Government Contracts Monitor

Beware the “Bait And Switch”

July 19, 2013

When preparing proposals and hiring personnel to perform a contract, contractors must be careful to avoid a “bait and switch” involving key personnel. In Dorado Services, Inc., B-408075 (Comp. Gen. June 14, 2013), the Department of the Navy, Naval Facilities Engineering Command issued a request for proposals for base support services including heating, ventilation, air conditioning, boilers, and fire protection services at nine naval facilities in Florida, Georgia, Alabama and South Carolina. After a series of successful HUBZone status protests reduced the field of bidders, the Navy ultimately awarded the contract to CoSTAR Services, Inc. (“CoSTAR”).

Dorado Services, Inc. (“Dorado”) filed a bid protest alleging, among other things, that CoSTAR had engaged in a “bait and switch” regarding the individual it proposed for the key personnel position of site safety and health officer (“SSHO”). In support of its allegation, Dorado produced a copy of a solicitation flyer that CoSTAR had sent to the employees of the former incumbent contractor after CoSTAR submitted its proposal to the Navy. According to Dorado, this was proof that CoSTAR never intended to have the person it had identified as its SSHO perform work on the Navy contract.

The GAO reaffirmed prior law and stated that 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.” Applying this standard to the facts of this case, the GAO held that “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.” Absent any other evidence, there was no proof that CoSTAR “knowingly or negligently represented in its proposal that it would rely on specific personnel that it did not expect to furnish during contract performance.”

The takeaways from this case are: (1) only list as “key personnel” those individuals who you are sure will be available to work for you on any awarded federal contract; and (2) when you solicit incumbent contractor employees to perform an anticipated contract, be sure to engage in generalized solicitation rather than targeting recruitment to replace the “key personnel” identified in your proposal.

Michael J. Schrier is the attorney responsible for the content of this article.