Making sure that key personnel are still available as proposed right before making award

[Sam101]

Shouldn't agencies always send clarifications to apparent awardees asking if their proposed key personnel are still available (especially if the evaluation took a long time)?

For example, if the agency in the case of COFC - No. 21-1966C (February 4, 2022) Golden IT v. US had asked the apparent awardee (right before making the award) if their proposed key person was still available and the apparent awardee said "no, they are not available anymore", the agency would have made award to Golden IT (probably, unless the agency opened "discussions" and allowed for quote revisions to allow for submission of revised key personnel).

And another similar case, KPMG COFC No. 22-866:

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On September 30, 2021, at the time of final proposal submission, the record supports that KPMG had a reasonable belief, when it submitted its proposal, that it would deploy Mr. H as key personnel if awarded the contract.

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After proposal submission, on January 11, 2022, Mr. H notified [someone] that he planned to resign. AR 985. Three days later, [someone] notified KPMG of Mr. H’s planned resignation. AR 983. KPMG and [someone] did not accept Mr. H’s resignation as conclusive; they agreed to “‘do everything they can’ to change his mind.”

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On January 27, 2022, also before Mr. H’s departure, NRO awarded the CFSS III contract to KPMG.

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On January 28, 2022, after NRO’s award to KPMG, Mr. H left employment with plaintiff’s subcontractor and therefore the CFSS II contract.

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An offeror is not obligated to notify an agency of the departure of key personnel post-proposal submission, absent an affirmative requirement to do so in the solicitation.” IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265, 300 (2022) (citing Golden IT, 157 Fed. Cl. at 703–05).

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Thus, concluding that a key personnel’s plan to resign post-award renders them unavailable at the time of award is untenable and would give the whims of proposed key personnel outsized influence over government contract award decisions.

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This Court has taken the position that key personnel become unavailable when they depart a bidder or join another employer. See, e.g., Conley & Assocs., Inc. v. United States, 142 Fed. Cl. 177, 183 (2019) (explaining that the key personnel was unavailable because the original awardee terminated the proposed key personnel five months before its final proposal); Orion Int’l Techs. v. United States, 66 Fed. Cl. 569, 575 (2005) (explaining that the key personnel was unavailable because they were hired by the government), aff’d, 185 F. App’x 966 (Fed. Cir. 2006); Golden IT, 157 Fed. Cl. at 692–93 (explaining that the key personnel was unavailable when they departed the awardee and joined a competitor). These cases demonstrate that, without more, key personnel are unavailable when they are, in fact, no longer working with their employer. To determine otherwise would create an untenable position for employers who often deal with employee turnover, or who happen to propose an employee that changes their mind, after award, in the natural course of business. See AR 983, ¶ 11–12 (Decl. of [] ) (stating that “employees who submit their notice of resignation occasionally change their minds and decide to stay at KPMG,” including “a KPMG employee [working on CFSS II] who rescinded her notice of resignation on what otherwise would have been her last day of employment with KPMG”).

Even if the RFQ stated that a letter of commitment was required for each key personnel, I can't find any law that states that letters of commitment are legally binding between the employer and employee (the employee can just sign a letter of commitment without thinking and then not follow through after award), so even if the solicitation requires a letter of commitment, shouldn't the agency still clarify with the apparent awardee that their key personnel are available?

And if a letter of commitment is not legally binding, what is the point of a letter of commitment anyways? I mean the only thing I can think of is that it may prevent offerors from proposing key personnel without that key person's consent.

So, the way I see it is that there are only 2 answers that the apparent awardee must give in response to the agency’s request for clarification (which the agency sends right before making award) in order for award to be proper:

1) Yes, KeyPerson is still available and willing to start work upon award; or

2) KeyPerson is saying they are on the fence and might resign but maybe not, we are in communication with them. (But how will the Government have proof of this?)

… If the apparent awardee responds with something like any of these then award will not be proper:

1) We can’t reach KeyPerson, they are not answering their phone and responding to email; or

2) KeyPerson left our company five days ago and is not available anymore; or

3) Apparent awardee doesn’t respond at all.

Even if GAO (unlike COFC) says that offerors are required to notify the agency even after proposals are submitted but before award of key personnel unavailability, offerors may not comply with this GAO “rule”, so the agency should just send a quick email to clarify key personnel availability just in case.

Has anyone here sent such a clarification before? If so, how did that work out for you?

[ji20874]

2 hours ago, Sam101 said:

Shouldn't agencies always send clarifications to apparent awardees asking if their proposed key personnel are still available (especially if the evaluation took a long time)?

Always?  No.

Sometimes?  Okay.

[Guitarsit]

"Has anyone here sent such a clarification before? If so, how did that work out for you?"

Seems like you are just making trouble for yourself (assuming you are a CO/similar role). My firm was once on the losing end of a protest where the agency awarded to us but a protestor successfully guessed that one of our key personnel was no longer available and had become unavailable prior to award. The government ended up taking corrective action. But, I have to imagine this is a rare circumstance (as a protest argument). Most of the time (in my experience) if staff, even key, are no longer available it would be addressed after contract award and onward everyone goes.

If you want to award to the company that's been selected, asking the question creates an opportunity to blow it up, because if the answer is "no" you can't then award to them.

