United States: GAO Requires Precision For Proposed Labor Categories

Last Updated: February 12 2016
Article by Sandeep N. Nandivada

On January 29, 2016, the Government Accountability Office (GAO) released its decision sustaining AllWorld Language Consultants, Inc.'s (AllWorld) protest of the General Services Administration's (GSA) task order award to SOS International, Ltd. ("SOSI") for linguistic support services in southwest Asia.  AllWorld Language Consultants, Inc., B-411481.3, 2016 WL 358949 (Comp. Gen. Jan. 6, 2016).  In a decision of potentially significant importance to schedule contractors, GAO found that a contractor's proposed labor categories must "align precisely" with solicitation requirements for the contractor to be eligible for a task order award.

Background

GSA, on behalf of the Department of the Air Force, issued a Request for Quotations (RFQ) to acquire linguistic support services at various locations within southwest Asia.  The RFQ contemplated the award of a fixed-price task order on a best-value basis, with a one-year base period and two one-year options.  The RFQ advised firms that quotations would be evaluated based on technical approach, past performance, and price, in order of importance.  The procurement was limited to holders of Federal Supply Schedule (FSS) contracts.

GSA received several quotations in response to its RFQ and, based on its initial review, made award to SOSI.  In response to a protest filed by AllWorld, GSA subsequently took corrective action to reevaluate quotations under the technical approach factor, but ultimately affirmed its award to SOSI.

AllWorld followed with a protest to GAO, alleging, among other things, that SOSI's quotation was technically unacceptable because SOSI proposed a labor category that did not conform to the solicitation's requirements.  In particular, AllWorld argued that SOSI quoted a labor category that did not include many of the duties required under the solicitation, including oral expression of translation capabilities, producing idiomatic translations using correct syntax and speech, and conducting consecutive, accurate translations of ongoing conversations and activities.  AllWorld further asserted that SOSI's proposed labor category was limited to providing written translations at a SOSI facility and did not contemplate services being performed in warzone-like conditions, as would actually be required under the task order.

In response, GSA maintained that contractors' FSS labor categories generally do not "align precisely" with solicitation requirements and that GSA accounted for this fact by considering SOSI's technical quotation to determine what duties SOSI's proposed linguists would actually perform.

GAO's Decision

GAO ruled that GSA's evaluation of SOSI's quotation under the technical approach factor was unreasonable.  Specifically, GAO found that SOSI quoted a single labor category to perform all linguist duties required by the RFQ and that this labor category did not address numerous requirements called for under the solicitation.  For example, SOSI's proposed labor category did not include providing oral translation services and expressly did not contemplate providing linguist services outside of SOSI facilities.

Moreover, GAO found that, although SOSI's quotation identified other labor categories of linguists that could potentially satisfy solicitation requirements, these other labor categories were neither included nor defined in SOSI's underlying FSS contract.  Further, SOSI's price quotation did not reference these labor categories but rather was focused on the single, non-conforming labor category.  This allowed SOSI to gain a significant competitive advantage in the procurement because the labor category on which it relied was substantially less expensive than SOSI's other FSS labor categories.

Significantly, GAO rejected the GSA's position "that SOSI could identify a labor category under its FSS contract that did not meet all of the requirements of the [Performance Work Statement], but could somehow enhance or alter the narrative description and qualifications of that labor category through the technical portion of its quotation."  GAO stated that the "labor categories identified and described in each firm's underlying FSS contract are fixed, discrete, specific labor category descriptions that are contractually binding and not subject to alteration, just as the technical specifications for products available under a firm's FSS contract are fixed, discrete, specific, contractually binding, and not subject to alteration."  As such, GAO ruled that:

  1. To the extent a quoted labor category description under a firm's FSS contract does not, in the words of GSA, 'align precisely' with the requirements of a given solicitation, the firm may not properly alter the underlying labor category description through the terms of its quotation.  Rather, where a firm's quoted labor category description does not align with the requirements of the solicitation, it means that the quoted labor category does not meet the requirements of the solicitation, and therefore and cannot serve as the basis for issuing a task order to the firm.

Finding that AllWorld was prejudiced by GSA's evaluation, GAO sustained AllWorld's protest and recommended that GSA terminate the task order issued to SOSI and make a new source selection decision to an eligible offeror.  Notably, in making its recommendation, GAO could not recommend that GSA reconsider SOSI's quotation because SOSI's underlying FSS contract had expired, rendering it ineligible to revise its quotation or to receive a new delivery order.

Significance

At a time when the federal government is aggressively pushing schedule contracting and consolidating contracting vehicles to leverage its buying power, GAO's decision represents a significant obstacle to agencies' reliance on schedule contracts.  As a result of GAO's decision, agencies will need to find a balance between establishing sufficiently specific solicitation requirements and requirements so specific as to prevent contractors from quoting labor categories that "align precisely."  If agencies are unable to walk this narrow line effectively, more and more agencies may ultimately elect to acquire needed services outside of GSA's schedule program, which is likely the exact result the federal government hopes to avoid.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sandeep N. Nandivada
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions