Relevant Caselaw Concerning GSA Schedules August 25, 2004 Page 1 of 3 Communications with GSA Schedule Contractors: Cotton & Company, LLP , B-282808, Aug. 30, 1999, 99-2 CPD ¶ 48. (Protest sustained where agency did not conduct meaningful discussions with the protester. The agency failed to clearly identify deficiencies in the protester's proposal in either written or oral discussions and failed to respond when during oral presentations it became clear that the protester had misunderstood the agency's concerns.) Vion Corporation , B-283804.2, Jan. 24, 2000, 2000 CPD ¶ 22. (GAO held that where an agency is making a GSA Schedule purchase, it is not required to equalize the information gathering process among potential GSA Schedule contractors. An agency may obtain information from one contractor concerning a purchase from their GSA Schedule contract without seeking similar information from other contractors.) Interested Party Status: Delta International, Inc. , B-284364.2, May 11, 2000, 2000 CPD ¶ 78. (When an agency making a purchase under a GSA Schedule contract decides not to consider some items because the agency concludes that those items do not meet its needs, the vendor whose items are excluded from consideration may protest the exclusion. GAO will determine whether the agency has a reasonable basis for determining that the excluded items did not meet its needs.) Sales Resources Consultants, Inc. , B-284943, Jun. 9, 2000, 2000 CPD ¶ 102. (When placing an order under a GSA Schedule, an agency is not required to consider the unsolicited offer of an alternative product from a non-Schedule vendor. A protester that does not have a GSA Schedule is not an interested party to challenge an agency's determination as to its minimum needs and its decision to conduct a limited competition among GSA Schedule contractors for a particular brand name.) Open Market or Incidental Items: Pyxis Corp. , B-282469, B-282469.2, July 15, 1999, 99-2 CPD ¶ 18. (GAO reverses the "incidentals" test previously used to justify the purchase of non-GSA Schedule items in conjunction with GSA Schedule items. Agencies must follow applicable regulations when purchasing non-GSA Schedule items.) SMS Systems Maintenance Services, Inc. , B-284550.2, Aug. 4, 2000, 2000 CPD ¶ 127. (Protester's quote for services, some of them non-GSA Schedule items, could not be selected for award in an acquisition under the GSA Schedule program, where the total
Transcript
Relevant Caselaw Concerning GSA Schedules
August 25, 2004 Page 1 of 3
Communications with GSA Schedule Contractors:
Cotton & Company, LLP, B-282808, Aug. 30, 1999, 99-2 CPD ¶ 48. (Protest sustained where agency did not conduct meaningful discussions with the protester. The agency failed to clearly identify deficiencies in the protester's proposal in either written or oral discussions and failed to respond when during oral presentations it became clear that the protester had misunderstood the agency's concerns.)
Vion Corporation, B-283804.2, Jan. 24, 2000, 2000 CPD ¶ 22. (GAO held that where an agency is making a GSA Schedule purchase, it is not required to equalize the information gathering process among potential GSA Schedule contractors. An agency may obtain information from one contractor concerning a purchase from their GSA Schedule contract without seeking similar information from other contractors.)
Interested Party Status:
Delta International, Inc., B-284364.2, May 11, 2000, 2000 CPD ¶ 78. (When an agency making a purchase under a GSA Schedule contract decides not to consider some items because the agency concludes that those items do not meet its needs, the vendor whose items are excluded from consideration may protest the exclusion. GAO will determine whether the agency has a reasonable basis for determining that the excluded items did not meet its needs.)
Sales Resources Consultants, Inc., B-284943, Jun. 9, 2000, 2000 CPD ¶ 102. (When placing an order under a GSA Schedule, an agency is not required to consider the unsolicited offer of an alternative product from a non-Schedule vendor. A protester that does not have a GSA Schedule is not an interested party to challenge an agency's determination as to its minimum needs and its decision to conduct a limited competition among GSA Schedule contractors for a particular brand name.)
Open Market or Incidental Items:
Pyxis Corp., B-282469, B-282469.2, July 15, 1999, 99-2 CPD ¶ 18. (GAO reverses the "incidentals" test previously used to justify the purchase of non-GSA Schedule items in conjunction with GSA Schedule items. Agencies must follow applicable regulations when purchasing non-GSA Schedule items.)
