June 12, 2012
Case Briefs: Commercial, IDIQ, and MAS Contracting
1. Case: TMI Management Systems, Inc.
Defendant: FEMA (Federal Emergency Management Agency)
Issue: FEMA’s misclassification of the procurement on the Federal Business Opportunities website prevented the firm from submitting a proposal.
1. In 2/09, FEMA posted a pre-solicitation notice that announced the agency’s intention to issue a solicitation for facilities support services for its temporary housing units, on the FedBizOpps website under procurement classification code 99, Miscellaneous.
2. On 4/10/10, FEMA posted the RFP on the FedBizOpps website under the entry “Issuance of Final Solicitation,” again under product classification code 99.
3. The RFP ‘s award was for a contract for THU services to supply the receipt, storage, preventative maintenance, transportation and disposition of housing units located at sites throughout the U.S
4. Offerors were informed that the services would be for: administrative assistance; accountable property officer support; vehicle and equipment support; materiel handling support; THU operations support; transportation/equipment operation; and specialty support (such as providing electricians, welders, carpenters and mechanics to provide building maintenance and repair).
5. All of the agency’s pre-solicitation and solicitation notices were listed under product classification code 99 and included NAICS code 561210 and the closing date for receipt of proposals was for 5/20.
6. TMI protested 6/26, after the closing date that FEMA’s classification of the RFP under a product (as opposed to service) code did not reasonably inform the protester or other firms of the procurement. They argue that the RFP should have been classified under code M (Operation of Gov’t Owned Facility) or code R (Professional, Administrative, and Management Support Services,
7. FEMA suspended the award pending the protest.
Holding/Ruling: Protest sustained. It was recommended for FEMA to reopen the misclassification of the procurement and use an appropriate classification.
Reasoning: The court basically stated “the FAR requires agencies to use one of the procurement classification codes identified at the FedBizOpps website to identify services or supplies in its notices on FedBizOpps …We have found that an agency failed to effectively notify potential offerors of a procurement and to obtain full and open and competition under CICA, where the agency misclassified the procurement”.
“Here, FEMA classified this acquisition for support services under a miscellaneous code for products, rather than services”.
“ FEMA’s contracting officer contends that none of the service codes appeared applicable to the support services for THUs sought here. We find, however, as explained below, that although no service code was an exact match, a number of service codes include services such as those solicited here, and FEMA does not reasonably explain why one of those service codes would not have been more appropriate than a miscellaneous product code, which indicated that the agency was procuring goods”.
2. Case: Matter if: Access Logic, Inc.
Plaintiff: Matter if: Access Logic, Inc.
Defendant: NASA (National Aeronautics and Space Administration)
Issue: Whether Access Logic’s proposal failed to meet RDO requirements?
1. NASA conducted this procurement under the procedures set forth in Part 12 of the Federal Acquisition Regulation (FAR), "Acquisition of Commercial Items.
2. The agency conducted market research to determine which products would best meet its needs, and after evaluating various projectors and screens during demonstrations held at vendor and customer sites and an industry convention, the agency issued the RFO as a combined synopsis/solicitation.
3. The RFO incorporated FAR Sec. 52.212-1 (FAC 90-39), “Instructions to Offerors--Commercial Items,” which stated that offers must