B-227265, JUN 10, 1987

B-227265: Jun 10, 1987

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT MANDATORY UNDER THE FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATION (FIRMR). AGENCY'S MAS USE IS PERMISSIBLE AS A "COMPETITIVE PROCEDURE" UNDER THE COMPETITION IN CONTRACTING ACT AND FIRMR PROVIDED THAT USE OF THE MAS WILL RESULT IN THE LOWEST OVERALL COST TO THE GOVERNMENT. REQUEST FOR ASSISTANCE IN IMTEC'S EVALUATION OF IMMIGRATION AND NATURALIZATION SERVICE (INS) PROCUREMENT OF TELEPROCESSING SERVICES (CODE 510198) (CCAR: 87-IMT-005): YOU HAVE ASKED WHETHER THE IMMIGRATION AND NATURALIZATION SERVICE (INS) USE OF A MULTIPLE AWARD SCHEDULE CONTRACT IN THE PROCUREMENT OF TELEPROCESSING SERVICES PROGRAM (TSP) IS MANDATORY. IS A COMPETITIVE PROCEDURE IF FIRMR PROCEDURES ARE FOLLOWED.

B-227265, JUN 10, 1987

PROCUREMENT - SPECIAL PROCUREMENT METHODS/CATEGORIES - COMPUTER EQUIPMENT/SERVICES - FEDERAL SUPPLY SCHEDULE - NON-MANDATORY PURCHASES DIGEST: USE OF A MULTIPLE AWARD SCHEDULE (MAS) CONTRACT BY AGENCY IN THE PROCUREMENT OF TELEPROCESSING SERVICES UNDER GENERAL SERVICES ADMINISTRATION TELEPROCESSING SERVICES PROGRAM (TSP), IS NOT MANDATORY UNDER THE FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATION (FIRMR), OR THE TSP HANDBOOK. AGENCY'S MAS USE IS PERMISSIBLE AS A "COMPETITIVE PROCEDURE" UNDER THE COMPETITION IN CONTRACTING ACT AND FIRMR PROVIDED THAT USE OF THE MAS WILL RESULT IN THE LOWEST OVERALL COST TO THE GOVERNMENT.

REQUEST FOR ASSISTANCE IN IMTEC'S EVALUATION OF IMMIGRATION AND NATURALIZATION SERVICE (INS) PROCUREMENT OF TELEPROCESSING SERVICES (CODE 510198) (CCAR: 87-IMT-005):

YOU HAVE ASKED WHETHER THE IMMIGRATION AND NATURALIZATION SERVICE (INS) USE OF A MULTIPLE AWARD SCHEDULE CONTRACT IN THE PROCUREMENT OF TELEPROCESSING SERVICES PROGRAM (TSP) IS MANDATORY.

THE COMPETITION IN CONTRACTING ACT OF 1984 (41 U.S.C. SEC. 253(A)(1)(A) (SUPP. III 1985)) REQUIRES THAT AN AGENCY, IN CONDUCTING PROCUREMENTS, "SHALL OBTAIN FULL AND OPEN COMPETITION THROUGH THE USE OF COMPETITIVE PROCEDURES." THE ACT FURTHER DEFINES THE TERM "COMPETITIVE PROCEDURES" TO INCLUDE GSA MULTIPLE AWARD SCHEDULE PROGRAM PROCEDURES, IF PROGRAM PARTICIPATION HAS BEEN OPEN TO ALL RESPONSIBLE SOURCES AND CONTRACTS UNDER SUCH PROCEDURES RESULT IN THE LOWEST OVERALL COST MEETING GOVERNMENT NEEDS. 41 U.S.C. SEC. 259(B)(3); 48 C.F.R. SEC. 6.102(3) (1986).

THE FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATION (FIRMR) ESTABLISHES PROCEDURES FOR THE ACQUISITION OF INFORMATION RESOURCES, INCLUDING THE TELEPROCESSING SERVICES BEING PROCURED HERE. IMPLEMENTING CICA, FIRMR, 41 C.F.R. SEC. 201-11.001(C) (1986), PROVIDES THAT THE USE OF GSA INFORMATION RESOURCES MULTIPLE AWARD SCHEDULES, INCLUDING THE TSP SCHEDULE, IS A COMPETITIVE PROCEDURE IF FIRMR PROCEDURES ARE FOLLOWED. FIRMR SETS FORTH SPECIFIC PROCEDURES FOR TSP ACQUISITIONS AND PROVIDES THAT AN AGENCY MAY OBTAIN GUIDANCE FROM THE GSA TSP HANDBOOK (OCTOBER 1981), WHICH CONTAINS FIRMR-BASED PROCEDURES TO BE FOLLOWED IN ACQUIRING TSP SERVICES. 41 C.F.R. SEC. 201-32.303 1(A).

THE TSP (41 C.F.R. SEC. 32.303) PROVIDES TWO METHODS FOR ACQUIRING THESE SERVICES-- THE MULTIPLE AWARD SCHEDULE, THE METHOD USED BY INS, AND THE BASIC AGREEMENT (BA). THE SCHEDULE CONSISTS OF NEGOTIATED INDEFINITE QUANTITY CONTRACTS WITH FIRM PRICES AND GOVERNMENT-WIDE VOLUME DISCOUNTS. THE BA IS AN AGREEMENT, BUT NOT A CONTRACT, BETWEEN GSA AND VENDORS THAT CONTAINS STANDARD PROVISIONS APPLICABLE TO FUTURE PROCUREMENTS. FOR BOTH ACQUISITION METHODS, THE FIRMR AND TSP HANDBOOK STRESS THE IMPORTANCE OF COMPETITION AND LOW COST. HOWEVER, UNDER A BA PROCUREMENT, SYNOPSIS IN THE COMMERCE BUSINESS DAILY IS REQUIRED AND FIRMS THAT HAVE NOT ENTERED INTO A BA MAY BE CONSIDERED FOR AWARD. IN CONTRAST, SCHEDULE PROCUREMENTS ARE CONFINED TO THOSE ON THE SCHEDULE.

FIRMR PROVIDES ONLY THAT AGENCIES MAY USE EITHER METHOD, AS APPROPRIATE. IF A TSP REQUIREMENT CANNOT BE MET BY A SCHEDULE OR BA PARTICIPANT, OR A FIRM WILLING TO ENTER IS NOT A CONTRACT UNDER A BA, THE AGENCY MAY MAKE OTHER CONTRACTING ARRANGEMENTS. SEE 41 C.F.R. SEC. 201-32.303(C). THE TSP HANDBOOK ALSO STATES THAT THE "AGENCY IS RESPONSIBLE FOR DETERMINING THE METHOD OF PROCUREMENT," AND PROVIDES VARIOUS CONSIDERATIONS FOR THE AGENCY TO FOLLOW IN SELECTION WHICH OF THE TWO TO USE. THE HANDBOOK, HOWEVER, ALSO SETS FORTH ADVANTAGES OF USING THE SCHEDULE; IT ALSO IDENTIFIES, AS THE REASON FOR USING A BA PROCUREMENT, THE INABILITY TO USE THE SCHEDULE. THUS, IT APPEARS THAT THE HANDBOOK ENVISIONS THAT THE SCHEDULE, RATHER THAN A BA OR OTHER CONTRACTING APPROACH, WILL BE USED WHENEVER POSSIBLE.

IT IS CLEAR FROM THE ABOVE THAT THE FIRMR DOES NOT SPECIFICALLY REQUIRE SCHEDULE USE IN A GIVEN CASE AND THAT BOTH THE REGULATION AND HANDBOOK AFFORD AGENCIES CONSIDERABLE DISCRETION WHEN CONTRACTING FOR SERVICES UNDER THE TSP. THEREFORE WE CANNOT CONCLUDE THAT, AS A MATTER OF LAW, USE OF THE SCHEDULE HERE IS MANDATORY. NONETHELESS, WE FIND NOTHING LEGALLY OBJECTIONABLE IN THE AGENCY'S USE OF THE SCHEDULE METHOD. CICA AND THE FIRMR CLEARLY DECLARE SUCH USE OF THE SCHEDULE WILL RESULT IN THE LOWEST OVERALL COST TO THE GOVERNMENT, AND ITS USE APPEARS TO BE CONSISTENT WITH GUIDANCE CONTAINED IN THE HANDBOOK. THEREFORE, ASSUMING THAT USE OF THE SCHEDULE WILL RESULT IN LOWEST OVERALL COST TO THE GOVERNMENT, WE PERCEIVE NO REASON TO LEGALLY OBJECT TO THE AGENCY'S USE OF THE MULTIPLE AWARD SCHEDULE.