The Government Accountability Office (GAO) issued a notable decision on March 24, 2022, in a protest filed by PilieroMazza attorneys Katie Burrows and LCA Fellow Matt Feinberg on behalf of J.W. Mills Management, LLC (J.W. Mills), B-420416. The decision clarifies the scope of the Randolph-Sheppard Act (RSA) and could lead to new contract award opportunities for federal contractors in the food service attendant, mess attendant, and dining facility attendant industry. Federal contractors operating in the food service attendant space should consider how this decision could benefit them in future solicitations procured subject to the RSA.
The RSA gives state licensing agencies (SLAs) a priority in the award of food service contracts, whether through direct negotiation or competitive acquisition. The RSA priority guarantees that the SLA will win the contract as long as it can submit a technically acceptable proposal at a fair and reasonable cost, even if another contractor’s proposal is a better value to the government.
Although Congress originally enacted the RSA to apply to a fairly narrow set of contracts, in recent years the Department of Education (the agency that implements the RSA) and procuring agencies have adopted an expansive interpretation and extended the RSA’s scope to a wide range of food service attendant, mess attendant, and dining facility attendant (collectively, FSA) contracts. As a result, non-SLA bidders have faced a steep uphill climb to receiving federal contracts. GAO’s decision in J.W. Mills could change that.
J.W. Mills filed a pre-award protest challenging the Navy’s decision to procure FSA services for military dining facilities subject to the RSA priority. The principal issue in the protest was whether, at dining facilities operated by government personnel, the RSA applies to contracts for FSA services (such as janitorial, cashier, and dishwashing services), or whether it is limited to contracts for food preparation services and facility management. Noting that the contract at issue is not for the “operation of vending facilities,” J.W. Mills argued that the RSA does not apply because, unlike in full food service contracts, the vendor does not exercise control or management over the functioning of the dining facility as a whole. Therefore, J.W. Mills asserted, the procurement falls outside the RSA’s purview. GAO agreed and found that the “plain language of the RSA statute . . . does not support” application of the RSA to food service attendant contracts like the one at issue, where government personnel were responsible for the facility’s overall management.
GAO’s decision could change the face of the industry by offering a new arrow in the quiver for federal contractors bidding on FSA contracts. If a solicitation for such services is issued subject to the RSA, and the scope of services to be provided under the ultimate contract does not include the overall operation of the facility, a pre-award bid protest may be available to level the playing field by removing the priority for SLAs. Contractors must be mindful that any pre-award protest challenging the application of the RSA to an FSA contract must be filed before the deadline for submitting proposals. Once proposals have been submitted, the chance to challenge the application of the RSA to a given procurement is lost forever.
For more information about the J.W. Mills decision, the RSA, or bid protests, including pre-award protests of RSA procurements, please contact Katie Burrows and Matt Feinberg, who represented J.W. Mills in this game-changing bid protest.
For more information about the Litigation Counsel of America, please contact Beth Rich at Beth.Rich@Litcounsel.org.