items exceeds the micro-purchase⁴ threshold must be competed and a best overall analysis conducted.  In addition, the Federal Acquisition Regulations (“FAR”) was amended⁵ to require open market items to be added to orders only if all applicable acquisition regulations have been followed.

Despite the decisional law and regulations, many vendors continued to quote open market items, and be awarded orders that included such items.  A case in point is the decision from the General Accountability Office (“GAO”) in the protest of Seaborn Health Care, Inc., File: B-400429, October 27, 2008. 

Seaborn protested a Request for Quotations (“RFQ”) by the Department of Veterans Affairs (“VA”) for pharmacists and pharmacy

technicians at the VA consolidated mail order pharmacies (“CMOP”). The RFQ required that contractor to provide on-site supervisory personnel at no cost to the VA.  Seaborn filed the protest challenging the inclusion of the supervisory personnel.

Seaborn argued that including the on-site supervisory personnel in the RFQ “constitutes an improper requirement that vendors price non-FSS services as part of their quotations.”  The VA responded that it was merely “providing for appropriate contract administration and supervisory services that are inherent in the cost of administering the contract” because it is a non-personal services contract.

The GAO agreed with the protestor.  “Our review of the pertinent [Federal Supply Service] FSS Contract 621 I, Professional and Allied Healthcare Staffing Services reveal no provision for on-site supervisory personnel or services.”  The GAO continued, “We are not persuaded by the Agency’s argument…because, essentially supervision by the contractor is inherent in non-personal services contracts.”

“Even when non-FSS products and services⁶ are viewed as incidental or integral to FSS items, they may not be purchased using FSS procedures.”

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