Key Personnel: Does the Job Title in the Proposal have to match the Solicitation?

[govt2310]

The solicitation specified that the offerors were required to address in their proposals the "Key Personnel," which included the role of "Project Manager." What if a proposal comes in that offers to provide a "Program Manager." So the job title they are offering does not exactly match the job title specified in the solicitation.

Also, assume that the Technical Evaluation Panel has chosen to NOT open discussions with offerors, and that their minds are closed on this.

Can the TEP assign a rating of "deficient" on the Key Personnel Factor?

Can the TEP seek clarification and just ask, Mr. Offeror, when you wrote "Program Manager" did you mean "Project Manager," without going into discussions to allow the offeror to revise its proposal?

I could not find any GAO case law that met this fact pattern. If anyone knows of any, please share.

[Retreadfed]

Can you provide more information. For example, most key personnel requirements I have seen have a job description in the solicitation giving the government definition of the position. This is done in recognition that contractor's job titles frequently vary from titles the government uses. Therefore, the solicitation contains a job description and the contractor is required to provide a resume of key personnel to show that they meet the quals the governent wants. Was that done here? If it was, did the "Program Manager" meet the quals for the "Project Manager"? If they did, what is the problem?

[dcarver]

Agree with retread, there is no reason that the exact title matters as long as they proposed personnel that met the conditions of the key personnel clause. Did you all ask them to map their titles to the ones you asked for? If you didn't, I can't see why they are mad about it. Job titles aren't standard.

[Don Mansfield]

If this is only matter of form and not of substance, which it sounds like, it may be waived pursuant to FAR 52.215-1(f)(3). I'm assuming that provision was in your solicitation.

[govt2310]

I should clarify that I am presenting a hypothetical question.

Say the TEP members have decided, unanimously, that they do NOT desire to waive this job title/wording error. Say they are very ornery, and are going to sticklers for exactitude. Say that yes, the proposed duties for the Program Manager match the duties of the Project Manager. My question is, does the TEP have the discretion to mark this proposal "deficient" for the singular reason that they failed to propose a key personnel person with the exact title?

[ji20874]

Sure, the TEP can do whatever they want to -- if they see a proposal as DEFICIENT, they should say so and explain why. Then, the Source Selection Authority (contracting officer?) can have a different opinion and can change the rating. The TEP's inputs are only advisory on the SSA/CO.

[Navy_Contracting_4]

It really isn't up to the TEP to waive or not waive the job title issue. Regardless of how the TEP marks the proposal, the contracting officer/source selection authority, will make the call. If a TEP behaves that way, it should be advised that such a conclusion is unreasonable, and if they continue to behave unreasonably, they'll be replaced. Such unreasonable behavior is a dereliction of duty, in my opinion.

[govt2310]

Let's say the TEP advises the SSO, the Contracting Officer, to mark the proposal DEFICIENT for the stupid wrong-job-title reason. Say that the CO agrees with the TEP and follows their advice. So the offeror does not get the award. Can the offeror file a protest at GAO or the Court of Federal Claims on the basis that it was misevaluated, and actually prevail? I believe the standard GAO is that, as long as the decision is reasonable, GAO will not substitute its judgment for the SSO's. Also, the offeror has the duty to submit a BAFO if the solicitation says, we may make award without discussions. Thoughts?

[joel hoffman]

Also, the offeror has the duty to submit a BAFO if the solicitation says, we may make award without discussions. Thoughts?

I assume that your use of the term "BAFO" refers to a "Best and Final Offer". This term was deleted in the 1997 rewrite of FAR Part 15. The current term used in 15.307 is "final proposal revision(s)". Offeror's have no "duty to submit a BAFO" or to submit any revision to their proposals, per se. If the government doesn't conduct discussions, it means that there generally is no opportunity for a proposers or offerors ro submit revised proposals to correct errors or omissions.

[govt2310]

Sorry to use the term "BAFO." What I mean is the following:

It is an offeror's or vendor's obligation to submit an adequately written quotation for the agency to evaluate, see United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 Comp. Gen. Proc. Dec. P 75 at 19, and a protester's mere disagreement with the evaluation is not sufficient to render it unreasonable. Ben-Mar Enters., Inc., B-295781, Apr. 7, 2005, 2005 Comp. Gen. Proc. Dec. P 68 at 7.

It is an offeror's responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency. See, e.g., [4] International Med. Corps, B-403688, Dec. 6, 2010, 2010 Comp. Gen. Proc. Dec. P 292 at 7. An offeror is responsible for affirmatively demonstrating the merits of its proposal and risks the rejection of its proposal if it fails to do so. HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 Comp. Gen. Proc. Dec. P 8 at 5. [*7] In reviewing protests challenging the evaluation of proposals, we do not conduct a new evaluation or substitute our judgment for that of the agency but examine the record to determine whether the agency's judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs. Inc., B-237060.2, Feb. 26, 1990, 90-1 Comp. Gen. Proc. Dec. P 223 at 4.