If you want to be completely by the book and don't care whether that results in an award to Company A or Company B, sure you could ask the question. But I know some companies that will twist a departing employee's arm into signing a letter of commitment on their way out the door, if that departing employee is bid in a key role on something that hasn't yet been awarded. So then if asked, the answer is "yes they are still available, here's the LOC" and then when the contract is signed they are no longer available. So you've asked the question, gotten the answer you wanted, and it's the same outcome.

[Don Mansfield]

56 minutes ago, Guitarsit said:

If you want to award to the company that's been selected, asking the question creates an opportunity to blow it up, because if the answer is "no" you can't then award to them.

Yes, you can--by conducting discussions and getting revised proposals.

[Voyager]

@Sam101 Here is some info for you about key personnel discussions, from the Wifcon forum annals.

• Need help understanding contract formation?  Read this topic about "promises" in proposals:

https://www.wifcon.com/arc/forum93.htm

and:

• Want to glean understanding of how industry proposes its key personnel realistically? See:

 

[formerfed]

Off topic but one thing that really bothers me is the government taking long periods in performing evaluations.  Often a company requests additional time  for proposal submissions.   It may be from the agency not allowing sufficient time initially or substantial revisions are made via amendments but the due date isn’t extended.  Too often the contracting officer response is something like “this requirement is critical and we can’t afford another week.” Then the agency takes many months to evaluate.  But they expect offerors to have the key personnel initially proposed available!  

[Guitarsit]

2 hours ago, Don Mansfield said:

Yes, you can--by conducting discussions and getting revised proposals.

Yes, sorry, that's absolutely right. What I meant was you can't immediately award to them. Another step is involved which adds more time to the process and creates another opportunity for something to go sideways.

[Matthew Fleharty]

1 hour ago, Guitarsit said:

Another step is involved which adds more time to the process and creates another opportunity for something to go sideways.

This highlights a fundamental problem in government acquisitions - that discussions with offerors is seen by many as a way for an acquisition to go wrong, rather than as a way to get an acquisition right.

How many of us would buy a home or a car or acquire anything meaningful without negotiations (aka in government acquisition speak, discussions)? 

If you do a professional job and do it right, don’t fear discussions - embrace them. 

[Sam101]

On 3/27/2024 at 12:48 PM, Guitarsit said:

If you want to be completely by the book and don't care whether that results in an award to Company A or Company B, sure you could ask the question.

1) Yes, I want to be by the book, and even if I did not want to, I am required to be by the book.

2) No, I do not care if Company A or B wins, as long as it is by the book.

On 3/27/2024 at 12:48 PM, Guitarsit said:

I know some companies that will twist a departing employee's arm into signing a letter of commitment on their way out the door

Well this is fraud, and if I have anything to do with it, I'll hunt down the facts, terminate the contract, and award to whoever was next in line.

If a company asked me to sign an LOC even though they knew I was not going to be available prior to award, I would ask for $50,000.00 in exchange for my signature on the LOC, sign the LOC, then call the agency and say "they made me sign the LOC", and keep the money.

On 3/27/2024 at 3:46 PM, formerfed said:

the government taking long periods in performing evaluations

Yes, I know.

[Voyager]

On 3/27/2024 at 5:49 PM, Matthew Fleharty said:

This highlights a fundamental problem in government acquisitions - that discussions with offerors is seen by many as a way for an acquisition to go wrong, rather than as a way to get an acquisition right.

How many of us would buy a home or a car or acquire anything meaningful without negotiations (aka in government acquisition speak, discussions)? 

If you do a professional job and do it right, don’t fear discussions - embrace them. 

The statement at FAR 52.215-1(f)(4) is like a moratorium on continual improvement of my contract document.  Also of proposals.  We are conducting business using years-old, draft document versions.  @Sam101, if there were one mentoring advice I would provide you, it would be to practice myth-busting that perception.  Maybe just use FAR 52.215-1 Alt I and start the acquisition earlier.  Get your boss onboard with starting early in schedule initiation and in team formation, as the average contracts shop uses an award-without-discussions PALT by default.  As a CS, my second acquisition ever went into discussions, and I did fine with the help of a good CO.  If you don't know one whom has conducted discussions successfully, look for a contracts shop where it has been done and apply there.

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(4) The Government intends to evaluate proposals and award a contract without discussions with offerors (except clarifications as described in FAR 15.306(a)). Therefore, the offeror's initial proposal should contain the offeror's best terms from a cost or price and technical standpoint...

vs (Alt. I):

(4) The Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range...

[Krimz]

Why not make the key personnel a requirement of the contract, and require CO approval of all key personnel substitutions?  You can hold the company to this, and then make it their problem to do whatever it takes to retain the key personnel.  You'll pay for it, but that's expected.

[joel hoffman]

7 hours ago, Krimz said:

Why not make the key personnel a requirement of the contract, and require CO approval of all key personnel substitutions?  You can hold the company to this, and then make it their problem to do whatever it takes to retain the key personnel.  You'll pay for it, but that's expected.

We had a clause for this when specific proposed key personnel positions were a discriminator.

The qualifications and experience of the named key personnel meeting or exceeding the minimum solicitation requirements became the standard for KO approval of any proposed substations after award.

If key personnel were only evaluated to ensure technical acceptability, then proposed substitutes would have to meet the minimum solicitation/contract requirements. I don’t remember making a technically acceptable key personnel evaluation during a source selection for routine contract performance but it could be done if that is the objective.

It would depend upon the reason for evaluating proposed key personnel.