United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: American Warehouse Systems 

File: B-402292 

Date: January 28, 2010 

Mark Juelich for the protester. 

Melissa McWilliams, Esq., General Services Administration, for the agency. 

Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Protest that agency placed order for “construction” services that were not on 

vendor’s General Services Administration (GSA) Schedule 56 contract is denied, 

where GSA reasonably determined that the solicitation did not require construction 

services and all of the services purchased were on the vendor’s or its subcontractors’ 

schedule contracts. 

DECISION 

American Warehouse Systems (AWS), of Minneapolis, Minnesota, protests the 

issuance of an order to FedSource, Inc., of Union, Missouri, under the firm’s General 

Services Administration (GSA) schedule contract by the GSA under request for 

quotations (RFQ) No. RFQ421147 for mezzanine installation. AWS contends that the 

order includes labor services that are not on FedSource’s GSA schedule contract. 

We deny the protest. 

The RFQ required the selected vendor to “furnish and install a storage system 

consisting of a free-standing mezzanine with bollards, fluorescent lighting, fire 

sprinkler system, storage racks, bin shelving, wire mesh partitions, modular wall 

units, work tables, personnel lockers, and storage cabinets” at Langley Air Force 

Base, Virginia.1

 RFQ at 1. The mezzanine structure was to be a “free-standing” 

 

1

 The RFQ “recommended” that lighting and sprinklers be installed by identified 

vendors. RFQ, Statement of Work, at 4-5. 
structure, measured at 96 feet by 42 feet, with shelving systems that “shall not be 

connected to any existing building structure except the floor.” RFQ, Statement of 

Work, at 2, 10. 

The acquisition was to be conducted in accordance with Federal Acquisition 

Regulation (FAR) subpart 8.4 governing the Federal Supply Schedule (FSS) program. 

The RFQ required that vendors hold GSA “Schedule 56” contracts for “Building 

Materials/Industrial Services and Supplies.” The RFQ also identified that the 

supplies and services could be supplied under the following “applicable” Special 

Item Numbers (SIN): 361-10B (“Pre-Engineered and Prefabricated Buildings and 

Structures for In-Plant Solutions”) and 361-30 (“Ancillary Services Relating to 

Pre-Engineered/Prefabricated Buildings and Structures”). RFQ at 1. After AWS 

informed the agency that additional SINS might apply,2

 the RFQ was modified to 

state that “products may also fall within any other applicable [SIN] under this 

schedule.” RFQ, mod. 2, at 1. 

The RFQ stated that award would be made on a best value basis, considering 

technical, past performance, and price factors. The solicitation provided that the 

technical and past performance factors were “approximately equal” in importance 

and, combined, were “significantly more important” than the price factor. RFQ at 2. 

AWS and FedSource hold GSA Schedule 56 contracts and competed for the work. 

The agency placed the order for mezzanine installation with FedSource in the 

amount of $234,230.77 and AWS protested. Agency Report, Tab 16, Best Value 

Determination, at 5. AWS contends that FedSource’s GSA contract does not contain 

the applicable SIN to install the mezzanine, and therefore the agency cannot 

purchase these services from FedSource. Specifically, AWS contends that 

installation of the mezzanine structure must be considered to be “construction” and 

that the procurement of the services from FedSource through SIN 361-30, which 

does not include construction, is inappropriate. Instead, AWS argues, labor must be 

provided under SIN361-32, “Installation and Site Preparation for PreEngineered/Prefabricated Buildings and Structures,” which does include 

construction and which is not included in FedSource’s GSA contract. Protester’s 

Comments at 2. 

 

It is true that an agency may not use FSS procedures to purchase items that are not 

listed on a vendor’s GSA schedule without conducting a competition for those 

non-schedule items. Firearms Training Sys., Inc., B-292819.2 et al., Apr. 26, 2004, 

2004 CPD ¶ 107 at 9; Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89 at 4. 

 

2

 Specifically, AWS asserted the SIN 357-11C, “Warehouse Equipment and Supplies,” 

could be used to procure the mezzanine components. Agency Report, Tab 12, E-Mail 

from AWS to GSA, Oct. 27, 2009, at 1. 

Page 2 B-402292 
However, as discussed below, we find that GSA reasonably found that the required 

services were included in FedSource’s or its subcontractors’ schedule contracts and 

purchased under the appropriate SINs. 

