The BIA argues that the lack of letters of commitment was actually an insignificant matter, while Chenega argues that it viewed the nondisclosure agreements as the “functional equivalent of letters of commitment,” particularly since the RFP did not further describe the requirement for letters of commitment. E-mail from Counsel for Intervenor (Mar. 12, 2008) at 1; Intervenor’s Second Supplemental Comments at 2. Moreover, the BIA argues that NAID was not competitively prejudiced by the agency’s relaxation of this requirement in favor of Chenega. According to the BIA, even if the omission had been identified as a deficiency for Chenega under the personnel resources factor, Chenega would nevertheless have been rated superior to NAID overall under the other non-price factors, and still would have received the contract award.

We disagree on each of these points, which we will address in turn. First, we note that the purpose of a requirement for an offeror to provide letters of commitment for key personnel is to preclude an offeror from proposing an impressive array of employees, being evaluated on that basis, and receiving award, even where the persons proposed had never committed themselves to the offeror, and may have had no intention of doing so. Xeta Int’l Corp., B-255182, Feb. 15, 1994, 94-1 CPD para. 109 at 9; cf. Science Applications Int’l Corp., B‑290971 et al., Oct. 16, 2002, 2002 CPD para. 184 at 6-7.[7] We also find no basis in the record for the BIA’s claim that omission of the letters of commitment could properly be considered an insignificant matter. The record here shows that the BIA overlooked the issue entirely in evaluating both Chenega’s initial and revised proposals. We also note that the BIA’s arguments that the omission of the letters of commitment is insignificant[8]--and that Chenega would have received the award, even if the agency had noticed the omission of the letters of commitment--are contrary to how the agency evaluated another offeror. They are, in essence, new assessments made in the heat of litigation, and are therefore entitled to little weight in our deliberations. Boeing Sikorsky Aircraft Support, B‑277263.2, B‑277263.3, Sept. 29, 1997, 97‑2 CPD para. 91 at 15. Second, we think the form nondisclosure agreements here cannot reasonably be seen as substitutes for letters of commitment. The nondisclosure agreement was limited to just that--a promise not to disclose information. An employee with little or no intention of working on the contract could sign the nondisclosure agreement without contradicting that intention. More generally, neither the BIA nor Chenega has shown anything in Chenega’s revised proposal that could be construed as a substitute for a letter of commitment from each of the key personnel listed. Third, even though the RFP did not specify the form or exact content of letters of commitment, and did not further explain the requirement in the instructions to offerors, we do not think these facts excuse the omission of some form of a letter of commitment; that is, a signed statement by each key employee (or prospective key employee) whose resume is submitted, which generally confirms that he or she has made a commitment to work for the offeror on the pending contract if its proposal is successful.  (Native American Industrial Distributors, Inc., B-310737.3; B-310737.4; B-310737.5, April 15, 2008) (pdf)

In rating D&J’s proposal acceptable under this subfactor, the Corps identified as a weakness that D&J’s key personnel resumes were not sufficiently detailed to support those individuals’ assignments under the contract. The agency further found that the proposal did not include required letters of intent, did not clearly identify the key team members, and did not identify the employee responsible for responding if the Corps contacted the contractor. Consensus Evaluation at 4. D&J asserts that these weaknesses are unfounded, claiming that its proposal included a list of key personnel showing each individual’s job title and experience by specific disaster, including duties and responsibilities, and that its management plan included additional information regarding key personnel experience and qualifications. D&J asserts that its proposal also included detailed corporate and disaster project organization charts, and specifically indicated the employee who would be responsible for responding to Corps contacts. The evaluation was unobjectionable. Based on our review, D&J’s proposal did not include resumes. Instead, it included a list of proposed key personnel, identifying for each the disasters in which the individual had participated and the individual’s nominal function or title for each disaster. For example, D&J’s proposal listed one principal as having participated in the Hurricane Camille cleanup effort, with responsibility for “bidding,” and in the Hurricane Hugo cleanup, as the chief executive officer. However, the proposal did not identify or explain the functions the individual performed in these roles--for example, what responsibility for “bidding” entailed. Proposal, Vol. II, at 1-14. Nor does the additional information that D&J asserts it provided in its management proposal describe the duties of the key personnel in any detail. Instead, in most cases, the information is limited to name and employment history, with very general information about the functions that the employee performed and, in some cases, an education record. Proposal, Vol. III, at 4-9. For example, this information indicated for D&J’s proposed project manager that he worked extensively in all areas of field operation, including laborer, equipment operator and project supervisor, and has received certifications in, among other things, environmental compliance and management. The information did not include, for example, a description of the responsibilities in his prior role as project supervisor. Id. at 7. In the absence of this information, we think the agency reasonably concluded that it could not determine whether the proposed key personnel had sufficient experience to perform the jobs for which they were proposed. Further, while D&J asserts that it provided detailed organization charts in its proposal (Proposal, Vol. III, at 11-12), as the agency notes, many of the individuals listed as key personnel are not identified on the disaster project organization chart. Supp. Agency Report at 4. The agency thus determined--reasonably, we think--that it was not clear which key personnel would actually be performing the contract. In addition, D&J does not dispute that its proposal did not include the required letters of intent for proposed key personnel. Finally, while D&J’s proposal did identify an individual who would respond to an agency contact, the Corps points out that this was deemed unacceptable because disaster debris operations require a team response and that is what the agency was looking for in evaluating the proposal. Id. The protester does not dispute the agency’s position in this regard. We conclude that there is no basis for questioning the evaluation under the organizational structure/key personnel subfactor. (D&J Enterprises, Inc., B-310442, December 13, 2007) (pdf)

