GAO Sustains Challenge Based on Misrepresentation of Incumbent Staff Availability

It’s generally a pretty high bar to argue the ol’ “bait and switch” concerning what personnel will actually perform a contract. But specifically naming a crucial employee of the incumbent in your proposal—without ever talking to that employee about working on the new contract—can meet the bar in a GAO protest.

GAO’s decision in T3I Solutions, LLC, B-418034 (Dec. 13, 2019), concerned the the Air Force’s best-value award to Darton Innovative Technologies, Inc. (Darton), for courseware development and training services for the Air Force operators and Security Forces responsible for handling intercontinental ballistic missiles.

The award was to be made on a best-value trade-off basis, weighing three factors: mission capability (technical), past performance, and price. According to the RFP, technical acceptability and past performance, when combined, would be approximately equal to price. And for the technical factor, the Air Force would evaluate technical proposals on an acceptable/unacceptable basis.

The awardee was required to provide all personnel, including instructors or subject matter experts. And because the predecessor contract had already established training for the operators, the RFP specifically required that the operators continue to receive training “without a break from the previous contract.”

The Air Force received two proposals and found both technically acceptable. Darton’s proposal identified an individual by name for the operators instructor position who served as the “instructor and program manager for the incumbent contractor” and who, Darton claimed, “brings the expertise and know-how to conduct this [crew resource management training] program.” Regarding its personnel plan development, the awardee’s proposal said:

We 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.

The Air Force found that Darton’s proposed instructors met the qualifications requirements and concluded that its lower-priced proposal presented the best value to the government.

T3I Solutions, LLC (T3I), the incumbent contractor, protested the award on the basis that the awardee had misrepresented the availability of proposed personnel and also questioned the price and best-value evaluation. The protester alleged that the awardee had proposed an incumbent employee to serve as the sole operators instructor without a reasonable expectation that this individual would be available for performance.

T3I submitted a declaration from Darton’s purported employee stating that Darton had not contacted him prior to proposal submission and did not have permission to use his qualifications in its proposal. Darton did not dispute this declaration. Instead, it argued that it “made no specific representations” in its proposal and that it “had a reasonable basis to believe” the individual would be available to work.

The Air Force agreed with Darton that there was no misrepresentation because “[t]he solicitation did not require offerors to provide commitment letters or representations from employees that it planned to use to staff the effort, nor did Darton represent that it had obtained these from [this individual].”

But T3I insisted that Darton had presented this individual “as a member of its team” without “any other conditional language.” The protester further alleged that the awardee’s proposal “would not have been as impressive” without “specifically naming [this individual] and touting his particular experience doing the precise tasks of this RFP,” and that doing so increased its chances that the agency would find its proposal technically acceptable.

In reaching its decision, GAO explained, “[t]he issue of whether personnel identified in an offeror’s proposal, [will] in fact, perform under the subsequently-awarded contract is generally a matter of contract administration that our Office does not review.” But GAO explained:

Nonetheless, our Office will consider allegations that an offeror proposed personnel that it did not have a reasonable basis to expect to provide during contract performance in order to obtain a more favorable evaluation, as such a material misrepresentation has an adverse effect on the integrity of the competitive procurement system.

GAO explained that this was commonly referred to as a “bait and switch[,]” and to establish an impermissible “bait and switch,” the protester must show the following three factors:

(1) 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, (2) that the misrepresentation was relied on by the agency, and (3) that the agency’s reliance on the misrepresentation had a material effect on the evaluation results.

GAO concluded that Darton had “represented that it would provide this individual for the operators instructor position, whom it did not have a reasonable basis to expect to furnish during contract performance.”

GAO also found that Darton had “represented in its proposal that it based its personnel plan on incumbent employees, including the incumbent operators instructor.” The fact that Darton had identified the employee by name, leveraged his expertise, and “detailed his qualifications, experience, and credentials” led GAO to find that Darton had, in fact, made the specific representations it denied making.

Additionally, Darton had no reasonable basis to believe the individual would work for it upon award of the new contract. GAO explained:

As noted above, this individual declared that he had not been contacted by Darton nor had any discussion with the awardee regarding potential employment opportunities prior to the time for submission of proposals.

GAO noted that, even if Darton had a reasonable belief that the individual would be available to work for it upon award, “speculation cannot reasonably support [its] inclusion of this individual in its proposal.” GAO explained:

As our Office has recognized, it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor. However, 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.

Finally, GAO found that this misrepresentation was material, since “the agency relied on Darton’s proposed use of this individual to meet a minimum pass/fail requirement.” In reaching this decision, GAO discussed the RFP’s requirement that the operators continue to receive training without a break in the contracts. It also discussed the requirement for submission of a personnel plan for all required positions.

GAO found that Darton’s proposed use of the incumbent instructor allowed it to meet the agency’s requirement that the operators receive continuous training. This was especially significant given that this was the only individual Darton intended to use for that required position. The agency, therefore, “relied on this to find that Darton’s proposal met the minimum requirements.”

GAO concluded:

In sum, based on the record and the above discussion, we conclude that Darton materially misrepresented the availability of an incumbent employee in its proposal, and that the agency relied on this misrepresentation in its evaluation of Darton’s proposal as technically acceptable. Accordingly, we sustain the protest.

It is not uncommon for proposals to announce the offeror’s intent to retain the incumbent personnel. And it is generally found acceptable by GAO. Though “bait and switch” is a fairly common protest ground, the standard is generally not met by a mere assertion of intent to hire qualified incumbent staff—even if it turns out that staff is unavailable.

But in this decision GAO drew a line in the sand and showed it will sustain a challenge where the awardee names an individual, cites his or her qualification, and uses those qualifications to meet the solicitation’s minimum requirements.

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