This article is an excerpt from the 2023 edition of The Art of Tendering: A Global Due Diligence Guide.
As recent U.S. Government Accountability Office (GAO) cases illustrate, bidders can gain an unfair advantage by misrepresenting the qualifications of their proposed team members or by misrepresenting the availability of those individuals to perform the required work. Those misrepresentations can compromise the validity of evaluation and award decisions.
For example, in its November 2021 decision in Ashlin Management Group, the GAO ordered a re-evaluation after finding that the winning bidder failed to disclose the unavailability of a key individual named in its original bid. The dispute dealt with a Request for Quotations (RFQ) issued by the Department of Labor’s Employment and Training Administration for consulting services. The complainant argued that the agency should have evaluated its competitor’s winning quote as technically unacceptable due to the unavailability of one of that bidder’s quoted key personnel.
The GAO agreed, finding that winning bidder “had actual knowledge of the unavailability of one of its quoted key personnel during the corrective action period and failed to notify the agency.” More specifically, the GAO found that prior to the contract award, the winning bidder’s named senior project specialist submitted a resignation letter, but the bidder failed to notify the Department. As the GAO stated, “our Office has explained that vendors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals”. The GAO found that the winning bidder “had an obligation to inform the agency of the unavailability of this person, which it did not do.” The protest was therefore sustained, and the GAO ordered a re-evaluation.
Similarly, in its December 2021 decision in Insight Technology Solutions, Inc., the GAO ordered the government to rescind a contract award and conduct a re-evaluation after finding that the original award was based on the winning bidder’s misrepresentation regarding the experience of a key individual. The dispute dealt with a solicitation issued by the Department of Homeland Security for information technology support services. The complainant alleged that the winning bidder’s proposal contained a material misrepresentation regarding the experience of that individual and that this compromised the validity of the contract award decision.
The GAO agreed, stating that “a material misrepresentation in a proposal can provide a basis for disqualifying a proposal and canceling a contract award based upon the proposal.” The GAO also confirmed that “a misrepresentation is material where the agency relied upon it and it likely had a significant impact upon the evaluation.” Further, the GAO noted that “where a solicitation states that the qualifications of key personnel will be evaluated, and a proposal fails to demonstrate that key personnel hold qualifications that the solicitation requires them to possess, the proposal may be evaluated as unacceptable.” Further, the GAO stated that it “will sustain a protest where the agency unreasonably concludes that a proposed key person meets minimum experience requirements.”
The GAO concluded that the winning bidder failed to demonstrate that its proposed project operations manager held the past experience required in the solicitation and that this had a material adverse impact on the award decision:
Here, based on our conclusions above, A P Ventures could not have properly represented its proposed project operations manager possessed 9 years of relevant experience, or even the required minimum of 5 years experience managing projects. Given that the agency relied exclusively on the contents of the proposals when evaluating key personnel qualifications, had A P Ventures properly represented its proposed project operations manager’s relevant experience, the agency could not have reached the conclusion it did here, that this proposed key person exceeded or even met the FOPR’s minimum requirements. We therefore conclude that A P Ventures’s misrepresentation had a material effect on the evaluation because it formed the basis for the agency conclusions that A P Ventures’s proposal both met and exceeded the proposed project manager key person minimum qualifications.
Given the impact of this misrepresentation, the GAO determined that the contract award should be terminated, and that the Department should conduct a re-evaluation.
Similarly, in its May 2022 decision in Sehlke Consulting, LLC, the GAO ordered a re-evaluation after finding that the government knew prior to award that one of the winning bidder’s key personnel had left the bidder’s organization and was no longer available to perform the work. The dispute dealt with a Request for Proposals (RFP) issued by the Department of Defense for combined finance support services.
The GAO found that the winning bidder informed the Department of the individual’s departure during the evaluation process but that the Department failed to consider the impact of that departure on its evaluation:
Thus, the undisputed facts reflect the following: (1) KPMG’s proposed senior financial consultant submitted a letter of resignation to his employer and provided a firm resignation date predating the RFP’s anticipated February 1 performance commencement date; (2) KPMG notified the government of the individual’s resignation prior to the agency completing its evaluation and award decision; (3) the agency did not consider the impact of the resignation on KPMG’s proposal or conduct discussions; and (4) the individual in fact left the employ of KPMG’s subcontractor prior to the start of the resulting contract’s performance. We find that the agency had actual notice with KPMG’s pre-award notice that one of its proposed key persons had resigned, and therefore would not be available to perform on the contract as KPMG had proposed.
The GAO ordered the Department to re-evaluate the proposal or reopen the process to allow all proponents to submit revised proposals.
Finally, in its July 2022 decision in ISHPI Information Technologies, Inc., the GAO found that the government’s contract award was invalid since that winning bidder lacked the required level of education for some of its proposed personnel. The dispute dealt with a Request for Quotations (RFQ) issued by the Department of Energy for cybersecurity assessment and authorization support services. The complainant challenged the evaluation, alleging that “the agency misevaluated quotations and made an unreasonable source selection decision.” The GAO agreed, finding that winning bidder’s proposal failed to satisfy the minimum education and experience requirements set out in the RFQ for certain positions. As the GAO stated, “the qualifications identified for these positions did not meet any of the required minimum qualifications mandated by the RFQ for performance of the agency’s requirements.” The GAO therefore ordered that the award be terminated and that the agency conduct a re-evaluation of the original submissions.
As these cases illustrate, purchasing institutions should establish evaluation practices that guard against bidders who misrepresent the experience, qualifications, or availability of their proposed bidding team members since bidders who gain an unfair advantage through misrepresentations can compromise the validity of an evaluation and award decision.