New We find the agency’s position unpersuasive. Quanta’s arrangements for obtaining the Loronix certifications after award were set forth in the pre-negotiation technical evaluation as an amelioration of or offset to Quanta’s lack of experience with Loronix, which was listed as one of the weaknesses (along with concerns regarding MDI and lack of a staffing plan) with respect to Quanta’s management/technical approach and management plan. Pre-Negotiation Memorandum and Price Analysis, Mar. 4, 2005, at 10‑11. Likewise, Quanta’s arrangements for obtaining the Loronix certifications after award were set forth in the final technical evaluation as part of the explanation for the 8-point increase in Quanta’s technical score and in the final technical evaluation and SSD as resolving the Loronix issue. SSD at 4; Final Technical Proposal Evaluation, at 2. Finally, the agency’s position does not account for the fact that the misrepresentation extended to all five of the major security systems at BEP, not just to the Loronix DVRS. These considerations support the view that the misrepresentation was material in that it had more than a negligible effect on the evaluation.  (Johnson Controls Security Systems, B-296490; B-296490.2, August 29, 2005) (pdf)

STG argues that BAI engaged in an impermissible “bait and switch” by substituting nine personnel identified in its proposal with less qualified personnel. To establish an impermissible “bait and switch,” a protester must show that a firm either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance, and that the misrepresentation was relied on by the agency and had a material effect on the evaluation results. Computers Universal, Inc., B-292794, Nov. 18, 2003, 2003 CPD para. 201 at 3. Where an offeror provides firm letters of commitment and the names are submitted in good faith with the consent of the respective individuals, the fact that the offeror, after award, provides substitute personnel does not make the award improper. RONCO Consulting Corp., B-280113, Aug. 11, 1998, 98-2 CPD para. 41 at 6. The record reflects that approximately 8 days after contract award, BAI requested permission from DARPA to substitute 9 of the 69 personnel whom BAI had proposed in its revised proposal with individuals who were originally proposed by BAI and found to lack the RFP’s qualification requirements. BAI had provided supporting letters of commitment/intent signed by each of the nine individuals for whom substitution was proposed. In its letter to DARPA requesting approval of the substitution--all personnel changes required DARPA’s pre-approval--BAI explained its reasons for the substitutions, indicating that six of the nine personnel had decided to accept other employment or decided to remain with their current employer; in this regard, BAI noted that the contract announcement was delayed well beyond the original April 10 award date. Two of the nine requested substitutions were the result of movement of personnel within BAI; the record reflects that one of these substitutions was directed by DARPA. The final personnel substitution resulted from BAI’s determination that it was more cost-effective to replace the proposed individual, who lived in California and thus required relocation expenses, with an incumbent employee who received a lower salary and did not require relocation. In its request to substitute personnel BAI further highlighted the need to retain incumbent employees due to the compressed transition period implemented by the agency. Given these facts, there is no basis to conclude that BAI knowingly or negligently misrepresented its intent to furnish the nine individuals sought for substitution.  (STG, Inc., B-298543; B-298543.3, October 30, 2006) (pdf)

