By: Paul Emanuelli
This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its December 2019 decision in T3I Solutions, LLC, the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding that the winning bidder made material misrepresentations in its bid regarding the availability of proposed personnel. The dispute dealt with a Department of the Airforce Request for Proposals (RFP) for courseware and training services. A losing bidder challenged the contract award, alleging that the winning bidder proposed an incumbent employee to perform its work even though it had no reasonable basis to assume that the individual would be available to perform that work. The GAO agreed:
DISCUSSION
T3I argues that Darton’s proposal contained material misrepresentations because Darton proposed an incumbent employee to serve as the sole operators instructor when it did not have a reasonable expectation that this individual would be available for performance. T3I asserts that Darton did not contact this individual prior to the submission of proposals and did not obtain permission to use the qualifications of this individual in its proposal. Comments and Supp. Protest, Nov. 7, 2019, at 12-15; Protester’s Supp. Comments, Nov. 19, 2019, at 2-6. In support of its position, T3I submitted a declaration from this individual stating that he had not been contacted by Darton or had any discussion with the awardee regarding potential employment opportunities prior to the time for submission of proposals. Comments and Supp. Protest, Exh. A, Declaration, Nov. 4, 2019, at 1.
In their responses, neither the agency nor the intervenor dispute this individual’s declaration of facts. Instead, the intervenor simply asserts that it “made no specific representations” in its proposal and that it “had a reasonable basis to believe [this individual] would be available to work for Darton upon award.” Intervenor’s Supp. Comments, Nov. 19, 2019, at 1-2. The agency and the intervenor further argue that there was no misrepresentation because “[t]he solicitation did not require offerors to provide commitment letters or representations from employees that it planned to use to staff the effort, nor did Darton represent that it had obtained these from [this individual].” Supp. Contracting Officer’s Statement and Memorandum of Law (COS/MOL), Nov. 15, 2019, at 6; see also Intervenor’s Supp. Comments at 1-3.
The protester asserts in response that “none of these points support the conclusion that what Darton did here was acceptable.” Protester’s Supp. Comments at 3. T3I reiterates its position that Darton, among other things, presented this individual “as a member of its team” without “any other conditional language.” Id. T3I further contends that “Darton was not candid” about how it presented its proposal because that “would not have been as impressive as specifically naming [this individual] and touting his particular experience doing the precise tasks of this RFP.” Id. In the protester’s view, “Darton leveraged [this individual’s] experience in order to boost its chances of receiving favorable ratings” and for the agency to find that its proposal was technically acceptable. Id.
For the reasons discussed below, we agree with the protester, and we sustain the protest on this basis.
In fact, the GAO found that the winning bidder had no basis on which it could offer the proposed individual to perform its contract:
Here, we conclude that Darton represented that it would provide this individual for the operators instructor position, whom it did not have a reasonable basis to expect to furnish during contract performance. First, the record shows that Darton represented in its proposal that it based its personnel plan on incumbent employees, including the incumbent operators instructor. Darton’s proposal specifically stated, among other things, that its personnel plan was based on “the mix of incumbent employees who will continue employment in the follow-on effort[.]” AR, Tab 8, Darton Proposal, at 9 (emphasis added). Darton’s proposal then identified this individual by name; stated that he “currently serves as the [] instructor and program manager for the incumbent contractor” and “brings the expertise and know-how to conduct this [crew resource management training] program”; and detailed his qualifications, experience, and credentials. Id. at 26. In this regard, the intervenor’s assertion that it “made no specific representations,” Intervenor’s Supp. Comments at 2, is contradicted by the record.
Second, the intervenor’s assertion that it “had a reasonable basis to believe [this individual] would be available to work for Darton upon award” is unsupported by the record. Intervenor’s Supp. Comments at 1. As noted above, this individual declared that he had not been contacted by Darton nor had any discussion with the awardee regarding potential employment opportunities prior to the time for submission of proposals. Comments and Supp. Protest, Exh. A, Declaration, at 1.5 Darton does not dispute this individual’s declaration. In this regard, we also note that intervenor’s counsel requested–in preparing to submit supplemental comments–that it be permitted to “discuss with Darton how they located the prospective employees identified in their proposal.” Darton Request for Approval to Discuss a Particular Issue, Nov. 18, 2019, at 1. The parties and GAO expressed no objection to the request. Yet, in its subsequently filed supplemental comments, the intervenor offered no such explanation. Third, even were we to acknowledge the intervenor’s assertion that it “had a reasonable basis to believe [this individual] would be available to work for Darton upon award[,]” Intervenor’s Supp. Comments at 1, we note that speculation cannot reasonably support Darton’s inclusion of this individual in its proposal. As our Office has recognized, it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor. Invertix Corp., B-411329.2, July 8, 2015, 2015 CPD ¶ 197 at 6. However, an offeror may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation. ManTech Advanced Sys. Int’l, Inc., B-255719.2, May 11, 1994, 94-1 CPD ¶ 326 at 13; see also ACS Gov’t Servs., Inc., supra, at 9-10 (awardee’s misrepresentations may be material, even where they were not intentionally misleading). In the absence of any other explanation in the record, we cannot agree that Darton had a reasonable basis to propose this individual.
The GAO also determined that the misrepresentation was material since the evaluators relied on that information in making their evaluation and award decision:
We also conclude that the misrepresentation here is material because the agency relied on Darton’s proposed use of this individual to meet a minimum pass/fail requirement. As noted above, the contractor would be required to provide instructors to train operators, with the requirement that “[o]perators will continue to receive [training] without a break from the previous contract.” RFP PWS at 3, 17. Moreover, the RFP required offerors to “[s]ubmit a manning level and personnel mix plan for all workload identified in the PWS to include all instructors, courseware developers and any other required positions.” RFP at 53. The RFP also advised that the agency would evaluate technical proposals on an acceptable/unacceptable basis, which would include considering qualifications noted in the requirements of the PWS. Id. at 59; RFP PWS at 17.
The GAO therefore ordered a re-evaluation.
As this case illustrates, government evaluators should be careful to guard against bidder misrepresentations by establishing mechanisms to verify critical information contained in a proposal since the failure to do so can compromise the defensibility of award decisions made in reliance of those misrepresentations.
