Binding Arbitration Agreements

L3 argues that the agency acted improperly when it failed to find the Leidos proposal unawardable because Leidos required certain of its proposed new (not yet hired) key employees to enter into binding arbitration agreements as a condition of employment. The record shows that, in the case of several prospective new key employees, Leidos provided letters of intent with its proposal that included the following provision: "All new hires and rehires of Leidos must execute an Arbitration Agreement prior to commencement of employment. Enclosed is a copy of the Arbitration Agreement you are required to execute as a condition of employment." Leidos Technical Proposal, at D-6, D-11, D-16, D-24.

In support of its allegation, L3 directs our attention to a provision of the Fiscal Year 2010 Defense Appropriations Act, which precludes the expenditure of funds on any contract in excess of $1 million unless the contractor agrees not to enter into an agreement with any of its employees that conditions that an individual's employment on his or her agreement to resolve through arbitration certain types of employment claims, for example a claim under title VII of the Civil Rights Act of 1964. Pub. L. No. 111-118, § 8116, 123 Stat. 3454, 3455 (2009). (Although the provision to which the protester refers related to fiscal year 2010 funds, Congress repeatedly has reenacted identical provisions, most recently in the Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 8096 ___ Stat. ___ (May 5, 2017). Those provisions, in turn, were extended under the Continuing Appropriations Act, 2018, Pub. L. No. 115-56, ___ Stat. ___, (Sept. 8, 2017), which provided continued funding through December 8, 2017.) Each provision permits the Secretary or Deputy Secretary of Defense to waive its requirements. Specifically, each provision provides as follows:

(d) The Secretary of Defense may waive the application of subsection (a) or (b) to a particular contractor or subcontractor for the purposes of a particular contract or subcontract if the Secretary or the Deputy Secretary personally determines that the waiver is necessary to avoid harm to national security interests of the United States, and that the term of the contract or subcontract is not longer than necessary to avoid such harm. The determination shall set forth with specificity the grounds for the waiver and for the contract or subcontract term selected, and shall state any alternatives considered in lieu of a waiver and the reasons each such alternative would not avoid harm to national security interests of the United States. The Secretary of Defense shall transmit to Congress, and simultaneously make public, any determination under this subsection not less than 15 business days before the contract or subcontract addressed in the determination may be awarded. (Emphasis added.) Id. L3 argues that the agency did not evaluate the Leidos proposal for compliance with this requirement, nor is there any showing that the agency sought and obtained a waiver of the requirement, as contemplated by the statutes.

We sustain this aspect of L3's protest. As noted, the record shows that four of Leidos's key employees were proposed as contingent hires. Each of them executed a letter of intent agreeing to accept employment with Leidos, and each of those letters of intent expressly conditioned the individual's employment on execution of an arbitration agreement. As the protester correctly notes, there is no evidence in the record to show that the agency ever meaningfully considered whether or not the Leidos proposal complied with the statutory requirements described above in light of the terms of the letters of intent. In fact, there is no evidence to show that the agency even had a copy of the Leidos arbitration agreement before making award to the firm. There also is no evidence to show that the agency sought or obtained a waiver of this statutory requirement prior to making award to Leidos. Under these circumstances, we conclude that the agency could not properly have considered the Leidos proposal awardable without resolving whether or not the arbitration agreements here violate the statutory prohibition. We therefore sustain this aspect of L3's protest.  (L3 Unidyne, Inc. B-414902, B-414902.2, B-414902.3: Oct 16, 2017)

XYZ argues that the agency should disqualify ABC from the competition because ABC’s misrepresentation had a material effect on the evaluation. In this regard, the protester argues that the only appropriate remedy in this case is disqualification. Comments at 25. According to the agency, however, the decision not to disqualify ABC was reasonable and within the sound discretion afforded agencies when fashioning corrective action. For the reasons set forth below, we have no basis to sustain the protest.

Agencies have broad discretion to take corrective action where the agency has determined that such action is necessary to ensure a fair and impartial competition. Sealift, Inc., B-412041.2, Dec. 30, 2015, 2016 CPD ¶ 9, at 3. The details of implementing corrective action are within the sound discretion and judgment of the contracting agency, and we will not object to any particular corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Id. at 4. Moreover, our review is generally limited to whether the agency’s corrective action is appropriate to remedy the flaw which the agency believes exists in its procurement process, not whether the agency’s corrective action remedies the flaws alleged in an earlier protest where, as here, no decision on the merits was issued by our Office. Id.

In its initial protest, XYZ alleged that ABC knew that its PPM planned to retire before commencement of the contract, and consequently mispresented the [proposed program manager] PPM’s availability in its final proposal revision. In support of its allegation, XYZ provided a copy of an independent contractor agreement (ICA) between ABC and the PPM, executed on March 8--prior to the agency’s request for final proposal revisions. AR, Tab 4, Ex. A, ICA. The ICA was contingent upon the PPM’s retirement from full-time employment, which was anticipated to occur no later than the award of the contract to ABC. The ICA also changed the PPM’s role from program manager to consultant and advisor.

The agency conducted an inquiry into the protester’s allegation, seeking, among other things, information regarding the ICA. During the investigation, ABC explained that it had known that the PPM’s retirement was possible since the fall of 2015, and had entered into the ICA as a contingency plan in the event the PPM decided to retire. AR, Tab 4, ABC Response at 1. ABC asserted that the PPM would have been available for the first six months of the contract, although his status with the company would have changed from full-time employee to independent contractor. Id. ABC also noted the possibility that the ICA could have been extended beyond the six month period upon mutual agreement of the parties. Id. According to ABC, it did not misrepresent the availability of the PPM because, up until the PPM’s retirement announcement on May 26, 2016, ABC expected that the PPM would be available. Id.

As a result of the investigation, the agency concluded that ABC had a duty to apprise the agency of the ICA arrangement and changes in the PPM’s status, and the apparent change in his role, “before award, and indeed before final proposal submissions.” AR at 3. The agency also concluded that ABC’s misrepresentation regarding the PPM’s availability had a material effect on the evaluation, noting that the agency assigned ABC a significant strength for proposing the PPM who was the project manager on the current contract. AR at 7.

The investigation also revealed, however, that the CO, members of the technical evaluation team, and the source selection official (SSO) were aware that the PPM had plans to retire. Id. at 3. According to the agency, in some instances, the officials’ “understanding was simply that the [PPM] would retire at some undetermined point in the future; in at least one instance, the understanding was that [the PPM] would retire at the end of the predecessor contract.” Id. at 3. Their knowledge was attained through casual conversations with the PPM and information from the contracting officer’s technical representative. Id. at 4. Based on its findings in this regard, the agency ultimately concluded that the PPM’s disclosures to officials involved in the acquisition undercut the agency’s ability to find that ABC intended to deceive the agency. Notice of Corrective Action, July 1, 2016, at 2.

Additionally, the agency determined that the information known by these agency officials should have raised questions about the reliability of ABC’s representations regarding the PPM’s availability. AR, at 4. In this regard, the agency explains that the officials did not realize that they should have taken such information into account during their evaluation of ABC’s final proposal revision, and did not realize that they should have provided the information to the SSA for her consideration as part of her selection decision. Id. Based on the circumstances described above, the agency concluded that corrective action was needed to address the flaws in the evaluation due to ABC’s misrepresentation, as well as other flaws identified by the agency. The agency determined, however, that disqualification of ABC was not appropriate given the facts of this case.

While the protester challenges the agency’s corrective action arguing that disqualification of ABC is the only appropriate remedy in this case, our prior decisions indicate otherwise. In some circumstances, we have recommended that an offeror be excluded from competition as the result of a misrepresentation. See Patricio Enterprises, Inc., B-412738, B-412738.2, May 26, 2016, 2016 CPD ¶ 145 at 15 (sustaining protest and recommending exclusion of awardee from competition where the awardee made material misrepresentations that the awardee had signed offer letters in place for certain proposed personnel despite never having provided such letters to those individuals); ACS Gov’t Servs., Inc., B‑293014, Jan. 20, 2004, 2004 CPD ¶ 18 at 11 (sustaining protest and recommending exclusion of awardee’s proposal from further consideration where the awardee made material misrepresentations regarding employment agreements with proposed personnel); Informatics, Inc., B‑188566, Jan. 20, 1978, 78-1 CPD ¶ 53 at 13 (sustaining protest and recommending exclusion of awardee’s proposal from further consideration based on the awardee’s misrepresentation of the results of a survey of the availability of incumbent’s personnel).

In other circumstances, however, we have not recommended disqualification. In determining an appropriate remedy in misrepresentation cases, we typically consider such factors as the degree of negligence or intentionality associated with the offeror’s misrepresentations, as well as the significance of the misrepresentation to the evaluation. See Johnson Controls Sec. Sys., B-296490, B‑296490.2, Aug. 29, 2005, 2007 CPD ¶ 102 at 11-12 (sustaining protest but not recommending exclusion of awardee from the competition where the awardee made material misrepresentations regarding arrangements for its personnel to receive mandatory training and certifications prior to award); CourtSmart Digital Sys., Inc., B-292995.2, B-292995.3, Feb. 13, 2004, 2004 CPD ¶ 79 at 6, 13-14 (sustaining protest but not recommending exclusion of awardee from competition where the record did not clearly indicate that the awardee’s misrepresentation that a proposed item was on the federal supply schedule was intentional); Aerospace Design & Fab., Inc., B‑278896.2, et al., May 4, 1998, 98-1 CPD ¶ 139 at 19 (sustaining protest where the awardee misrepresented the availability of its key personnel and had not obtained a commitment from the proposed individuals as it claimed, but not recommending disqualification of the awardee because the misrepresentation lacked the same level of disregard for the truth that GAO had found in Informatics, Inc., supra.). In sum, the mere fact that the agency identified a misrepresentation that it believes had a material influence on the agency’s evaluation of proposals does not obligate the agency to disqualify ABC.

Here, the agency investigated the misrepresentation alleged by the protester; considered the facts; concluded that ABC made a misrepresentation that had a material effect on the evaluation; and considered that the PPM had discussed his possible retirement with agency officials involved in the evaluation of proposals. The agency reasonably concluded that the evaluation was flawed as a result of, among other things, the evaluators’ failure to consider the possibility of the PPM’s retirement. AR at 4. As a result, the agency committed to take corrective action that, in its view, would remedy the flaws in its original source selection, and allow the offerors, including ABC, a fair opportunity to compete. Notice of Corrective Action at 2.

As previously discussed, the details of implementing corrective action are within the sound discretion and judgment of the contracting agency, and we will not object to any particular corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Sealift, Inc., supra. Moreover, our review is generally limited to whether the agency’s corrective action is appropriate to remedy the flaw which the agency believes exists in its procurement process. Id.

