“We Couldn’t View the Solicitation,” Argues Protester

The first step in competing for a federal contract is knowing that an opportunity exists in the first place. In a recent protest, a contractor argued it was not able to find an opportunity despite routinely searching the appropriate federal procurement opportunity system, e-Buy. Thus, according to the protesting company, the procurement was not properly publicized and the award was improper.

GAO did not agree.

CC&C Management Services, LLC, B-417594 (Comp. Gen. Aug. 28, 2019), involved a VA procurement for furniture storage, moving, and installation services. The resulting contract would have a one-year base period with 3 one-year option periods.

The solicitation was competed among GSA Federal Supply Schedule (FSS) contract holders. The FSS is a federal procurement program administered by the GSA that is designed to simplify acquisitions for common commercial items and services. Contractors are awarded contracts for specific schedules corresponding to specified types of goods and services. Federal executive agencies may compete orders among schedule contract holders for specified goods and services.

Importantly, competitive FSS contact opportunities are posted to the e-Buy system, which is an online procurement opportunity tool much like FedBizOpps.gov. Unique opportunities are posted to the system, and offerors holding the required schedule and meeting any socioeconomic set-aside designation can submit bids.

As relevant here, the VA issued the Solicitation on e-Buy to holders of Schedule 48 contracts. Shortly after issuing the Solicitation, however, a GSA representative notified the VA contracting officer that GSA Schedule 48 was slated to expire before the proposal submission deadline.

In light of the expiration of Schedule 48, the VA cancelled the solicitation, and reissued it under two different FSS schedules: Schedule 71 II K, and Schedule 00CORP. The listing for both Schedule 71 II K and Schedule 00CORP were posted to e-Buy.

The VA received two proposals in response to the Solicitation. CC&C submitted a proposal under the Schedule 00CORP listing. A competitor, B&M Construction, Inc., submitted a separate proposal under the Schedule 71 II K listing. The VA awarded the contract to B&M under its Schedule 71 II K contract.

CC&C subsequently protested the award to B&M. While CC&C raised issues with the technical evaluation, its principal challenge was that the VA awarded the contract under an FSS schedule that it did not compete the work under. To support this allegation, a CC&C employee attested that “[d]uring the relevant time period in June-July 2018, CC&C had two managers monitoring the [e-Buy] portal for [Schedule 71 II K] daily, and the [RFQ] did not appear under that Schedule.”

According to CC&C, the VA’s posting failed to comply with the material terms of FAR 8.405-2(c)(3)(iii)(A), which requires contracting officers to “[p]ost the RFQ on e-Buy to afford all schedule contractors offering the required services under the appropriate multiple-award schedule(s) an opportunity to submit a quote[.]” CC&C alleged the VA either didn’t post the Schedule 71 II K listing to e-Buy, or failed to ensure that eligible offerors like CC&C could view the listing. In either instance, argued CC&C, the VA’s actions (or inaction) posting the RFQ violated FAR FAR 8.405-2(c)(3)(iii)(A).

In response, the VA produced screen captures of the Schedule 71 II K listing on e-Buy. It also provided sworn statements of the contracting officer describing the other efforts undertaken to distribute the Schedule 71 II K listing, which included sending a notification of the posting to all eligible offerors under the Schedule.

Ultimately, GAO concluded that the VA had complied with the publication requirements of FAR 8.405-2(c)(3)(iii)(A). To reach this conclusion, GAO first dispensed with CC&C’s argument that the Schedule 71 II K listing was never posted to e-Buy:

Notwithstanding the protester’s contention that after its Schedule 71 II K contract became effective on July 1, two of its employees monitored e-Buy for the RFQ posting and never saw it, we find that on June 20, the agency posted the RFQ on e-Buy under Schedule 71 II K.

GAO then turned to the allegation that the VA was nevertheless responsible for ensuring CC&C had knowledge of the posting, and it was similarly unpersuaded. GAO began by noting that FAR 8.405-2(c)(3)(iii)(A) merely requires contracting officers to post opportunities. The web captures the VA provided confirmed such publication happened. GAO then explained that the VA had no duty to ensure CC&C was aware of the opportunity.

The protester’s assertion that it was unable to view the RFQ via e-Buy under Schedule 71 II K does not change our conclusion regarding the propriety of the agency’s actions. The protester has not identified any authority for its contention that the agency was required under FAR § 8.405-2(c)(3)(iii)(A) to ensure that it was able to view the RFQ. Rather, FAR § 8.405-2(c)(3)(iii)(A) requires the agency to “post” the RFQ on e-Buy, not to “provide” the RFQ to any specific vendors.

Consequently, GAO denied the protest. GAO’s decision in CC&C highlights that one of the biggest challenges facing government contractors is identifying opportunities in the first place. Unfortunately, GAO’s decision places the onus of finding specific contract opportunities squarely on the shoulders of contractors.

Questions about this post? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.