WWLR finally complains that SOS engaged in an impermissible "bait and switch" of its linguists by replacing the individuals identified in its quotation with WWLR employees, many of whom only had interim secret clearances. WWLR asserts that this shows that the agency was not going to require SOS to provide individuals with final secret clearances and was going to waive this requirement for SOS. To establish an impermissible "bait and switch," a protester must show that a firm either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance, and that the misrepresentation was relied on by the agency and had a material effect on the evaluation results. Computers Universal, Inc., B-292794, Nov. 18, 2003, 2003 CPD para. 201 at 3. Although the record shows that SOS engaged in some discussions with WWLR employees about coming to work for SOS if the firm was awarded the contract, and SOS has since hired a few of WWLR’s personnel, the record does not support WWLR’s assertion that SOS misrepresented the intended linguistics personnel in its quotation, or that it has been, or will be, permitted to replace its identified personnel with individuals who have only an interim secret clearance.[5] In its quotation, SOS identified 22 linguists that possessed the requisite security clearance, experience, and test scores, [redacted] of whom were WWLR employees.[6] Although some of the identified personnel ultimately did not accept employment and SOS had to replace them, we find nothing to suggest that an impermissible “bait and switch” occurred, and the record shows that all of the replacement personnel met the agency’s security clearance, experience, and test score requirements. Contracting Officer’s Statement at 6; Declaration of Deputy Director of Logistics/Technical Team Member para. 5; Declaration of SOS Executive Vice President paras. 6, 7, 15.  (WorldWide Language Resources, Inc., B-297210; B-297210.2; B-297210.3, November 28, 2005) (pdf)

Here, based on the record discussed above, we conclude that AMSEA made material misrepresentations in its proposal regarding compliance with the solicitation's requirements for proposed key personnel. Further, because the solicitation expressly required agreement regarding salary, benefits, and position, it is clear that the agency relied on AMSEA's misrepresentations in evaluating AMSEA's proposed key personnel under the key personnel evaluation subfactor as "very good" and "highly qualified." Agency Report, Tab 11, Business Clearance Memorandum, at 5. Finally, in light of the relatively close evaluated ratings of AMSEA's and PCS's proposals and their proposed prices, we conclude there is a substantial chance that AMSEA's misrepresentations regarding it proposed key personnel were material to the agency's source selection decision. On the record presented to our Office, we conclude that PCS's protest is meritorious. We recently stated that an offeror's submission of a proposal containing material misrepresentations should disqualify the proposal from consideration for award, noting that the integrity of the procurement process demands no less. ACS Gov't Servs., Inc. , B-293014, Jan. 20, 2004, 2004 CPD 18 at 11; see also Informatics, Inc. , B-188566, Jan. 20, 1978, 78-1 CPD 53 at 13. Accordingly, if our Office were resolving the protest, we would sustain it and recommend that AMSEA's contract be terminated and that a contract be awarded to PCS if otherwise appropriate. (Patriot Contract Services -- Advisory Opinion, B-294777.3, May 11, 2005) (pdf)

