B-415400; B-415400.2; B-415400.3, Ruchman and Associates, Inc.

441 G St. N.W.

Washington, DC 20548

Comptroller General

of the United States

DOCUMENT FOR PUBLIC RELEASE

Decision

The decision issued on the date below was subject to

a GAO Protective Order. This redacted version has

been approved for public release.

Matter of:

Ruchman and Associates, Inc.

File:

B-415400; B-415400.2; B-415400.3

Date:

January 2, 2018

Thomas P. McLish, Esq., Elise A. Farrell, Esq., Joseph W. Whitehead, Esq., and Scott

M. Heinberg, Esq., Akin Gump Strauss Hauer & Feld LLP, for the protester.

Daniel R. Forman, Esq., Elizabeth Buehler, Esq., Charles Baek, Esq., and Rosamond

Xiang, Esq., Crowell & Moring LLP, for Information Technology Coalition, Inc., the

intervenor.

James E. Hicks, Esq., and Susan M. Colarco, Esq., Department of Justice, for the

agency.

Stephanie B. Magnell, Esq., and Amy B. Pereira, Esq., Office of the General Counsel,

GAO, participated in the preparation of the decision.

DIGEST

1. Protester¡¯s challenge to the establishment of a blanket purchase agreement on the

grounds that it includes items not on the awardee¡¯s Federal Supply Schedule is denied,

where the record and the agency¡¯s explanation show that the agency had a reasonable

basis for its decision to accept the vendor¡¯s proposed labor categories.

2. Protest challenging the agency¡¯s price realism analysis is denied, where the agency

evaluated the realism of proposed prices in accordance with the solicitation and was not

required to conduct an in-depth analysis of vendors¡¯ labor mixes in the manner argued

by the protester.

3. Protest challenging the agency¡¯s evaluation of the protester¡¯s quotation is dismissed

where the protester is not an interested party because, even if it prevails, it is not in line

for selection.

DECISION

Ruchman and Associates, Inc. (Ruchman), of Jessup, Maryland, a small business,

protests the establishment of a blanket purchase agreement (BPA) with Information

Technology Coalition, Inc. (ITC), of Alexandria, Virginia, a service-disabled veteranowned small business, pursuant to request for quotations (RFQ) No. DJD-17-Q-0081,

issued by the U.S. Department of Justice, Drug Enforcement Administration (DEA), for

accounting, finance and administrative support services. Ruchman alleges that the

agency¡¯s technical, past performance and price realism evaluations were flawed, that its

own quotation should have been rated acceptable, and that DEA should have rejected

the awardee¡¯s and second-lowest-priced vendor¡¯s quotations as unawardable.

We deny the protest in part and dismiss the protest in part.

BACKGROUND

DEA issued the RFQ on May 30, 2017, using Federal Acquisition Regulation (FAR) 8.4

federal supply schedule (FSS) procedures, to small business vendors holding contracts

under the FSS for professional services, special item number 520 13, complementary

financial management services. Agency Report (AR), Tab 2a, RFQ, at 2. The agency

intended to establish a BPA consisting of a 1-year base period and four 1-year option

periods, with an estimated value of $97,094,280. Id. The RFQ provided for selection of

the responsible vendor with the lowest-priced technically-acceptable (LPTA) quotation.

Id. at 10.

As relevant to this protest, vendors were instructed to complete a sample task order in

order ¡°to establish labor categories, fixed hourly rates for services, and a firm discount

for additional labor categories appearing in the vendor¡¯s FSS.¡± Id. at 6. These sample

task order prices ¡°will be compared to the Independent Government Cost Estimate

(IGCE) for the Sample Task Order and evaluated pursuant to FAR 15.404-1, Proposal

analysis techniques, to include, but not limited to . . . price realism (not cost realism) at

the bottom line grand total.¡± Id. at 12. In addition to a price evaluation, the RFQ

included five non-price evaluation factors: management/key personnel, staffing plan,

task order/fiscal tracking system, security plan, and past performance. Id. at 7-9. Any

quotation receiving a rating of unacceptable for a technical factor or past performance

would receive an overall rating of unacceptable. Id. at 10-11.

The agency received seven quotations by the July 10 deadline. AR, Tab 5, Contracting

Officer (CO) Award Decision, Sept. 21, 2017, at 1. ITC, Vendor A, and Ruchman were

the three lowest-priced vendors. Id. at 2. The final evaluations, as relevant to this

protest, were as follows:

Factor

1-Management/Key Personnel

2-Staffing: Recruitment & Retention

3-Task Order/Fiscal Sys. Tracking

4-Security Plan

5-Past Performance

Overall Rating

Price (millions)

Page 2

ITC

Acceptable

Acceptable

Acceptable

Acceptable

Low Risk /

Acceptable

Acceptable

$91.5

Vendor A

Acceptable

Acceptable

Acceptable

Acceptable

Low Risk /

Acceptable

Acceptable

$92.4

Ruchman

Acceptable

Acceptable

Acceptable

Unacceptable

High Risk /

Unacceptable

Unacceptable

$97.3

B-415400 et al.

