Government Contracts Monitor

Key Personnel: Can you Stand Silent If Your Proposal Is No Longer Accurate?

October 28, 2014

According to a recent decision by the General Accountability Office (GAO) the answer is “No.” If you submit a proposal with a key personnel requirement, and one or more of your proposed key people are no longer available, your proposal is no longer technically acceptable. Booz Allen Hamilton Inc. (Booz Allen) just learned this the hard way when Paradigm Technologies (Paradigm) protested, alleging that Booz Allen had proposed a key person but knew, prior to the award decision, that she was no longer available. Paradigm Technologies B-409221.

Here the request for a task order proposal required offerors to identify two key persons: a program manager (PM) and a task order lead. Booz Allen listed Ms. G. as its PM in its final proposal submitted on July 22, 2013. On August 5, 2013, Ms. G. told Booz Allen she was quitting and going to another firm. Booz Allen did not inform the agency that its proposed PM was no longer available and, on October 23, 2103, received the award. Five days later, Booz Allen informed the agency that Ms. G. was no longer available as the PM.

Paradigm protested, alleging that Booz Allen knew, at some point prior to the award decision, that its proposed PM was no longer available. The agency took corrective action and re-evaluated proposals, at which time the GAO dismissed the initial protest. On re-evaluation, although the agency assigned Booz Allen a “weakness” for its failure to provide the required PM, the agency found that Booz Allen could satisfy the missing key personnel requirement and, therefore that any risk was “mitigated” by the fact that Booz Allen “has the demonstrated ability to recruit and hire qualified personnel to fulfill the Key Personnel . . . duties.” Paradigm protested the new award decision arguing that Booz Allen was not eligible for award since it did not meet one of the mandatory requirements of the request for proposals.

GAO agreed, stating that “it is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award.” GAO found that the key personnel requirement was a solicitation requirement and that, upon re-evaluation, the agency should have found Booz Allen’s proposal ineligible for award, thus maintaining its previously articulated position that “it is an offeror’s obligation to inform a procuring agency of changes in proposed staffing and resources, even after submission of proposals.”

GAO sustained the protest noting its “concern” with the agency’s “failure to recognize that Booz Allen’s revised proposal could not be viewed as satisfying the solicitation’s key personnel requirements.”

Booz Allen took the chance that its silence until post-award would go unchallenged. That gamble did not work out well for them.

Attorneys

Lindsay Simmons