SIN 361-30, Ancillary Services Relating to Pre-Engineered/ Prefabricated Buildings and Structures -- Including services relating to and ordered in conjunction with products purchased under the supply schedule contract, such as, field assembly, training, consultation and design assistance. EXCLUDES Construction as defined by FAR 2.101; Architectural Engineering Services (A&E) under the Brooks Architect-Engineers Act as stated in [FAR] Part 36; and services applicable to the Service Contract Act.

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SIN 361-32, Installation and Site Preparation for Pre-Engineered/ Prefabricated Buildings and Structures -- Applicable to installation and site preparation services ordered in conjunction with buildings and structures purchased under the supply schedule contract. SPECIAL ORDERING PROCEDURES, WHICH INCLUDE DAVIS BACON WAGE RATES AND CONSTRUCTION CLAUSES FOR INSTALLATION AND SITE PREPARATION APPLY TO THIS SIN. EXCLUDES Architectural Engineering Services (A&E) under the Brooks Architect-Engineers Act as stated in [FAR] Part 36.

Agency Report, Tab 23, SIN Descriptions; Contracting Officer’s Statement at 2.

As noted above, the agency has provided a reasonable basis for its determination that the installation services here are for assembly and not construction, and, therefore, are more appropriately procured under SIN 361-30. In this regard, the RFQ requirements were reasonably found to not involve construction, alteration, or repair of the building or building structures, and the RFQ does not contain any construction clauses or Davis Bacon Act wage rate requirements. Thus, we find that the agency reasonably determined that SIN 361-32 was not applicable. Since FedSource’s GSA schedule and its subcontractors’ GSA schedules contained SIN 361-30, and since of the services purchased were either on these schedules or purchased through competition as “open market” items, we find that the order placed with FedSource was unobjectionable.

The protest is denied.  (American Warehouse Systems, B-402292, January 28, 2010)  (pdf)

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 to provide the services that the agency is seeking, but whether the services or positions offered are actually included on the vendor's FSS contract, as reasonably interpreted. See American Sys. Consulting, Inc., B-294644, Dec. 13, 2004, 2004 CPD para. 247 at 5.

As the category description above shows, SIN 246-54 includes the types of personnel necessary to staff security operations at a facility, or to support those personnel. While the support function category logically includes those personnel who assist the protective service occupations in carrying out their functions, it does not reasonably include individuals who would create the construction site security plan for the purposes of obtaining SCIF accreditation from DIA. Moreover, we have previously recognized the difference in the kinds of personnel available under SINs 246-54 and 246-52. See Tarheel Specialties, Inc., B-298197, B-298197.2, July 17, 2006, 2006 CPD para. 140, at 4-9.

The intervenor argues that SIN 246-54 does include a position--contract manager--that contemplates the type of services called for in the RFQ relating to development of the Construction Security Plan and related services. In this regard, CIS asserts that the Construction Security Plan "is a relatively simple and straightforward document, typically resulting in a checklist developed based on the particulars of each construction project," and does not require "an array of specialized experience apart from providing day-to-day construction site security." CIS Comments, Dec. 30, 2009, Attach. 1, Decl. of John S. Morris at 2.

In our view, the contract manager position description in SIN 246-54 does not include the functions contemplated under the RFQ here as they relate to development of the Construction Security Plan and the associated services to be provided by the contractor. SIN 246-54 describes the contract manager in relevant part as having "overall responsibility for implementing, monitoring, and upgrading the Contractor's quality control plan and . . . for ensuring that the Contractor's work force complies at all times with the contract requirements." AR, Tab 4, SIN 246-54, sect. 7.1C. With respect to the experience required for the position, the SIN states as follows: "project development and implementation from inspection to deployment; expertise in the management and control of funds and resources using complex reporting mechanisms; and demonstrated capability in managing multi-task Contracts or subcontracts of various types and complexity" Id. at sect. 7.1A. The experience and functions listed in the position description, while clearly managerial, are general in nature and, in our view, do not include the site-specific, detailed, ongoing management services called for under the RFQ here--including the development of a Construction Security Plan. We are unpersuaded by the intervenor's argument that development of the Construction Security Plan (and related services to be performed by the contractor here) should be regarded as a routine and inherent part of management of any construction site security work of the type called for under the RFQ, and thus that performance of these services does not require personnel other than the supervisory personnel included in SIN 246-54.[2] As noted above, the RFQ calls for a site-specific Construction Security Plan that depends on close coordination with numerous other entities, as well as ongoing services related to ensuring compliance with the Plan in order to obtain SCIF accreditation. RFQ sect. 2.6.1. These services are not within scope of the supervisory positions described in SIN 246-54.

