William Schaeffer (720MMS19R00001)

B-417654 Sep 12, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights William Schaeffer challenges the terms of solicitation No. 720MMS19R00001, issued by the U.S. Agency for International Development (USAID), for personal services contractors to serve as overseas executive officers. The protester argues that USAID's method for establishing salaries for personal services contractors is unreasonable and inconsistent with the USAID Acquisition Regulation (AIDAR). We deny the protest. View Decision Decision Matter of:  William Schaeffer File:  B-417654 Date:  September 12, 2019 William Schaeffer for the protester. John B. Alumbaugh, Esq., United States Agency for International Development, for the agency. Heather Weiner, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest arguing that the agency’s method for establishing salaries for personal services contractors is unreasonable because it is inconsistent with agency regulation is denied where the agency’s reasonable interpretation of its own regulation is afforded great deference. DECISION William Schaeffer challenges the terms of solicitation No. 720MMS19R00001, issued by the U.S. Agency for International Development (USAID), for personal services contractors to serve as overseas executive officers.[1]  The protester argues that USAID’s method for establishing salaries for personal services contractors is unreasonable and inconsistent with the USAID Acquisition Regulation (AIDAR). We deny the protest. BACKGROUND On May 1, 2019, USAID issued the solicitation seeking U.S. personal service contractors for multiple executive officer positions.  Specifically, USAID is seeking applications from qualified U.S. citizens to work overseas on a temporary, on‑call basis, as executive officers for the Rapid Staff Support Services (RS3).[2]  Solicitation (Sol.) at 4.  The solicitation provides that the personal service contractors will be part of RS3’s “firehouse” and that those serving in the firehouse must be prepared to work abroad in USAID missions and embassies, often with little time for preparations.  Id.  In addition, the solicitation indicates that the period of performance for the intermittent contracts is a base year and four 1-year options.  Id. at 3.  The solicitation set forth certain minimum qualifications, including the requirements that the personal services contractor be a U.S. citizen and able to maintain a Secret level security clearance provided by USAID.  Id. at 10.  The solicitation further informs prospective personal service contractors that their applications will be evaluated under the following five criteria:  (1) knowledge, (2) skills and abilities, (3) education and training, (4) cultural and language abilities, and (5) interview.  Id. at 10-12.  Price is not a factor for consideration in evaluation and selection.  Id. With regard to compensation, the solicitation advises that the market value of the executive officers position has been designated as a general schedule (GS)-15[3] equivalent level ($408.64 – $531.20) daily rate, and does not include locality pay.  Id. at 3.  In addition, the solicitation advises that final compensation will be negotiated within the listed market value, based upon the offeror’s qualifications, previous relevant experience, past salary, work history, and educational background.  Id.  The solicitation also specifies that “[s]alaries over and above the top of the pay range will not be entertained or negotiated.”  Id. The closing date for receipt of applications was June 14, 2019.  Id. at 1.  Prior to this date, on May 27, the protester filed an agency-level protest arguing that the compensation paragraph in the solicitation is unreasonable because the daily rate does not include locality pay, which, according to the protester, violates the AIDAR, 48 C.F.R. Ch. 7, app. D, 4(e)(1)(i).  AR, Tab 8, Agency Level Protest, at 1-5.  On June 4, USAID denied the protest, concluding that the protested solicitation paragraph complied with all applicable regulations.[4]  After receiving the agency’s decision denying its protest, Mr. Schaeffer filed a protest with our Office. DISCUSSION USAID is specifically authorized by Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. § 2396(a)(3), to award personal services contracts (PSC) as defined by FAR § 2.101 and § 37.104, to meet its mission.  A PSC is a contract that creates an employer-employee relationship between the agency and the contractor.[5]  See FAR § 37.101.  USAID has issued regulations implementing the acquisition of services, including as relevant here, the manner in which the agency is to determine compensation for personal services contractors.  AIDAR, 48 C.F.R. Ch.