An offeror may not propose to use specific personnel that it does not expect to use during contract performance; doing so would have an adverse effect on the integrity of the competitive procurement system and generally provide a basis for proposal rejection. CBIS Fed. Inc., B-245844.2, Mar. 27, 1992, 92-1 CPD ¶ 308 at 5. The elements of such an impermissible bait and switch are as follows: (1) the awardee represented in its proposal that it would rely on specified personnel in performing the services; (2) the agency relied on this representation in evaluating the proposal; and (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work. Ann Riley & Assocs., Ltd.--Recon., B‑271741.3, Mar. 10, 1997, 97-1 CPD ¶ 122 at 2‑3. As required by the RFP, RMC proposed specific individuals for the 11 key personnel positions and the agency relied on these representations in evaluating the proposal. RFP §§ L.2.2.b.2 and M.2.B. However, under the circumstances of this case, the firm’s plan to substitute some of its key personnel provides no basis for concluding that it misrepresented their availability for this contract. In this regard, all 11 of the proposed key personnel were RMC’s or its subcontractor’s employees and, according to RMC, it intends to provide all but one of them to perform, if the agency does not allow substitution. Declaration of RMC Controller at ¶¶ 7-8. The one employee who RMC claims cannot be provided left RMC’s employ on March 4, 2004, less than 1 week before the agency awarded RMC the contract. There is no evidence that RMC anticipated this employee’s leaving prior to termination of his employment, and substitution of such key personnel is specifically provided for in the RFP. RFP § H, clause 5252.237-9501. Thus, the need to replace this employee does not establish that RMC misrepresented his availability. Likewise, since award was made on the basis of initial proposals, eliminating an opportunity to advise the agency of this change in a revised proposal, and award was made shortly after the employee’s departure, we do not believe RMC’s failure to notify the agency implies an intent to misrepresent the availability of its proposed personnel. See Unisys Corp., B-242897, June 18, 1991, 91-1 CPD ¶ 577 at 4. We reach the same conclusion with regard to RMC’s planned substitution of its proposed program manager and the other technical expert. After contract award, the incumbent program manager contacted RMC offering to provide information on incumbent employees. Declaration of Human Resources Director, at ¶¶ 7-8. By that time, RMC had already received unsolicited resumes from most of the incumbent personnel. Id., ¶ 8. Subsequently, he met with RMC management and expressed an interest in working for RMC on the contract, but advised that, due to health considerations, he was unable to work full time. Declaration of RMC Controller, ¶¶ 2, 4. Based on his history with the incumbent contract, his relationship with the agency, and other qualifications, RMC offered him a position as a program manager on the new contract.[5] Id., ¶ 5. RMC plans to offer him as a substitute for its proposed program manager, subject to the agency’s approval, and will use its original program manager if the substitution is unacceptable. Id., ¶ 6. Similarly, with regard to a third key employee, RMC explains that the employee is equally qualified and that it will seek the agency’s authorization for the replacement. Id., ¶ 9. If the agency refuses to allow this substitution, RMC intends to use its proposed key personnel. Id., ¶¶ 6-9. As with the terminated employee, there is nothing in the record to indicate that RMC intended to substitute its program manager and the other technical expert prior to the incumbent employees’ (post-award) contact with RMC seeking employment. The substitution of incumbent employees for proposed employees with an agency’s permission, and where there has been no misrepresentation, is not an improper bait and switch. A&T Eng’g Techs., VECTOR Research Div., B‑282670, B‑282670.2, Aug. 13, 1999, 99-2 CPD ¶ 37 at 8. AdapTech also notes that an additional 15 incumbent employees, including other key personnel, have been offered employment by RMC and its subcontractors. There is no evidence that RMC has sought approval to substitute these incumbent employees for its proposed personnel, but even if it does so in the future, there would be no basis for finding an improper bait and switch scheme. As with the key personnel discussed above, there is no evidence that RMC intended to substitute these personnel prior to receiving the award; rather, the record shows that the incumbent employees contacted the firm, unsolicited, post-award, seeking employment on the new contract. Declaration of RMC Director of Human Resources at ¶ 8. In addition, there is no evidence that the agency relied on the proposed non-key personnel in its evaluation, an integral element of an improper bait and switch. Ann Riley & Assocs., Ltd.--Recon., supra, at 3. In this regard, while the RFP required that non-key personnel be identified and that they meet minimum qualifications, it did not require the submission of resumes, and non-key personnel were not included as part of the personnel resources evaluation. RFP §§ L.2.2.b.1, M.2.B. Under these circumstances, there is no basis to find a bait and switch. (AdapTech General Scientific, LLC, B-293867, June 4, 2004) (pdf) (emphasis added)