In sum, CIS' quotation should not have been viewed as having met the RFQ requirement that the vendor possess an FSS contract offering all the services sought. Consequently, it was not proper for the agency to place the order under CIS' FSS contract.

In view of our conclusion that an order may not properly be issued to CIS under the RFQ here, we recommend that the agency issue the task order to the vendor next in line for selection under the terms of the RFQ. We also recommend that ASP be reimbursed its costs of filing and pursuing the protest. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1). The protester's certified claims for such costs, detailing the time expended and costs incurred, must be submitted directly to the agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).  (American Security Programs, Inc., B-402069,; B-402069.2, January 15, 2010) (pdf)

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. Tarheel Specialties, Inc., supra; CourtSmart Digital Systems, Inc., supra. 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. We reject 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. This position ignores our decisions, as well as the Court of Federal Claims’s decision in ATA, and, 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 agency asserts, alternatively, that the order actually was issued to Rapiscan on the basis of full and open competition--and that the non-FSS item rule therefore does not apply--since all participants in the mobile intrusive gamma inspection unit marketplace hold FSS contracts, and all were permitted to submit quotations. We disagree because the agency’s argument is based on a flawed premise. Pursuant to the FAR, full and open competition is achieved only where all responsible sources are permitted to compete. FAR sect. 2.101. While the agency asserts that all potential vendors of the required items were permitted to compete because all hold FSS contracts, there is no evidence in the record--and we question whether sufficient evidence could be presented--showing that there are no vendors of the items that do not hold FSS contracts. Rather, under the circumstances here, the only way to ensure that all responsible sources are permitted to compete would be to conduct a competition without FSS restrictions. Moreover, the agency’s argument ignores the possibility that some FSS vendors chose not to submit a quotation because, like Rapiscan, they did not have all of the required items on their FSS contracts. Notably, in this regard, the agency reports that only 4 of the 46 FSS vendors notified of the solicitation requested a copy of it.

Based on the foregoing, we sustain the protest. We recommend that the agency cancel Rapiscan’s purchase order. Because there is a dispute in the protest record as to whether SAIC’s FSS contract includes all required items, we also recommend that the agency determine whether SAIC had all items on its FSS contract at the time the order was issued. If the agency determines that this is the case, and that SAIC’s quotation is otherwise technically acceptable and lowest-priced, the agency should issue a purchase order to SAIC. Otherwise, the agency should issue the purchase order to the vendor in line for award under the terms of the RFQ, and in accordance with this decision. We also recommend that SAIC be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2009). SAIC should submit its certified claim for costs, detailing the time expended and cost incurred, directly to the contracting agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).  (Science Applications International Corporation, B-401773, November 10, 2009) (pdf)

Based on our review and comparison of the PWS with ManTech's FSS contract, we find that the user support manager services are outside the scope of ManTech's FSS contract. We reach this conclusion because the RFQ required ManTech to identify the labor category from its FSS contract that "most nearly equat[ed]" to each PWS-defined position, and the task manager labor category identified by ManTech does not appear to match the user support manager position defined in the PWS. For example, the task manager description does not include performing the help desk or systems support services described in the PWS. Rather, the task manager position is focused on financial management activities, with some general administrative management duties. The task manager experience level also does not include at least 2 years of help desk experience, as is required for the user support manager position. Since ManTech's "most nearly equat[ing]" labor category (i.e. , task manager) does not perform the services required for the user support manager, and neither the agency nor ManTech argue that a more closely related labor category exists on ManTech's FSS contract to fill the position, it appears that ManTech's quoted services are outside the scope of its FSS contract. The agency argues, however, that the matching of FSS labor categories to the PWS requirements ignores the actual personnel qualifications identified by ManTech in its quotation for the various positions. We think this argument misses the point; when 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 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. If the quoted services are not listed on the vendor's FSS contract, they cannot be purchased using FAR Part 8 procedures, but instead must be purchased using competitive procedures. Symplicity Corp. , supra , at 4-5. 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 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 contract, as is the case here, then the agency must use competitive procedures to procure them. (American Systems Consulting, Inc., B-294644, December 13, 2004) (pdf)

