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Boston Consulting Group’s resolution to take its protest against OASIS’s large professional contract to the U. S. Federal Court of Claims seemed inevitable after the company’s challenge to the Government Accountability Office failed.
Most likely, BCG is reiterating the arguments it made to the GAO, which issued a redacted edition of its denial on Dec. 22. While BCG’s lawsuit is sealed, the GAO document gives us insight into the company’s claims, as well as how GSA has defended itself in it and will most likely do so in court.
A key note of the resolution is that BCG submitted a proposal for OASIS and is the company that filed a protest challenging the terms of the tender. Despite their reluctance, BCG has a chance to get an award.
At the heart of BCG’s protest is its insistence that for commercial items such as the services to be offered under OASIS+, GSA does not need to see everything that rolls up into the fixed price. GSA wants all proposals to include breakdowns of cost items such as direct labor rates, fringe benefits, general and administrative rates, and profit figures.
In contemplating this protest, it is also worth remembering that the award was never intended to be included in the OASIS evaluation criteria.
The GSA’s goal was for costs to be decided at the task order level, rather than being meaningful in determining initial prime contract awards.
OASIS’s procurement strategy was replaced after a federal ruling in the spring that objected to GSA’s handling of the Polaris vehicle for small businesses. The value was never set for Polaris, however, GSA reinstated it for that contract and did the same for the last OASIS tender launched over the summer.
On the matter of OASIS+, GSA told GAO the requirement of including rate breakdowns was needed to ensure the price reasonableness of what a single company offers. GSA said having those finer details on rates was the acceptable method for making reliable and accurate determinations of price reasonableness.
OASIS will have 20 categories of paints in 8 areas, numbers that the GAO called “limited in number” in its decision. Bidders will likely bid in multiple areas, but will have to submit individual proposals for each.
The GAO found that the GSA identified that applying paint categories to other spaces would result in highly variable rates, making comparing rates between them unreliable.
GSA said it had looked at choice strategies to assess the reasonableness of pricing, but found that the expanded scope of OASIS compared to its predecessor and definitions of hard-work categories through other bidders were among the points that led the company to follow the current path. .
BCG claimed that the requirements violated Federal Acquisition Regulations and the Federal Acquisition Streamlining Act, the latter of which governs how agencies acquire commercial items. GSA apparently has determined that a majority of OASIS+ task orders will be for non-commercial services, as described in GAO’s decision.
GAO’s reminder of what FASA actually does is worth noting in case a similar argument re-emerges: that law establishes a preference, not a mandate, for the acquisition of commercial items.
For its part, the GSA will require bidders to go through a review of their accounting systems to be eligible for an award. The GSA did so to accommodate advertising subcontractors, and the GAO seized on this resolution by denying any protest.
The resolution also notes that the GSA Multiple Award Program program is only committed to the acquisition of advertising items. GSA’s goal is for OASIS to have a significantly broader scope of needs than DSS.
As for the path forward in the Court of Federal Claims: The General Services Administration will have to respond to BCG’s lawsuit by Jan. 26 by protecting the agency’s handling of OASIS.
The full administrative docket, as well as a number of motions from both sides of the case, are expected to be filed by March 22. At some point, we see a redacted edition of the OCG’s complaint to the court.
GSA wants to make awards by the summer, but protests in the court go on their own individual timelines depending on how the judge sees fit.
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