Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update offers brief summaries of key developments for government contracts legal, compliance, contracting, and business executives.

Protest Cases

AccelGov, LLC v. United States, Nos. 23-693C, 23-720C Fed. Cl. (July 20, 2023)

• Court of Federal Claims Judge Solomson issued the latest in a growing line of cases that explore when an agency’s proposed corrective action moots an ongoing bid protest.
• Two protesters filed post-award challenges to the agency’s evaluation and award on various grounds; after the protesters filed opening briefs, the government attempted to have the protests dismissed as moot, claiming that the government’s proposed corrective action effectively provided the plaintiffs with complete relief. The protesters objected, concerned with the lack of explanation provided and the possibility that corrective action may be used to justify the initial award decision.
• Judge Solomson explained that “the government lacks carte balance to end cases unilaterally – whether via a voluntary remand or dismissal for mootness – simply by calling a mulligan….” He ultimately denied the government’s motion, without prejudice, for failure to provide sufficient detail of the proposed corrective action to establish that the plaintiffs’ claims were moot.

This case reveals yet another significant difference between bid protest practice at the GAO and Court of Federal Claims. GAO routinely dismisses protests as academic any time an agency files a statement of intent to take corrective action, so long as the corrective action will result in a new award decision. At the court, whether the agency seeks remand or dismissal, at least some judges will scrutinize the request and take protester objections seriously.

Special Counsel Nathan Castellano discussed similar corrective action issues in an article published in The Nash & Cibinic Report, which is cited in the AccelGov opinion.

KPMG LLP v. United States, No. 22-866 Fed. Cl. (July 3, 2023)

• In another decision distinguishing the court from GAO regarding key personnel availability, Judge Smith held that it was arbitrary and capricious for the agency to follow GAO’s recommendation to disqualify KPMG from the re-evaluation on the basis that its key person was unavailable.
• In September 2021, KPMG named Mr. H as one of its proposed key personnel. On January 11, 2022, Mr. H announced his intent to resign, and KPMG notified the agency of the planned resignation on January 18, 2022. KPMG was selected for award on January 27, 2022, and Mr. H officially left KPMG the next day.
• Following the award to KPMG, a disappointed offeror protested before GAO that the agency had misevaluated KPMG’s proposal regarding Mr. H’s availability. GAO sustained the protest, finding that it was unreasonable for the agency to base its evaluation on a key person that KPMG had no realistic expectation of performing the contract. The agency followed GAO’s recommendation and re-evaluated proposals to find that KPMG’s proposal to be technically unacceptable for not meeting the solicitation’s key personnel requirements.
• In contrast to GAO, the court found that at the time of proposal submission, KPMG had a reasonable belief that Mr. H would be available to perform the contract. The court further noted that even after Mr. H notified KPMG of his intent to resign, KPMG continued trying to convince Mr. H to stay. Thus, contrary to GAO’s finding, Mr. H’s resignation was not “definitive” until Mr. H actually left after the contract was awarded.
• Under the court’s rule, “key personnel are unavailable when they are, in fact, no longer working with their employer.” Notably, in rejecting GAO’s approach, the court emphasized the public policy implication that the agency only disqualified KPMG because it had voluntarily notified the agency of Mr. H’s planned resignation; allowing disqualification based on this preemptive disclosure would only “encourage contractors to ‘hide the ball’ regarding its key personnel.”

This case highlights the different approaches GAO and the court take when key personnel become unavailable after proposal submission. Contractors should be aware that their response to unavailable key personnel may be subject to differing standards and outcomes depending on the protest forum.

B&B Medical Services, Inc., B-414471.7 et al. (July 24, 2023)

• GAO denied a protest alleging that the awardee misrepresented the availability (and qualifications) of key personnel.
• Although the solicitation did not require offerors to submit names or information regarding key personnel, the awardee’s proposal included spreadsheets listing “key personnel” as well as copies of licenses for those personnel. Based on these spreadsheets, the protester argued that a significant percentage of the “key personnel” identified in the awardee’s proposal were unavailable at the time of the proposal, later became unavailable, or were unable to perform the contract because of expired licenses.
• In order to establish that an offeror engaged in a bait and switch, a protester must show “(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.”
• On the first element, GAO found that the protester’s proposal lacked any discussion of how it intended to rely on the key personnel and made no mention of them other than including their names in spreadsheets. GAO thus distinguished this case from others where key personnel were held up as important parts of a technical or management approach.
• GAO similarly found that the agency did not rely upon the awardee’s key personnel; the only non-price evaluation factors were wholly unrelated. Indeed, in evaluating the awardee’s experience, the evaluators gave no indication that they even read the awardee’s list of proposed key personnel.

As we have covered previously, allegations of misrepresenting key personnel availability and qualifications remain an area ripe for protest. But the terms of the solicitation, the precise nature of the proposal representations, and the evaluation record generally are critical factors in determining the strength of the argument.

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