Selling IT: Buyer's Duty to Search Across Schedules
In this installment of Selling IT to Government, we touch on an issue -- keywords -- that is of
particular importance to federal multiple award schedule contractors. Yes,
that's right -- keywords.
A Scenario
Imagine this:
Let's say your company sells language training services, and you hold a language training contract under GSA Federal Supply Schedule No. 738-II. Your number one competitor also holds a language training contract under that same schedule, along with numerous other vendors.
Now here's the kicker:
Your competitor has a second language training contract under a different schedule -- No. 69 to be exact -- and it happens to be the only vendor with a language training contract under that schedule. An agency issues two large delivery orders to your competitor under Schedule No. 69 without considering the prices offered by your company and others on your separate schedule. The agency's only explanation is that it placed the orders with the competitor because it was the only vendor with a language training contract under No. 69.
Can the agency do that? No, according to a decision that came out of the Government Accounting Office (GAO) only a few days ago.
GAO first noted that agencies are not required to conduct competitive acquisitions when making purchases under the FSS. Instead, its obligation is to obtain the best value at the lowest overall cost to the government. In meeting that obligation, an agency is required to consider reasonably available information, typically by reviewing the prices of at least three schedule vendors. FAR § 8.404(b)(2). Because the agency failed to consider the prices offered by other vendors under FSS No. 738-II, it failed to meet its obligation.
Practical Effect
One of the primary considerations in getting on the GSA Schedule is of course cost. The more schedules you decide to get on, the more it's going to cost you, generally speaking. Fortunately for vendors, this protest decision indicates that vendors MAY be able to err on the side of less schedules rather than more.
This protest decision seems to put a burden on buyers to look across schedules in reviewing the prices of vendors.
But it's not clear.
GAO noted that the agency had "actual knowledge" of the various other language training services vendors under FSS No. 738-II. What happens next time when the agency doesn't have actual knowledge? Will it be deemed to have had constructive knowledge? In other words, will it be charged with knowing about vendors on other schedules, even though it didn't actually know about them? Will GAO rule at some point in the future that an agency "should have known" about other vendors because all it had to do was keyword search?
It's certainly possible.
Finding the Right Words
In any event, while buyers may have a higher burden to look across schedules to review pricing, vendors need to pay attention to keyword searching.
Can the reasonably prudent buyer find your items using common keywords? What are the words and phrases you use to describe your products at GSAAdvantage or other multiple award schedule shopping sites? Do they get the job done? Have you thought of everything?
For example, you might have "language" but what about "interpretation" or "translation"? (Assuming they apply.) Do you include words such as "Russian" and "French" and "Chinese." (Assuming you offer such courses or services.)
You get the idea.
Even if a buyer is deemed to have constructive knowledge of all schedule vendors in the same specific industry area, along with the obligation to consider the prices of those vendors, that obligation will not extend beyond what is reasonable. In other words, it's unlikely buyers will be expected to find your stuff if your descriptive words and phrases fall short.
A Scenario
Imagine this:
Let's say your company sells language training services, and you hold a language training contract under GSA Federal Supply Schedule No. 738-II. Your number one competitor also holds a language training contract under that same schedule, along with numerous other vendors.
Now here's the kicker:
Your competitor has a second language training contract under a different schedule -- No. 69 to be exact -- and it happens to be the only vendor with a language training contract under that schedule. An agency issues two large delivery orders to your competitor under Schedule No. 69 without considering the prices offered by your company and others on your separate schedule. The agency's only explanation is that it placed the orders with the competitor because it was the only vendor with a language training contract under No. 69.
Can the agency do that? No, according to a decision that came out of the Government Accounting Office (GAO) only a few days ago.
GAO first noted that agencies are not required to conduct competitive acquisitions when making purchases under the FSS. Instead, its obligation is to obtain the best value at the lowest overall cost to the government. In meeting that obligation, an agency is required to consider reasonably available information, typically by reviewing the prices of at least three schedule vendors. FAR § 8.404(b)(2). Because the agency failed to consider the prices offered by other vendors under FSS No. 738-II, it failed to meet its obligation.
Practical Effect
One of the primary considerations in getting on the GSA Schedule is of course cost. The more schedules you decide to get on, the more it's going to cost you, generally speaking. Fortunately for vendors, this protest decision indicates that vendors MAY be able to err on the side of less schedules rather than more.
This protest decision seems to put a burden on buyers to look across schedules in reviewing the prices of vendors.
But it's not clear.
GAO noted that the agency had "actual knowledge" of the various other language training services vendors under FSS No. 738-II. What happens next time when the agency doesn't have actual knowledge? Will it be deemed to have had constructive knowledge? In other words, will it be charged with knowing about vendors on other schedules, even though it didn't actually know about them? Will GAO rule at some point in the future that an agency "should have known" about other vendors because all it had to do was keyword search?
It's certainly possible.
Finding the Right Words
In any event, while buyers may have a higher burden to look across schedules to review pricing, vendors need to pay attention to keyword searching.
Can the reasonably prudent buyer find your items using common keywords? What are the words and phrases you use to describe your products at GSAAdvantage or other multiple award schedule shopping sites? Do they get the job done? Have you thought of everything?
For example, you might have "language" but what about "interpretation" or "translation"? (Assuming they apply.) Do you include words such as "Russian" and "French" and "Chinese." (Assuming you offer such courses or services.)
You get the idea.
Even if a buyer is deemed to have constructive knowledge of all schedule vendors in the same specific industry area, along with the obligation to consider the prices of those vendors, that obligation will not extend beyond what is reasonable. In other words, it's unlikely buyers will be expected to find your stuff if your descriptive words and phrases fall short.
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