Background:

My office is preparing to solicit a requirement for professional services.  We intend to select the awardee, in part, by evaluating "key personnel" as a factor.  Our solicitation instructions require "offerors" to submit letters of commitment for each member of key personnel they propose.  On a recently awarded contract, the awardee made good on their commitment by ensuring the member of key personnel they proposed, and whose resume the Government evaluated, showed up to work on day one .  However, after approximately thirty days, that same contractor employee left.  We have included language in other contracts, which states that the contractor, if it receives an award, must ensure that all proposed members of key personnel show up to work on day one and remain in their job positions on that contract for at least 90 days.  Most other letters of commitment I have read only guarantee that the contractor's proposed members of key personnel will initially show up to work on the contract if they receive the award.  Those same letters do not guarantee the length of time that contractor employee will stay in the contractor's employment for that federal contract.

Questions (two):

1) What basic language have members of the forum required for a submitted letter of commitment from an "offeror" for its proposed members of key personnel?

2) Given that most employees are "employees at will," what should the Government require from an "offeror" insofar as a specific period of time it commits to keeping its proposed members of key personnel under contract to work on that award?

41 minutes ago, Guardian said:

We intend to select the awardee, in part, by evaluating "key personnel" as a factor.

Why?  It seems this approach isn't working for you.

41 minutes ago, Guardian said:

On a recently awarded contract, the awardee made good on their commitment by ensuring the member of key personnel they proposed, and whose resume the Government evaluated, showed up to work on day one .  However, after approximately thirty days, that same contractor employee left.

Did you record this fact in the past performance evaluation in CPARS?  You can do an interim report at any time.  How about today?

41 minutes ago, Guardian said:

We have included language in other contracts, which states that the contractor, if it receives an award, must ensure that all proposed members of key personnel show up to work on day one and remain in their job positions on that contract for at least 90 days.

What enforcement or incentive mechanism is included in those those other contracts?

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Perhaps you can discern that I am not a big fan of key personnel evaluations?

We developed a clause for key trade subcontractors that were specifically proposed and for specific key personnel who were proposed, recognizing that some key personnel might not be available if award is delayed or for an entire contract period. If an offeror proposes the “A Team”, we expect the A Team, not the “B team” or B substitutes. 

It essentially says that the contractor shall use those proposed key subcontractors, if any and proposed key personnel. The solicitation specifies which key trade subs and which personnel positions are “key” . For subcontractors we look at recent relevant experience and past performance.

If a person is no longer available, the contractor must propose a suitable substitute to the KO. The minimum standard for qualification will be based upon those of the originally proposed and evaluated person and consistent with the original evaluation criteria. I don’t have the clause handy right now.

We would really frown upon substituting key subs. Strong indicator of bid shopping after award. Plus, the strengths of the proposed key subs usually influence the prime contractor selection,  since they often perform the major portion of the work . That’s not Germaine to this thread. But both key subs and key personnel are covered by the clause. 

@Guardian

I think that the problem you are having is due to the information you are requesting. If you want to predict the quality of key personnel that would perform a prospective contract, you would be better off requesting information about key personnel that an offeror has actually assigned to similar contracts.

You are inviting the gamesmanship that you are experiencing.

@GuardianRequire the contractor to enter into a subcontract with the employee under which the employee promises to stay on the job until the contract is physically completed.

 

Thanks everyone.  This helps a lot.

20 hours ago, Don Mansfield said:

 

If you want to predict the quality of key personnel that would perform a prospective contract, you would be better off requesting information about key personnel that an offeror has actually assigned to similar contracts.

I’m also not a fan of key personnel.  But if you want to do it, Don’s suggestion is good.  Also if key personnel is so important to your project, make an offerors delivery and retention of key personnel part of past performance evaluation.  And don’t just put it on a survey few respond to.  Call up references the offeror provided plus dig up other references.  Call on the phone and ask pointed questions.

Read the OP! Guardian's issue is not whether or how to evaluate proposed key personnel. The issue is how to ensure that key personnel stay on board for the duration.

The answer is to require offerors to enter into fixed term employment contracts with key personnel under which the key person promises to stay with the contractor throughout the period of performance. Such a contract is not an absolute guarantee, but it is more of one than a stupid "letter of commitment." Such employment contracts would be subcontracts of the prime contract.

