organization, a minimum of two weeks to provide new employees with access to the VA network, and another two weeks to train the new employees on eCMS and the various subsystems. The protest is denied.