What Gyros taught me about the Multiple Award Schedule program
When I was in college, there were two gyro joints across the street from each other. I can't remember the name of one of them, because I never went there. Instead, I went to Parthenon Gyros every time.
If memory serves, the gyros were pretty good at Parthenon Gyros. But that's not really why I went. I enjoyed the atmosphere: on the TVs, hanging from the ceiling, there was an absurd variety of content, including a particular memorable episode of a man stacking plates and cups to implausible heights. The proprietor was warm and personable, with a penchant for yelling "Opa!"
But even that is not really why I went. The truth is that my friends and I created a legend that, at Parthenon Gyros, even if you attempted something different, you could only order one meal on the menu: Gyro, Fries, and a Mountain Dew.
And, the legend further held that each customer would pay a different amount for that meal based on the proprietor's emotional state at that particular moment. If one person went in with $10 cash, he might get $2 back. The next person might get $5 back.
One option, different prices. College was a weird time[1] and today I have no idea whether the legend is actually true. It probably isn't. But that's the story we've told ourselves.
I tell you this story today because, to me, Parthenon Gyros is a useful metaphor for the Multiple Award Schedule program.
Hear me out. When a company has a Schedule contract, that contract is basically a menu:
- The schedule lists all of the stuff you can get from the company and lists prices for the stuff you can buy (the menu).[2]
- When a customer goes to order from the schedule, the company will give the customer some sort of a discount based entirely off the company's price-to-win strategy (the proprietor's emotional state).
- As a technical matter, the company doesn't have to sell you all the things on its schedule, it can choose to only sell certain items (Gyro, Fries, and a Mountain Dew).
- If the company wants to sell other things or change its prices, it has to update its schedule contract (but see #3).
Zooming out a bit, another thing to appreciate is that the government wants competition among companies on the Multiple Award Schedule program. The story wouldn't work if Parthenon was the only gyro joint in town. The story works because there was another gyro joint literally across the street, presumably with its own menu, ambience, prices, and peculiarities.[3] Similarly, the government wants to be able to effectively say "it's Gyro night!" and peruse multiple menus before settling in for the evening.
In theory, this idea of competition is a great approach if I'm truly gyro-agnostic. But, in practice, what if I really just want to eat at Parthenon?
The way that the government squares this circle of competition but with a preference is through the use of "brand-name-or-equal" justifications. The idea is that, instead of saying "I want gyros" or saying "I want Parthenon Gyros," you can use a magical incantation. In the case of brand-name-or-equal, you say: "I want to eat at Parthenon Gyros or some other equivalent establishment that has similar attributes, such as TVs hanging from ceilings with amusing content."
You see, the brand name or equal justification allows the government to get its competition and eat it too. The gyro joint across the street could bid and say "ah, yes, we also have delicious gyros and delightful content on our hanging TVs." And, if the price is right, perhaps the government says "Sorry, Parthenon, tonight's the night we try the other place across the street."
Critically, though, the government needs to identify the "salient characteristics" that define the product or service. You can't just say "Parthenon or equal." You have to describe what it is about the brand name that you care about.
Which brings us (finally) to the GAO's recent decision in RELX Inc. RELX sells LexisNexis, which is a tool used by lawyers and law-enforcement. For those who are generally unfamiliar with LexisNexis, suffice to say that LexisNexis has one significant competitor—West Publishing Company. Together, West and RELX are the biggest players in the space.[4]
Earlier this year, the Air Force put out a brand-name-or-equal solicitation for LexisNexis. And as part of the solicitation, the Air Force wrote that one of the salient characteristics of a LexisNexis or equal product is that it is "a single platform with a singular login to provide maximum workflow efficiency of public records, and records management law enforcement data. Multiple platforms, applications, or systems are not acceptable."
Despite the brand-name-or-equal justification for LexisNexis, RELX didn't win. Instead, West, won the award. RELX then protested, claiming that West did not actually meet that salient characteristic of LexisNexis. And GAO agreed:
A review of the West quotation shows that, although it includes a “singular login,” it utilizes more than one platform and application, and thus fails to meet this requirement. First, in describing its “singular login” the West quotation states: “Thomson Reuters OnePass [a proprietary product of West] provides a single, secure, user-created login to manage access to multiple Thomson Reuters applications.” Thus, in describing its “singular login” product, West’s quotation expressly provides that it will be used to access multiple Thompson Reuters applications, which is inconsistent with the prohibition included in salient characteristic 1001 against multiple applications.
***
It is therefore evident from an examination of the West quotation that there are two separate “platforms” being offered: CLEAR for performing law-enforcement-specific research; and a second, separate platform, Westlaw, for performing traditional legal and legislative research. This is inconsistent with the RFQ’s statement that “multiple platforms, applications or systems are not acceptable. We therefore sustain RELX’s protest on this basis.[2]
Sorry, West: them's the breaks. LexisNexis had one platform behind a single login. West had two platforms behind a single login. Is that really what differentiates LexisNexis and West? Probably not. But, hey, the government said it really wanted one platform and that's how this goes.
And yet. The drama in our story today isn't quite over. Because RELX also argued that the Air Force broke the rules by ordering something that wasn't on the menu! As the GAO explained:
RELX also argues that the agency improperly accepted the West quotation because, although this acquisition was conducted using the FSS, the West quotation improperly included “open market” items that were not included on its FSS contract. RELX argues that it was improper for the agency to have accepted the West quotation under the circumstances.
You see, part of the deal in the Multiple Award Schedule program is that customers need to order what's on the menu. If a customer tries to order falafel or spanakopita at Parthenon Gyros, they're in for a bad experience. Again, the GAO:
As a general rule, when agencies obtain their requirements using the FSS, they are confined to ordering products and services that are available from the contractors’ respective FSS contracts; agencies may not properly order FSS and non-FSS items (i.e., open market items) when using the FSS.
And because West included open-market items in its quotation, the Air Force couldn't order them.[5] Protest sustained.
Wait for it, though, because there's one final turn in our story:
The record therefore establishes that both West’s and RELX’s quotations included open market items, and therefore both were ineligible for the issuance of an FSS task order based on the RFQ as currently issued.
Ahahaha! Because both companies offered open-market items, the Air Force can't make an award to either RELX or West. Everyone loses!
If you go to Parthenon Gyros, expect the Gyro, Fries, and Mountain Dew. Lesson learned. Maybe next time, Air Force. Opa!
[1] There are, no doubt, some readers who wonder why we paid cash instead of, like, Apple Pay. This all took place at a time before credit cards. No, in those hoary days, you would get $20 dispensed from an ATM and that should pretty much cover you for the night. Except, at the time, we didn't call them ATMs; we called them "TYME machines." Which, outside of the midwest would lead to some pretty surprising looks when you asked someone for the nearest tyme machine. Today, though, Parthenon is apparently cashless. Change is hard, y'all.
[2] Another day, we'll talk about the policy proposal to create an unpriced schedule. It's a politically messy one. But even an unpriced schedule would meet my Parthenon Gyros metaphor. Except, I guess, Parthenon Gyros would be a country club?
[3] I wouldn't know, though. Because, again, I never went there.
[4] But, please please please, don't interpret this as a suggestion that they are a duopoly.
[5] Could the use of Order-Level Materials (OLM) have helped? Maybe? The GAO doesn't mention OLM at all. Perhaps one of my readers can help me here.