Missing Commitment Letters Result in Re-Evaluation

By: Paul Emanuelli

In its January 2020 decision in IT Objects, LLC, the U.S. Government Accountability Office (GAO) ordered a re-evaluation after finding that the government awarded a contract to a proponent that failed to submit certification letters for proposed project staff. The dispute dealt with a Request for Proposals (RFP) for software development and systems administration services. A losing proponent challenged the contract award, asserting that the contract was improperly awarded to a competitor that failed to provide commitment letters for proposed personnel as required in the RFP. The GAO agreed:

Technically Unacceptable Proposal

The protester further argues that ARJV’s proposal failed to comply with a material solicitation requirement because it did not include a required letter of commitment from the individual proposed for the SA 5 position. We agree.

The record here shows that the RFP was unequivocal about the importance placed on key personnel. Offerors were required to provide both resumes and letters of commitment for proposed key personnel. RFP at 68. Furthermore, the RFP advised offerors that substitutions for key personnel could not be made without the prior consent of the government. Id. at 23.

As the GAO noted, government evaluators must evaluate proposals in a manner consistent with the terms of the solicitation and with the evaluation criteria set out in that solicitation:

It is a fundamental principle that an agency must evaluate proposals consistent with the terms of the solicitation and, while the evaluation of offerors’ proposals generally is a matter within the procuring agency’s discretion, our Office will question an agency’s evaluation where it is unreasonable, inconsistent with the solicitation’s stated evaluation criteria, or undocumented. Exelis Sys. Corp., B-407111 et al., Nov. 13, 2012, 2012 CPD ¶ 340 at 5. In negotiated procurements, a proposal failing to conform to the material requirements and conditions of the solicitation should be considered unacceptable. DataSource, Inc., B-412468, Feb. 16, 2016, 2016 CPD ¶ 59 at 3; Special Operations Grp., Inc., B-287013, B-287013.2, Mar. 30, 2001, 2001 CPD ¶ 73 at 4. Generally, a requirement for letters of commitment from key personnel constitutes a material solicitation requirement. DataSource, Inc., supra; Special Operations Grp., Inc., supra, at 5.

The GAO found that while the winning proponent submitted nine resumes in response to the requirement of three positions, that proponent failed to provide the required commitment letter for one of those positions:

Despite the fact that the solicitation only identifies three key positions, ARJV submitted nine resumes: one each for Program Manager; Administrative Project Manager; Business Manager; Contracts Manager; Project Controls Manager; and the SA 5 position; and three for Sr. Programmer/Analyst (Programmer 5). AR, Tab 14, ARJV Technical Proposal attach. B. ARJV also provided nine letters of commitment; however, two of the letters were from one individual for two different positions. AR, Tab 14, ARJV Technical Proposal attach. C. No letter of commitment was provided from the individual proposed for the SA 5 position.

The GAO rejected the government’s after-the-fact argument that evaluators accepted a teaming agreement with another company that was included in the winning proposal as a substitute for the commitment letter, finding no contemporaneous evidence that the evaluators had actually accepted that teaming agreement at the time as a substitute for the required letter. In fact, the GAO found that the teaming agreement made no reference to the required position:

The agency now acknowledges that ARJV’s proposal did not include a letter of commitment for the SA 5 position. In its supplemental agency report, however, the agency argues that ARJV’s proposal includes the teaming agreement between AG and the company owned by the individual proposed for the SA 5 position. Although there is no contemporaneous evidence in the record for this view, the agency now argues–in its supplemental response–that it views the teaming agreement as a reasonable substitute for a letter of commitment. Suppl. MOL at 8-9. We see no support for this contention.

First, the record contains no evidence that at the time of its evaluation and award decision, the agency considered the teaming agreement as a substitute for a letter of commitment. Not only is the contemporaneous record devoid of any reference to the teaming agreement as a substitute for a letter of commitment, but, indeed, it appears that at the time of evaluation and award decision, the agency did not recognize that ARJV’s proposal failed to include a letter of commitment from the individual proposed for the SA 5 position. In this regard, the evaluators noted, as part of one of their findings of significant strength pertaining to ARJV’s proposal, that the proposal included “commitment letters for all key personnel.” AR, Tab 33, SEB Memorandum, at 10. Likewise, in her award decision, the contracting officer made reference to “the fact that [ARJV] provided letters of commitment for all key personnel.” AR, Tab 37, Award Memorandum, at 21.

Second, there is nothing in the teaming agreement that identifies any particular employee for a key personnel position. Rather, the teaming agreement provides that the company owned by the individual proposed for the SA 5 position will serve as a subcontractor, and “will be responsible for primarily technical tasks described in the preliminary Performance Work Statement for IT Support to NMFS Alaska Region.” AR, Tab 14, ARJV Technical Proposal, at 56.

Because ARJV’s proposal failed to comply with the material solicitation requirements for a letter of commitment for each key position; because the record provides no support for the contention that, at the time of its evaluation and award decision, the agency concluded that the teaming agreement between AG and the company owned by the individual proposed for the SA 5 position would serve as a reasonable substitute for the necessary letter; and because there is no evidence of any commitment for a key position in the teaming agreement, we sustain the protest.

The GAO therefore ordered a re-evaluation of the proposals.

As this case illustrates, government evaluators should carefully screen proposals against the evaluation requirements set out in a solicitation and maintain clear evaluation records since their failure to do can compromise the defensibility of any resulting contract award decision.