Government Contracts RFQ’s Pricing Provisions Improperly Restricted Competition
Thursday, January 3, 2019

RFQ’s Pricing Provisions Improperly Restricted Competition

By Government Contracts Editorial Staff

A protest of a request for quotations for audit support services was sustained because the RFQ’s price evaluation factor was unduly restrictive of competition. The RFQ required vendors to quote labor categories from their Professional Services Schedule or Schedule 70 Federal Supply Schedule contracts for each labor category in the performance work statement. The RFQ also stated “[i]n accordance with applicable case law, the pricelist description of the corresponding FSS labor category must enumerate the qualifications and responsibilities contained in the definition of the PWS labor category” and “align precisely with the requirements of the corresponding PWS-defined labor category.” The RFQ provided an example for a systems analyst labor category that required 12 years of experience and a Master’s degree. To fill these services, a vendor could “not quote [an] FSS labor category that provide[d] for only 10 years of experience and a Master’s degree … even if the FSS pricelist description use[d] wording such [as] ‘minimum of 10 years,’ ‘10+ years,’ ‘at least 10 years,’ etc.” The protester argued that where the labor category states a requirement for a minimum number of years of experience, a labor category on a vendor’s FSS contract that identifies a “minimum” of a lesser number of years of experience does not mean the vendor cannot quote employees with higher years of experience, and should be considered within the scope of the solicitation.

GAO Precedent Misinterpreted. According to the contracting officer, AllWorld Language Consultants (31 CGEN ¶115,051) and American Systems Consulting (20 CGEN ¶111,864) required the government to evaluate the quoted FSS labor categories in this manner. However, nothing in these decisions stated that years of experience as set forth in the labor categories of a vendor’s FSS contract must be viewed as a hard cap for purposes of assessing whether the labor category is within the scope of a solicitation. The protester and the operator of the FSS program, the General Services Administration, both maintained that an FSS contract with a labor category that states that the vendor may provide personnel with “a minimum of 10 years of experience,” “10+ years of experience,” or “at least 10 years of experience,” was within the scope of a requirement for 12 years of experience, and the Comptroller General agreed. “The terms of such a labor category provide a price for personnel with a stated minimum level of experience; but nothing prohibits the vendor—expressly or implicitly—from providing personnel with more than that level of experience.” Since the government did not provide any other justification for including the disputed provisions, they were unduly restrictive of competition. The Comptroller General recommended the government amend the RFQ to remove the unduly restrictive provisions and provide vendors an opportunity to submit revised quotations. (Grant Thornton, LLC, 33 CGEN ¶116,197).

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