Here, we find no basis to conclude that the agency’s corrective action was inadequate. While XYZ would undoubtedly prefer that ABC be disqualified from further competition, narrowing the pool of competitors vying for the award, XYZ’s argument that disqualification is the only appropriate remedy in this case is inconsistent with our prior decisions, and fails to recognize the discretion afforded agencies when fashioning corrective action to remedy concerns identified in the procurement process.  (XYZ Corporation B-413243.2: Oct 18, 2016)

PSI argues that the agency unreasonably evaluated Genex’s proposal by finding that its proposed program manager met the solicitation requirements. Specifically, PSI argues that Genex’s proposed program manager did not meet the requirement for demonstrated experience managing a testing facility and directing a diverse team. PSI Protest (B-412721.2) at 7.

As discussed below, based on our review of the record here, we find that the program manager proposed by Genex failed to meet the solicitation’s requirement for management experience. We further find that while Genex proposed to provide additional oversight by another individual, this additional oversight does not meet the solicitation requirements. Accordingly, we sustain PSI’s protest on this basis.

The evaluation of an offeror’s proposal is a matter within the agency’s discretion. VT Griffin Servs., Inc., B-299869.2, Nov. 10, 2008, 2008 CPD ¶ 219 at 4; IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD ¶ 90 at 7, 13. In reviewing a protest of an agency’s evaluation of proposals, our Office will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Shumaker Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD ¶ 169 at 3. While we will not substitute our judgment for that of the agency, we will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 at 4-5.

The resume provided by Genex for the program manager position indicated that its candidate had the following project management experience:

As a lead engineer at [the structures research laboratories], duties involved coordinating efforts of peer engineers and train and supervise technicians in performing testing and other project-related duties. Developed project plans for engineering research, developed cost estimates, project schedules and oversaw the procurement of materials and equipment required to conduct research projects.

AR, Tab 7, Genex Proposal, Vol. 1, at Appendix A-2.

The original technical evaluation team (TET) report noted the following weakness regarding the past performance of Genex’s proposed program manager:

Provided documentation on proposed [program manager’s] qualifications do not demonstrate past experience in handling ‘personnel issues including ensuring appropriate staffing levels and effort, performance appraisals, time and attendance, disciplinary actions, and quality of work’ as required on page 4 of the RFP.

AR, Tab 9, Initial TET Report, at 6. The report stated that award to Genex raised a risk because the “[l]imited experience of [the] proposed [program manager] within responsibilities of defined position creates risk of poor delivery until experience is gained.” Id. at 7. The matter was raised with Genex in discussions. Id. at 7; Tab 10, Agency Discussion Email to Genex (Oct. 6, 2015), at 1.

In its FPR Genex stated that its proposed program manager “already provides informal oversight of the current . . . Structures Laboratory contract, where he is well regarded as a mentor and leader for the incumbent team of researchers and technicians.” AR, Tab 8, Genex FPR, at 1. In an effort “[t]o mitigate the potential performance risk related to [its candidate’s] lack of formal experience performing as the [program manager] for a program of this size,” Genex proposed an organizational approach that “undergirds” its proposed program manager with “strong corporate reinforcement,” where [DELETED] would “provide corporate oversight of the program and mobilize corporate support and resources as necessary to ensure successful program performance.” Id. Genex’s FPR noted that [DELETED] had over 20 years of engineering, business, and program management experience in government contracting and that his “commitment to the program extends through his corporate Business Office,” where human resource and administrative support are available to the proposed program manager. Id. Genex assured the agency that it would “not let this program or our [program manager] fail,” and concluded its technical proposal addendum as follows:

If we determine that the day-to-day technical responsibilities for [the proposed program manager] are too demanding, or that he is not able to successfully apply our management approach, we will work closely with the government to restructure our organization without impacting performance to ensure the program’s continued success.

Id. at 2.

The TET Report Addendum concluded that Genex’s FPR identified corporate personnel and corporate resources available to the program manager “to streamline the execution of his tasks and cover back office (i.e., contractual support, human resource support) functions that can be acceptably handled off-site.” AR Tab 12, TET Report Addendum, at 3. The report noted that the program manager is “the responsible party,” but that “an Offeror can create a support system around the program manager so as to cover portions of the required duties and ensure successful delivery of the contracted services.” Id. The TET assigned Genex’s proposal an overall technical rating of “satisfactory,” and assigned a weakness based on the program manager’s qualifications.

As previously noted, the agency took corrective action in response to PSI’s initial protest by, among other things, reevaluating the qualifications of Genex’s proposed program manager. The reevaluation resulted in both a majority and a minority addendum to the technical evaluation report. AR, Tab 16, TET Majority Report on Reevaluation; Tab 17, TET Minority Report on Reevaluation. The majority report noted that Genex’s proposed program manager had 8 years of experience “conducting experimental structural engineering research, [DELETED].” AR, Tab 16, TET Majority Report on Reevaluation, at 3. The majority report authors noted that they had personally observed Genex’s proposed program manager leading a diverse team in the subject laboratory, where he currently leads two research programs. Id. While the majority report acknowledged and assessed a risk for the proposed program manager’s lack of experience, the report stated that the risk was “mitigate[d] . . .to an acceptable level” by the capabilities and demeanor of Genex’s proposed [program manager], and Genex’s affirmation of “an empowered, corporate‑backed local Program Manager.” Id.

In contrast, the minority report, written by the contracting officer’s representative, who was also the Chair of the TET, noted that the experience of Genex’s proposed program manager was limited to performing research work on one or two specific projects under the task order, and that this individual “did not demonstrate either the necessary knowledge or [program manager] experience to manage the work outlined in the RFP.” AR, Tab 17, TET Minority Report on Reevaluation, at 2. In this regard, the RFP stated that the proposed program manager was “responsible for oversight of all work under [the] contract,” such as procurement of all necessary materials and equipment, performance appraisals, time and attendance, disciplinary actions, and quality of work of contractor staff. RFP at 3. With respect to Genex’s proposed plan to mitigate the potential risk associated with the proposed program manager’s lack of experience by having [DELETED] provide oversight, the minority report noted that the resume of [DELETED] was not included in the proposal. Id. The TET Chair also noted that Genex’s statement in its FPR that Genex would restructure its organization in the event the proposed program manager did not adequately perform, was not responsive to the RFP’s requirements that Genex demonstrate that its proposed program manager, not other personnel, would perform the required duties. Id. at 2.

The source selection decision acknowledged the majority and minority reports, and noted that a majority of the TET members agreed that Genex’s proposed program manager met the minimum solicitation requirements for the position. AR, Tab 18, Source Selection Decision for the Reevaluation, at 11. The SSA further noted that “[w]hile the minority report describe[d] the proposed Genex Program Manager as nonresponsive, it also point[ed] out Genex’s strategy for providing oversight and resources for this Program Manager to compensate for a lack of experience.” Id. at 12. According to the SSA, this was an approach provided for in the solicitation, which advised that the contractor “shall provide staff with the stated minimum qualifications, [or] else provide the necessary training.” Id.

Based on our review of the record here, we cannot conclude that the agency’s evaluation was reasonable. Rather, we find reasonable the conclusion in the minority report, not adopted by the agency, that the duties that Genex’s proposed program manager performed while running specific projects did not equate to the wide-ranging management responsibilities associated with being the program manager for a structural testing facility. The record shows that PSI employed the proposed program manager on the incumbent contract, and identified him as a project engineer, who, according to PSI, worked exclusively as a research specialist on the incumbent contract, which PSI contends, is not a management job. PSI Protest (B‑412721.2) at 7. The TET chair pointed out in the minority report that it was the program manager on the current contract, and the supervisor of Genex’s proposed program manager, that had the responsibility to procure material and equipment to conduct the research projects lead by the Structures Research Program, including those worked on by the proposed program manager. AR, Tab 17, Minority Report on Reevaluation, at 3. Even if we were to conclude that Genex’s proposed program manager did assume a leadership role in his prior position, we see no basis in the record to conclude that this experience equates to “directing a diverse team of researchers and technicians,” as required by the RFP. RFP at 4.

The SSA neither acknowledges nor addresses in his selection decision that the resume of [DELETED] was not part of Genex’s proposal. Moreover, the described “corporate oversight” does not address whether Genex’s proposed program manager will be trained to eventually assume all of the program manager duties; rather, it appears to provide for certain tasks to be performed by other personnel at Genex. As a result, we do not think that the SSA reasonably concluded that Genex’s approach was consistent with the requirements of the solicitation, or the solicitation’s exception to the minimum qualification requirements where the agency provided necessary training.

In conclusion, we do not think the agency could reasonably have concluded that Genex’s proposed program manager met the solicitation requirement for experience managing structural testing facilities. Accordingly, we sustain the protest on this basis.  (Professional Service Industries, Inc. B-412721.2, B-412721.3, B-412721.4: Jul 21, 2016)

Patricio argues that KCA’s proposal contained material misrepresentations concerning the availability of proposed personnel. Specifically, Patricio argues that KCA’s proposal identified [DELETED] individuals who were either Patricio employees or working under a subcontract or teaming arrangement with Patricio for its incumbent contract at the time of proposal submission, and the proposal contained misrepresentations regarding offers for employment to these individuals. The protester submitted declarations from these individuals stating that despite the representations in KCA’s proposal that these individuals had been offered employment by KCA, the awardee had not, prior to the time proposals were submitted, contacted them regarding their availability or willingness to work for KCA on the PM IWS task order. Patricio argues that the material misrepresentations in KCA’s proposal warrant termination of the award and elimination of the awardee from the competition. For the reasons discussed below, we agree with the Patricio’s arguments and sustain the protest.

The issue of whether personnel identified in an offeror’s proposal, in fact, perform under the subsequently-awarded contract is generally a matter of contract administration that our Office does not review. See Bid Protest Regulations, 4 C.F.R. § 21.5(a); Future-Tec Mgmt. Sys., Inc.; Computer & Hi-Tech Mgmt., Inc., B‑283793.5, B-283793.6, Mar. 20, 2000, 2000 CPD ¶ 59 at 14-15. Nonetheless, our Office will consider allegations that an offeror proposed personnel that it did not have a reasonable basis to expect to provide during contract performance in order to obtain a more favorable evaluation, as such a material misrepresentation has an adverse effect on the integrity of the competitive procurement system. Ryan Assocs., Inc., B-274194 et al., Nov. 26, 1996, 97-1 CPD ¶ 2 at 6. Our decisions frequently refer to such circumstances as a “bait and switch.” Id. In order to establish an impermissible “bait and switch,” a protester must show: (1) that the awardee either knowingly or negligently represented that it would rely on specific personnel that it did not have a reasonable basis to expect to furnish during contract performance, (2) that the misrepresentation was relied on by the agency, and (3) that the agency’s reliance on the misrepresentation had a material effect on the evaluation results. CACI Techs., Inc., B-408858, B‑408858.2, Dec. 5, 2013, 2013 CPD ¶ 283 at 5; ACS Gov’t Servs., Inc., B-293014, Jan. 20, 2004, 2004 CPD ¶ 18 at 3, 10. An offeror may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation.[6] ManTech Advanced Sys. Int’l, Inc., B-255719.2, May 11, 1994, 94‑1 CPD ¶ 326 at 13. As discussed further below, our Office has held that a misrepresentation that materially influences the agency's evaluation may warrant disqualification of the offer. ACS Gov’t Servs., Inc., supra, at 11.