Id. On September 21, 2017, the agency selected ITC for establishment of the BPA; this

protest followed.

DISCUSSION

Ruchman contends that DEA impermissibly allowed ITC and Vendor A to propose

services not included on their FSS contracts and that the agency¡¯s price realism

evaluation was insufficient. The protester also challenges the unacceptable ratings that

were assigned to its own quotation. 1 For the reasons below, the protest grounds are

denied in part and dismissed in part.

As a preliminary matter, if Ruchman is only successful with regard to the challenges

relating to its own quotation, it would nevertheless not be in line for selection in this

LPTA procurement because there are two lower-priced vendors. Thus, in order to

prevail in this protest, Ruchman must demonstrate both that its own quotation should

have been rated acceptable and that DEA¡¯s evaluation of ITC¡¯s and Vendor A¡¯s

quotations was flawed. Given these facts, we first evaluate Ruchman¡¯s challenges to

the two lower-priced quotations. As described below, these protest grounds are denied.

Because we deny Ruchman¡¯s complaints relating to the lower-priced quotations, we

dismiss Ruchman¡¯s arguments regarding the unacceptable ratings assigned to its own

quotation because, as addressed in more detail below, the protester is not an interested

party under our Bid Protest Regulations to contest these aspects of the agency¡¯s

evaluation.

RFQ Labor Categories and ITC¡¯s FSS Schedule Contract

Ruchman contends that DEA should have rejected ITC¡¯s and Vendor A¡¯s quotations as

unawardable because their FSS contracts did not contain the RFQ¡¯s exact labor

categories or other categories that could perform the functions described in the RFQ.

DEA contends that the RFQ ¡°did not require vendors to match the naming convention

for each labor category but [instead] requested that offerors propose equivalent labor

categories under their FSS that matched the job descriptions provided in the Statement

of Work (SOW) and as specified in the RFQ.¡± Contracting Officer¡¯s Statement (COS)

at 1-2 (record citations omitted).

Where, as here, an agency issues an RFQ to FSS vendors under FAR subpart 8.4 and

conducts a competition for the issuance of an order or establishment of a BPA, we will

1

Ruchman also argued that DEA did not equally evaluate vendors¡¯ security plans and

past performance. Protester¡¯s Partial Comments & Second Supp. Protest, Nov. 21,

2017, at 5-6, 11. Our Office dismissed these grounds under 4 C.F.R. ¡ì 21.5(f) and

4 C.F.R. ¡ì 21.1(c)(4) as speculative and factually insufficient. GAO Email, Nov. 29,

2017. In addition, Ruchman raised numerous collateral issues. Although we do not

address every argument raised by Ruchman, we have reviewed each issue and

conclude that none provides a basis to sustain the protest.

Page 3

B-415400 et al.

review the record to ensure that the agency¡¯s evaluation was reasonable and consistent

with the terms of the solicitation and applicable procurement laws and regulations.

Digital Sols., Inc., B-402067, Jan. 12, 2010, 2010 CPD ? 26 at 3-4; DEI Consulting,

B-401258, July 13, 2009, 2009 CPD ? 151 at 2. In reviewing a protest challenging an

agency¡¯s technical evaluation, our Office will not reevaluate the quotations; rather, we

will examine the record to determine whether the agency¡¯s evaluation conclusions were

reasonable and consistent with the terms of the solicitation and applicable procurement

laws and regulations. OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD ? 33 at 4.

A protester¡¯s disagreement with the agency¡¯s judgment, without more, does not

establish that an evaluation was unreasonable. DEI Consulting, supra.

The RFQ instructed vendors to use the RFQ¡¯s sample BPA task order spreadsheet to

¡°provide their price quote for each labor category by location for all years of the

anticipated BPA.¡± RFQ at 6. Vendors were instructed to ¡°enter the name of the labor

category equivalent and two rates for each labor category,¡± consisting of the ¡°GSA FSS

contract rate¡± and ¡°the rate quoted for this requirement¡± into the RFQ sample task order.

RFQ at 9. The vendors completed the sample task order spreadsheet using the labor

categories listed below:

RFQ labor category

Sr. Project Manager

Jr. Project Manager

Site Manager**

Financial Analyst I

Financial Analyst II

Financial Analyst Ill

Accounting Clerk I

Accounting Clerk II

Accounting Clerk III

Accounting Clerk IV

General Clerk I

General Clerk II

General Clerk III

Data Entry Operator I

Data Entry Operator II

Word Processor II

Word Processor III

Computer Operator II

ITC

Program Manager

Project Manager

Project Manager

Financial Analyst-Jr.

