Ordering off the menu
A few months ago, I wrote about how a restaurant menu can be a mental model for the Multiple Award Schedules program. The salient points are that:
- In general, a schedule contract lists all of the items you can order and the price associated with the item; and
- If an agency wants to buy something using a schedule contract, the agency can only order off the menu.
As a compliance matter, then, this operates on two levels: an agency has to make sure that its requirements can generally be satisfied by vendors with a schedule contract. It also means that vendors have to make sure that a given requirement is on their specific schedule contract.
When it comes to products, making sure that an item is on the menu is often a straightforward effort (though not always!). If you don't have the SKU on the contract, you can't sell it. When it comes to services, though, figuring out whether something is on the menu (or not!) is inherently harder. Human skills and activities are just so much more difficult to define, and that leaves room for ambiguity on the menu.
Agencies typically make sure that vendors have the right services on a schedule contract by forcing vendors to do a labor-category mapping, where the vendor identifies which labor categories are on their schedule contract and how those labor categories meet the agency's requirements. And, as we've discussed before, labor-category mapping is an interpretative effort.
Often, there is a mutual incentive for the government and the vendor to apply a broad interpretation for a given labor category. If you want to buy a hot dog, and I sell sandwiches and propose to sell you meat in a bun, and you're vibing and think that meat in a bun sure sounds good, we'll mutually agree on a broad mapping. In such cases, your goals and the government's goals may be aligned.
Your competitor, though, might want you to have a narrow mapping. They will try and "ghost" you[1] and claim that your menu is pretty limited. "Sure," your competition will say, "they sell sandwiches. But a hot dog is not a sandwich. If anything, it's a taco."[2]
This may all seem academic and maybe even a bit silly. But, recently, GAO gave a great example of where the semantic boundaries of GSA schedules' labor categories can get agencies and vendors in real trouble.
I present to you Spatial Front, which involves a contract for developing and maintaining software related to US Department of Agriculture's farming and ranching lands programs over the course of roughly three years. And, without getting into too much unnecessary detail, Spatial Front is the incumbent on the contract and they managed to (a) lose the recompete 4 times, (b) protest each time, and (c) win every protest.[3]
The contract needed the vendor to "provide development teams with cross-functional skills" and "specialized skillsets or subject matter experts" in 14 areas, ranging from "application development" to "hydrology and hydrological engineering" to "light detection and ranging (LiDAR) expertise" to "land survey expertise." In other words, those labor categories are pretty ... wide ranging.
If you're like me, you might have instinctively assumed that there are vanishingly few companies out there that have water engineers who sling JavaScript code and really care about property boundaries. And if you're like me, you might have assumed that the contract was "wired" for Spatial Front.
But two companies were not like me, and did not make such assumptions, and won! At least, they won at first.
Because, you see, Spatial Front argued that the first company couldn't win because "the required services were outside the scope of the labor categories" of the schedule contract. And GAO agreed. And then Spatial Front argued that the second company couldn't win because "the solicited work is outside the scope of the awardee’s underlying FSS contract." Once again, GAO found that the agency didn't make sure the services were on the menu:
In sum, the agency failed to consider whether Alpha Omega’s quoted FSS labor categories, as reasonably interpreted, encompassed the required services, or if Alpha Omega’s quotation offered to perform services that were not on its schedule contract—i.e. were open market items. Accordingly, we cannot find reasonable the agency’s conclusion that Alpha Omega’s quotation was eligible for award. As we find the agency failed to conduct the necessary assessment to ensure it was not improperly procuring open market items through an FSS order, we need not address the parties’ cross-arguments regarding whether a reasonable interpretation of Alpha Omega’s quoted FSS labor categories sufficiently aligns with the RFQ’s required services.
Agriculture asked for a wide range of disparate skills and hoped to read the labor categories broadly. And Spatial Front and GAO said no, you can't do that here. Protest sustained.
What's the lesson? If the government wants to order off the menu, and the government expects to have a wide range of menu options, the government should be prepared to be challenged on it. The government may wish that every restaurant be the Cheesecake Factory; but, the fact is that most businesses have a limited menu. If the government appetites are too wide, it needs to be prepared to dine elsewhere or go hungry.
And, if you sell items through the multiple-awards schedules program, you want to make sure that your labor categories are expansive enough to cover future requirements. Some people may think a hot dog is a taco, but you don't want people guessing as to whether your menu covers the need.
Because under the schedules program, if it's not on the menu, it's not for sale.
[1] This is a real term of art in #govcon! It is not the same meaning as ghosting in the regular world. In the regular world, if you ghost someone, that means you disappear, become a ghost. In gov con, if you ghost someone, you're hoping that they disappear? Except it's more complicated because there are Big and Little G ghosts? And even positive (friendly?) ghosts? Govcon's a weird space, y'all.
[2] If you're unfamiliar with this debate, consider yourself fortunate. Now that you know, I'm sorry.
[3] Originally, I planned to write more about the dynamic where, when you're an incumbent, protesting and losing can still be a winning strategy because it forces the agency to extend your existing contract and can impose costs on your competition. But I'll simply note that Spatial Front lost nearly two years ago on what was supposed to be a three-year contract and is, today, still delivering under the previous contract. Slow clap, Spatial Front. Slow. Clap.