In evaluating Arora's final revised proposal, the record reflects that the agency did not have any question as to whether the incumbent personnel proposed by Arora as area nurse managers had the requisite certifications, and was aware that CasePro had proposed these same incumbent personnel (with different resumes) for the same positions. Nevertheless, the agency evaluated Arora's proposal as having a “significant weakness/deficiency” under the qualifications of key personnel evaluation criterion because the resumes submitted by Arora for the same area nurse managers did “not meet the AED/CPR certification requirements,” while at the same time noting as a “strength” of both CasePro's and Arora's proposals that “[a]ll proposed Area Nurse Managers are the incumbents, and meet at least the minimum education and experience required by [the] RFP.” AR, Tab 35, Final Technical Evaluation Report, Western Area Evaluation, at 1, 3; Tab 52, Arora's Debriefing, at 1. In defending the protest, the agency explains that because CasePro had “expended additional effort to comply with the RFP requirements for proposal submission” by obtaining “new, updated resumes” for the same area nurse managers as proposed by Arora (who had not obtained updated resumes), the agency “question[ed] the appropriateness” and “fair[ness]” of finding Arora's final revised proposal without weakness or deficiency here, “based upon information obtained from a competitor's proposal.” Contracting Officer's Statement at 18-19. The record shows that the agency did not solely rely on the fact that CasePro's resumes showed the certifications in order to determine that the area nurse managers had the required certifications, because Arora's discussion responses stated that these individuals had the certifications. The only remaining agency concern was that the information concerning these individuals' certifications was not included in the actual resumes submitted by Arora, but rather was provided by Arora as a response to a discussion question. Under the circumstances, we think that the only flaw in Arora's proposal under this criterion was an inconsequential matter of form that could not reasonably be considered a “significant weakness/deficiency” in Arora's proposal, or provide a proper basis for differentiating between the technical merit of the proposals submitted. See Son's Quality Food Co., B‑244528.2, Nov. 4, 1991, 91‑2 CPD ¶ 424 at 7. This evaluation error is material here. As indicated above, the technical difference between Arora's proposal (81 points) and CasePro's proposal (86 points) was based on the three weaknesses identified above. This technical difference formed the basis for award to CasePro, notwithstanding Arora's higher past performance rating and lower evaluated price. Therefore, the record reflects that Arora would have had a reasonable chance of receiving award, but for the agency's unreasonable evaluation of Arora's proposal under the qualifications of key personnel evaluation criterion, and we sustain the protest on that basis. (The Arora Group, B-293102, February 2, 2004) (pdf)

With respect to the fact that the agency apparently valued ELC’s stated intent to hire as many of the incumbent employees as possible, USF argues that any favorable consideration of this matter is unreasonable without letters of commitment or other concrete evidence. We disagree. Despite the various ways agencies attempt to address this issue in solicitations, the incumbent workforce is often the best possible source of individuals who will be familiar with the day-to-day requirements of performing these services. We also recognize that once competitions end, and the proverbial smoke clears, many incumbent employees are interested in retaining their jobs, regardless of the corporate entity that holds the contract with the government. Accordingly, we have held that, even where there is no requirement in an RFP to obtain commitments from incumbent personnel, an agency may nonetheless reasonably draw favorable conclusions about an offeror’s stated intent to retain as many of the incumbent employees as possible. Orbital Technologies Corp., B-281453 et seq., Feb. 17, 1999, 99-1 CPD ¶ 59 at 5-7. (U.S. Facilities, Inc., B-293029; B-293029.2, January 16, 2004)  (pdf)

For the reasons set forth below, we find that Metrica misrepresented that three of the key personnel that it proposed had agreed to work for the firm. We also find that Metrica included in its quotation the names and resumes of these three individuals without having gained their permission to do so, and cognizant of the fact that the individuals had given exclusive permission to ACS to submit their resumes. Further, we conclude that these actions resulted in a material misevaluation of the key personnel portion of Metrica’s proposal. In sum, while individuals at Metrica may have believed that the employees in question would be available to work for Metrica, the record does not show that the vendor had received commitments from Messrs. A, B, and C such that it could validly certify, as it did, that each had “agreed to work on this contract if awarded to Metrica.” Accordingly, we find that the totality of the evidence establishes that Metrica disregarded the facts known to it that conflicted with its desire to propose certain incumbent employees, and thereby misrepresented the level of commitment for 3 of the 11 personnel in its quotation.  (ACS Government Services, Inc., B-293014, January 20, 2004) (pdf)

EER's proposal stated that each of its proposed key personnel was “personally committed to the success of NAWCWD.”  EER Management Proposal at 30.  EER also provided signed resumes from each of its proposed key personnel, all of whom are current EER employees.  Id. at R-1 to R-8.  None of the resumes were accompanied by or incorporated any “written agreement from the potential employee to work for the offeror effective at contract award” as required by the RFP.  The M/TET found that EER's failure to include such written agreements was a significant weakness.  M/TET Report at 22.
 
EER argues that the solicitation did not require written commitments from current employees, but only required a written agreement from “the potential employee” to work for the offeror effective at contract award.  EER argues that it interpreted the word “potential” as a reference to “new” employees, i.e., those proposed key personnel not already employed by EER.  We do not agree.   