As relevant to the staffing approach subfactor of the management and staffing capability evaluation factor, the RFP required offerors to “provide a detailed approach to staffing that meets the PWS requirements,” and to address the following regarding key personnel and other staff:

1) The proposed minimum labor qualifications for key personnel along with the rationale supporting the proposed qualifications. Key personnel are deemed essential to the performance of this effort and cannot be replaced without prior notice to the Government (see requirements of basic IDIQ Substitution of Team Members and Substitution of Personnel). Under this effort the Task Order Manager (TOM) is considered key. Offerors may propos[e] additional key personnel, which if accepted will also be subject to the replacement requirements.

2) The offeror’s organizational structure (to include an organization chart) and its ability to efficiently interface with PM IWS personnel and other support contractors as appropriate. The Offeror shall complete the attached staffing matrix to address how the offeror proposes to support PM IWS at each Tier. At minimum, the matrix must address:

a) Proposed labor categories; and

b) Qualifications for the labor categories associated with each Tier and PWS task . . . [including junior, senior, journeyman, and subject matter expert (SME) categories].

RFP § L at 3.

The solicitation advised offerors that the agency would evaluate proposals under the staffing approach subfactor of the management and staffing capability evaluation factor as follows:

[T]he Government will evaluate the capabilities, qualifications, and experience of each offeror’s proposed key personnel as well as its proposed processes, resources, and organizational structure to adequately [] support the PWS tasks and interface with PM IWS personnel and other support contractors as appropriate.

The Government will also evaluate the Offeror’s approach to providing staffing necessary to achieve full performance by month five and how well this approach articulates the detailed schedule of events, with associated timelines provided for each event, which is required for the Offeror to reach full capability to support all of Infantry Weapons Systems staff and Product Managers.

RFP § M at 2.

KCA’s proposal emphasized that among the firm’s “unmatched advantages” was its “Ability to Commence Work on Day One.” AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 1. The awardee’s proposal explained that KCA [DELETED], which will ensure success during transition, and that:

KCA is able to execute all tasks on day one without missing a beat, providing seamless support to PM IWS. Notably, we only require a [DELETED] week transition period, not 4 months as allowed by the solicitation, and guarantee that PM IWS will not encounter any gaps in support during the entire transition period.

Id. As discussed above, the work solicited here combines services provided under a number of existing task orders and contracts. KCA’s proposal explained that the firm would be able to ensure transition from those existing contracts as follows: “As each of your existing support contract ends, the very next day we will have those positions 100% staffed.” Id.

As relevant to Patricio’s “bait and switch” allegations, KCA’s proposal discussed offers to non-KCA personnel in three places in its proposal. Two areas of the awardee’s proposal referred to “signed” contingent offers concerning personnel working on the other incumbent contracts providing support to the agency, and stated that these individuals would be available at the start of performance:

[DELETED]. We have signed contingent offers for select personnel from your other current Task Orders—specifically, those [DELETED] that continue to demonstrate high levels of performance supporting PM IWS. All of these personnel will be available at the immediate start of the Task Order.

Id. at 2 (emphasis added).

To help ensure PM IWS’ success, we will [DELETED]. Additionally, we have signed contingent employment offers for select non-KCA employees who currently deliver high levels of performance on your other existing Task Orders.

Id. at 16 (emphasis added).

A third reference in KCA’s proposal explained that the contingent offers were “in place”:

KCA’s Approach to Reaching Full Staffing for Each PWS . . . We guarantee that PM IWS will not encounter any gaps in support during the entire transition period. As each of your existing support contracts end, the very next day we will have those positions 100% staffed. Our team will be ready to commence work on day one of the task order. Of the [DELETED] personnel that we have proposed to work on this task order, [DELETED] of them are our current employees and [DELETED] others currently support you on your other existing task orders, while [DELETED] are new hires. For personnel who are not current KCA employees, we have contingent employment offers in place. All personnel will be available at the immediate start of the Task Order.

Id. at 23 (emphasis added). KCA’s proposal listed all [DELETED] of its proposed personnel by name in two places in its proposal: (1) a support team organizational chart, which detailed the assignments for all personnel; and (2) a transition staffing and schedule table, which listed start dates for all personnel. Id. at 17, 24.

With regard to key personnel, KCA listed an individual for the key TOM position, as required. Id. at 5. The awardee’s proposal also stated the following regarding other key personnel positions: “Quality leadership and staffing is what produces highly effective contractor support teams and as evident by the experience, education, and qualifications of our personnel--specifically, our [DELETED] key personnel listed in Table 3.” Id. at 16. Table 3 included as one of the [DELETED] identified key personnel positions a “[DELETED] SME [subject matter expert] [DELETED].” Id. at 17. As discussed below, the individual proposed by KCA for the [DELETED] SME position was a Patricio employee at the time of proposal submission.

The Corps assigned KCA’s proposal a single strength, and no weaknesses or deficiencies. AR, Tab 15, SSEB Report, at 8. The strength related to the RFP’s requirement to “provide staffing necessary to achieve full performance by month five,” and to “minimize interruptions or delays to work in progress” throughout the 4‑month transition period. Id. (citing RFP § M at 2; PWS at 10). The agency concluded that KCA’s proposed approach to transition was a strength based on its ability to achieve the required transition, and that the “benefits include [that KCA is] ‘the only company capable of delivering a [DELETED]-week transition period.’” Id. (citing AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 23).

Material Misrepresentation

First, we conclude that KCA either knowingly or negligently represented that it would provide Patricio personnel during performance, including an individual proposed for a key personnel position, without a reasonable basis for the representations. As discussed above, KCA’s proposal identified all of the [DELETED] proposed personnel by name. AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 17, 24. The awardee’s proposal stated that it would use [DELETED] of its own employees, as well as [DELETED] employees performing under the other incumbent contracts and task orders, and [DELETED] new hires. Id. at 23. With regard to the non-KCA personnel, the awardee stated that “[w]e have signed contingent offers,” and “signed contingent employment offers.” Id. at 2, 16. Further, the awardee’s proposal stated: “For personnel who are not current KCA employees, we have contingent employment offers in place,” and that “[a]ll personnel will be available at the immediate start of the Task Order.” Id. at 23.

Patricio submitted declarations from [DELETED] Patricio employees named in the KCA’s proposal, including the individual proposed by the awardee for the CBRN SME key position. Protester’s Comments (Mar. 25, 2016), exh. 1. Each of the [DELETED] individuals stated that he or she had not been contacted by the awardee regarding potential employment for the PM IWS task order prior to the time for submission of proposals. Id.

KCA does not dispute the representations made in [DELETED] of the declarations submitted by the Patricio personnel. In response to the protest, KCA submitted declarations by its employees addressing their preparation of the awardee’s proposal, including the decision to propose personnel for specific positions. KCA states that, prior to proposal submission, its employees had conversations with two Patricio employees, both of whom related names of other Patricio personnel they believed had the qualifications to perform under the PM IWS task order and would likely be willing to work for KCA in the event it was awarded the task order. Intervenor’s Comments (Apr. 6, 2016), exh. 2, Decl. of KCA Employee (Apr. 6, 2016), at ¶¶ 4-8; exh. 3, Decl. of KCA Employee (Apr. 6, 2016), at ¶¶ 4-8. Of the [DELETED] Patricio personnel who submitted declarations, KCA states that the company spoke with one of those individuals prior to submission of its proposal regarding employment. Intervenor’s Comments (Apr. 6, 2016), exh. 1, Decl. of KCA President (Apr. 6, 2016), at ¶ 8; exh. 4, Decl. of KCA Employee (Apr. 6, 2016), at ¶ 3. The other [DELETED] Patricio employees were identified and included in the awardee’s proposal on the basis of: recommendations by the two Patricio employees, recommendations by other third parties, or personal knowledge of the KCA employees on the part of the Patricio employees. Id.

With regard to the individual proposed for the [DELETED] SME key position, KCA acknowledges that the company did not contact this person prior to submitting its proposal, and that the proposal’s description of the individual’s experience and qualifications was based on a review of the individual’s publically-available LinkedIn account profile.[8] AR, Tab 22, Decl. of KCA President (Mar. 16, 2016), at ¶ 11. A KCA employee states that he spoke with a Patricio employee who indicated that the individual proposed for the key position was “disgruntled” and would likely therefore be willing to work for KCA. Intervenor’s Comments (Mar. 29, 2016), exh. 3, Decl. of KCA Employee (Mar. 9, 2016), at ¶ 7.

KCA’s comments on the agency report explain that the references in its proposal to “signed contingent offers” meant that the company had prepared letters offering employment, which were signed by the president of KCA--not that the prospective personnel had signed the letters, agreed to the contingent offers, or were even aware of them. Intervenor’s Comments (Mar. 29, 2016) at 7. KCA emphasizes in its comments on the agency report that the letters “were prepared prior to the submission of KCA’s proposal of November 15, 2015.” Intervenor’s Comments (Apr. 4, 2016) at 1 (emphasis in original). For this reason, KCA argues that there was no intent to mislead or deceive, and thus no material misrepresentations regarding its proposed personnel. However, in response to questions from our Office, the awardee conceded that “[t]he letters were not circulated to the individuals in question as was originally intended.” Intervenor’s Comments (Apr. 6, 2016), exh. 11, Decl. of KCA President (Apr. 6, 2016), at ¶ 11.

In our view, the phrases “signed contingent offers” and “signed contingent employment offers” appear to be an attempt to mislead the agency about KCA’s readiness to perform. As used in the context of KCA’s proposal, these phrases strongly suggest that the awardee would be able to provide the named individuals at the start of performance. In particular, the following statements reflect a link between the availability of personnel and the ability to achieve the transition requirements: “[KCA is] the only company capable of delivering a [DELETED]-week transition period,” “[KCA] guarantee[s] that PM IWS will not encounter any gaps in support during the entire transition period,” and “[a]ll personnel will be available at the immediate start of the Task Order.” AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 23 (emphasis in original). Moreover, for all proposed personnel, including the Patricio employees, the awardee identified specific start dates. Id. at 24. We view these statements and representations as providing support for our conclusion that the phrase “signed contingent offers” was intended to reflect actual agreements with the named individuals, rather than offers signed by the company but not delivered to the individuals.

Nonetheless, even if we accept, arguendo, KCA’s contention that the two phrases above (“signed contingent offers,” and “signed contingent employment offers”) are not misleading, we think that KCA’s representation that it had “signed contingent offers in place” appears purposefully crafted to convey that there had been communication with the individuals in question. As discussed above, KCA acknowledges that it never provided to the Patricio employees the contingent offers that KCA’s proposal represented were “in place.” Intervenor’s Comments (Apr. 6, 2016), exh. 1, Decl. of KCA President (Apr. 6, 2016), at ¶ 11. On this record, we conclude that KCA’s proposal misrepresented the commitment of the non-KCA employees to work for the awardee, which in turn misrepresented the ability of the awardee to provide those individuals at the start of performance.