SMS Systems Maintenance Services, Inc., B-284550.2, Aug. 4, 2000, 2000 CPD ¶ 127. (Protester's quote for services, some of them non-GSA Schedule items, could not be selected for award in an acquisition under the GSA Schedule program, where the total
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price of the services not included in its GSA Schedule contract, considering both base and option periods, exceeded the micro-purchase threshold of $2,500.)
Orders for Products or Services Not Within The Scope of The GSA Schedule Contract:
Information Ventures, Inc., B-293743, May 20, 2004, 2004 CPD ¶ 97. (Agency's issuance of solicitation to procure SPACELINE database bibliographic services from a Group 70 Information Technology GSA Schedule vendor was improper where the services were not within the scope of that GSA Schedule.)
Simplicity Corporation, B-291902, Apr. 29, 2003, 2003 CPD ¶ 89. (GAO held that award of a task order to a firm under the firm's GSA Schedule contract was improper where the firm's quotation was based on providing personnel under labor categories not contained in the firm's GSA Schedule contract.)
OMNIPLEX World Servs. Corp., B-291105, Nov. 6 2002, 2002 CPD ¶ 199. (An agency cannot lawfully use the GSA Schedule ordering procedures to order services that are not contained on the contractor's GSA Schedule.)
Section 508 Compliance:
CourtSmart Digital Systems, Inc., B-292995.2, Feb. 13, 2004, 2004 CPD ¶ 79. (Awardee's quotation under a competition between GSA Schedule contractors was unacceptable because it was not compliant with the solicitation provision requiring compliance with Section 508 of the Rehabilitation Act, which requires electronic and information technology that will allow individuals with disabilities the same access as persons who are disabled.
Selection of GSA Schedule Vendors for Placement of Orders:
National Office Systems, Inc., B-274785, Jan. 6, 1997, 97-1 CPD ¶ 12. (Under regulations governing GSA Schedule use, procuring agency met its responsibility to select best value items at the lowest price after reviewing GSA's automated pricing and product information system and reasonably determining that the selected GSA Schedule contractor's product met the agency's needs.)
REEP Inc., B-290665, Sept. 17, 2002, 2002 CPD ¶ 156. (An agency placing an order using GSA Schedules is required to consider reasonably available information, typically by reviewing the pricelists of at least three Schedule contractors. When an agency knows that its requirements can be met under either one of two different Schedules, it is not reasonable to issue an order to the sole vendor capable of performing under one Schedule without also reviewing the prices offered by several vendors capable of performing under the other Schedule.)
Computer Universal, Inc., B-291890, Apr. 8, 2003, 2003 CPD ¶ 81. (GAO protest denied where the protester argued it was not provided an opportunity to compete under a GSA Schedule acquisition. GAO held that the agency acted within its discretion in not
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seeking a quotation from the protester, because the agency reasonably believed the protester would not be capable of performing the contract management services sought by the solicitation and the agency sought quotations from at least six other Schedule contractors, three more than the required minimum under the applicable regulations.)
Small Business Issues:
Information Ventures, Inc., B-291952, May 14, 2003, 2003 CPD ¶ 101. (Agencies need not apply small business set-aside procedures when purchasing from a GSA Schedule.)
CMS Information Services, Inc., B-290541, Aug. 7, 2002, 2002 CPD ¶ 132. (An agency may require contractors to recertify their small business size status as of the time they submit their quotations in response to an RFQ issued under a Schedule contract.)
Subcontractors:
Altos Federal Group, Inc., B-294120, Jul. 28, 2004, 2004 WL 1791349. (Where protester failed to specify in its quotation that it would be using a subcontractor to provide services not included in its own GSA Schedule contract, agency properly rejected quotation on the basis that protester's GSA Schedule contract did not include all requested services. Contractor must identify subcontractor so that agency can confirm the availability of the services under the subcontractor's GSA Schedule contract.)
Andrew Mohr is a partner in the law firm of Cohen Mohr LLP and a Professorial Lecturer at American University in Washington, D.C. Mohr specializes in government and commercial contracts, including GSA schedules, security clearance, contract administration and compliance, teaming agreements, subcontracts, dealer contracts, regulatory analysis and compliance, bid protests and claims.