The RFP's reference to “potential” employee must be read in the context of the paragraph in which it appears:  For each of the Key Personnel proposed, the offeror must provide signed resumes (one page each) showing relevant experience, the current hourly and annual salary and the number of hours (direct and indirect) to be provided.  The work history of each offeror's key personnel shall contain experience directly related to the functions to be assigned.  Included with the resume, will be a written agreement from the potential employee to work for the offeror effective at contract award. RFP § L, at 68.
 
Citing the RFP's statement that the agency was to evaluate this information to ascertain the probability of a long-term commitment of the key personnel proposed, EER asserts that the fact the evaluators found several of its proposed key personnel had long records of employment with EER and/or longstanding ties to the China Lake area was sufficient to constitute that commitment.  In this case, however, the solicitation contained a requirement to demonstrate that the proposed key personnel expressed a commitment to the offeror's performance of the STARS contract.  Although EER's proposal may indicate that its key personnel have long-term commitments to EER, to the support of other NAWCWD contracts, and/or to the China Lake area, the RFP required an expression of commitment to EER's potential performance of the STARS contract, which is not present in EER's proposal.  As a result, we cannot find the agency's evaluation unreasonable.  (EER Systems, Inc., B-290971.3, B-290971.6, October 23, 2002)  (pdf)

The following statement was included at the bottom of each resume:  “I testify that all above information is accurate and that I am fully committed long-term to the successful performance of SAIC's STARS Program.”  SAIC Management Proposal at I-35a to I-35c.  There is no additional written agreement.  The M/TET concluded that SAIC did not include written agreements from its proposed key personnel to work for the firm effective at award and considered this to be a weakness.  The M/TET acknowledged that the resumes stated these key personnel were committed to the long-term successful performance of SAIC's STARS program, but found that this statement did not evidence the probability of a long-term commitment of employment.  M/TET Report at 7.  SAIC asserts that the only way to interpret the statements in these resumes from incumbent managerial personnel is as a long-term commitment to work with SAIC in performing the STARS contract if it were to receive award.  We agree.
 
The purpose of RFP requirements such as those found here is to preclude an offeror from proposing an impressive array of employees, being evaluated on that basis, and receiving award, even where the persons proposed had never committed themselves to the offeror and had no intention of doing so.  Xeta Int'l Corp., B-255182, Feb. 15, 1994, 94-1 CPD ¶ 109 at 9.  This solicitation included the additional requirement to demonstrate that the key personnel expressed a commitment to the offeror's performance of the solicited contract.  The resumes submitted by SAIC confirmed that its proposed key personnel were currently employed by SAIC in managerial capacities on the predecessor contracts to the STARS Program, and those resumes expressly provided that these individuals were “fully committed long-term to the successful performance of SAIC's STARS Program.”  As a general matter, an agency must only be reasonably assured that the key employees are firmly committed to the offeror, Laser Power Techs., Inc., B-233369, B-233369.2, Mar. 13, 1989, 89-1 CPD ¶ 267 at 14, and we have found this type of information sufficient to satisfy a solicitation requirement for documentation showing commitment and/or availability.  Potomac Research Int'l, Inc., B-270697, B-270697.2, Apr. 9, 1996, 96-1 CPD ¶ 183 at 3; see also Intermetrics, Inc., B-259254.2, Apr. 3, 1995, 95-1 CPD ¶ 215 at 14.  Again, this solicitation included the additional requirement to demonstrate that the proposed key personnel expressed a commitment to the offeror's performance of the STARS contract.  In view of the fact that SAIC's proposed key personnel are currently performing managerial duties for SAIC in support of the predecessor contracts to the STARS program, we believe that the language in their resumes was sufficient to provide the agency reasonable assurances of the requisite commitment. (Science Applications International Corporation, B-290971, B-290971.2, B-290971.4, B-290971.5, October 16, 2002)  (pdf)

To establish an improper *bait and switch,* a protester must show that the firm either knowingly or negligently made a misrepresentation regarding employees that it does not expect to furnish during contract performance, that the misrepresentation was relied upon in the evaluation, and that it had a material impact on the evaluation results. Advanced Communication Sys., Inc., B-283650 et al., Dec. 16, 1999, 2000 CPD P: 3 at 10. There is no evidence of a *bait and switch* here. TRW included the required list of key personnel in its proposal, and we find nothing in the proposal indicating that TRW did not intend to provide these personnel for at least 90 days at the outset of performance. The agency reports that it did not incorporate this list in TRW's contract, not because there was reason to believe that these personnel would not be available, but to avoid the need to modify the contract in the event of permissible key personnel changes over the life of the contract.  (Northrop Grumman Information Technology, Inc., B-290080; B-290080.2; B-290080.3, June 10, 2002)  (pdf)

In our view, the certifications signed by the proposed key employees, in conjunction with the responses furnished to DynCorp's recruiters during discussions (as evidenced by the recruiters' certifications as submitted to the agency), constituted an adequate indication that the individuals in question would be available to perform. The RFP did not specify that the letters of intent referred to had to be in any particular form or include any particular information. The information DynCorp submitted showed that the individuals were interested in being considered for the Air Force contract, had agreed to the use of their resumes in DynCorp's proposal, and had specifically "agreed to accept employment with DynCorp." Id. Given the lack of anything in the RFP that required more to be included in the letters of intent, there is no basis for concluding that the agency was required to find that the information communicated to the agency was inadequate to show that DynCorp would be able to properly staff the contract.  (Airwork Limited-Vinnell Corporation (A Joint Venture), B-285247; B-285247.2, August 8, 2000)

To demonstrate a "bait and switch," a protester must show that: (1) the awardee represented in its proposal that it would rely on certain specified personnel in performing the services; (2) the agency relied on this representation in evaluating the proposal; and (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work. Ann Riley & Assocs., Ltd.--Recon., B-271741.3, Mar. 10, 1997, 97-1 CPD para. 122 at 2-3; Combat Sys. Dev. Assocs. Joint Venture, B-259920.6, Nov. 28, 1995, 95-2 CPD para. 244 at 2; Free State Reporting, Inc., B-259650, Apr. 14, 1995, 95-1 CPD para. 199 at 4.  (A&T Engineering Technologies, VECTOR Research Division, B-282670; B-282670.2, August 13, 1999)

To demonstrate a “bait and switch,” a protestor must show that (1) the awardee represented in its proposal that it would rely on certain specified personnel in forming the service; (2) the agency relied on this representation in evaluating the proposal; (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work; and (4) personnel other than those proposed are performing the services.

Unified Architecture & Eng’g, Inc. v. United States, 46 Fed. Cl. 56, 64 (2000), aff’d, 251 F.3d 170 (2001) (per curiam); see also Orion Int’l Techs. v. United States, 66 Fed. Cl. 569, 573 n.5 (2005); Consol. Eng’g Servs., Inc. v. United States, 64 Fed. Cl. 617, 632-33 (2005); OAO Corp. v. United States, 49 Fed. Cl. 478, 481 (2001). Plaintiff only seeks a preliminary injunction with respect to the Vulnerability Assessment Manager and Site Safeguards and Security Plan Manager positions. Tr. II at 73-74. Thus, the court’s analysis is limited to whether PAI Corporation effected a bait and switch with respect to those two positions. PAI Corporation clearly represented that it would deliver Mr. Weatherby as the Vulnerability Assessment Manager and Mr. McKnight as the Site Safeguards and Security Plan Manager. The NNSA clearly relied on PAI Corporation’s representations concerning Mr. Weatherby and Mr. McKnight’s assumption of these two positions. However, contrary to plaintiff’s allegation that PAI Corporation did not deliver Mr. Weatherby and Mr. McKnight, the evidence before the court demonstrates that Mr. Weatherby and Mr. McKnight are performing as Vulnerability Assessment Manager and Site Safeguards and Security Plan Manager, respectively. Thus, plaintiff failed to prove that a bait and switch occurred. Furthermore, with respect to a bait and switch allegation, personnel, not location, is the central issue. The location where certain Key Personnel perform their duties is irrelevant–that is a matter of contract administration. Rather, the focus of the court’s inquiry is whether Mr. Weatherby and Mr. McKnight, the two individuals identified in PAI Corporation’s Competitive Proposal, are serving in the capacities for which they were offered. Because Mr. Weatherby and Mr. McKnight are serving in their capacities as proposed by PAI Corporation, plaintiff cannot show the third or the fourth element of a bait and switch claim with respect to the Vulnerability Assessment Manager and Site Safeguards and Security Plan Manager positions. Accordingly, based upon the current record, plaintiff has not shown that it is likely to succeed on the merits. (Protection Strategies, Incorporated, v. U. S., No. 07-125C, April 2, 2007) (pdf)

U. S. Court of Federal Claims - Listing of Decisions