The Corps and KCA each argue that, regardless of the accuracy of the representations in the awardee’s proposal, the awardee fully intended to hire the Patricio personnel. COS/MOL at 12; Intervenor’s Comments (Mar. 29, 2016) at 4-6. The agency and awardee contend that the KCA’s intent to hire the Patricio personnel identified in the awardee’s proposal demonstrates that there was no misrepresentation.

As our Office has recognized, it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor. Invertix Corp., B-411329.2, July 8, 2015, 2015 CPD ¶ 197 at 6. Our Office has also held, however, that a good-faith intent to hire incumbent personnel does not absolve an offeror of responsibility for submitting a proposal that contains material misrepresentations regarding the availability of proposed personnel. See ManTech Advanced Sys. Int’l, Inc., supra, at 5 (misrepresentations regarding availability of proposed personnel was material even where the RFP did not require letters of commitment); ACS Gov’t Servs., Inc., supra, at 9-10 (awardee’s misrepresentations may be material, even where they were not intentionally misleading). Thus, we conclude that regardless of KCA’s intent to hire the individuals identified by name in its proposal, the proposal misrepresented the commitment of the non-KCA employees to work for the awardee.

Additionally, the record here demonstrates that KCA did not have a reasonable basis to represent that it would be able to provide these individuals at the start of performance. In support of its belief that the Patricio personnel would be available to perform the task order, and the awardee’s intent to hire them, KCA submitted a declaration by its president concerning its approach to identifying personnel for its proposal. AR, Tab 22, Decl. of KCA President (Mar. 13, 2016). The company’s president explained that KCA communicated in person or over the phone with prospective hires, received resumes from these individuals, and prepared offer letters. Id. at ¶¶ 8-9; Intervenor’s Comments (Apr. 6, 2016), exh. 1, Decl. of KCA President (Apr. 6, 2016), at ¶¶ 4-9. The president’s declaration included as enclosures resumes for 12 Patricio personnel. AR, Tab 22, Decl. of KCA President (Mar. 13, 2016), encls. 1-12.

We conclude that none of the information provided by KCA demonstrates that the company had a reasonable basis to represent in its proposal that Patricio’s employees would be available to KCA. As discussed above, the contingent offers referenced in KCA’s proposal were never provided to the Patricio personnel. As also discussed above, KCA does not dispute the statements in [DELETED] of the [DELETED] declarations submitted by Patricio personnel that the awardee did not, prior to submitting its proposal, contact these individuals regarding employment with KCA for the PM IWS task order. Further, with regard to the [DELETED] SME that KCA proposed for a key position, KCA acknowledges that it did not contact this individual prior to submitting its proposal. AR, Tab 22, Decl. of KCA President (Mar. 16, 2016), at ¶ 11.

Finally, with regard to the resumes provided by KCA as evidence of its intent to hire the Patricio personnel, none of the declarations provided by KCA state when the resumes were received. See id., at ¶ 9; Intervenor’s Comments (Mar. 29, 2016), exh. 1, Decl. of KCA Employee (Mar. 25, 2016), at ¶ 6; exh. 2, Decl. of KCA Employee (Mar. 29, 2016), at ¶ 9. In fact, although the declaration of KCA’s president included as enclosures resumes from 12 Patricio employees, 10 of these 12 individuals were among those who submitted declarations to our Office stating that they had not been contacted by KCA prior to the time for proposal submission. See Protester’s Comments (Mar. 25, 2016), exh. 1. Moreover, as relevant here, certain of the resumes indicate that they were provided to KCA after the November 16, 2015, proposal submission date. See AR, Tab 22, Decl. of KCA President, Encl. 4 at 1 (listing a position as December 2015-present); Encl. 9 at 1 (stating that “October 2013 - Present” was “2 years [and] 6 months” experience, which indicates a “present” date of March 2016.)

In sum, we conclude that the references in KCA’s proposal to “signed” contingent offers, and the statement that offers were “in place” to all non-KCA proposed personnel, were misrepresentations of the facts in light of the context of the proposal and the lack of contact with Patricio personnel regarding their availability or willingness to work for the awardee in connection with the PM IWS task order. We further conclude that these misrepresentations were material, especially in the context of KCA’s claims that having all of the individuals in place at the start of performance would benefit the transition effort.

Agency Reliance on Misrepresentations and Material Impact on the Evaluation

Next, we conclude that the Corps relied upon the misrepresentations in KCA’s proposal, and that they had a material impact on the evaluation. As discussed above, the Corps assigned one strength to KCA’s proposal, which related to the RFP’s requirement to provide “staffing necessary to achieve full performance by month five,” and to “minimize interruptions or delays to work in progress” throughout the 4-month transition period. AR, Tab 15, SSEB Report, at 8 (citing RFP § M at 2; PWS at 10). The agency concluded that KCA’s proposed approach to transition was a strength based on its ability to achieve transition, and that the “benefits include [that KCA is] ‘the only company capable of delivering a [DELETED]-week transition period.’” Id. (quoting AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 23).

The Corps and KCA argue that this strength did not specifically name or refer to the Patricio personnel listed in KCA’s proposal, and therefore any misrepresentations regarding these individuals could not have affected the evaluation. The Corps and KCA note that the solicitation did not require offerors to identify proposed personnel by name, aside from key personnel, nor were offerors required to provide resumes for proposed individuals or letters reflecting contingent offers. The agency and intervenor also contend that the strength was solely for KCA’s experience as an incumbent for part of the work, and was not related to the personnel proposed by the company. For these reasons, the agency and intervenor argue that any misrepresentations in KCA’s proposal had no effect on the evaluation and award decision. We find no merit to these arguments.

As discussed above, the RFP stated that “[t]he Offeror shall submit a transition plan that establishes full performance before the 5th month.” RFP § L at 3. The RFP further stated that the agency would evaluate an offeror’s approach to “providing staffing necessary to achieve full performance by month five and how well this approach articulates the detailed schedule of events, with associated timelines provided for each event, which is required for the Offeror to reach full capability to support all of Infantry Weapons Systems staff and Product Managers.” RFP § M at 2. With regard to personnel, the RFP stated that “the Government will evaluate the capabilities, qualifications, and experience of each offeror’s proposed key personnel as well as its proposed processes, resources, and organizational structure to adequately to support the PWS tasks and interface with PM IWS personnel and other support contractors as appropriate.” Id. Offerors were also required to provide an organizational chart that reflected their “organizational structure” and “ability to efficiently interface with PM IWS personnel and other support contractors as appropriate.” RFP § L at 2.

Although the RFP did not require offerors to name specific non-key personnel, or to discuss contingent offers, KCA’s proposal clearly stated that its proposed technical approach was based, in part, on its ability to provide specific individuals at the start of performance. KCA’s proposal emphasized that among the firm’s “unmatched advantages” was its “Ability to Commence Work on Day One.” AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 1. KCA’s proposal stated that the company would be capable of meeting and exceeding the transition requirement because its proposed personnel would be available at the start of performance. See AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 23 (“All personnel will be available at the immediate start of the Task Order.” (emphasis in original)). KCA also stated that “we only require a [DELETED] week transition period, not 4 months as allowed by the solicitation, and guarantee that PM IWS will not encounter any gaps in support during the entire transition period.” Id. The Corps concluded that the awardee’s proposal merited a strength with regard to the ability to achieve full performance by week five based on the proposed transition schedule, quoting the proposal’s representation that KCA is “‘. . . the only company capable of delivering a [DELETED]-week transition period.’” AR, Tab 15, SSEB Report, at 8 (quoting AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 23).

With regard to the [DELETED] SME key personnel position, the Corps argues that, “from the Government’s perspective,” the “Task Order Manager (TOM) was the only key personnel position.” COS/MOL at 4. As discussed above, however, the RFP did not state that the TOM was the only key position. Instead, the RFP explained that offerors must “provide a detailed approach to staffing that meets the PWS requirements,” and explained that offerors were allowed to designate additional positions as key. RFP § L.3.1.2. For any such key personnel positions, the RFP stated that “[k]ey personnel are deemed essential to the performance of this effort and cannot be replaced without prior notice to the Government.” Id.

KCA’s proposal identified [DELETED] positions as key personnel, and stated the following regarding these positions: “Quality leadership is what produces highly effective contractor support teams and as evident by the experience, education, and qualifications of our Key Personnel listed in the Table 2.” AR, Tab 14, KCA Proposal, Vol. I (Management and Staffing), at 16. As relevant here, Table 2 included a position for “[DELETED] SME [DELETED],” and proposed a Patricio employee for that position. Id. at 17.

On this record, we conclude that the strength assigned to KCA’s proposal, as well as the overall acceptability of the proposal, was based at least in part on the awardee’s approach to providing personnel, including key personnel, who would be capable of performing the work, and would be available at the start of performance. We therefore conclude that the record shows that the Corps’ evaluation of KCA’s proposal relied upon and was materially affected by the misrepresentations in the awardee’s proposal.  (Patricio Enterprises Inc. B-412738, B-412738.2: May 26, 2016)  (pdf)

Deloitte next alleges that the agency’s evaluation of the offerors’ key personnel under subfactor 1B--staffing approach, was unreasonable, undocumented, and disparate. In reviewing protests of an agency’s evaluation and source selection decision, our Office will not reevaluate proposals; rather, we review the record to determine whether the evaluation and source selection decision are reasonable and consistent with the solicitation’s evaluation criteria, and applicable procurement laws and regulations. Velos, Inc., B-400500.8, B-400500.9, Dec. 14, 2009, 2010 CPD ¶ 13 at 11; Keeton Corrections, Inc., B-293348, Mar. 4, 2004, 2005 CPD ¶ 44 at 6. While we will not substitute our judgement for that of the agency, we will sustain a protest where the agency’s conclusions are inconsistent with the solicitation’s evaluation criteria, undocumented, or not reasonably based. DRS ICAS, LLC, B-401852.4, B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 at 4-5.

We agree with the protester that the agency’s evaluation was unreasonable, and also conclude that it was inconsistent with the terms of the RFP. Specifically, the record here shows that DNC’s proposed senior information architect for architecture--a key personnel position--did not meet the minimum requirements for the position as set forth in the RFP. In relevant part, the RFP PWS provided that the “Sr. Information Architect (Architecture),” “shall have a minimum of 5+ years of experience leading Information Architecture teams for a large federal health system/organization.” AR, Tab 7, RFP Amendment 004, at 130. The resume provided by DNC for this position stated in a “Qualifications Summary” that the proposed individual had “more than 5 years of experience,” as required by the RFP. AR, Tab 27, DNC Technical Proposal, at 102. However, closer inspection of the resume demonstrates that, at the time of proposal submission, the individual had only 1 year and 9 months of applicable experience with the DMIX program office, and an additional 1 year and 9 months of experience at the firm “Xcalibur Software” dating from 2003-2005, during which one project apparently involved information architecture work for the National Cancer Institute. Id. at 103-104.

