GAO: Key Person Unavailability Can't Be Rooted in a Non-Compete
In late October, we wrote about a Government Accountability Office ("GAO") bid protest decision that involved the availability of a key person. Just a week later, GAO published another decision on the subject, finding that because GAO does not review disputes between private parties, the existence of a non-compete cannot form the basis of demonstrating the unavailability of a key person.
The protest of Aver, LLC, B-419244, November 2, 2020, 2020 CPD ¶ ___ involves a challenge to a Department of Justice ("DOJ") request for proposal issued in support of the DOJ's Executive Office for Immigration Review ("EOIR"). Relevant here, the solicitation required offerors to propose – and provide résumés for – four key personnel positions: (1) program manager, (2) enterprise architect, (3) business process requirements analyst, and (4) quality assurance specialist.
A brief timeline of events follows:
September 8 – DOJ notified the protester that it had selected the awardee for award.
September 16 – The protester's subcontractor notified protester that one of its employees would be resigning from the company, effective September 30.
September 22 – The protester's subcontractor learned that its departing employee had accepted employment with the awardee's subcontractor to be the program manager under the contract.
In its protest, the protester asserted that the awardee materially misrepresented the availability of a key person because the protester's subcontractor and the employee had a signed non-compete that precluded the employee from working as the program manager.  As a result, the protester argued that the awardee could "not have reasonably expected this individual to be available to perform on the contract, and that the alleged misrepresentation of her availability renders the awardee’s proposal technically unacceptable." 
In requesting that GAO dismiss the protest, the intervenor (awardee) argued that "the protester’s allegations concerning the availability of the proposed program manager are predicated on the existence and enforceability of a non-compete agreement, and that [GAO] does not review such matters." In response, the protester explained that the existence of the non-compete was simply a material fact to support its argument concerning the unavailability of the key person and that it did not request GAO to enforce the terms of non-compete agreement.
Ultimately, GAO agreed with the intervenor and dismissed the protest because, in its view, the protester's arguments focused on contractual obligations under the non-compete. In so doing, GAO explained that it "will not review a protester’s allegation that the awardee will violate a non-compete agreement, as it concerns a private dispute that does not involve government action."  In that regard, GAO also noted that:
Even if [the awardee] knew of the existence of the non-compete agreement, the awardee’s ability to provide the individual for performance of the task order would only be affected if the agreement was enforceable. In other words, a non-compete agreement would need to be enforced by a court or forum with the power to prohibit [the awardee's subcontractor] from employing the individual, thereby precluding [the awardee] from providing her to perform on the task order. Because our Office does not review private disputes such as the enforceability of non-compete agreements, we cannot consider whether a non-compete agreement renders the awardee’s proposal unacceptable here.
Demonstrating that an offeror misrepresented the availability of a key person can be challenging. Unfortunately, the existence of a non-compete cannot form the basis of demonstrating a key person's availability because, as shown above, GAO will not review disputes between private parties.
 Notably, the agreement was styled as a "Non‑Disclosure, Non-Solicit, Non-Compete and Non-Disparagement Agreement."
 GAO will consider allegations that a vendor proposed personnel that it did not have a reasonable basis to expect to provide during contract 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. Ryan Assocs., Inc., B-274194 et al., Nov. 26, 1996, 97-1 CPD ¶ 2 at 8.
 See RELYANT Global, LLC, B‑413741, Nov. 21, 2016, 2016 CPD ¶ 338 at 6; see also Hendry Corp., B-400224.2, Aug. 25, 2008, 2008 CPD ¶ 164 at 3.
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