GAO releases decision document as Gov sides with protestor Maximus on CMS Contact Center Operations requirement

Updated September 24, 2024

GAO has just released the decision document protesting the terms of a CMS contact center operations support services RFP, to include why it sided with the challenger in part. Details below.

MAXIMUS Federal Services, Inc., of McLean, Virginia, the incumbent contractor, protests the terms of request for proposals (RFP) No. 75FCMC24R0010, issued by the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), for contact center operations support services. MAXIMUS primarily argues that the RFP contains an unreasonable “labor harmony agreement” (LHA) clause.

We sustain the protest in part and deny it in part.

DIGEST

1. Protest that a “labor harmony agreement” (LHA) clause is unreasonable because it violates the Labor Management Relations Act and is preempted by the National Labor Relations Act is dismissed because our Office does not review violations of or preemption by those statutes.

2. Protest that an LHA clause is unreasonable because it violates or is not authorized under Federal Acquisition Regulation 22.101-1 is denied where the clause does not violate or conflict with the authority provided under that regulation.

3. Protest that the LHA clause is unduly restrictive of competition is denied where the clause is consistent with the agency’s needs and does not otherwise limit competition.

4. Protest that the LHA clause is ambiguous is sustained where the clause does not reasonably articulate the period of time during which an apparent successful offeror will have to negotiate a pre-award LHA with any qualifying labor organization.

RECOMMENDATION

We sustain the protest on the narrow ground that the solicitation is ambiguous as to the length of time the apparent successful offeror will have to negotiate an LHA with any labor organization demonstrating intent to represent service employees under this contract. We recommend that the agency revise the solicitation to make the length of the negotiating period clear. For example, if the agency intends for the apparent successful offeror to have a 120-day negotiating period, then the RFP should advise that, following selection and notification that a firm is the apparent successful offeror, the apparent successful offeror will have 120 days to negotiate and enter into an LHA with any labor organization that has previously demonstrated or is currently demonstrating intent to represent the firm’s service employees under this contract. Conversely, if the agency intends that an alternate timeline apply, then the agency should articulate such timeline appropriately.

We also recommend that MAXIMUS be reimbursed its costs of filing and pursuing this protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1). In accordance with 4 C.F.R. § 21.8(f)(1), the protester’s certified claim for such costs, detailing the time expended and costs incurred, must be submitted directly to the agency within 60 days after receipt of this decision.

The protest is sustained.

Read the full protest decision here.

Added September 17, 2024

Protester: MAXIMUS Federal Services, Inc.
Solicitation Number: 75FCMC24R0010
Agency: Department of Health and Human Services : Centers for Medicare & Medicaid Services
File number: B-422676.1
Outcome: Sustained
Decision Date: Sep 16, 2024

Track Related GAO Activity Here

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The Centers for Medicare & Medicaid Services (CMS) operates a toll-free, nation-wide, 24×7 contact center with multiple sites to provide customer service and address inquiries, which includes 1-800 MEDICARE and the Marketplace (Exchange) call centers (Collectively called Contact Center Operations (CCO)). The operations include offering the same range of services and quality across multiple contact channels such as telephone, email, written correspondence, TDD/TTY, and webchat, enabling multi-channel access.

The primary purpose of the proposed contract is to acquire continued support of CCO operations with an objective of providing customer service functions which efficiently handle and answer inquiries with a high level of service across the United States and its territories.

The CCO contractor shall provide accurate and high-quality customer service for all inquiries. The Contractor shall support multi-channel operations that receive and respond to inquiries, providing information and services through various channels including telephone, mail, TDD/TTY, fax, and web chat.

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