Thus, even counting the individual’s entire tenure at Xcalibur Software as applicable experience (which the resume suggests was not the case), the individual’s resume demonstrated less than 4 years of applicable experience in contrast to the “more than 5 years” claimed in the qualifications summary. Nonetheless, the agency’s evaluation of the individual’s resume concluded that it demonstrated “5+ years of experience,” and that the individual met the minimum requirements. AR, Tab 12, Technical Evaluation Board Report, at 10.

The agency concedes that the technical evaluation board misevaluated DNC’s proposed senior information architect, but argues that Deloitte was not prejudiced by the relaxation of the minimum experience requirements, where requirements were also relaxed for Deloitte’s program manager. In this regard, Deloitte’s proposed program manager’s resume demonstrated that only approximately 5 years of the individual’s required 10 years of experience was with a “large Federal Health System/Organization,” as was mandated by the PWS; the balance of the individual’s experience being with a Department of Defense personnel organization. AR, Tab 21, Deloitte FPR, at 67-70. However, unlike the misevaluation of DNC’s senior information architect, in the case of Deloitte’s program manager, the agency’s evaluation correctly assessed the individual as lacking the required experience and documented the relaxation of the requirement--apparently accepting the individual’s experience at the Department of Defense as counting towards the minimum requirement. AR, Tab 11, Technical Consensus Addendum, at 7.

In an affidavit submitted by the Technical Evaluation Board chairperson, the chairperson contends that there is no prejudice because the requirements were relaxed equally, in that, throughout the key personnel evaluation, the evaluators took into account non-health system experience contained in individuals’ resumes to conclude that they met the key personnel requirements. Supplemental AR, Attachment 1, Supplemental Technical Evaluation Board Chairperson Affidavit, at 3. Specifically, the technical evaluation board chairperson states that:

The [technical evaluation board], in several cases, gave “credit” to (or found acceptable) key personnel candidates who were short of the required years of experience if their resumes offered other experience that was seen as a close fit. In these cases, the [technical evaluation board] only considered these candidates as having “met” the Government’s requirements (i.e., it did not assign any strengths).

Id. The chairperson contends that in the case of DNC’s senior information architect, “[a]lthough [the individual] had just under five years of experience, the [technical evaluation board] assessed that he met the requirements as well, taking into account other experience contained in his resume.” Id.

On our review of the record here, we cannot conclude that the evaluation was reasonable, or that protester was not prejudiced by the agency’s improper evaluation. First, we conclude that the chairperson’s affidavit is not consistent with the contemporaneous record. As discussed, the contemporaneous record demonstrates that the evaluators knowingly relaxed the key personnel requirements for Deloitte’s program manager, but demonstrates no equivalent knowing relaxation of the requirements for DNC’s senior information architect. Additionally, the chairperson’s analysis of DNC’s senior information architect’s resume is incorrect insofar as it concludes that the individual had just under five years of experience--in fact, the resume demonstrates only 1 year and 9 months of clearly applicable experience, and another 1 year and 9 months of work that apparently included at least some applicable experience. AR, Tab 27, DNC Technical Proposal, at 102-104.

Second, we cannot conclude that the relaxation of the minimum requirements was equivalent. The contemporaneous evaluation indicates that Deloitte’s program manager was considered to meet the requirements on the basis of his similar work at the Department of Defense. In contrast, the technical evaluation chairperson’s affidavit does not attempt to explain what other experience in the resume of DNC’s senior information architect the evaluators relied upon to conclude that the individual met the requirements. Further, we cannot conclude that the relaxation was equal where the chairperson’s affidavit suggests that the requirements were relaxed in several cases, but does not identify which key personnel of which offeror did not meet the stated requirements, or what other experience in the individual’s resumes was considered in concluding that the individuals were acceptable. Where the evaluators were aware that the minimum requirements were relaxed for Deloitte’s key personnel in rating Deloitte as “good” under the subfactor, but were apparently not aware that the minimum requirements were also relaxed for DNC’s key personnel when they rated DNC “outstanding,” we cannot conclude that Deloitte was not prejudiced by the agency’s misevaluation under the staffing approach factor.  (Deloitte Consulting, LLP B-412125.2, B-412125.3: Apr 15, 2016)  (pdf)

An offeror’s material misrepresentation in its response to a solicitation can provide a basis for disqualification and cancellation of an award based upon the response. See Custom Pak, Inc.; M-Pak, Inc., B-409308 et al., March 4, 2014, 2014 CPD ¶ 73 at 7; Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 4. In this regard, whenever an agency requests resumes as part of the submission of bids or proposals, there is a reasonable expectation that those individuals for whom resumes have been submitted are the personnel who will perform the contract. Coastal Envtl. Group, Inc., B-407563, et al., Jan. 14, 2013, 2013 CPD ¶ 30 at 5-6. An offeror may not propose to use specific personnel that it does not expect to use during contract performance, as doing so would have an adverse effect on the integrity of the competitive procurement system and generally provides a basis for proposal rejection. AdapTech Gen. Scientific, LLC, B-293867, June 4, 2004, 2004 CPD ¶ 126 at 5.

To establish an improper “bait-and-switch,” a protester must generally show that the firm in question either knowingly or negligently made a misrepresentation regarding resources that it did not expect to furnish during contract performance, and that the misrepresentation was relied upon by the agency in the evaluation and had a material impact on the evaluation results. Custom Pak, Inc.; M-Pak, Inc., supra; Alamo City Eng’g Services, Inc., B-409072, B-409072.2, Jan. 16, 2014, 2014 CPD ¶ 32 at 6.

Nothing in the record here demonstrates that IMG either knowingly or negligently misrepresented the availability of its proposed key personnel. In this regard, the solicitation required the submission of resumes that included comprehensive information concerning the offered individual’s security clearance. See RTOP § L.6.2.2.1.1, Resumes. The record includes a declaration from the president of IMG, as well as supporting contemporaneous emails, which indicate that prior to proposal submission, IMG verified all of the necessary qualifications and security clearance information for each of the ten proposed key personnel. Decl. of IMG President at 2-3, exh. 1-10. The record indicates that, in order to conduct its security clearance verification, IMG requested and received a Social Security number for all ten of the proposed key personnel. Id. IMG’s president states that at the time of proposal submission, IMG intended to provide all 10 of the key personnel on day one of the transition. Decl. of IMG President at 3. Consistent with this position, the president of IMG further states that IMG contacted each of the ten proposed key personnel after contract award. Id. at 3-4. According to IMG, as of the time of award, 5 of the originally proposed key personnel were unavailable. Id. As for the posting of job openings, IMG’s president states that this is done as “a matter of practice and precaution,” in the event that proposed key personnel are not available, or for whatever reason cannot be hired, at the time of task order issuance. Decl. of IMG Pres. at 4

The protester argues that IMG’s recruitment efforts after issuance of the task order and the significant number of offered key personnel not available to staff this task order demonstrated that the awardee misrepresented the availability of the ten key proposed personnel. Protest at 6-9. We disagree. The fact that IMG recruited incumbent personnel after award does not establish that the proposed personnel were unavailable to perform the contract work; it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor. CACI Techs., Inc., B-408858, B-408858.2, Dec. 5, 2013, CPD ¶ 283 at 8; see PricewaterhouseCoopers LLP; IBM U.S. Fed., B-409885 et al., Sept. 5, 2014, 2014 CPD ¶ 289 at 11 n.9; Apache Enters., Inc., B-278855.2, July 30, 1998, 98-2 CPD ¶ 53 at 5. Further, the number of substitutions of key personnel, by itself, provides no basis to sustain an allegation of bait and switch, where there is nothing in the record that indicates that the offeror proposed personnel that it did not expect to actually use during the satisfaction of the requirement. See RGI, Inc., B‑243387, B‑243387.2, Dec. 23, 1991, 91-2 CPD ¶ 572 at 4-5 (denying protest that awardee had engaged in a bait and switch where the successful offeror proposed substitutions for all but one of its offered personnel, where the agency found no evidence that the offeror did not expect to use the personnel proposed). As for the posting of job openings, we see nothing unreasonable in IMG’s explanation that this was done as “a matter of practice and precaution,” in the event that proposed key personnel were not available. See Decl. of IMG Pres. at 4. In sum, the record does not establish that IMG misrepresented its intention to staff the task order with the personnel proposed.  (Invertix Corporation B-411329.2: Jul 8, 2015)  (pdf)

M-Pak asserts that Star Poly supplied sample bags for testing different than those it intended to supply in performance of the BPA. M-Pak Comments at 8-10. M-Pak cites a size determination decision by the Small Business Administration (SBA) with regard to an SBA protest filed by M-Pak. M-Pak Comments, exh. I, SBA Size Determination Memorandum, Case No. 1-SD-2014-13, Jan. 2, 2014 (SBA Determination). In particular, M-Pak cites the SBA’s discussion of how Star Poly would accomplish manufacture of the bags:

In its response to the size protest, Star suggested that it planned to either purchase the end items through [deleted] or manufacturer of the end item itself. After SBA requested additional information on the parent company of the proposed supplier through [deleted], Star indicated that it would not purchase the end item through [deleted] at all and will only manufacture the end item at its Brooklyn, New York facilities.

Id. at 2.

M-Pak asserts that these SBA findings demonstrate that “Star Poly provided [deleted] bags with its initial submission, and then changed its position when the SBA inquired about the origin of the bags in an effort to elude the Protester’s size protest.” M-Pak Comments at 9. M-Pak argues that this constituted an “improper bait and switch” misrepresentation. Id.

An offeror's material misrepresentation in its response to a solicitation can provide a basis for disqualification and cancellation of an award based upon the response. See Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 4. To establish an improper "bait-and-switch," a protester must generally show that the firm in question either knowingly or negligently made a misrepresentation regarding resources that it did not expect to furnish during contract performance, and that the misrepresentation was relied upon by the agency in the evaluation and had a material impact on the evaluation results. Alamo City Engineering Services, Inc., B‑409072, B-409072.2, Jan. 16, 2014, 2014 CPD ¶ 32 at 6; Apache Enterprises, Inc., B-278855.2, July 30, 1998, 98‑2 CPD ¶ 53 at 4. We conclude that the protester has not satisfied these requirements here.

