United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Asset Protection & Security Services, LP

File: B-406474.2

Date: July 17, 2012

David T. Ralston, Jr., Esq., Frank S. Murry, Esq., and Erin L. Toomey, Esq., Foley & 

Lardner LLP, for the protester.

Song U. Kim, Esq., Department of Homeland Security, Immigration and Customs 

Enforcement, for the agency.

Eric M. Ransom, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly rejected quotation in Federal Supply Schedule (FSS)

acquisition conducted under Federal Acquisition Regulation (FAR) part 8.4 is denied 

where protester’s FSS contract did not include all items and rates required by the 

solicitation. 

DECISION

Asset Protection & Security Services (APSS), LP, protests the exclusion of its 

quotation from consideration under request for quotations (RFQ) No. HSCEDM-12-

Q-00001, issued by the Department of Homeland Security, Immigration and 

Customs Enforcement, for detention officer services in the southwest United States. 

We deny the protest. 

The agency issued the RFQ via the General Services Administration (GSA) eBuy 

system on January 6, 2012, under Federal Acquisition Regulation (FAR) Subpart 

8.4, to vendors holding GSA Federal Supply Schedule (FSS) 84, Special Item 

Number (SIN) 246-54 (protective service occupations) contracts. The RFQ 

contemplated the establishment of a single blanket purchase agreement for a base 

year and four option years, for detention officer services in the cities of Ventura, Los 

Angeles, San Bernardino, Mira Loma, Santa Ana, Lompoc, San Francisco, San 

Jose, Bakersfield, Stockton, Fresno, and Bakersfield, in California, and Phoenix and 

Tucson, in Arizona. The RFQ included the following instructions: 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This version has been 

approved for public release.
Page 2 B-406474.2 

All services performed under this request for quote must be 

provided by a vendor or vendors who possess a current GSA 

contract. Any quotation received that proposes services be 

provided in an "open market" arena will be deemed unresponsive; 

thus, ineligible for award. All quotes shall include the contractors 

and subcontractors Name(s), GSA Schedule Number, TIN, 

DUNS, CAGE code and a brief description of the services to be 

performed [and] . . . 

The price quotation for each Sub-CLIN shall be in accordance

with the labor categories and rates contained in the GSA 

Schedule 84--SIN 246-54. The Government fully expects the 

Contractor to quote discounted rates. 

RFQ, Attachment B, at 1, 3. The RFQ also contained a late quotations clause 

stating that “[q]uotes received after the due date and time will not be considered.”1

RFQ, Attachment B, at 3. The RFQ closed on February 10, 2012. 

The agency received five timely quotations in response to the RFQ, including a 

quotation submitted by APSS. On February 15, the agency contracting specialist 

contacted APSS and requested that APSS “[p]lease provide proof of Detention 

Officers pricelist for Arizona and California on GSA contract.” Protest, Tab D, at 2. 

APSS responded that it would modify its GSA contract to add the detention officer 

labor category. On February 17, the agency informed APSS that its quotation had 

been eliminated from the competition because its GSA FSS contract did not include 

all items required by the RFQ, at the time that APSS submitted its quotation. It is 

undisputed that as of the closing time of the RFQ, APSS’ FSS contract did not 

include the detention officer labor category.2 

APSS argues that the agency had no basis to eliminate its quotation because the 

RFQ did not explicitly require all labor categories and prices to be on an offeror’s 

FSS contract prior to the closing date. APSS asserts that it should have been 

 1 Generally, late quotations may be considered up to the time of issuance of the 

order, because an RFQ, unlike a request for proposals (or an invitation for bids), 

does not seek offers that can be accepted by the government to form a contract. 

Rather, the government’s purchase order represents an offer that the vendor may 

accept through performance or by a formal acceptance document. M.Braun, Inc., 

B-298935.2, May 21, 2007, 2007 CPD ¶ 96 at 3. However, an RFQ may contain a 

late quotations clause to expressly limit the agency’s consideration of late 

quotations. Id.

2 GSA approved a modification to APSS’ FSS schedule contract incorporating the 

labor category and the required pricelist rates on February 27.
Page 3 B-406474.2 

allowed to update its FSS contract at any time prior to the issuance of a task order, 

and that such a modification would not violate the RFQ’s late quotation provision. 

As a general matter, FSS procedures provide agencies a simplified process for 

obtaining commonly used commercial supplies and services, FAR § 8.401(a), and, 

although streamlined, satisfy the requirement for full and open competition. 

