GAO recently sustained a challenge to an agency’s award decision where the awardee failed to provide a required letter of commitment for an individual proposed for a key personnel position. GAO said that the awardee failed to satisfy a material solicitation requirement, making the agency’s award improper.
IT Objects, LLC, B-418012 (Jan. 2, 2020), involved a Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) Solicitation for information technology services, including software development and systems administration, for the Alaska Region of the National Marine Fisheries Service.
The solicitation, an 8(a) Program set-aside, utilized Federal Acquisition Regulation (FAR) part 12, for the acquisition of commercial items, in conjunction with FAR part 15, for contracting by negotiation. It provided for a best-value tradeoff, with the non-price evaluation factors (technical capability, staffing and management plan, and past performance) being significantly more important than price.
As relevant to the protest, the staffing and management plan factor required offerors to propose key personnel with resumes relating to the performance work statement and letters of commitment. And it designated the Project Manager, Programmer Analyst, and Systems Administrator as the “key personnel.”
The agency received five proposals and made award to the one whose “technical superiority warranted its higher price,” which the agency felt represented the best value to the government.
The protester alleged that the awardee “made a material misrepresentation in its proposal by offering an individual as one of its key personnel who was not available.” It also argued that the awardee “failed to comply
with the solicitation’s requirements and should have been deemed unacceptable because it did not include a letter of commitment for this individual.” As such, the protester claimed the agency failed to reasonably evaluate proposals under the three non-price factors and that the ultimate award decision was unreasonable.
GAO found that the awardee had not made a material misrepresentation about its key personnel. But “since the proposal did not include a letter of commitment from this individual,” GAO found that the awardee “failed to comply with a material solicitation requirement, and the award was improper.” And it sustained the protest on that basis.
Regarding the material representation claim, GAO explained:
The issue of whether personnel identified in an offeror’s proposal, in fact, perform under the subsequently-awarded contract is generally a matter of contract administration that our Office does not review. Nonetheless, our Office will consider allegations that an offeror proposed personnel that it did not have a reasonable basis to expect to provide during 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 its decisions frequently refer to this as the “bait and switch,” and in order to establish an impermissible “bait and switch,” the protester must show the following:
(1) 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) the misrepresentation was relied on by the agency, and (3) the agency’s reliance on the misrepresentation had a material effect on the evaluation
results.
GAO reiterated its standard that “an offeror may not represent the commitment of key personnel based only on a hope or belief that the offeror will ultimately be able to make good on its representation.” But GAO found that the awardee’s proposal did “not represent that it ha[d] received any particular commitment from the individual proposed.” Instead, the awardee merely named personnel for each key position and said that it “intend[ed] to perform the effort with those individuals.” And GAO concluded:
In short, there is no evidence in the record that [the awardee] made any specific representation concerning a commitment to perform by the individual proposed for the SA 5 position, even though the RFP required such a commitment.
GAO also found, based on the individual’s statement that “he would
consider working on the contract with whichever team won the procurement competition[,]” that the awardee appeared to have a reasonable basis to conclude that the individual would serve in the position upon award.
Regarding the claim that the awardee failed to comply with a material
solicitation requirement, however, GAO did find a basis to sustain the protest. GAO said, “[t]he record here shows that the RFP was unequivocal about the importance placed on key personnel. Offerors were required to provide both resumes and letters of commitment for proposed key personnel.”
GAO explained:
It is a fundamental principle that an agency must evaluate proposals consistent with the terms of the solicitation and, while the evaluation of offerors’ proposals generally is a matter within the procuring agency’s discretion, our Office will question an agency’s evaluation where it is unreasonable, inconsistent with the solicitation’s stated evaluation
criteria, or undocumented.
It also explained that “a proposal failing to conform to the
material requirements and conditions of the solicitation should be considered unacceptable” in a negotiated procurement. And GAO found that “[g]enerally, a requirement for letters of commitment from key personnel constitutes a material solicitation requirement.”
Thus, GAO concluded that the awardee’s “proposal failed to comply with the material solicitation requirements for a letter of commitment for each key position” and sustained the protest.
This case is different from a recent GAO decision that similarly involved allegations of materially misrepresentation of the availability of contract personnel. This decision establishes that communications with an individual about potential performance in a key position upon award may provide a reasonable basis to conclude that the individual would work under the contract (though it is still not clear exactly how definitive the communications must be).
But this case also serves as an important reminder about solicitation requirements. No matter how good a proposal might be—or how accurately it represents the availability of personnel—the solicitation’s terms still rule. If a proposal does not meet the express requirements in the solicitation, it generally cannot receive award under GAO’s standards.
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