According to Star Poly, upon review of the RFQ, it selected samples from its existing stock manufactured by [deleted], after determining that these bags met “the technical requirements as outlined in the statement of work.” Star Poly Comments at 2. Star Poly concluded that “the mailer bags must be produced like these bags (the samples on hand), identical in all characteristics; such as film type, sizes, thickness and construction in order to meet the technical requirements.” Star Poly Comments at 2. Star Poly thereupon negotiated unsuccessfully with [deleted] regarding “partnering” with them on the contract, but left open the possibility of buying from [deleted] a necessary piece of equipment for manufacture of the bags, a Nordson Hot Melt Glue Attachment. Id. Star Poly then contacted [deleted] and “confirmed that they [were] able to provide the identical Mailer Bags and support an uninterrupted source of supply,” with bags produced by another company. Id. at 2. However, according to Star Poly, no agreement was reached between Star Poly and [deleted]. Id. at 3.

Award was made to Star Poly on November 19, 2013. COS at 1. On December 4, Star Poly was advised by SBA that a protest had been filed against the award with regard to compliance with the “non-manufacturer rule.” Star Poly advises that, at that time, it was “exploring the resources to determine if producing the products on our own would be advantageous.” Star Poly Comments at 3. Star Poly further advises that, on December 18, it reached a decision that it would not purchase the bags through [deleted], but instead would produce the end product at its own facility with a Nordson Hot Melt Glue Machine, purchased from [deleted]. Id.; see also SBA Determination at 2.

The record here does not support a finding of material misrepresentation by Star Poly. Star Poly’s account, confirmed in material part by the SBA findings, indicates uncertainty as to which company would manufacture the bags Star Poly intended to supply. The protesters, however, point to nothing in the solicitation that required vendors to identify the manufacturer of the bags, nor did Star Poly identify the intended manufacturer in its quotation. Further, our review of this record provides no evidence that Star Poly, at any point, intended to misrepresent the characteristics of its bags. In fact, the record reflects a continuing effort by Star Poly to ensure that its delivered bags were “like” or “identical” to the sample bags. See Star Poly Comments at 2-3. Although Star Poly continued to explore various possibilities for obtaining or supplying the required bags, there is no indication that it at any time abandoned its requirement that the bags match the samples it provided with its quotation. The record, accordingly, does not show that Star Poly either knowingly or negligently supplied sample bags that were not representative of the bags it expected to furnish during contract performance. Accordingly, this protest ground is denied.

In sum, the protests furnish no basis for questioning the agency determination that Star Poly’s quotation, and only Star Poly’s quotation, was technically acceptable.

The protests are denied.  (Custom Pak, Inc.; M-Pak, Inc., B-409308, B-409308.2, B-409308.3, B-409308.4: Mar 4, 2014)  (pdf)

NI also complains that GT misled the agency by proposing personnel it did not expect to use for contract performance, that is, engaged in a “bait and switch.” In this regard, NI focuses upon the publication of employment advertisements by the Wise Global Group (WGG), the parent company of GT, on social media or jobs websites. While the advertisements do not refer to GT or this acquisition by name, they include position descriptions that are identical or virtually identical to certain position descriptions in the RFP. These advertisements range in date from April 30, before proposals were due, to June 3, after award. Supplemental Protest, attach. A-F. NI asserts that this recruiting effort demonstrates that GT proposed personnel it did not intend on hiring for this project.

An offeror may not propose to use specific personnel that it does not expect to use during contract performance, as doing so would have an adverse effect on the integrity of the competitive procurement system and generally provides a basis for proposal rejection. AdapTech Gen. Scientific, LLC, B-293867, June 4, 2004, 2004 CPD ¶ 126 at 5. To establish an improper bait and switch scheme, however, a protester must show a firm either knowingly or negligently represented that it would rely on specific personnel that it did not reasonably expect to furnish during contract performance, and that the misrepresentation was relied on by the agency and the misrepresentation had a material effect on the evaluation results. Data Mgmt. Servs. JV, B-299702, B-299702.2, July 24, 2007, 2007 CPD ¶ 139 at 10.

Here, we find that NI’s protest furnishes no basis for concluding that GT either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance. AdapTech Gen. Scientific, LLC, supra. NI points to nothing in the record that indicates that any of the named key personnel were unavailable, unwilling, or unlikely to perform under the contract as GT employees. As noted by the agency, GT’s proposal included signed commitments for all of the key personnel named in the proposal. See GT Proposal at 45-130. Also, in response to the protest, the awardee has repeatedly affirmed that it intends “to provide all individuals listed” in its proposal. AR Tab 9, GT Letter to the Agency, June 27, 2013; AR, Tab 11, GT Letter to the Agency, August 15, 2013.

Further, we do not find WGG’s online recruiting efforts by themselves to be persuasive evidence of misrepresentation. Although the advertisements cited by NI use position descriptions identical or virtually identical to that used in the RFP, they provide no guarantee that any prospective employee would be considered for any particular position or even employment on any particular contract. Indeed, none purports to be a GT advertisement for a particular key personnel position under this RFP and none appears to limit hiring to this acquisition. We further note that, in response to the agency’s request, the awardee has advised that these advertisements were part of “ongoing efforts” to recruit employees “on all contracts for the US Government.” GT Letter to the Agency, August 15, 2013. According to GT, “the postings are a tool to keep a constant flow of candidates available and evaluate available talent.” Id. We agree with the agency that these WGG recruiting efforts do not demonstrate that GT either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance. See Veda Inc., B-278516.2, Mar. 19, 1998, 98-1 CPD ¶ 112 at 16-17.  (Network Innovations, Inc. B-408382, B-408382.2, Sep 4, 2013)  (pdf)

Bait and Switch

Next, Dorado argues that the Navy unreasonably evaluated CoSTAR’s proposal under the corporate experience/capability of key personnel factor because, the protester contends, the awardee engaged in an improper bait and switch scheme concerning the individual it proposed for the key personnel position of site safety and health officer (SSHO). The protester argues that a “classified ad” published by CoSTAR after award stated that the awardee intended to hire an SSHO for the contract, thereby indicating that the awardee would not provide the individual proposed for this position.

An offeror may not propose to use specific personnel that it does not expect to use during contract performance, as doing so would have an adverse effect on the integrity of the competitive procurement system and generally provides a basis for proposal rejection. AdapTech Gen. Scientific, LLC, B-293867, June 4, 2004, 2004 CPD ¶ 126 at 5. To establish an improper bait and switch scheme, a protester must show: (1) a firm either knowingly or negligently represented that it would rely on specific personnel that it did not expect to furnish during contract performance, (2) that the misrepresentation was relied on by the agency, and (3) the misrepresentation had a material effect on the evaluation results. Data Mgmt. Servs. Joint Venture, B-299702, B-299702.2, July 24, 2007, 2007 CPD ¶ 139 at 10. Regarding the capability of key personnel, Dorado states that CoSTAR could not have complied in good faith with the solicitation requirement that offerors provide detailed resumes of key personnel.

In its initial protest, Dorado argued that CoSTAR had engaged in a bait and switch scheme concerning its proposed SSHO. The protester included as an attachment a document which it called a classified ad, and which the protester argued showed that the awardee did not intend to provide the individual identified in its proposal. The protester made the following statements concerning the document:

CoSTAR has engaged in an impermissible “bait-and-switch” in that it never intended to use the “management team” and “key personnel” that were included [in] its proposal, as demonstrated by the Classified Ad it published, attached hereto as Exhibit 8, which specifically states that multiple management positions are open.

* * * * *

CoSTAR could not have included a proposed SSHO in its proposal, or complied in good faith with the RFP’s requirements that offerors provide detailed resumes of key personnel because CoSTAR’s Classified Ad expressly states that it is looking to hire an SSHO and many other management-level employees for the performance of this contract.

* * * * *

The government specifically informed potential offerors that the SSHO was a “key position;” therefore to win the award CoSTAR must have had a proposed SSHO. Yet the CoSTAR Classified Ad specifically states that CoSTAR is looking to hire an SSHO.

Protest at 8, 12-13, 23; see also Protester’s Comments (Apr. 23, 2013) at 21-23.

Although Dorado represented in its protest that the document provided as an exhibit was a classified ad published by CoSTAR seeking to hire an SSHO, the intervenor states that the protester’s characterization of the document is not accurate. In this regard, the intervenor notes that the document was not a published classified ad, but was instead a document provided by CoSTAR to KIRA, Inc.--the incumbent contractor and a proposed subcontractor to Dorado--seeking to interview the incumbent staff for possible employment. See Protest, exh. 8, CoSTAR Document. Moreover, the intervenor notes that the document provided by the protester had been altered to delete the names of the points of contact at KIRA. Intervenor’s Comments (Apr. 23, 2013), at 3-4. In its comments on the agency report, CoSTAR provided a copy of the original document, which clearly shows that the document provided by Dorado in its protest had been altered to delete the following text: “*** Please sign up for an interview date and time with [KIRA employees] ***.” Id. attach. 2, Comparison of CoSTAR Document Versions.

Our Office requested that Dorado explain why the altered document had been submitted to our Office. The protester confirmed that the CoSTAR document was sent to an employee of KIRA after award, seeking to interview the incumbent employees for positions. Protester’s Response to GAO Questions (May 23, 2013) at 1-2. The protester further confirmed that the document had been altered by the KIRA employee to remove his name and name of the other KIRA employee from the document, and that the altered document had been provided to the protester’s counsel for submission as an attachment to the protest. Id.; Decl. of KIRA Project Manager ¶¶ 11-12. The KIRA employee states that he “whited-out the sentence that contained my name and [the other KIRA employee’s] name . . . so that neither myself nor [the other KIRA employee] would be associated with CoSTAR’s hiring process.” Decl. of KIRA Project Manager ¶¶ 11-12. The KIRA employee also acknowledges that, despite the fact that Dorado’s protest referred to the document as a “classified ad,” the employee had no specific knowledge that the document had been published as a classified ad. Id. ¶¶ 16-19.

In sum, Dorado acknowledges that this document, submitted as an exhibit to its bid protest, was altered, and was not, as represented in its protest, a classified advertisement. Dorado states, however, that there was no intent to deceive our Office, and that “the underlying basis for presenting this document to the GAO still stands,” i.e., that CoSTAR was soliciting for multiple positions, including an SSHO. Protester’s Response to GAO Questions (May 23, 2013) at 2. While the protester states that the errors were not intended to mislead our Office, we are troubled by the fact that the protester submitted an altered document to our Office, and that the protester’s arguments were based on a representation that the document was a “classified ad,” rather than a specific solicitation to the incumbent workforce.

