Contractor Proposes Unavailable Key Employee, GAO Sustains Protest

A contractor’s proposal to use an unavailable employee to fill a key personnel position caused the GAO to sustain a competitor’s protest.

In a recent bid protest decision, the GAO concluded that a offeror failed to satisfy a material solicitation requirement concerning key personnel where the employee included in the proposal left the offeror’s employment–and the agency knew that the employee was not available to perform the contract.

The GAO’s decision in Paradigm Technologies, Inc., B-409221.2, B-409221.3 (Aug. 1, 2014) involved a Missile Defense Agency request for task order proposal for strategic planning and financial support services. The RTOP provided that the task order would be issued on a best-value basis, considering technical, past performance, cost, and small business utilization. The technical factor was considered to be significantly more important than all other factors. The technical factor included a key personnel subfactor.

Under the key personnel subfactor, offerors were required to propose two key employees: (1) a contract program manager; and (2) a task order lead.  Offerors were required to provide resumes for each proposed key employee.

MDA received proposals from Paradigm Technologies, Inc., the incumbent contractor, and Booz Allen Hamilton, Inc.  In its proposal, Booz Allen proposed a specific individual (who is referred to throughout the GAO’s decision by the mysterious-sounding moniker “Ms. G”) as its program manager.

Booz Allen submitted its final proposal revision on July 22, 2013.  On August 5, Ms. G informed Booz Allen that she had accepted an offer with another firm.  On October 23, MDA selected Booz Allen for issuance of the task order, and on October 28 Booz Allen notified the contracting officer of Ms. G’s departure.

Paradigm filed an initial GAO bid protest against the award to Booz Allen.  On November 27, the agency stated that it would reevaluate final proposals and make a new selection decision.

In the reevaluation of final proposal revisions, the agency noted that Ms. G was no longer an employee of Booz Allen. The agency assigned Booz Allen a weakness for failing to provide one of the two required key personnel.  Nevertheless, the agency assigned Booz Allen a “satisfactory” rating for the key personnel subfactor and again awarded the contract to Booz Allen.

Paradigm filed a second GAO protest. Paradigm alleged that Booz Allen’s final proposal revision was technically unacceptable should have been rejected for failing to provide one of the two key personnel.

The GAO recognized that it is “a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form a basis for award.” The GAO noted that in this case, the proposal of a contract program manager was a material solicitation requirement, “as the offerors were required to identify a specific individual for this key position by submitting a resume.” Thus, when Ms. G left Booz Allen’s employment, Booz Allen’s final proposal revision “no longer satisfied this material requirement.”

The GAO criticized the agency’s assignment of a mere weakness for failing to meet the requirement.  Instead, the GAO wrote, Booz Allen should have been assigned a deficiency.  The GAO stated, “a weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement.”  The GAO continued:

Although Booz Allen should not have allowed almost three months to pass before notifying the agency that one of its two key people was no longer available, our concern here is with the MDA’s failure to recognize that Booz Allen’s revised proposal could not be viewed as satisfying the solicitation’s key personnel requirements.  That is, having been informed prior to its reevaluation of proposals and making a new selection decision that Booz Allen’s FPR no longer satisfied requirements concerning a key person, MDA could not simply accept Booz Allen’s revised proposal and consider the matter a weakness.”

The GAO concluded that “[u]nder these circumstances, MDA should have either rejected Booz Allen’s proposal as technically unacceptable for failing to meet a material requirement or reopened discussions to permit the firm to correct this deficiency.”  The GAO sustained Paradigm’s protest.

When a solicitation sets forth specific technical requirements, offerors must meet those requirements or be deemed technically unacceptable.  As the Paradigm decision demonstrates, an agency cannot properly gloss over a known material deficiency as a mere “weakness.”

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