However, to the extent that the protester is instead arguing that the RFQ failed to advise vendors that only those firms that had all of the required SINs listed on their own, as opposed to their subcontractors', FSS contracts would be considered for award, and thus that it would have been improper for the agency to distinguish among quotations on that basis, we agree. Contrary to the agency's argument, an FSS contractor acting as a prime contractor may use a subcontractor to provide services not included within the prime contractor's FSS contract so long as the services in question are included within the subcontractor's FSS contract. [5] See OMNIPLEX World Servs. Corp. , supra , at 5. This is so because the items on the subcontractor's FSS contract, like the items on the prime contractor's FSS contract, were the object of competitive procedures prior to their inclusion on the vendor's schedule contract. What is not permitted is for a schedule contractor acting as a prime contractor to use a subcontractor to offer services not included in either its own or the subcontractor's FSS contract since this would mean that it was improperly including non-FSS goods or services in an FSS acquisition. Id. We nonetheless deny Altos's protest because, as pointed out by the agency, there is no mention in the protester's quotation that Altos will be subcontracting for performance of the SINs not listed on its own FSS contract or that any of its subcontractors has an FSS contract for the missing item(s). To the extent that the protester intended to use a subcontractor to provide services not included in its own FSS contract, it was incumbent upon it to identify the subcontractor in its quotation so that the agency could confirm that items missing from the protester's FSS contract were included on the subcontractor's schedule contract. The agency cannot be faulted for failing to consider in its evaluation information that was not included in Altos's quotation. In this regard, it is well-established that a firm runs the risk of not being selected for award if it fails to submit an adequately written quotation. Northwest Mgmt., Inc. , B-277503, Oct. 20, 1997, 97-2 CPD 108 at 5. (Altos Federal Group, Inc., B-294120, July 28, 2004) (pdf)

In our view, this procurement cannot properly be termed an “FSS buy,” and thus the FSS procedures regarding the purchase of open market items have no application here. As described above, this procurement was conducted using full and open competition. Using a task order against the awardee’s FSS contract to implement the selection decision at the end of the competition is a matter of administrative convenience; it does not convert this procurement to an FSS buy, or raise the kinds of concerns normally associated with including open market items in an FSS purchase. See, e.g., Pyxis Corp., B-282469, B-282469.2, July 15, 1999, 99-2 CPD ¶ 18 at 3. The remaining requirements of FAR § 8.401(d) are administrative matters of little concern in this environment. (Firearms Training Systems, Inc., B-292819.2; B-292819.3; B-292819.4, April 26, 2004) (pdf)

1.  Here, it is undisputed that at least one item in York’s proposed system--the audio mixer--was not on York’s FSS schedule. York’s quotation identified the mixer as an item on an FSS contract of another vendor, Biamp Systems, with which York stated it had a “contractor team arrangement.”[2] However, the Biamp FSS contract identified in York’s quotation expired several years ago, and the Biamp mixer was, therefore, not an FSS item. Not only is the mixer a necessary component of the digital recording system being procured under this RFQ, but it is the most significant hardware item, with the highest total line item price that York quoted (the total extended price for the mixer is [DELETED] dollars and comprises almost [DELETED] percent of York’s total final price). Since the agency’s placement of the order with York was based on a digital recording system using a non-FSS mixer, the selection of York was improper. Symplicity Corp., supra, at 4-5; T-L-C Sys., supra.  (CourtSmart Digital Systems, Inc., B-292995.2; B-292995.3, February 13, 2004) (pdf)