In any event, we see no merit to the protester’s arguments because the record does not show that CoSTAR submitted its proposed SSHO with the intent of substituting that individual. The document issued by CoSTAR stated that the awardee “will be interviewing the incumbent management and employees for the areas of grounds and custodial services,” and further stated that “[t]hese positions include: . . . Site Safety Health Officer (SSHO).” Protest, exh. 8, CoSTAR Document. While the protester argues that the flyer should be interpreted as demonstrating that the awardee did not intend to provide the SSHO it identified in its proposal, the flyer does not support this conclusion. Instead, the flyer indicates that the awardee is hiring individuals for the newly-awarded contract, and seeks to interview the incumbent workforce; the document does not specifically state that the awardee was seeking to fill specific open positions, such as an SSHO. Id. Because the record does not show that the awardee either knowingly or negligently represented in its proposal that it would rely on specific personnel that it did not expect to furnish during contract performance, we find no basis to sustain the protest.  (Dorado Services, Inc., B-408075, B-408075.2, Jun 14, 2013)  (pdf)

The protester objects to the RFP’s requirement that offerors submit signed letters of intent from, and the resumes of, individuals proposed as key personnel. The protester notes here that “[w]hen we reached out to the current incumbent staff, we received emails stating they were unable to provide letters of intent or resumes as it would be in direct violation of their employment contracts.” The protester continues by explaining that “[w]hile prospective bidders could recruit staff who met the qualifications of the solicitation, they would not be qualified in the courses currently taught, making them less desirable than the instructors employed by the incumbent contractor.” The protester concludes that “[w]ithout the ability to acquire letters of intent from the current staff, prospective bidders [will be] unable to demonstrate best value,” and “ask[s] that the requirement for resumes and letters of intent be removed from the solicitation requirements until 30 days after award or that the incumbent contractor be directed to waive their employment agreements with incumbent staff with respect to resumes and letters of intent.” Protest at 1-2.

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Ocean Servs., LLC, B-292511.2, Nov. 6, 2003, 2003 CPD ¶ 206 at 3. In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. 10 U.S.C. § 2305(a)(1)(B) (2006); Ocean Servs., LLC, supra. Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Ocean Servs., LLC, supra.

The agency explains that the evaluation of proposed key personnel “is a major component of the [t]echnical evaluation” for these instructional services, and that the “requirement for resumes provides the Agency with a means for evaluating whether offerors have proposed key personnel who meet or exceed the minimum requirements outlined in the solicitation.” Agency Report (AR) at 5-6. The agency adds that the “requirement for signed employment letters of intent allows the Agency to assess the likelihood that proposed key personnel will actually agree to work for [the] offeror,” and that without that requirement, the agency would have “limited assurance that it will actually receive what is offered.” Id. at 6-7.

Although the protester asserts that the requirement that it submit resumes and signed letters of intent for its proposed key personnel will be difficult to meet and will provide the incumbent contractor with a competitive advantage, it has not shown that the agency’s rationale for the requirements--to ensure that proposed key personnel, such as the instructors, are qualified, and then to ensure that the key personnel on whom the evaluation is based are in fact available for contract performance--is unreasonable. Atlantic Coast Contracting, Inc., B-291893, Apr. 24, 2003, 2003 CPD ¶ 87 at 2.

The protest is denied.  (Maritime Institute Inc., B-407254, Nov 20, 2012)  (pdf)

During discussions, Sealift replaced its original vessel with the MV Rio Bogota, the same vessel that TransAtlantic had offered in its initial proposal. The letter of commitment tendered by Sealift stated, “Sealift or [its] nominee has the exclusive right to offer the MV Rio Bogota for the MSC RFP N00033-09-R-5502. Any other letter issued in this respect is thus null and void.” AR, Tab 19, Sealift Letter of Commitment, July 16, 2009.

Upon receipt of Sealift’s letter of commitment for its replacement vessel, the Navy advised TransAtlantic that since its option to purchase the MV Rio Bogota had expired on June 20, and since another offeror (Sealift) had provided a letter of commitment for that vessel that revoked any earlier letter of commitment, TransAtlantic would need to offer a different vessel. In response, TransAtlantic confirmed that the owners of the MV Rio Bogota had given an option for the vessel to another offeror, and confirmed that it no longer had the right to offer the MV Rio Bogota for this procurement. Contracting Officer’s (“CO”) Statement para. 7. TransAtlantic then provided a letter of commitment for the MV LS Aizenshtat. AR, Tab 20, TransAtlantic Letter of Commitment, July 22, 2009, at 1.

(sections deleted)

This protest raises a single issue: whether the Navy reasonably concluded that Sealift’s letter of commitment satisfied the solicitation requirement to “provide proof acceptable to the Contracting Officer that the true owner commits that [the] vessel will be provided, if the Offeror is awarded the contract.” RFP sect. B, Box 75. TransAtlantic argues that the letter offered by the awardee was not a firm commitment, but rather an option that fell short of the required commitment. For the reasons discussed below, we find no merit to the protester’s arguments.


There is no dispute in the record here that Sealift’s commitment letter stated that “Sealift or nominee has the exclusive right to offer the MV Rio Bogota for the MSC RFP N00033-09-R-5502.” AR, Tab 19, Sealift Letter of Commitment, July 16, 2009. After reviewing the letter, the CO decided that the letter, as well as the statement by TransAtlantic that it no longer had the right to offer the vessel, was adequate proof that Sealift had the right to offer the MV Rio Bogota. CO Statement para. 10.


TransAtlantic argues that Sealift’s letter of commitment did not meet the requirements of the solicitation because it merely stated that the awardee had the “exclusive right to offer” the vessel. The protester contends that this statement falls short of a specific commitment by the owners of the MV Rio Bogota to actually provide the vessel in the event that Sealift were awarded the contract. The protester further argues that its letter of commitment for the MV LS Aizenshtat--the protester’s replacement vessel--provided more detail regarding specific terms and conditions than Sealift’s commitment letter. The Navy responds that its interpretation of the commitment letters was reasonable.

In reviewing a protest of an agency’s evaluation of proposals, our Office will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. See Shumaker Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD para. 169 at 3. A protester’s mere disagreement with the agency’s judgment in its evaluation of offerors’ proposals does not establish that the evaluation was unreasonable. C. Lawrence Constr. Co., Inc., B-287066, Mar. 30, 2001, 2001 CPD para. 70 at 4.

We think that the agency reasonably concluded that Sealift’s letter met the solicitation’s requirements. The RFP simply stated that offerors must “provide proof acceptable to the Contracting Officer” that the offeror has the right to tender the proposed vessel. RFP sect. B, Box 75. Under these circumstances, and without specific criteria for evaluating this issue, the RFP provided broad discretion to accept an offeror’s representation that it had the required commitment. We further think that, on this record, the CO reasonably concluded that Sealift’s letter granting it an “exclusive right to offer” the vessel met the requirements of the RFP. Additionally, we do not think that the protester’s more detailed letter required the CO to question Sealift’s less detailed letter.  (TransAtlantic Lines, LLC, B-401825, November 23, 2009)  (pdf)

The RFP provided for award to the offerors whose proposals were determined to represent the best value to the government, with proposals to be evaluated on the basis of the following factors: past performance/past experience, corporate capability, technical capability, and level of effort/resource allocation. Under the technical capability factor, the offeror’s overall program management approach and its approach to performing the requirements outlined in a sample task order were to be evaluated, while under the level of effort/resource allocation factor, the offeror’s proposed price to perform the sample task was to be evaluated. Under the corporate capability factor, offerors were to describe their management and staffing plans. The solicitation instructed that the management plan was to include proof of organizational-level accreditation or certification and that the staffing plan was to include, at a minimum, the percentage of staff with third party certification and a statement of assurance that the offeror would maintain this percentage throughout the contract term.

(sections deleted)

The protester argues, first, that the RFP did not require offerors to identify a percentage of staff members with third party certification; rather, the protester contends, the solicitation instructed offerors that their staffing plans should include a percentage of staff members with third party certification. The protester asserts that, according to the Federal Acquisition Regulation (FAR), “‘should’ means an expected course of action or policy that is to be followed unless inappropriate for a particular circumstance,” FAR sect. 2.101, which means that the course of action is not mandatory. Second, EM&I argues that the RFP instructed offerors to furnish a percentage “at a minimum,” and that it had exceeded the minimum by furnishing actual numbers of certified employees. The protester maintains that if, for example, an offeror had complied with the instruction by providing that 50 percent of its staff possessed certifications, the agency would be unable to determine whether the offeror was proposing five individuals with certifications out of ten total employees or 50 individuals with certifications out of 100 total employees; in addition, the agency would be unable to tell how many employees had each particular type of certification. The protester asserts that the information that it furnished in its table gave the evaluators a much more comprehensive understanding of the staff proposed and thus exceeded the minimum called for in the RFP.

We think that the protester’s second argument--which the agency made no attempt to rebut--has merit. Given that the RFP here contemplated the award of multiple ID/IQ contracts to perform as yet undefined tasks, the request for information regarding staff with third party certifications may only reasonably be interpreted as a request for information regarding certified staff members within the offeror’s organization who would be available to work on task orders that the contractor might receive. While solicitation requirements are to be enforced as stated, in the unusual circumstances of this ID/IQ contract competition, we agree with the protester that the data in its table provided the evaluators with more, and more meaningful, information regarding its available staffing resources for future task orders than a mere percentage would have. We also note that it is not clear from the record before us how the agency evaluated the percentages, other than mechanically checking whether one was furnished. There is no indication in the record, for example, that a particular percentage was needed for a proposal to be deemed acceptable. In the absence of any evidence that the protester’s furnishing of the actual number of its employees with certifications, as opposed to the percentage of its employees with certifications, resulted in the agency’s being unable to determine the acceptability of its proposed staffing plan, we think that EM&I’s furnishing of actual numbers may only reasonably be viewed as having met the agency’s requirements for identifying offeror staff with third party certifications.

With regard to the agency’s argument that EM&I’s proposal would not have been in line for award even if the second finding of deficiency were withdrawn because the proposal also had two weaknesses, the record shows that the protester’s proposal would have been rated acceptable but for the deficiencies, which, according to the debriefing letter, is the same rating that each of the proposals selected for award received. To the extent that the agency is arguing that EM&I’s proposal would not have been selected for award even if it had received the same overall technical rating as the other proposals because the evaluators identified strengths in those proposals, but none in the protester’s--that is, the awardees’ proposals were on the high end of the acceptable range, whereas the protester’s proposal, even without the deficiencies, would not have been--the agency’s argument ignores the fact that the RFP identified past performance/past experience as the most important evaluation factor and the protester received a better past performance rating than [deleted] of the six awardees. Thus, at a minimum, the agency would have to consider EM&I’s proposal as part of a price/technical tradeoff to determine the proposals offering the best value to the government. Accordingly, on the record here, we conclude that there is a reasonable possibility that the evaluation error resulted in competitive prejudice to EM&I, that is, but for the error, EM&I would have had a substantial chance of receiving an award. See TVI Corp., B‑297849, Apr. 19, 2006, 2007 CPD para. 118 at 8.

Because we find that the agency’s evaluation of EM&I’s proposal was unreasonable, we sustain the protest. We recommend that the agency reevaluate EM&I’s proposal; if, based upon the reevaluation, it determines that the protester’s proposal represents “best value” under the RFP’s criteria, we recommend that the agency make an award to EM&I, which might lead the agency to terminate one of the other contractors for the convenience of the government. We also recommend that the agency reimburse the protester the costs of filing and pursuing its protest, including reasonable attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1) (2008). The protester’s certified claim for costs, detailing the time spent and cost incurred, must be submitted to the agency within 60 days after receiving this decision.  (Engineering Management & Integration, Inc., B-400356.4; B-400356.5, May 21, 2009)  (pdf)

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)

The fifty-eight page Solicitation offers little guidance about whom offerors could count as a member of the workforce that would perform the contract tasks. Three of the Solicitation’s four technical subfactors required offerors to “[p]rovide evidence that the offeror’s workforce is trained and licensed” to perform various duties. AR Tab 3 at 76. Taken alone, that wording suggested that the Agency intended to evaluate only the offerors’ current workforces at the time the proposals were submitted. Three pages later, however, the Solicitation stated the Agency would evaluate the credentials of “each proposed staff member” performing the various duties. Id. at 79. As such, the Solicitation requires nothing, other than the credentials themselves, as evidence that proposed staff members would become actual staff members if the Agency awarded the contract to the bidder. Id. at 23-80. The plain language of the Solicitation does not resolve the meaning of “proposed staff member.”

Although “proposed staff member” is not clearly defined in the Solicitation, this term has at least one implication as a matter of law. If a bidder lists a proposed staff that it does not intend to hire, such a statement has been construed as a misrepresentation. See Planning Research Corp. v. United States, 971 F.2d 736, 739-41 (Fed. Cir. 1992). In Planning Research, our appellate court affirmed a General Services Board of Contract Appeals decision finding that the successful bidder performed an “intended ‘bait and switch’” when forty-two of seventy-four employees actually selected for the contract were different than the ones proposed. Id. In this case, however, Phoenix offers no evidence that ATS performed a “bait and switch” or that ATS did not intend to hire the staff members it listed in its proposal. While Planning Research stands for the proposition that offerors must intend to hire proposed employees, Phoenix argues there also must be a commitment by the prospective employees to accept that work. Phoenix, however, cites no authority for the suggestion that proposed staff members must commit to accept work if the Agency awards the bidder the contract.  Neither our appellate court’s holding in Planning Research nor any language in the Solicitation requires such a commitment.

Nor do the “contemporaneous circumstances” persuade the court that “proposed staff members” must have made such a commitment to the offeror. A person acquainted with contemporaneous circumstances would, as Phoenix argues, understand that the mission the contract supported was “vitally dependent upon having a qualified and experienced workforce ready and capable of providing the required support services.” Pl. Mot. JAR at 4 (quoting language from the bridge contract awarded during this bid protest case). Although this language suggests that having commitments from proposed staff members would be useful, it does not demonstrate that such commitments were required. Instead, a “reasonably intelligent person acquainted with the contemporaneous circumstances” would ask why, if the Agency desired a commitment from each proposed staff member, it did not request clear evidence of that commitment. C.f., e.g., Planning Research, 971 F.2d at 737 n.2 (describing a solicitation requiring statements “defining the extent of corporate commitment to the dedication of each person” for key personnel and requiring commitment letters from non-key personnel who were not currently employed by the offeror); see also Corp. Am. Research Assocs., Inc., B-228579, 1988 WL 227048 (Comp. Gen. Feb. 17, 1988) (ruling that an offeror was not prejudiced when an agency reopened negotiations and requested a new round of best and final offers after it discovered the offeror’s proposal did not include required letters of commitment).

Not requiring such a commitment would make sense to “a reasonably intelligent person acquainted with the contemporaneous circumstances” surrounding this case. Employees of the predecessor contractor were prime candidates to work for the successor contractor, both because of their experience and because of the Executive Order requiring they be given the right of first refusal under the new contract. See Exec. Order No. 13,495, 74 FED. REG. 6103 (2009); AR Tab 3 at 79 (listing the training and credentials required for proposed staff members under the Solicitation). But, during the contracting process those employees may have believed—correctly or incorrectly—that they were under pressure from their current employer not to make any commitments to a rival contractor. For example, when the CO interviewed [redacted] on December 16, 2011, “[redacted] advised he was concerned about his current employment with [Phoenix], which would have ended with the award of the new contract to ATS. [redacted] signed the statement [that he had not authorized anybody other than Phoenix to use his credentials] when requested by [redacted,] [Phoenix] Manager[,] for fear of retribution from [Phoenix].” AR Tab 30 at 1224 (Jan. 11, 2012 findings of the CO). Similarly, when asked about the discrepancy between the statement he had signed and the information he provided the CO, “[redacted] verbally stated he felt his job was in jeopardy and signed the statement when requested by [redacted,] [Phoenix] Manager.” Id. at 1225.

Phoenix asserts that the Solicitation must require a commitment, because otherwise “an offeror could simply conduct an internet search of individuals possessing the required credentials, include those individuals as the offeror’s ‘proposed workforce’ and receive an ‘Acceptable’ technical rating without ever once contacting the individuals.” Pl. Mot. JAR at 14. But an offeror would have at least two reasons not to use such an approach. The first would be the prospect of being unable to hire enough members of its proposed workforce to avoid losing the award under the “bait and switch” scenario identified by Planning Research. The second would be the prospect of tort liability. See Moore v. Big Picture Co., 828 F.2d 270, 275-76 (5th Cir. 1987). In Moore, an offeror’s proposed staffing chart listed an employee of the current contractor without that person’s permission. Id. at 271. The United States Court of Appeals for the Fifth Circuit affirmed a judgment against the offeror for misappropriating the employee’s name. Id. at 275-76; see also RESTATEMENT (SECOND) OF TORTS, § 652C (1977) (“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”). This court expresses no opinion as to whether the facts in the instant case would support any such cause of action.

For these reasons, neither the Solicitation’s language nor the contemporaneous circumstances support an interpretation requiring commitments from the proposed staff members to work for the offeror. Because no such requirement existed, ATS did not make material misrepresentations by including in its proposal credentials of people who had not committed to serve as its staff members.  (Phoenix Management, Inc., v. U. S. and Alliance Technical Services, Inc., No. 12-325, October 9, 2012)  (pdf)

D. Are Post-Award Actions by the Coast Guard Indicative of Violations of Procurement Law and Regulations?

Finally, plaintiff argues that the Coast Guard should have canceled the contract rather than proceeding to “acquiesce[] and assist[] in implementing ADCI’s non-compliant and technically unacceptable proposal.” Pl.’s Mem. at 22. This type of allegedly invalid contract award is often referred to as a “bait and switch.” See Compl. ¶ 45 (alleging that ADCI was either “conducting a ‘bait and switch,’ or failed to realize that the Solicitation required the exclusive use of Stratos airtime services”). Many of the cases discussing “bait and switch” contract awards, including cases cited by plaintiff, involve winning bids promising key, skilled personnel, who never actually perform the awarded contract services required by the solicitation. See, e.g., Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992); Low & Assocs., Inc., B-297444.2, 2006 CPD ¶ 76 (Comp. Gen. Apr. 13, 2006). However, one common element to decisions invalidating contract awards involving a “bait and switch” is that a “switch” must have occurred and the “switch” must have been accepted by the government agency procuring the services. See, e.g., Planning Research, 971 F.2d at 740-41 (affirming a decision invalidating an award where there had been “‘massive’ personnel substitutions made by [the awardee] after award with the acquiescence and assistance of [the government agency]”); Low and Associates, B-297444.2, 2006 CPD ¶ 76 (sustaining a protest where “none of the personnel [the awardee] proposed to perform either of the two web page designer/developer positions has ever performed on-site”). In this case, there is no evidence that ADCI was able to successfully switch to Telecom Italia as the LESO for the contract services, or that the Coast Guard acquiesced to a switch to Telecom Italia. See Def.’s Mot. at 18 (noting that the USCG “never permitted ADCI to use Telecom Italia as the LESO”); see also Pl.’s Mem. at 15 (noting “the failure of this last-ditch effort to implement the non-compliant proposal”). For this reason, the court rejects plaintiff’s argument that the award to ADCI was later invalidated by the conduct of ADCI and the Coast Guard.

The record shows that ADCI attempted a switch of LESO and failed to convince the Coast Guard that the switch should be implemented. The caselaw governing “bait and switch” protests in the personnel substitution context requires a showing of the following four elements:

(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; (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) (citations omitted). Thus, the fourth element of proof in a “bait and switch” case is that an actual “switch” has occurred. See Prot. Strategies, Inc. v. United States, 76 Fed. Cl. 225, 235 (2007) (ruling that a protestor had failed to show that a contract award was unlawful because, among other reasons, no actual “switch” had occurred). Here, there is no evidence that Telecom Italia was used as a LESO by ADCI in its performance of contract services. Because no “switch” occurred, this protest cannot be sustained.

As defendant points out, there is another test for unlawful post-award conduct by an awardee and a government agency which could invalidate a contract award. Def.’s Mot. at 19-22. Procurement law generally forbids modifying a contract after award so as to deprive the losing bidders of their chance to compete for what is essentially, after the modification, a new contract. See AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1204-05 (Fed. Cir. 1993) (citing 41 U.S.C. § 253(a)(1)(A) [(2000)]). This doctrine is limited to “modifications outside the scope of the original competed contract.” Id. at 1205. Here, there has been no substantive modification of the contract performed by ADCI, only a suggested modification that was rejected by the Coast Guard. This court cannot overturn a contract award where an attempted but unrealized contract modification is the only alleged procurement error. See Graphic Data, LLC v. United States, 37 Fed. Cl. 771, 782-83 (1997) (requiring proof of an actual contract modification to sustain a bid protest on these grounds).

Plaintiff emphasizes the fact that the Coast Guard considered ADCI’s proposed switch of LESO and did not immediately reject the idea. See Pl.’s Mem. at 7-16. Plaintiff suggests that this conduct constitutes “unlawfulness of the highest order.” Id. at 15. Plaintiff suggests that “[r]ather than struggle to assist ADCI in implementing the non-compliant proposal, with all of its technical problems, the Contracting Officer should have canceled the award.” Pl.’s Reply at 11. Because the record indicates that ADCI has used and will continue to use Stratos as the LESO for contract services, ADCI’s performance of the contract does not indicate that the Coast Guard has illegally relaxed solicitation requirements in its dealings with ADCI. If, indeed, the Coast Guard violated procurement regulations by investigating the proposal by ADCI for approximately two months, the court considers this conduct to be a de minimis violation that does not invalidate the contract award.  (L-3 Global Communications Solutions, Inc., v. U. S., No. 08-101C, August 15, 2008) (pdf)

The crux of a bait and switch claim is the government’s reliance on a misrepresentation by a successful bidder, which effectively changes the term or terms of the underlying solicitation. See generally Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992) (affirming the conclusion of the General Services Board of Contract Appeals that the successful bidder’s misrepresentation of the key personnel it intended to deliver upon contract award materially modified the contract requirements and denied all bidders a full and open competition). Based upon the ruling by the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in Planning Research Corp., and like decisions of the Comptroller General, the Court of Federal Claims has summarized the essential elements of a bait and switch claim:

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