A former employer required me to enter into such a contract on an annual basis. They are not uncommon.

https://www.rocketlawyer.com/gb/en/quick-guides/fixed-term-employment-contracts

Letters of commitment are products of government idiocracy.

How about a term in the contract that the contracting officer will reduce the contract price by $xx for each key personnel change occurring in the first year of performance and $yy for each key personnel change occurring in subsequent years?

$xx could be two percent of the contract price (if FFP) or ten percent of the fixed fee (if CPFF).
$yy could be one percent of the contract price (if FFP) or five percent of the fixed fee (if CPFF).

I haven't fully thought this through, but maybe it will be helpful to the original poster if he or she is intent on keeping those people.

26 minutes ago, ji20874 said:

How about a term in the contract that the contracting officer will reduce the contract price by $xx for each key personnel change occurring in the first year of performance and $yy for each key personnel change occurring in subsequent years?

No, no, no! What would that be? Some kind of liquidated damages? A penalty? What if performance is unaffected by a departure?

21 hours ago, Vern Edwards said:

Require the contractor to enter into a subcontract with the employee under which the employee promises to stay on the job until the contract is physically completed.

This would depend if the PM is truly intending to lock the KP in till contract completion, or if he/she is just dancing around personal services limitations.  Those PMs that only want to hold the reins loosely over hiring and firing often use a small $25-$50k “fee reduction” in a special clause to hold over contractors’ heads.  Sad but true.  The reduction can be applied in the next TO’s negotiations (assuming Indefinite Delivery contracting).

I think the promissory nature Vern is providing with this recommendation is a CO’s first and best solution to provide PMs when drafting the RFP, assuming a healthy competition where KP is of high importance.  COs must also be aware they may uncover the PM’s true intentions I describe above.

What about DFARS 2052.215-70 Key Personnel Clause? https://www.acquisition.gov/nrcar/part-2052-solicitation-provisions-and-contract-clauses#Section_2052_215_70_T48_60638251115

Edited February 3, 20223 yr by Neil Roberts
edit clause number

I think it also depends upon what is the most important consideration. Is it specific personnel or the caliber of provided personnel? I’ve seen where the A Team was proposed to help win the job and then quickly substituted by employees of much lesser qualifications and experience. It is what we call the bait and switch to the B Team.

Even the Bechtel’s, Fluor’s, and Keiwit’s of the engineering and construction world have A and B teams, which can correlate with the degree of successful performance on a project. 

I was less concerned with retaining specific personnel than with having no input over who replaces them. We had no desire to stifle career moves and promotions - only to avoid lesser qualifications of replacements, especially if there was a cost cutting motive involved.  

 

Rather than requiring specific people, why not establish minimum requirements to fill the position?  When you evaluate key personnel, what is it that you are looking for?  If the important thing is that the key personnel have at least a 4 year college degree, 10 years of experience in a field, and 3 years experience with certain equipment, then make those the minimum contract requirements.  Then, even if the identified person leaves, the replacement will have the qualifications you want.

If you want to make some sort of trade off in the evaluation and pay more for a more qualified candidate state that you will incorporate the qualifications of the identified key personnel into the awarded contract which must be met by any replacement.

This, in combination with the DFARS clause listed by Neil (or similar language if not DOD) would seem to cover the matter.

8 minutes ago, Neil Roberts said:

What about DFARS 2052.215-70 Key Personnel Clause? https://www.acquisition.gov/nrcar/part-2052-solicitation-provisions-and-contract-clauses#Section_2052_215_70_T48_60638251115

Very interesting.

15 minutes ago, Neil Roberts said:

What about DFARS 2052.215-70 Key Personnel C

The link and citation are for a Nuclear Regulatory Commission clause.

1 hour ago, Vern Edwards said:

No, no, no! What would that be? Some kind of liquidated damages? A penalty? What if performance is unaffected by a departure?

I'm with you, Vern -- I don't like the idea, either.  I don't like the way pre-award key personnel evaluations are commonly done, and I prefer for post-award administration to focus on performance and outcomes and delivery and so forth.  

2 hours ago, joel hoffman said:

Very interesting.

No, it's not.

