GAO Sustains Protest Where Awardee Misrepresented the Availability of Incumbent's Employee
Government contractors know all too well how challenging it is to succeed in the Federal marketplace. From business development to capture, the process is often complicated and costly. One aspect that can be particularly challenging is staffing. In today's highly competitive playing field, an agency's decision to award a contract may sometimes rest on an offeror's staffing plan.
In other words, the agency's buying decision is often tied to whether source selection personnel believe the awardee can perform the contract with minimal hiccups. Given this reality, it's no surprise when a contractor's staffing strategy involves incumbent personnel. But, as one small business recently learned, proposing a member of the incumbent's staff without first discussing the opportunity with the proposed individual (or obtaining a commitment letter) could upend your award.
T3I Solutions, LLC, B-418034; B-418034.2, Dec. 13, 2019, 2019 CPD ¶ ___, involved an Air Force set-aside solicitation for "courseware development and training services." Relevant here, offerors were to provide "crew resource management training to the agency’s operators and Security Forces that are responsible for handling intercontinental ballistic missiles (ICBM)." Importantly, the solicitation cautioned that because the predecessor contract had already established training, the “[o]perators will continue to receive [training] without a break from the previous contract.”
With uninterrupted training being paramount, the awardee proposed (by name) a program manager from the incumbent staff to be the sole operators instructor because of the individual's "expertise and know-how" in performing the work. The awardee's proposal also noted that, "[w]e consider[ed] the mix of incumbent employees who will continue employment in the follow-on effort as well as new personnel whom we will hire for new requirements, such as Special Forces courseware and instruction." Given these representations, among others, the contracting officer (the selection official) awarded the contract to the awardee after determining that its proposal provided the best-value to the government. [1]
The protest followed.
Here, the protester (the incumbent contractor) argued that the awardee made material misrepresentations when it proposed the named individual as the sole operators instructor without a reasonable basis that the individual would be available to perform under the contract. The protester asserted that the awardee neither contacted the individual prior to submission of proposals nor did it obtain the individual's permission to use the individual's qualifications in its proposal (the protester supported this assertion with a declaration from the proposed individual).
In responding to the protest allegations, the awardee did not dispute these facts; rather, it asserted that it "made no specific representations" and that it reasonably believed the individual would be available to work for it upon award. The awardee also argued that it made no misrepresentations because the solicitation did not require offerors to provide "commitment letters or representations from employees that it planned to use to staff the effort."
Despite its opposition, GAO did not agree with the awardee's position and sustained the protest.
In sustaining the protest, GAO stated that it refers to misrepresentations of the type described in the protest as "bait and switch." To establish an impermissible “bait and switch,” a protester must show:
that the awardee either knowingly or negligently represented that it would rely on specific personnel that it did not have a reasonable basis to expect to furnish during contract performance,
that the misrepresentation was relied on by the agency, and
that the agency’s reliance on the misrepresentation had a material effect on the evaluation results. [2]
Under this framework, GAO concluded that the awardee's proposal represented the availability of the named incumbent employee for the operators instructor position without a reasonable basis to believe that the person would be able to furnish services.
First, GAO determined that the awardee represented that its staffing plan was based on a "the mix of incumbent employees who will continue employment in the follow-on effort[.]” Specifically, GAO noted that, for the sole operators instructor position, the awardee's proposal identified the incumbent employee by name and indicated that he “currently serves as the [] instructor and program manager for the incumbent contractor” and "brings the expertise and know-how to conduct this [crew resource management training] program.”
In addition, GAO also determined both that the record contradicted the awardee's argument that it "made no specific representations" in its proposal and that the record did not support the awardee's belief that the proposed person would be available. In that regard, GAO noted that the awardee did not dispute the individual's declaration that he had not been contacted by the awardee for a potential employment opportunity at the time proposals were submitted.
According to GAO, even if it were to acknowledge the awardee's assertions at face value, mere speculation does not support the conclusion that the person would be available to perform. In this respect, GAO recognized that, while it's not unusual to propose incumbent personnel, "an offeror may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation." [3]
Lastly, GAO concluded that the awardee's representations were material because the agency relied on the awardee's proposed use of the named incumbent employee to meet the "minimum pass/fail requirement." Specifically, in GAO's view, because the solicitation provided that the "[o]perators will continue to receive [training] without a break from the previous contract” and because the named individual would be the sole operators instructor for that requirement, "the agency relied on this to find that [awardee's] proposal met the minimum requirements."
At bottom, GAO sustained the protest because the awardee misrepresented in its proposal the availability of the named incumbent employee and that the agency relied on that representation in making its award.
Takeaway
This protest provides a cautionary reminder for contractors who want to propose incumbent contractor personnel as part of your staffing plan. As GAO noted, a mere "hope or belief" that a proposed person would ultimately make your representation correct is not enough. "Bait and switch" cases like this also serve to remind contractors that, at GAO, the standard is "knowingly or negligently," which means that contractors need to beware of inadvertent personnel misrepresentations in your proposals.
This protest also demonstrates the importance of discussing the procurement with any proposed incumbent personnel that you want to include in your staffing plan beforehand and securing their consent to be named in your proposal. Securing letters of commitment is likely a prudent course of action when dealing with incumbent employees (and persons not currently under your employ).
Lastly, for relief, GAO recommended that the agency reevaluate the awardee's proposal taking into consideration the awardee's misrepresentations, take other actions it deems necessary, and make a new selection decision. While this recommendation is somewhat typical, contractors should beware that, in the past, GAO has recommended that a contractor be excluded from competition where it falsely represented that it had "signed contingent offers in place” from incumbent staff and "suggesting that it would be able to provide those individuals at the start of performance." [4]
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[1] The Solicitation provided that award would be made on a best-value tradeoff basis, weighing three factors: 1) mission capability (technical), 2) past performance, and 3) price.
[2] CACI Techs., Inc., B-408858, B-408858.2, Dec. 5, 2013, 2013 CPD ¶ 283 at 5; ACS Gov’t Servs., Inc., B-293014, Jan. 20, 2004, 2004 CPD ¶ 18 at 3, 10.
[3] ManTech Advanced Sys. Int’l, Inc., B‑255719.2, May 11, 1994, 94-1 CPD ¶ 326 at 13; see also ACS Gov’t Servs., Inc., supra, at 9‑10 (awardee’s misrepresentations may be material, even where they were not intentionally misleading).
[4] Patricio Enters. Inc., B-412738, B-412738.2, May 26, 2016, 2016 CPD ¶ 145 at 10, 15. In GAO's view, the awardee's misrepresentation was not as "egregious" as the misrepresentation in Patricio.
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