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#GovConThoughts: Key Person Unavailability Defense Strikes Again, Recent GAO Decision Highlights a Possible Growing Trend

Writer's picture: Joshua DuvallJoshua Duvall

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]


In November 2023, I wrote about an interesting GAO bid protest decision in which the agency defended a protest by arguing that the protester was not an interested party because the protester's key person departed the firm and it did not advise the agency of that departure. This, according to the agency, rendered the protester unawardable and therefore not an interested party with standing to protest. While GAO ultimately denied that argument, it was noteworthy given its procedural posture (i.e., raising a key personnel issue in defense as opposed to seeing the argument from the protester).


Just recently, the key person unavailability defense surfaced again, this time from the awardee. Briefly, the protest of Orion Government Services, Inc., B-422978, B-422978.2, Dec. 30, 2024, 2024 CPD ¶ __ involved a procurement for construction services for the Houston Ship Channel System. Following the notification of award and debriefing, the protester filed a protest challenging multiple aspects of the agency’s evaluation and best value decision.  But prior to getting to the meat of the protest, GAO dealt with the awardee's (intervenor) request for dismissal, which was filed along with its comments.  


According to the intervenor, the protester should have been rated technically unacceptable because "public information" showed that the protester knew that one of its proposed key personnel became unavailable after proposal submission, but prior to award. This meant, in the intervenor's eyes, that the awardee did not have standing to protest. The agency, in turn, joined the argument and asserted that the protester was not an interested party with standing to protest because it would not be eligible for award (its technical unacceptability) even if its protest were sustained.


In response, the protester did not dispute the assertion that it knew its key person became unavailable prior to award. Instead, the firm countered that its proposal remained eligible because it proposed two key personnel for the position. It also argued that the agency and intervenor did not cite one case where the "protester was deemed to not be an interested party where one of its key personnel was alleged to have ceased employment with the company."  GAO did not bite and sided with the defense. 


Ultimately, GAO dismissed the protest. In so doing, it found that the protester did not contest that it knew its key person became unavailable before award and did not demonstrate that it reasonably understood that the key person remained available despite his departure from its employment with the firm. In its view, GAO had no basis to deviate from its prior decisions regarding key personnel unavailability.


Takeaway


While this decision may signal a growing trend in bid protests, it nevertheless highlights one powerful way that intervenors and agencies alike can defend a bid protest.  That is, where a solicitation contemplates key personnel and this argument is lodged by the agency or intervenor, and is successful, it can potentially end the protest because the protester's proposal would be unacceptable, meaning that it is not an interested party with standing to protest.


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