April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 2 Breakout Session # 1101 James S. Phillips, Esq. Barbara S. Kinosky, Esq. Centre Consulting, Inc. Date April 25, 2005 Time11:00 am Bid Protests of GSA Schedule Buys: Why the Numbers are Up

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 3 Overview of GAO Protest FY04 FY 03 Protests Filed: 1,485 1, Merit Decisions: Sustained: Sustained Rate:21% 17% + 4%

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 4 Why Are GAO’s Numbers Up? More GSA buys are now being protested. GAO aggressively granting protests for “out-of-scope” contracting.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 5 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 6 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 7 New Ordering Procedures for Products FAR 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 8 New Ordering Procedures for Most Services – FAR 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 9 New Ordering Procedures for Most Services – FAR 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

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 10 New Ordering Procedures for Most Services – FAR Award to Vendor Providing “Best Value” Agency Must Follow Evaluation Criteria Stated in RFQ. Starting to Mirror FAR Part 15!

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 11 Award Notifications for Services Orders. FAR (d) FAR (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

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 12 Increased Documentation Requirements FAR (a) COs Must Document the Following: The Schedule Contracts Considered. If Less Than 3 Schedule Vendors Considered, a Justification for Considering Fewer.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 13 Special Documentation Reqts for Services Orders – FAR (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

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 14 Recent GAO Cases: Scope Issues American Sys. Consulting, Inc., B , 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!

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 15 Recent GAO Cases: Scope Issues Armed Forces Merch. Outlet, B , 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 16 Recent GAO Cases: Scope Issues Altos Federal Group, Inc., B , 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 17 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 , 1/20/98. Material deviations from stated criteria will provide basis to sustain protest. Id.; Computer Products, Inc., B , 5/24/00.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ 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: Crestridge, Inc., B , 2/23/05: Protest sustained b/c agency decision to downgrade tech. proposal for lack of detail not supported by record.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 19 Recent GAO Cases: Evaluation of Offers FAR Part 15 Rules Being Applied to Schedule RFQs: E-Lynxx Corp., B , 12/03/03: Protest sustained b/c price/technical trade-off was flawed and could not be explained by CO at GAO hearing.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 20 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.

April 25–27, 2005 Phoenix Civic Plaza/Hyatt Regency Phoenix Phoenix, AZ NCMA World Congress 2005 “Prime Time: Contract Management at the Core of the Enterprise” 21 Thank You! Jim Phillips: Barbara Kinosky: