WHEN LOSING A PROTEST IS GOOD FOR YOUR BUSINESS
GSA Schedule contractors cannot quote prices higher than those on their Schedule contracts. One company recently found this out the easy way when they tried to do just that, only to encounter a successful bid protest from a competitor. The GAO’s decision in Kauffman & Associates, Inc (https://www.gao.gov/products/b-421917.2,b-421917.3) provides an important reminder to Schedule contractors: Quoting prices higher than your Schedule contract on a Schedule acquisition is a no-no. GAO summed this up succinctly, stating “a vendor may not propose prices higher than their FSS prices, as the higher prices have not been determined to be fair and reasonable by the General Services Administration (GSA) and are therefore not FSS prices. . . Accordingly, issuing an order based on non-FSS pricing under an FSS acquisition would be improper.” While the company in question lost the business, it really dodged a Schedule’s compliance bullet. Billing and being paid at a higher rate than your Schedule contract price on a Schedule task order is a violation of the federal False Claims Act. The False Claims Act allows the government to recover treble damages and level per-invoice fines in the vicinity of $20,000 per task order. A recent Google Chrome search on the phrase “GSA Schedule Price Reductions Whistleblower” returned over 205.000 hits, with most of the top ones coming from plaintiffs’ attorneys all too happy to help a whistleblower cash in. Although the company lost the protest, it likely saved money it would have spent on fines and legal fees. While it can certainly be aggravating that GSA CO’s do not use the flexibility they have to relieve the impact of inflation on Schedule contract prices, that does not provide an excuse to over-bid or overbill. The company should really thank their competitor. Lessons learned don’t always come so cheaply.