41 U.S.C. § 259(b)(3) (2006); FAR § 6.102(d)(3). However, non-FSS products and 

services may not be purchased using FSS procedures; their purchase requires 

compliance with otherwise applicable procurement laws and regulations, including 

those requiring the use of full competitive procedures. Symplicity Corp., B-291902, 

Apr. 29, 2003, 2003 CPD ¶ 89 at 4. Where an agency announces its intention 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 Systems, Inc., B-292995.2, B-292995.3, Feb. 13, 2004, 

2004 CPD ¶ 79 at 5; see ATA Def. Indus. v. United States, 38 Fed. Cl. 489 (1997).3

Here, as noted above, the RFQ required that the vendor’s price quotation for each 

city (sub-CLIN) be in accordance with the labor categories and rates contained in 

GSA Schedule 84, SIN 246-54. The RFQ also cautioned that “[a]ll services 

performed under this request for quote must be provided by a vendor or vendors 

who possess a current GSA contract, and the RFQ contained a late quotations 

clause, expressly requiring that quotations be submitted, and final, by the closing 

time of the RFQ. We also note that GSA Schedule 84, SIN 246-54, provides the 

following information for adding locations, and incorporating new pricing data under 

a vendor’s FSS contract: 

Information on Receiving Task Orders for new locations 

under SIN 246-54 

The labor rates established in any contract for SIN 246-54 

resulting from any offer against this Solicitation [are] subject to the 

limitations of scope for the applicable locations and Department of 

Labor wage determinations awarded under the contract. For any 

Vendor to properly quote and receive Task Orders that are within 

scope of their contract, the GSA Schedule contract must 

incorporate appropriate Wage Determinations and/or Collective 

Bargaining Agreements in effect at the facilities covered by the 

 3 The sole exception to this requirement is for items that do not exceed the 

micro-purchase threshold of $3,000. See CourtSmart Digital Systems, Inc., supra, 

at 5. The items in issue here exceed the threshold amount.
Page 4 B-406474.2 

Task Ordering Agency's Request for Quotations by the closing 

date of the RFQ.

Agency Report (AR), Tab 10, at 5 (emphasis added). 

In a related case concerning the same procurement and solicitation, we concluded 

that the agency reasonably excluded from consideration a vendor’s quotation where 

the vendor, like APSS, had included labor categories or prices that were not then on 

its underlying FSS schedule contract. See Spectrum Security Servs., Inc., 

B-406474, June 13, 2012, 2012 CPD ¶ 183 at 4-5. In reaching this conclusion we 

noted that the vendor had not quoted rates “in accordance with” its FSS contract as 

required by the RFQ--the rates were not actually on the firm’s FSS contract. We 

also noted that the vendor’s Schedule 84, SIN 246-54, FSS contract, like APSS’s 

contract, specifically advised that it “must incorporate appropriate Wage 

Determinations and/or Collective Bargaining Agreements in effect at the facilities 

covered by the Task Ordering Agency's Request for Quotations by the closing date 

of the RFQ.” AR, Tab 10, at 5 (emphasis added). The vendor’s FSS contract, like 

APSS’s FSS contract, did not comply with this instruction. As in Spectrum, we 

conclude that the agency reasonably excluded APSS’s proposal from further 

consideration upon recognizing that APSS had quoted items and rates not then 

found on its FSS schedule. 

APSS maintains that its quotation was not improper, asserting that the Schedule 84, 

SIN 246-54, information statement concerning task orders for new locations is not 

binding, and that the RFQ in this case did not require offerors to be “compliant with 

all terms and conditions in their GSA Schedule Contracts.” Protester’s Final 

Comments, at 2. We disagree. 

As explained above, where an agency announces its intention 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., supra. This is necessarily the case, because while FSS procedures 

satisfy the requirements for full and open competition, FSS procedures may not be 

used to procure items not on an underlying FSS schedule contract. Such items 

must be purchased in accordance with otherwise applicable procurement laws and 

regulations, including those requiring the use of full competitive procedures. 

Symplicity Corp., supra. 

Accordingly, responses to an RFQ issued pursuant to FAR Subpart 8.4 must 

comply with terms, conditions, and procedures set forth in an underlying FSS 

schedule contract for the order to meet the requirements of full and open 

competition. Where a quotation is not consistent with an underlying FSS schedule 

contract, the agency may reasonably exclude the quotation upon discovery of that 

fact. Spectrum Security Servs., Inc., supra. In this case, when the agency 

discovered that the protester quoted items not incorporated in its underlying FSS 
Page 5 B-406474.2 

schedule contract, it was not unreasonable for the agency to exclude that quotation 

from further consideration, notwithstanding the protester’s pledge to modify its FSS 

schedule contract. 

The protest is denied. 

Lynn H. Gibson

General Counsel