Aside from the notification requirement in paragraph (b), the key provision of the Nuclear Regulatory Commission clause is this:

Quote

(d) If the contracting officer determines that suitable and timely replacement of key personnel who have been reassigned, terminated, or have otherwise become unavailable for the contract work is not reasonably forthcoming, or that the resultant reduction of productive effort would be so substantial as to impair the successful completion of the contract or the service order, the contract may be terminated by the contracting officer for default or for the convenience of the Government, as appropriate. If the contracting officer finds the contractor at fault for the condition, the contract price or fixed fee may be equitably adjusted downward to compensate the Government for any resultant delay, loss, or damage.

Now, what right does that give the government that it does not already have under the inspection of services clause, the T for C clause, and the T for D clause? Aside from the notification requirement, the clause is just typical government clutter. And if the government team is worth their salt, they won't need the notification requirement.

From the question I assume that the RFP lists the positions that are considered key, and the offeror names the people for those positions. What if the RFP requires offerors to list any key positions and personnel, who would then be subject to notice and approval by the customer of any changes?

So do you list several people and take on the burden of notice and approval for any changes, or do you list few or none and risk an evaluation that you consider no position to be key?

1 minute ago, Fara Fasat said:

So do you list several people and take on the burden of notice and approval for any changes, or do you list few or none and risk an evaluation that you consider no position to be key?

You do what marketing tells you to do.

21 hours ago, ji20874 said:

How about a term in the contract that the contracting officer will reduce the contract price by $xx for each key personnel change occurring in the first year of performance and $yy for each key personnel change occurring in subsequent years?

I had an opportunity to go back and look at the circumstances surrounding the last three members of key personnel we lost on contracts; in every case, the contractor affirmed that the employee left voluntarily, i.e., resigned from their job.  Could an offer of more money or better fringe benefits have kept them on longer?  I don't know.  If the contractor "made their job less stressful," whatever that might mean, could that have kept the employee in their position?  I for one don't want to go down that rabbit hole.  People resign from their jobs for various reasons, many of which are vindicable.  People also leave their jobs for reasons much worse than resignation.  As a CO, I would be reluctant, if not averse, to building in any incentives or disincentives that might penalize the contractor for circumstances out of their control. 

That said, the only way around is to require the employer to enter into a subcontract with the named member of key personnel.  I have already drafted such language for our solicitation and received concurrence from the business unit since my OP.

On 2/2/2022 at 1:36 PM, Don Mansfield said:

I think that the problem you are having is due to the information you are requesting. If you want to predict the quality of key personnel that would perform a prospective contract, you would be better off requesting information about key personnel that an offeror has actually assigned to similar contracts.

By this approach, wouldn't we effectively be going down the road toward evaluation of past performance?  Maybe we prefer not to evaluate past performance, as we are not required to.  Instead, we seek to streamline our evaluation methodology and source selection procedures in a manner most likely to provide best value to the Government.  How might this approach affect an offeror who does not have a record of relevant past performance, including use of key personnel on similar contracts?  If we were strictly evaluating past performance, we would apply a neutral rating.

19 hours ago, Fara Fasat said:

From the question I assume that the RFP lists the positions that are considered key, and the offeror names the people for those positions. What if the RFP requires offerors to list any key positions and personnel, who would then be subject to notice and approval by the customer of any changes?

Of course it does.  It includes a key personnel clause as is required in all solicitation and contracts that call for use of key personnel.  Who would be subject to notice? Umm, the CO.

19 hours ago, Fara Fasat said:

So do you list several people and take on the burden of notice and approval for any changes, or do you list few or none and risk an evaluation that you consider no position to be key?

The burden of notice is on the contractor, who is required to inform the CO if it cannot retain a member of key personnel.  Do I take on the "[burden of approval] for any changes [within the contract]"?  Yes, it is what I signed up for when I agreed to my certificate of appointment.

2 hours ago, Guardian said:

I had an opportunity to go back and look at the circumstances surrounding the last three members of key personnel we lost on contracts; in every case, the contractor affirmed that the employee left voluntarily, i.e., resigned from their job.  Could an offer of more money or better fringe benefits have kept them on longer?  I don't know.  If the contractor "made their job less stressful," whatever that might mean, could that have kept the employee in their position?  I for one don't want to go down that rabbit hole.  People resign from their jobs for various reasons, many of which are vindicable.  People also leave their jobs for reasons much worse than resignation.  As a CO, I would be reluctant, if not averse, to building in any incentives or disincentives that might penalize the contractor for circumstances out of their control. 

