Key Personnel Unavailability Leads to Sustained GAO Protest

Key personnel are an important term in many proposals. Establishing the resume, experience, and availability of personnel that will perform major functions of a contract is a key (dad joke) aspect of a winning proposal. As one offeror found out, when key personnel become unavailable, the technical acceptability of the entire offer can be in jeopardy.

In Ashlin Management Group, B-419472.3,B-419472.4, GAO sustained the second protest of an award to Booz Allen Hamilton. The protester, Ashlin Management Group, alleged that the awardee’s proposal should have been rated as technically unacceptable due to the unavailability of key personnel.

On September 9, 2020, the agency issued the solicitation to federal supply schedule contract holders. The solicitation sought quotations for a vendor to assist the National Office of Job Corps in identifying, developing, and implementing career pathway programming with a “focus on transitioning Job Corps from a career technical training program to a career technical education program.” The solicitation envisioned a best-value trade-off analysis considering price and non-price factors. The second factor in the evaluation was, “key personnel, staff experience and qualifications (key personnel).”

The agency received seven timely offers, and in December 2020, the agency selected Booz Allen Hamilton as the awardee. Ashlin protested the award decision to GAO. In response, the agency decided to take corrective action. The agency stated it would reconsider the quotations, and make a new award decision. GAO dismissed the first protest as academic.

Following reconsideration, on August 13, 2021, the agency informed Ashlin that Booz Allen Hamilton was once again the awardee. The agency determined that the awardee’s proposal represented the best value to the government. On August 20, 2021, Ashlin again protested the award. Ashlin made numerous allegations, including arguing that the awardee’s quotation became technically unacceptable during the corrective action period due to the unavailability of one of the quoted key personnel. 

GAO dismissed or denied all of Ashlin’s grounds, except for the key personnel argument. GAO found that the awardee had actual knowledge of the unavailability of one of its quoted key personnel during the corrective action period, and failed to notify the agency. Specifically, the key person resigned from the awardee during the corrective action period.

As part of the original proposal, the awardee stated it would utilize one of its current employees to fill the key personnel role of senior project specialist. In March 2021, that employee resigned, and subsequently left the awardee. GAO found that at that point, the agency was still re-evaluating the proposals under the corrective action.

GAO utilized its prior decision in stating, “[o]ur Office has explained that vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals, or as here quotations.”  MindPoint Group, LLC, B-418875.2, (Oct. 8, 2020).

The turning point for GAO is whether the entity knew that key personnel had become unavailable. GAO reasoned, “An offeror or vendor generally is required to advise an agency when it knows that one or more key employees have become unavailable.   The duty to notify does not arise, however, if an offeror or vendor does not have actual knowledge of the employee’s unavailability. This is a key distinction, actual knowledge is the operative language GAO utilized.

We know that GAO sustained the protest due to the awardee’s failure to notify the agency of the departure of key personnel. Let’s say the awardee notified the agency of the departure, what then? GAO found that the agency can either evaluate the proposal as submitted, without considering the resume of the unavailable employee, or it can open discussions to permit the offeror to amend the proposal.

The awardee stated it would substitute the key personnel, or even potentially re-hire the same person. GAO was not persuaded by these arguments. GAO, instead, found it was the awardee’s duty to notify the agency when the company had actual knowledge of the unavailability. Attempts to correct the error after the fact found no sympathy from GAO. Additionally, GAO found that, even in corrective action reevaluations, this duty remains.

The takeaway here is for offerors to ensure that the representations in the submitted offer remain correct. Should an offeror obtain actual knowledge of a change in material aspects of its proposal, it must notify the agency. In this scenario, the offeror can remedy technical acceptability, but only when the offeror makes the agency aware of the intervening circumstances. Failure to do so may be met with the same fate as this awardee.

Offerors should always take heed that, even in a corrective action, the requirements remain. While GAO will not penalize an awardee who did not have actual knowledge, that line is too thin to walk. Therefore, when in doubt, notify the agency and seek to remedy errors on the front-end.

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