GAO just sharpened the distinction between winning and losing protest arguments related to key project personnel.
The issue turns on the question of whether the winning proposal included “material misrepresentations” – and whether the protester has the ammunition to prove it.
The decision offers a valuable lesson for contractors considering a protest on a bait-and-switch theory. That is, did the awardee misrepresent its capability to perform the contract by proposing certain key personnel when it did not have a reasonable expectation of staffing those same people on the project.
To advance a winning argument, contractors must be prepared to show that:
- The awardee knowingly or negligently misrepresented the availability of key personnel
- The agency relied on that misrepresentation, and
- The misrepresentation had a material impact on the evaluation.
Key Personnel Basics
The procurement in question was for administrative support services at the Office of Secure Transportation. As part of the key personnel factor, the RFQ required quotations to identify the resume of a proposed Program Manager.
The protester alleged (among other things) that the awardee either misrepresented the availability of the Program Manager or engaged in a bait-and-switch scheme where is intended to swap out the proposed Program Manager for a new hire not identified in the proposal.
In evaluating the claim, GAO started with this baseline statement regarding its evaluation of key personnel:
The issue of whether personnel identified in a vendor’s quotation will, in fact perform under the subsequently-awarded contract is generally a matter of contract administration that [GAO] will not review.
However, that general rule does not apply in instances where the protester presents evidence that the awardee relies on certain key personnel it knows will receive a favorable evaluation – but without a reasonable expectation those individuals will actually serve in those roles on the contract. That practice is referred to as a bait-and-switch – a material misrepresentation that is sufficient to sustain a protest.
What the Protester Could (Not) Prove
GAO found that the protester did not present evidence rising to the level of a bait-and-switch.
First, evidence regarding the awardees’ on-going recruitment effort was insufficient to prove a material misrepresentation regarding key personnel. The record showed that the awardee proposed a specific Program Manager for the contract – but at the same time had public job postings for what appeared to be the same position.
GAO was not convinced, holding that – “[E]vidence of recruitment efforts does not establish a knowing or negligent representation [that the awardee] planned to rely on a specific program manager that it did not expect to furnish during performance.”
GAO also was not persuaded by allegations that the proposed Program Manager would be unavailable because he held other positions within awardee’s company. The record showed an affirmative commitment for the role and – absent more compelling evidence – GAO would not interfere with the agency’s decision.
So When Is It a Bait-and-Switch?
For an example of bait-and-switch conduct that GAO will use to sustain a protest – look to this 2016 GAO decision.
In that protest, the record showed that the awardee’s proposal included so-called “signed” letters stating that certain key personnel were “in place” and ready to perform the work. Upon further review, the letters in question were not provided to or signed by the claimed personnel – many of whom were employed elsewhere at the time of the agency evaluation.
GAO therefore viewed the letters as an “attempt to mislead the agency” about the awardee’s ability to perform. Because there misrepresentation was material to the agency’s evaluation of the proposal for key personnel, GAO sustained the protest and excluded the (now terminated) awardee from follow-on reprocurement of the contract.
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