That said, the only way around is to require the employer to enter into a subcontract with the named member of key personnel.  I have already drafted such language for our solicitation and received concurrence from the business unit since my OP.

By this approach, wouldn't we effectively be going down the road toward evaluation of past performance?  Maybe we prefer not to evaluate past performance, as we are not required to.  Instead, we seek to streamline our evaluation methodology and source selection procedures in a manner most likely to provide best value to the Government.  How might this approach affect an offeror who does not have a record of relevant past performance, including use of key personnel on similar contracts?  If we were strictly evaluating past performance, we would apply a neutral rating.

Of course it does.  It includes a key personnel clause as is required in all solicitation and contracts that call for use of key personnel.  Who would be subject to notice? Umm, the CO.

The burden of notice is on the contractor, who is required to inform the CO if it cannot retain a member of key personnel.  Do I take on the "[burden of approval] for any changes [within the contract]"?  Yes, it is what I signed up for when I agreed to my certificate of appointment.

Appears like you really just need to be able to have input into the qualifications of replacements. People are going to move on.  Voila, the approach that we take seems viable and relatively simple, assuming that you are evaluating specific key personnel during the selection process. 

2 hours ago, Guardian said:

By this approach, wouldn't we effectively be going down the road toward evaluation of past performance?

No. You would be asking for the same type of information you probably ask for now when evaluating personnel qualifications (i.e., resumes). But your data set for predicting the qualifications of personnel who would work on your contract would likely be more relevant because it would be from actual key personnel (the type who replace proposed key personnel shortly after the contractor begins performance).

2 hours ago, Guardian said:

How might this approach affect an offeror who does not have a record of relevant past performance, including use of key personnel on similar contracts? 

The same way it would affect an offeror who proposed to use a key person who did not have the requisite qualifications in your source selections. 

3 hours ago, Guardian said:

I had an opportunity to go back and look at the circumstances surrounding the last three members of key personnel we lost on contracts; in every case, the contractor affirmed that the employee left voluntarily, i.e., resigned from their job.  Could an offer of more money or better fringe benefits have kept them on longer?  I don't know.  If the contractor "made their job less stressful," whatever that might mean, could that have kept the employee in their position?  I for one don't want to go down that rabbit hole.  People resign from their jobs for various reasons, many of which are vindicable.  People also leave their jobs for reasons much worse than resignation.  As a CO, I would be reluctant, if not averse, to building in any incentives or disincentives that might penalize the contractor for circumstances out of their control. 

@GuardianHas it occurred to you that maybe they (or some of them) left their jobs because the government was a pain in the *** to work for/with? I know of some instances in which that has been the case. 🤔

11 minutes ago, Vern Edwards said:

Has it occurred to you that maybe they (or some of them) left their jobs because the government was a pain in the *** to work for/with? I know of some instances in which that has been the case.

See, for instance, Libertatia Associates, Inc. v. U.S., 46 Fed. Cl. 702, 707-08 (2000):

Quote

Plaintiff argues that the government's actions were motivated by the COR's personal animosity and personal greed. Pl.'s Br. at 3. To support its argument, plaintiff offered at trial evidence of the government's ill will and a specific intent to injure plaintiff.

The testimony showed the COR to be a contracting official without a proper understanding of his role. The COR admitted that he told many employees of TLA that they should think of him as “Jesus Christ” and the CO as “God.”10 Tr. at 376 (testimony of COR); Tr. at 1041 (testimony of Mr. Folmar that the COR “considered hisself as Jesus”). In addition to casting himself as Christ, the COR explained to TLA's employees that the other inspectors were like “disciples.” Tr. at 376 (testimony of COR).

The court found credible the testimony offered by plaintiff regarding the COR's use of intimidation and coercion in the course of administering government contracts on the Army base. Mr. James Votaw, a contractor not affiliated with TLA who performed maintenance on the Army base, testified, “At Fort Rucker, Mr. Barnard intimidated almost all the local employees.” Tr. at 737, 747. Mr. Votaw also testified that he felt threatened when the COR told him not to help plaintiff perform during the forbearance period because that would cause Mr. Votaw to fall out of favor with the COR and the CO. Tr. at 736–37. See also Tr. at 1079 (testimony of Mr. Steven Theobald).