As AWS properly notes, FAR § 2.101 defines “construction” to mean “construction, 

alteration, or repair (including dredging, excavating, and painting) of buildings, 

structures, or other real property.” However, the agency reasonably determined here 

that the RFQ did not contemplate construction services.3 As the agency correctly 

notes, the RFQ seeks the installation of a free-standing mezzanine system that 

requires no construction, alteration, or repair of the building structure; it requires 

only that the mezzanine structure be bolted to the floor. According to the agency, 

the mezzanine structure is manufactured off site and assembled on site, and it can 

easily be disassembled and reassembled in another location. GSA Legal 

Memorandum at 4. The RFQ generally requires that installation occur “in 

accordance with [the] manufacturer’s specified installation procedures,” RFQ, 

Statement of Work, at 3, and does not include any FAR provisions concerning 

construction or Davis Bacon wage rates. Although the RFQ generally references 

“[International Building Code] design” in describing the width and rise requirements 

for the mezzanine stairs, id. at 2, and generally requires that design, fabrication, and 

installation of the mezzanine systems occur “in accordance with the applicable 

industry codes and standards,” id. at 1, these general provisions, in our view, do not 

transform this order into construction services as AWS contends. 

In addition, GSA’s market research confirmed that the services are not construction. 

In this regard, prior to issuing the solicitation, the contracting officer consulted with 

a project engineer from the Air Force, as well as representatives from AWS and 

FedSource. All three indicated that fabrication and installation of the mezzanine 

structure was not construction, but rather was assembly.4 Contracting Officer’s 

Statement at 3, 7. Furthermore, we note that AWS’s website shows that it “designs, 

manufactures, and installs” mezzanine systems, and makes no reference to 

performing construction services. See www.aw-systems.com/mezzaninesystems.htm. 

 

 

3

 The only possible construction services--fire sprinkler and lighting installation--are 

going to be performed by the recommended vendors identified in the RFQ and not by 

FedSource. Contracting Officer’s Statement at 8. This aspect of the award was not 

challenged here. 

4

 Although AWS indicated that sometimes construction could be involved, AWS did 

not contend that this solicitation included construction, and AWS did not raise with 

the agency that SIN 361-32 should apply here until the agency selected another firm 

for the order. 

Page 3 B-402292 
Page 4 B-402292 

The contracting officer also reviewed the SIN descriptions for SIN 361-30 (“Ancillary 

Services Relating to Pre-Engineered/Prefabricated Buildings and Structures”) and 

SIN 361-32 (“Installation and Site Preparation for Pre-Engineered/Prefabricated 

Buildings and Structures”) under Schedule 56 to determine the appropriate labor SIN 

to use. These descriptions are as follows: 

SIN 361-30, Ancillary Services Relating to Pre-Engineered/ 

Prefabricated Buildings and Structures -- Including services relating to 

and ordered in conjunction with products purchased under the supply 

schedule contract, such as, field assembly, training, consultation and 

design assistance. EXCLUDES Construction as defined by FAR 2.101; 

Architectural Engineering Services (A&E) under the Brooks ArchitectEngineers Act as stated in [FAR] Part 36; and services applicable to the 

Service Contract Act. 

* * * * * 

SIN 361-32, Installation and Site Preparation for Pre-Engineered/ 

Prefabricated Buildings and Structures -- Applicable to installation and 

site preparation services ordered in conjunction with buildings and 

structures purchased under the supply schedule contract. SPECIAL 

ORDERING PROCEDURES, WHICH INCLUDE DAVIS BACON WAGE 

RATES AND CONSTRUCTION CLAUSES FOR INSTALLATION AND 

SITE PREPARATION APPLY TO THIS SIN. EXCLUDES Architectural 

Engineering Services (A&E) under the Brooks Architect-Engineers Act 

as stated in [FAR] Part 36. 

Agency Report, Tab 23, SIN Descriptions; Contracting Officer’s Statement at 2. 

As noted above, the agency has provided a reasonable basis for its determination 

that the installation services here are for assembly and not construction, and, 

therefore, are more appropriately procured under SIN 361-30. In this regard, the 

RFQ requirements were reasonably found to not involve construction, alteration, or 

repair of the building or building structures, and the RFQ does not contain any 

construction clauses or Davis Bacon Act wage rate requirements. Thus, we find that 

the agency reasonably determined that SIN 361-32 was not applicable. Since 

FedSource’s GSA schedule and its subcontractors’ GSA schedules contained 

SIN 361-30, and since of the services purchased were either on these schedules or 

purchased through competition as “open market” items, we find that the order 

placed with FedSource was unobjectionable. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel