It’s a shame when the only way to get an agency’s attention on an acquisition problem is through a lawsuit.
Unfortunately, it’s an all too common occurrence with draft solicitations, final solicitations and post-award debriefings.
The latest example from the National Industries for the Blind, the Association for Vision Rehabilitation and Employment and the National Association for the Employment of People who are Blind against the General Services Administration epitomizes this problem.
NIB and its partners were left with no other options — and what they call an unfortunate step — but to file a protest with the Court of Federal Claims over GSA’s commercial platforms request for proposals issued in December.
Despite submitting concerns during the draft solicitation phase and writing a letter to GSA Administrator Robin Carnahan advocating for her help to change the RFP, it took NIB, AVRE and NAEP to take legal action for GSA to act.
Six days after the groups filed their protest, GSA issued a request for information asking industry for feedback on how to accomplish the goals NIB, AVRE and NAEP asked for in its initial comments.
“Filing this lawsuit is a last resort for NIB as we seek to protect the jobs of thousands of people who are blind working in our associated nonprofit agencies — jobs that are threatened by GSA’s Commercial Platforms program as it is currently structured,” NIB said in a statement. “NIB and GSA have a strong partnership that has created many employment opportunities for people who are blind over the course of decades. However, GSA’s Commercial Platforms program — which does not require platform providers to ensure compliance with purchasing laws related to the AbilityOne Program even though it requires compliance with other federal purchasing laws — threatens the jobs of thousands of people who are blind working in our associated nonprofit agencies.”
Compliance has been missing for years
At the heart of the protest and problem with the RFP is what NIB says is non-compliance with the Javits-Wagner-O’Day (JWOD) Act. The 1938 law mandates the AbilityOne Commission publish a procurement list that identifies commodities and services that the commission has determined are suitable to be furnished to the government by companies who employ people with disabilities. Agencies must buy these specific products and services unless there are specific circumstances that require exceptions.
NIB and its co-plaintiffs filed their lawsuit Feb. 2 just prior to the proposal due date of Feb. 3.
In the protest, NIB says GSA’s RFP does not require the same compliance with mandatory source requirements of the JWOD Act. Instead, the commercial platforms solicitation lets offerors either mark or restrict essentially the same (ETS) items on the platform or “have the ability to identify, highlight and promote AbilityOne products offered by authorized distributors.”
“In other words, the RFP will allow prohibited essentially the same items to be listed for sale on the commercial platforms and does not prevent their purchase by federal agencies in violation of the mandatory source requirements of the JWOD Act,” the protest stated.
NIB, AVRE and NAEP are seeking an injunction to stop GSA from going forward with the RFP as it’s currently constructed, and require GSA to modify the solicitation to require offerors demonstrate the ability to block the sale of all ETS items.
“Since 2020, we’ve worked hard to resolve this issue with GSA. Having exhausted our options and with GSA now seeking additional providers to be part of the Commercial Platforms program, we have no choice but to ask the courts to require that providers in the Commercial Platforms program comply with the JWOD Act just as they are required to comply with other federal purchasing laws,” NIB said in its statement. “While bringing this action was a difficult decision, we believe it is necessary to protect the employment of people who are blind in the AbilityOne Program.”
Congress required new models
An industry source, who requested anonymity because they do business with GSA and its customers, said the protest isn’t surprising as NIB has been concerned about the treatment of AbilityOne items since GSA kicked off the commercial platform program in 2020.
“NIB is technically, correct. The micro-purchase threshold rules are very specific in saying that mandatory sources are still mandatory, even at the MPT level,” the executive said.
An email to GSA seeking comment about the lawsuit was not immediately returned.
NIB said it has been working with GSA for several years to address their concerns about the commercial platform initiative. Three years ago, GSA made three awards in June to Amazon Business, Fisher Scientific and Overstock Government to test out this commercial online platform concept. The three vendors developed or modified existing platforms to meet the government’s requirements. The goal is to better manage and capture the data around online spending that is already occurring so agencies can better understand where this money is going. The other goal that Congress focused on when it included the authority and mandate to set up the commercial platforms in the 2018 Defense authorization bill is to make buying of commercial products better, faster and cheaper — or more like Amazon.
During what GSA calls this proof of concept phase, agencies using the online platforms could buy commercial products below the micro-purchase threshold of $10,000. GSA initially estimated the overall market to be $6 billion, but scaled it back to $500 million in 2021.
Congress in the 2022 defense authorization act required GSA to test out other approaches beyond the current one, leading to the new acquisition effort, which started in March 2022 with a request for information, followed by a draft RFP in September and a final one in December.
NIB says despite its efforts to work with GSA, the evidence showing the impact of the commercial platform effort on companies that employee people who are blind or visually impaired is clear.
NIB told Carnahan in its October letter that the proof of concept confirmed that the new program was not complying with the JWOD Act’s mandatory sourcing requirements. AbilityOne purchases accounted for 2%-to-4% of the total dollar value of sales under GSA Advantage! and 9%-to-10% of the total value of sales under all GSA purchase vehicles, but AbilityOne purchases were less than 1% of the total value of sales on the commercial platforms.
“This loss of sales is compounded by an increase in sales of ETS items. NIB estimates that less than 1% of the value of sales through GSA controlled contracts (e.g., GSA Advantage!, GSA Global Supply and GSA eBuy) result in non-compliant purchases of ETS products rather than the mandatory AbilityOne products, i.e. lost sales for AbilityOne qualified nonprofit agencies (NPAs),” NIB and the others wrote in the letter to GSA. “Under the current commercial platforms, however, NIB estimates the percentage of non-compliant sales in direct violation of the JWOD Act is at least an order of magnitude higher at approximately 12% of the total dollar value of sales on the platforms.”
In both the letter to Carnahan and in the protest, NIB highlighted the fact that GSA’s other portals, Advantage and the schedules e-Buy could block and substitute if agencies tried to buy non AbilityOne or ETS items.
In fact, in GSA’s response to NIB’s letter, it acknowledged this capability as part of how it ensures compliance with the JWOD Act. But instead of ensuring the commercial platforms were doing the same, GSA explained that it instead “relies on ongoing education, training, and enforcement by agencies” for JWOD Act compliance.
In the end, GSA’s RFI is asking exactly how industry can block ETS products from appearing, block and substitute for AbilityOne products or if there other capabilities that exist to meet the same end goal. Vendors have until Feb. 23 to respond to the RFI.
“The purpose of this RFI is to understand the feasibility and legality of certain changes to the solicitation that are being sought by the plaintiffs. Responses to this RFI will be used to assist the government in determining whether the current RFP should be left unchanged, amended, or canceled,” GSA wrote. “This RFI does not promise or commit the government to any particular course of action or to make award to any party, nor will it impact any existing proposals received.”
If GSA ends up modifying or even canceling the procurement, it would be an all too common result that vendors see far too often across the federal community — an issue that the agency should’ve addressed early on in the process, but instead cost industry time, money and frustrations. And this all could’ve been avoided if someone in GSA would’ve just taken a more pragmatic approach to solving this challenge rather than what looks like GSA just dug their heels in.