B-400429, Seaborn Health Care, Inc., October 27, 2008
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Decision
Matter of: Seaborn Health Care, Inc.
Kathy
C. Potter, Esq., and Janine S. Benton, Esq., Benton Potter & Murdock, PC,
for the protester.
John W. Gannan II, Esq., Department of Veterans Affairs, for the agency.
Frank Maguire, Esq., and John M. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest is sustained in Federal
Supply Schedule (FSS) acquisition where request for quotations (RFQ) requires
that competing vendors offer non-FSS services (specific on-site supervisory
personnel) as part of their quotations, since non-FSS products and services may
not be purchased using FSS procedures.
DECISION
Seaborn Health Care, Inc. protests the terms of request for quotations (RFQ) No. VA 769-08-RQ-0041, issued by the Department of Veterans Affairs (VA) for pharmacists and pharmacy technicians, to be provided by Federal Supply Schedule (FSS) contract vendors at VA’s consolidated mail order pharmacies (CMOP). Seaborn asserts, among other things, that an RFQ requirement that the contractor provide on‑site supervisory personnel at no cost is improper because supervisory personnel are not included under the FSS contract for pharmacists and pharmacy technicians.
VA issued the RFQ on
ON-SITE SUPERVISORY PERSONNEL
In
addition to pharmacists and pharmacy technicians, the RFQ requires that the
contractor provide, “at the Contractor’s expense,” an “on-site Facility
Administrator,” who will be responsible for “all personnel actions necessary to
maintain an excellent and productive working environment.” RFQ at 4.
The facility administrator must have a “minimum of 5 years human
resources experience and 3 years supervisory experience.”
Seaborn
argues that the RFQ’s call for specific on-site supervisory personnel
constitutes an improper requirement that vendors price non-FSS services as part
of their quotations. Protest at 5-7. Seaborn cites Simplicity Corp.,
B-291902, Apr. 29, 2003, 2003 CPD para. 89, and other decisions of our Office, for
the proposition that non‑FSS products and services may not be purchased
using FSS procedures; instead, their purchase requires compliance with
generally applicable procurement laws and regulations, including those requiring
the use of competitive procedures. See,
e.g., OMNIPLEX World Servs. Corp., B‑291105,
We agree with the protester. The RFQ calls for the successful vendor to
supply specifically designated and qualified on-site supervisors. As noted, the required personnel are
described in detail in the RFQ and have specific minimum experience,
capability, and performance requirements.
RFQ at 4, 8. Our review of the
pertinent FSS contract, “621 I, Professional and Allied Healthcare Staffing
Services,” reveals no provision for on-site supervisory personnel or services,
and VA points to no such provision.[2] We are not persuaded by the agency’s argument
that the specified supervision is unobjectionable because, essentially,
supervision by the contractor is inherent in non‑personal services
contracts. Even if the agency is correct
that some level of supervision necessarily must be provided by the contractor under
a non-personal services contract, this “inherent” supervision is something
quite different, we think, from an agency’s specifying that specific personnel
are to be provided and that supervision will be performed in a particular
manner. Even where non-FSS products and
services are viewed as incidental or integral to FSS items, they may not be
purchased using FSS procedures. SMS
Sys. Maint. Servs., Inc., B-284550.2, Aug. 4, 2000, 2000 CPD para. 127
at 2 n.2, citing Pyxis Corp., supra, at 3-4; see
Tarheel Specialties, Inc., B‑298197, 298197.2, July 17, 2006, 2006
CPD para. 140 (issuance of FSS task order was improper where RFQ requirements for a
“site supervisor” and other labor positions were not “listed in or mapped to”
the successful vendor’s FSS contract).
Accordingly, we sustain the protest on this ground.
RECOMMENDATION
We recommend that the agency cancel the RFQ and resolicit this requirement consistent with our decision. [3] We also recommend that the protester be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2008). Seaborn should submit its certified claim for costs, detailing the time expended and cost incurred, directly to the contracting agency within 60 days after receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).
The protest is sustained.
Gary L. Kepplinger
General Counsel
[1] VA explains the need for these supervisory services as follows: “Given prior problems associated with the lack of supervision of pharmacy services providers at CMOP facilities, it has become commonplace for the VA to require on-site, no cost supervisors within the terms of its agreements.” AR at 2.
[2] See http://www1.va.gov/oamm/oa/nac/fsss/fssproftrain.cfm#ordering and http://www.gsaelibrary.gsa.gov/ElibMain/home.do. Schedule 621 I.
[3] In light of our recommendation that the agency resolicit the requirement, the other issues raised by the protester are academic, and we do not consider them.