Financial Analyst-Jr.

Financial Analyst

Admin./Office Clerk

Financial Analyst-Jr.

Financial Analyst-Jr.

Financial Analyst-Jr.

Admin./Office Clerk

Admin./Office Clerk

Admin./Office Clerk

Admin./Office Clerk

Admin./Office Clerk

Data Analyst-Jr.

Data Analyst

Data Analyst

Vendor A

Business Consultant

Task Lead

Task Lead

Assoc. Accountant

Staff Accountant II

Sr. Accountant I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Sr. Accountant I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Computer Operator III Data Analyst

Admin. Analyst I

Secretary I

Secretary II

Secretary III

Admin. Analyst I

Admin. Analyst I

Admin. Analyst I

Page 4

Admin./Office Clerk

Admin. Assistant I

Admin. Assistant II

Ruchman

Sr. Project Manager

Jr. Project Manager

Project Manager

Financial Analyst

Financial Analyst

Financial Analyst

Accounting Clerk I

Accounting Clerk II

Accounting Clerk III

Accounting Specialist

General Clerk I

General Clerk II

General Clerk III

Data Entry Operator I

Data Entry Operator II

Word Processor II

Writer/Editor

Information Resource

Associate

Information Resource

Specialist

Secretary II

Secretary II

Program Assistant

B-415400 et al.

RFQ, Attach. 5. As the table above shows, ITC, Vendor A, and Ruchman each

proposed some labor categories whose titles differed from those in the RFQ. AR,

Tab 8a, ITC Price Quotation; Tab 9a, Vendor A Price Quotation; Tab 10a, Ruchman

Price Quotation. We agree with the agency that the RFQ permits vendors to propose

¡°labor category equivalent[s]¡± who meet the performance specifications of the labor

categories in the RFQ regardless of their exact title. 2 This was also apparently the

understanding of the vendors, none of whom proposed all of the exact labor categories

in the RFQ. Id. For example, for a secretary III position, ITC proposed an

administrative assistant II, Vendor A proposed an administrative analyst I, and

Ruchman proposed a program assistant. DEA concluded that all three quotations

proposed acceptable labor categories. AR, Tab 4, Technical Evaluation Panel (TEP)

Report, at 7; Tab 5, CO Award Decision, at 2. Given the flexibility permitted by the

RFQ--and understood by the vendors--the agency¡¯s decision not to disqualify vendors

on labor category title alone was reasonable.

Ruchman also contends that several of ITC¡¯s and Vendor A¡¯s proposed labor categories

did not possess skill sets corresponding to those in the RFQ and are thus outside of

ITC¡¯s and Vendor A¡¯s FSS contracts. Protester Comments at 4-8. DEA responds that

¡°the labor category equivalents that ITC proposed, as reasonably interpreted, either

explicitly or implicitly satisfied the RFQ¡¯s requirements.¡± Mem. of Law (MOL) at 9.

Regarding Vendor A, Ruchman argues that this vendor simply does not have the FSS

categories to satisfy several of the RFQ labor categories. Protester Comments at 8.

DEA asserts that Vendor A ¡°proposed equivalent labor categories under their FSS.¡±

COS at 5.

An agency may not use FSS procedures to purchase items that are not listed on a

vendor¡¯s GSA schedule. American Warehouse Sys., B-402292, Jan. 28, 2010, 2010

CPD ? 41 at 2. Where an agency announces its intent to order from an existing FSS, all

items quoted and ordered are required to be on the vendor¡¯s schedule contract as a

precondition to its receiving the order. Science Applications Int¡¯l Corp., B-401773,

Nov. 10, 2009, 2009 CPD ? 229 at 2 n.1; Tarheel Specialties, Inc., B-298197,

B-298197.2, July 17, 2006, 2006 CPD ? 140 at 4; CourtSmart Digital Sys., Inc.,

B-292995.2, B-292995.3, Feb. 13, 2004, 2004 CPD ? 79 at 5. When a concern arises

that a vendor is offering services outside the scope of its FSS contract, the relevant

inquiry is whether the services offered are actually included on the vendor¡¯s FSS

contract, as reasonably interpreted. AWS Convergence Techs., Inc., B-404002.2,

B-404002.3, Apr. 20, 2011, 2011 CPD ? 95 at 7.

While the contemporaneous record is somewhat limited, based on our review of the

record and the agency¡¯s explanation, we find reasonable the agency¡¯s decision to

accept the vendors¡¯ proposed labor categories. The record reflects no concerns

regarding vendors¡¯ proposed labor categories. AR, Tab 5, CO Award Decision, at 2.

2

To the extent that Ruchman argues that the RFQ should not have permitted vendors

to propose labor category equivalents, this argument is untimely. 4 C.F.R. ¡ì 21.2(a)(1).

Page 5

B-415400 et al.

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