How easy would be for you to obtain resumes and signed letters of intent from your competitor’s employees?
If you answered “not very,” you’re not alone. A small business contractor, Maritime Institute Inc., recently protested the terms of a Navy solicitation, complaining that the solicitation unreasonably forced Maritime to obtain resumes and signed commitment letters from prospective employees, including any incumbent personnel Maritime intended to hire. According to the GAO, however, the Navy’s requirement was perfectly reasonable–notwithstanding any competitive advantage to the incumbent.
The GAO’s decision in Maritime Institute Inc., B-407254 (Nov. 20, 2012) involved a Navy small business set-aside solicitation for logistics training for civilian mariners. The solicitation called for offerors to provide 13 key personnel, and established minimum qualifications for those personnel. The solicitation stated that proposals must include resumes for all proposed key personnel, as well as a signed letter of intent for any individual not already employed by the offeror.
Maritime Institute Inc. filed a pre-award GAO bid protest, challenging the terms of the solicitation. Maritime stated that when it reached out to the incumbent staff, Maritime was informed that the incumbents could not provide resumes or commitment letters, as it would violate the incumbents’ employment contracts.
Maritime argued that although it could recruit non-incumbent personnel to fill the key positions, non-incumbents would not be as desirable due to their lack of experience. Maritime contended that without the ability to offer the incumbent employees, it would not be able to provide the best value to the government, and that the requirement for resumes and commitment letters conferred an unfair competitive advantage on the incumbent. Maritime also argued that the requirement was inconsistent with Executive Order 13495 (Nondisplacement of Qualified Workers Under Service Contracts), which establishes a policy requiring follow-on contractors to hire incumbent service employees in certain circumstances.
The GAO wrote that the agency’s requirement for resumes and signed commitment letters was reasonably designed to “ensure that proposed key personnel . . . are qualified, and then to ensure that the key personnel on whom the evaluation is based are in fact available for performance.” The GAO dismissed the portion of the protest dealing with Executive Order 13495, writing that “[c]ompliance with an executive order is a matter concerning executive branch policy, which we do not review under the circumstances here.” The GAO denied the remainder of Maritime’s protest.
For me, the Maritime Institute GAO decision presents a tricky balancing question. On the one hand, it is difficult to argue with the proposition that a procuring agency should be able to require offerors to demonstrate that proposed personnel will actually be available for contract performance. On the other, there does seem to be something a little unfair about a requirement, however reasonable, that seems to favor the incumbent contractor.
It will be interesting to see whether the GAO’s position will change if the FAR Council ever gets around to adopting a clause implementing Executive Order 13495 (something that was supposed to have occurred several years ago). After all, if making good faith offers to incumbent personnel is a contractual requirement, a contractor like Maritime could be stuck between a rock and a hard place, unable to provide resumes and letters of commitment from incumbent personnel, but also legally unable to offer anyone else as a substitute.