GAO recently sustained a protest to the evaluation of an awardee’s management approach based on a material misrepresentation in its proposed key personnel experience (that the protester found on Linkedin, no less). And GAO found the misrepresentation was material because the agency relied upon it, and it significantly impacted the agency’s evaluation. Let’s take a closer look.
Insight Tech. Sols., Inc., B-420133.2 (Dec. 20, 2021) involves a task order issued by the Department of Homeland Security, U.S. Immigration and Customs Enforcement seeking information technology support services for the agency’s student and exchange visitor program. The agency issued the solicitation under the National Institutes of Health’s CIO-SP3 small business GWAC.
The solicitation anticipated award of a task order on a best-value tradeoff basis. It said the agency would make its source selection decision based on a tradeoff analysis considering four evaluation factors (from most to least important): (1) technical approach; (2) experience; (3) management approach; and (4) price. The agency said it would not conduct discussions or request proposal revisions.
As relevant here, for the management approach factor, the solicitation identified six key personnel, including a project operations manager, and listed their qualifications. The project operations manager needed “a minimum of five (5) years of experience in managing projects, with a focus on business process and re-engineering projects.”
The solicitation did not require proposed key personnel résumés. But it did require offerors to “clearly identify” qualifications and identify any “unique qualifications or experience proposed that exceed the minimum qualifications.” It said that the agency would evaluate whether proposed “qualifications” were “reasonable for successfully and efficiently performing the work,” and that proposed “personnel that exceed the minimum requirements may be evaluated more favorably.” It also said the agency would evaluate offerors’ approaches to addressing vacancies.
For this management approach factor, the agency was to assign each proposal one of three ratings: exceeds the requirements, meets the requirements, or fails to meet the requirements. The solicitation didn’t call for the assessment of strengths or weaknesses. But it said the agency would document any “noteworthy observations” in the offerors’ management approaches.
The agency received seven proposals for this procurement. And the protester and awardee were among the four finalists. The agency evaluated both the protester’s and awardee’s technical approach and experience as exceeds the requirements. But it determined the protester’s management approach meets the requirements while the awardee’s exceeds the requirements. And the awardee’s price was $13,579,169, while the protester’s price was $11,658,272 (nearly $2 million lower).
As relevant here, the awardee included a key personnel requirements table. For the proposed project operations manager, the proposal reiterated the solicitation’s five-year management experience requirement, and next to it, said: “9 years of relevant experience including 5 years support and quality oversight of the SEVP Contact Center.”
In its management approach factor evaluation, the agency found that the awardee’s proposed key personnel had “experience that exceed[s] the minimum experience requirements identified by the PWS” and said that this added value and increased the likelihood of the awardee’s success. The agency’s report specifically noted the project operations manager’s listed qualifications, concluding that the “added experience causes the Government to have high confidence that [the awardee] can successfully perform the proposed requirements with enhanced expertise.” The agency provided a similar evaluation conclusion for the protester’s proposed key personnel experience.
In the end, the agency found that the awardee’s proposal represented the best value to the government, as it was superior to the protester’s proposal under the management approach factor, making it worth the 16% percent price premium in the agency’s eyes. In the reported tradeoff analysis comparing the two offerors’ management approaches, the source selection authority specifically noted that the awardee had proposed “personnel with significantly more experience than the minimum requirements.” And the analysis did not mention the protester’s proposed key personnel.
The protester filed protest at GAO, arguing that the evaluation and award were improper because the awardee had misrepresented its proposed project operations manager’s relevant experience, specifically, that he or she had nine years of relevant management experience. In fact, according to the protester, the proposed project operations manager not only lacked the purported nine years of experience, he or she actually failed to meet the solicitation’s five-year minimum experience requirement. Relying on its debriefing, the protester argued that the agency’s evaluation of the awardee’s technical acceptability and benefits of the the proposed project operations manager’s experience were largely based on that misrepresentation. Thus, the protester concluded that the evaluation was flawed and failed to provide a reasonable basis for the award.
In reaching its decision on the protest, GAO stated its standards for material misrepresentations in proposals as follows:
A material misrepresentation in a proposal can provide a basis for disqualifying a proposal and canceling a contract award based upon the proposal. A misrepresentation is material where the agency relied upon it and it likely had a significant impact upon the evaluation.
GAO then explained that the protester had supported its material misrepresentation argument with a copy of the proposed project operations manager’s LinkedIn profile. And the profile listed fewer than five years work experience at the time proposals were submitted and three of the four positions listed in the profile did not demonstrate the required management experience.
Neither the intervening-awardee nor the agency disputed the proposed operation manager’s employment information listed on the LinkedIn profile. The awardee maintained that its key personnel candidate “had the required experience” but did not explain or support that assertion. And the agency argued that its evaluation was reasonable because agencies are “generally entitled to rely on information provided by an offeror in its proposal, absent significant evidence, reasonably known to the evaluators, casting doubt on the accuracy of the information.”