Clearly stated RFP technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable and may not form the basis for award. National Shower Express, Inc.; Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 Comp. Gen. Proc. Dec. P 140 at 4-5; Outdoor Venture Corp., B-288894.2, Dec. 19, 2001, 2002 Comp. Gen. Proc. Dec. P 13 at 2-3. [*8]

And from the Alares GAO Protest:

Alares also contends that the agency was required to clarify or conduct discussions with Alares regarding any "minor informalities and irregularities" in its technical proposal, and cites the RFP's reservation of the agency's right to conduct discussions if necessary. Protest at 2-3, citing RFP at 16; see Comments at 2-3. Correction of omissions identified in Alares' proposal, however, would not constitute clarifications, but discussions. See, e.g., Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 Comp. Gen. Proc. Dec. P 75 at 5; eMind, B-289902, May 8, 2002, 2002 Comp. Gen. Proc. Dec. P 82 at 5 (clarifications are not to be used to cure proposal deficiencies or material omissions).

[Guest Vern Edwards]

Let's say the TEP advises the SSO, the Contracting Officer, to mark the proposal DEFICIENT for the stupid wrong-job-title reason. Say that the CO agrees with the TEP and follows their advice. So the offeror does not get the award. Can the offeror file a protest at GAO or the Court of Federal Claims on the basis that it was misevaluated, and actually prevail? I believe the standard GAO is that, as long as the decision is reasonable, GAO will not substitute its judgment for the SSO's. Also, the offeror has the duty to submit a BAFO if the solicitation says, we may make award without discussions. Thoughts?

My thought is that you are beating this to death. Go back and read Don Acquisition's answer. Project manager. Program manager. Substantively, what's the difference? The terms are often used interchangeably. The GAO has used them interchangeably on countless occasions, sometimes in the same sentence.

With regard to L–3, the evaluators adjusted the program manager's hours upward based on its assignment of a weakness to L–3's mission suitability proposal for failing to propose a full-time project manager.

Although the protester acknowledges that the project manager was [deleted] percent, L–3 contends that nothing in its mission suitability proposal suggested that the program manager was anything but a full-time position, and that the agency should have known, from its experience with L–3 on the prior contract, that L–3 provides a full-time project manager, but he is only [deleted] percent of his time, [deleted].

We find that the agency evaluators, when confronted with information in L–3's cost proposal that suggested that the program manager was not billed at 100 percent, and no explanation for this seeming deviation from the solicitation's requirements, reasonably determined that the protester's proposal failed to comply with the requirement for a full-time project manager.

Is there anything in the RFP to indicate that the word "project" is meaningfully distinguished from the word "program" and that the distinction is crucially important? If so, is there anything in the proposal to indicate that the offeror is hedging or being evasive? If not, then you have a non-issue and the SEB (Oops! TEP) is out to lunch.

[Navy_Contracting_4]

Let's say the TEP advises the SSO, the Contracting Officer, to mark the proposal DEFICIENT for the stupid wrong-job-title reason. Say that the CO agrees with the TEP and follows their advice. So the offeror does not get the award. Can the offeror file a protest at GAO or the Court of Federal Claims on the basis that it was misevaluated, and actually prevail? I believe the standard GAO is that, as long as the decision is reasonable, GAO will not substitute its judgment for the SSO's. Also, the offeror has the duty to submit a BAFO if the solicitation says, we may make award without discussions. Thoughts?

An offeror can always file a protest at GAO or the Court of Federal Claims. Whether they can prevail, no one can say, but you note that the GAO will examine the record to determine whether the agency's judgment was reasonable and in accord with the RFP evaluation criteria. In the scenario you postulate, they might well conclude that the agency's judgment was not reasonable, and the proteser might prevail.

[mm6ch]

To reiterate what everyone has said...ask the TEP and/or the TEP chair for a better explanation of the Deficiency. If Project and Program Manager are not clearly distiguished in the RFP and their explanation is not satisfactory then throw out their opinion and come up with a more reasonable one (if you're the CO....you sound like the CO)...documenting your reason for the change. However, when you use the words ornery and exactitude its sounds like you have a personal problem with the TEP. Finally, it's your decision to open discussions not the TEP. Sounds like your holding yourself hostage to the Tech Panel.

[Don Mansfield]

govt2310,

If you're asking whether an agency has the discretion to not waive a minor informality or irregularity in an offer, the use of "may" at FAR 52.215-1(f)(3) suggests the answer is "yes." However, the GAO or a court may find that refusal to waive a minor informality or irregularity an abuse of discretion. For example, in Fort Mojave/Hummel, a Joint Venture, B-296961, October 18, 2005, the GAO sustained a protest where the CO did not waive an offeror's failure to acknowledge an immaterial amendment. Although this case deals with sealed bidding, I believe the result would be the same in competitive negotiation.

[govt2310]

Don Acquisition - thank you! Yes that was exactly my question!