#GovConThoughts: GAO Decision Shows Agency's Use of Key Personnel Unavailability Defense
[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]
The Government Accountability Office's ("GAO") bid protest decision in Global Alliant, Inc., B-421859 (Nov. 7 2023) highlights an interesting protest defense – one relating to key personnel – advanced by the agency.
Here, the agency defended the protest grounds that the protester was not an interested party because a protester's key person departed the firm and that the firm did not advise the agency of that key person's departure. Yes, you read that right. In other words, because of the alleged key person's departure and protester's lack of notification, the agency argued that the protester's quote was unacceptable and unawardable, meaning that the protester was not an interested party to protest. GAO denied this argument.
Specifically, in that regard, GAO stated that record showed that the individual was employed by the protester's subcontractor and remained employed by the subcontractor and available to perform the task order through the date when the agency awarded the task order. In other words, at all relevant times, the key person was available to perform. After the the agency issued the task order award, the key individual departed to work for the awardee. Hence, in GAO's view, because the individual was employed by the subcontractor during the competition and though the task order award, the protester was not required to advise the agency of the individual’s unavailability because the individual was not unavailable.
Takeaway
As many in the government contracting space are aware, GAO has long held that contractors are generally required to advise an agency when it has knowledge that one or more key personnel have become unavailable after proposal submission but prior to award. That obligation, of course, rests on the notion that the key person is actually unavailable (clear evidence) before the award. Here, there was no actual unavailability of the key person, which meant that the protester had no duty to notify the agency.
While an argument on key personnel unavailability is not exactly novel, the fact that the agency unearthed it in a protest defense – against the protester – is certainly interesting (note: we typically see protesters making this argument against awardees). Indeed, the decision highlights the power of making the argument: if successful, it can potentially render a company unacceptable for award. And here, it would have meant the protester was not an interested party (i.e., that there was not a reasonable possibility that the protester would be in line for award if its protest were sustained).
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