Thus, according to the agency, even if there were a material misrepresentation, it would not provide a basis to sustain, since the protester “has not shown that the [a]gency had any reason to believe a misrepresentation had occurred.” It even argued that “considering information not before it at the time of evaluation and award would be tantamount to creating a post hoc resume requirement and reevaluating proposals against it.”
But GAO didn’t buy it. It said:
The agency’s response misstates the issue before us. Here, we are not reviewing a straightforward protest of the agency’s evaluation; rather, the protester has claimed that the awardee’s proposal contains a material misrepresentation that had a significant impact upon the evaluation. When resolving allegations of material misrepresentation, our Office may consider information raised during the protest that was not reasonably known to the agency during the evaluation. In the instant protest, we find it not only appropriate, but necessary, to consider information not contained in [the awardee’s] proposal in order to determine whether it misrepresented its stated project operations manager’s experience.
And with that, GAO relied on the new information to reach its decision. In doing so, GAO noted that the awardee had failed “to proactively demonstrate that the key personnel experience claimed in its proposal was accurate,” even upon GAO’s request that it submit the proposed personnel’s updated resume or other information to establish the relevant experience. The awardee did submit a declaration from the proposed key personnel, but it openly stated that at the time of proposal submissions, he or she “had worked on the predecessor SEVIS contracts for, at the most, 4 years and 7 months.” The declaration also discussed a help desk analyst position that contrasted with the proposal’s description of that position as relevant managerial experience.
Thus, GAO concluded that awardee’s assertion that its proposed project operations manager had nine years of project management experience was, in fact, a misrepresentation. It then went on to analyze the effect of this misrepresentation on the procurement, finding that the agency “clearly relied” on the awardee’s misrepresentation in its evaluation. GAO said:
The record demonstrates that, when evaluating [the awardee’s] management approach, the agency found that the proposed key personnel had “experience that exceed[s] the minimum experience requirements identified by the PWS.” The agency specifically based this finding in part on [the awardee’s] misrepresentation, noting in the evaluation report the project operations manager’s “9 years of relevant experience, including 5 [years] supporting the quality and oversight of the SEVP Contract Center.”
GAO also noted that the agency had actually conceded its reliance on the misrepresentation when it argued during the protest proceedings “that its evaluation was reasonable precisely because it was exclusively based on information contained in [the awardee’s] proposal and not on any other outside information.”
Next, GAO addressed the agency’s argument that the awardee’s misrepresentation “was not material to the source selection decision and therefore not prejudicial.” According to GAO, the agency claimed this proposed key personnel’s experience was not the only basis for the confidence-raising finding in the management approach evaluation. The agency also argued that “nothing would have changed if the experience at issue had not been evaluated as exceeding the minimum experience requirements.” But GAO was not persuaded.
GAO cited to the solicitation’s PWS and its minimum qualifications for key personnel requiring the project operations manager to have five-years minimum management experience focused on business process and re-engineering projects. GAO did concede that the solicitation also said, under the management approach factor, that the agency would evaluate whether proposed “qualifications . . . are reasonable for successfully and efficiently performing the work” and “personnel that exceed the minimum requirements may be evaluated more favorably.” But it explained the following:
Where a solicitation states that the qualifications of key personnel will be evaluated, and a proposal fails to demonstrate that key personnel hold qualifications that the solicitation requires them to possess, the proposal may be evaluated as unacceptable. Our Office will sustain a protest where the agency unreasonably concludes that a proposed key person meets minimum experience requirements.
Applying that standard, GAO explained that the awardee here could not have accurately represented that its proposed project operations manager had nine, or even five, years of relevant experience. Because the agency had “relied exclusively” on the proposals’ contents in evaluating key personnel qualifications, the agency would not have been able to reach the same evaluation conclusion if the awardee had accurately represented the person’s relevant experience. Thus, GAO concluded that the awardee’s “misrepresentation had a material effect on the evaluation because it formed the basis for the agency conclusions that [the awardee’s] proposal both met and exceeded the proposed project manager key person minimum qualifications.”
Finally, GAO found that this misrepresentation and the agency’s reliance on it during the evaluation prejudiced the awardee. GAO “will sustain a protest only when a protester demonstrates that, but for the agency’s improper action, it would have had a substantial chance of receiving the award.” Here, GAO noted that the protester had the lowest-priced proposal. It said, had the awardee’s proposal been eliminated from competition or had a less favorable evaluation for the management approach factor, the protester would have stood a substantial chance of award.
Based on these findings and the prejudice to the protester, GAO sustained the protest.
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There are takeaways on both sides of the fence here. For one, it is not wise to misrepresent qualifications, resources, personnel, or really, anything, in your proposal. Even if it is not something the offeror thinks is a “big deal,” it could be something the agency relies on in its evaluation, making it material and highly problematic. Additionally, if you are the unsuccessful offeror and something in your debriefing “doesn’t feel right,” it may be fruitful to do your research on the awardee and file a protest. Of course, misrepresentations like this may be difficult to catch, but it’s still worth it to try and even the playing field for government procurement.
Questions about this post, or needing assistance with a GAO protest? Email us or give us a call at 785-200-8919.