Where Your Proposed Key Person is "Pursuing Another Offer," Let it Be
A recent Government Accountability Office ("GAO") decision highlights the nuance in navigating key personnel in government contract proposals. Where a proposed key person notifies you that she or he is "pursuing another offer," you may want to follow the late Paul McCartney's words of wisdom: Let It Be.
The protest of MindPoint Group, LLC, B-418875.2; B-418875.4, October 8, 2020, 2020 CPD ¶ ___ involved a challenge to the Department of Interior's set-aside request for quotation ("RFQ"), issued on behalf of the Department of Health and Human Services ("HHS"), for cybersecurity support services in support of the HHS Office of the Chief Information Officer. The RFQ, issued to holders of GSA IT Schedule 70 contracts, provided that the agency would make an award via best-value tradeoff using four evaluation factors: (1) technical; (2) management and key personnel; (3) past performance; and (4) price.
In the management and key personnel factor, the RFQ provided that vendors were to identify 11 key personnel positions, including the Cybersecurity Infrastructure Architect, and to offer resumes and letters of commitment for each proposed key person. Further, the RFQ provided that vendors were required to certify that the personnel would be "available at the time of award for no less than six months" and stated that "key personnel could not be substituted during the first six months of contract performance unless necessitated by sudden illness, death, or termination of employment."
Based on the record before GAO, a brief timeline of events is as follows:
May 4 – Submission deadline (awardee proposed key personnel as required under the RFQ, including the Cybersecurity Architect position)
June 8 – Awardee emailed the agency about the status of the procurement
June 8 – Agency responded that the award would be made sometime the week of June 15
June 9 – Awardee reached out to its key person for the Cybersecurity Architect position, and the key person replied that the “wait for the contract award was taking a toll on his family” and that he would be “pursuing another offer.” As a result, the awardee's President states that he believed its "proposed key person would remain on the team if the award was promptly made"
June 18 – Awardee emailed the agency regarding when an award would be made
June 22 – Awardee notified of the agency's award decision and the awardee's President claims that "he immediately contacted the proposed key person to discuss his starting date"
June 23 – Awardee posted a job listing for the Cybersecurity Architect position out of “an abundance of caution”
June 26 – Awardee notified the agency that its “[Cybersecurity Architect] decided to pursue other interests and [would] not be joining [the contract].”
July 22 – Awardee's proposed key person signed a revised employment letter agreeing to perform the Cybersecurity Architect position that he was proposed to perform
In its protest, the protester challenged various aspects of the agency's evaluation, including the unavailability of the awardee's key person for the Cybersecurity Architect position. In that respect, the protester argued that, based on the information in the intervenor's (awardee) comments, the awardee knew that its key person for the Cybersecurity Architect position was unavailable prior to award. Because the awardee failed to notify the agency of its key personnel's unavailability prior to award, the protester argued that the awardee's quotation was unacceptable. [1]
On the other hand, the intervenor argued that its June 9 communication was an example of "indecisiveness" and that it was "not definite enough to indicate unavailability, thereby requiring notice to the agency." Similarly, the agency argued that the awardee lacked actual knowledge of the key person’s unavailability and that the June 9 communication was "a courtesy notice that the key person would be entertaining or actively pursuing other potential employment opportunities, rather than an actual notice of unavailability."
Ultimately, in a situation described as a "close call," GAO could not conclude that the awardee had actual knowledge that its key person was unavailable prior to award. Specifically, in GAO's view, the key person's statement that he was "pursuing another offer" was not "sufficiently definite" to indicate that he would be unavailable. Moreover, while the awardee noted that there might have been a problem, GAO took the position that a reason to question the availability of a proposed key person is "not equivalent to having actual knowledge that the key person is unavailable." GAO denied the protest.
Takeaway
As many government contractors understand, key personnel issues can be tricky given the length of some procurements. Regardless, as GAO has regularly held, where a contractor learns – has actual knowledge – that a proposed key person becomes unavailable prior to award, the contractor is obligated to notify the agency of that material change. [2] On the other hand, where a contractor has information that introduces uncertainty as to the availability of a proposed key person, but the information is not "sufficiently definite" to indicate the key person is actually unavailable, contractors are not required to notify the agency. So remember, where your proposed key person notifies you that she or he is simply "pursuing another offer," you may want to let it be. [3]
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[1] GAO reiterated its rule regarding the unavailability of key personnel is as follows:
Our Office has explained that vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals. Council for Logistics Research, Inc., B-410089.2, B-410089.3, Feb. 9, 2015, 2015 CPD ¶ 76 at 6-7. This premise is grounded in the notion that a firm may not properly receive award of a contract based on a knowing material misrepresentation in its offer. M.C. Dean, Inc., B-418553, B-418553.2, June 15, 2020, 2020 CPD ¶ 206 at 4. While an offeror generally is required to advise an agency where it knows that one or more key employees have become unavailable after the submission of proposals, there is no such obligation where the offeror does not have actual knowledge of the employee’s unavailability. DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155 at 10.
[2] Id. Notably, when a contractor notifies an agency of the withdrawal of a key person, the agency has two options: either evaluate the proposal as submitted without considering the resume of the unavailable employee (where the proposal will likely be rejected as technically unacceptable for failing to meet a material requirement); or open discussions to permit the offeror to amend its proposal. M.C. Dean, Inc., B-418553, B-418553.2, June 15, 2020, 2020 CPD ¶ 206 at 4 (citing General Revenue Corp. et al., B-414220.2 et al., Mar. 27, 2017, 2017 CPD ¶ 106 at 22.).
[3] In a situation similar to the above ("close call"), contractors may also want to contemporaneously document – internally – the reasons why you continue to believe, despite any newly introduced uncertainty, that your proposed key person would still fulfill her or his commitment to the team in the event of an award (e.g., signed commitment letter, salary, bonus, benefits, prior relationship, etc.).
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