The record establishes, and neither OPM, GSA, nor TMP argues otherwise, that TMP’s quotation here included two labor categories that are not on its Schedule 738I contract, and that OPM recognized but failed to realize the importance of this during its evaluation of TMP’s quotation. AR, Tab 4B, TMP’s Final Quotation, at 1; OPM’s Post-Hearing Comments at 8-11; GSA’s Post-Hearing Comments at 7; TMP’s Post-Hearing Comments at 10-11; Tr. at 72, 101, 105, 136. The acceptance of TMP’s quotation and award of a task order to that firm by OPM was thus improper because, as noted above, an agency cannot lawfully use the FSS ordering procedures to order services that are not contained on the vendor’s schedule contract. OMNIPLEX World Servs. Corp., supra, at 5-6; The CDM Group, Inc.; B-291304.2, Dec. 23, 2002, 2002 CPD ¶ 221 at 3-4. That is, as confirmed by GSA, labor categories included in a vendor’s quotation must be listed on the vendor’s schedule contract before a task order is issued. GSA’s Post-Hearing Comments at 2, 7; Tr. at 31-32, 80; The CDM Group, Inc., supra. We sustain the protest on this basis.  Symplicity also protests that OPM’s evaluation of its quotation was unreasonable and inconsistent with the RFQ’s evaluation factors. Under the FSS program, agencies are not required to conduct a competition before selecting a vendor that represents the best value and meets the agency’s needs at the lowest overall cost. FAR § 8.404(a); Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4. However, where, as here, an agency handles the selection of a vendor for an FSS order like a competition in a negotiated procurement, and a protest is filed challenging the outcome of the competition, we will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. Computer Prods., supra, at 4-5.  (Simplicity Corporation, B-291902, April 29, 2003 (pdf)

Notwithstanding the apparent disconnect between the services offered in B&W's proposal and the services covered by its FSS contract, there is no evidence that the INS ever considered whether the services B&W and its subcontractors offered to provide were covered by B&W's FSS contract. The INS appears to erroneously believe that it was not required to make this inquiry as long as B&W held a current FSS contract under schedule 738 X, SIN 595 21, see Agency Oct. 29, 2002 Response to GAO Questions at 4, and it has failed to address this question despite several requests from our Office to do so. In view of the fact that the BPA awarded to B&W appears to have exceeded the scope of that firm's FSS contract, we sustain the protest on this basis. See T-L-C Sys., supra; American Mgmt. Sys., Inc., B-216998, July 1, 1985, 85-2 CPD P: 3 at 7.  (OMNIPLEX World Services Corporation, B-291105, November 6, 2002)  (pdf)

After receiving quotes in response to a request for quotes for a fire alarm system, agency improperly placed an order under a Federal Supply Schedule contract including items integral to the system but not listed in the contract; agency's proposed corrective action of simply deleting the items from the order and otherwise procuring them, presumably on a noncompetitive basis from the awardee, does not render the protest academic, because the remaining FSS order does not meet the agency's need for a complete system, and the agency received and evaluated a significantly lower-priced, acceptable quote from a non-FSS vendor (the protester) to supply such a system.  (T-L-C Systems, B-285687.2, September 29, 2000)

As both OTS and the General Services Administration (GSA) recognize, non- FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. See Pyxis Corp., B- 282469, B- 282469.2, July 15, 1999, 99- 2 CPD para. 18 at 4; see also ATA Defense Indus., Inc. v. United States, 38 Fed. Cl. 489, 503 (1997). Our Office has rejected the notion that items not on a FSS contract may be purchased under that contract if they were "incidental" to the services or items being procured under that contract. 2 Pyxis Corp., supra, at 3- 4.  (SMS Systems Maintenance Services, Inc., B- 284550.2, August 4, 2000)

An agency may no longer rely on the "incidentals" test to justify the purchase of non-FSS items in connection with an FSS buy; where an agency buys non-FSS items, it must follow applicable acquisition regulations.  (Pyxis Corporation, B-282469; B-282469.2, July 15, 1999)