A welcome interruption to watching the Chiefs offensive line get demolished in this years Super Bowl was Rocket Mortgage’s prime-time ad starring Tracy Morgan delivering a simple message: “certain is better.”
A recent GAO decision, however, appears to take issue with Rocket Mortgage’s premise. When it came to staff availability certain wasn’t necessary.
The protest, Manhattan Strategy Group, LLC, B-419040.3 (Comp. Gen. May 21, 2021), involved a Department of the Interior procurement for providing training and technical assistance to support development programs serving economically disadvantaged children and families in Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. The protester, Manhattan Strategy Group, was the incumbent.
Importantly, the solicitation identified 19 staffing positions, all of which were designated as key personnel. It required a résumé and signed letter of committed for every staff member with the proposal.
Manhattan Strategy Group and a competitor, STG International, each submitted proposals in response to the solicitation. Manhattan Strategy Group was subsequently named the awardee. STG International protested the award. In response, DOI elected to take corrective action by reevaluating proposals.
During the corrective action, DOI grew concerned about the continued availability of key personnel. DOI reached out to both Manhattan Strategy Group and STG International to confirm the availability of the proposed staff.
Given the amount of time that has lapsed since you submitted the original proposal in response to the subject solicitation, can you confirm whether or not the key personnel identified in your proposal are still available? If all personnel are not available, please provide substitute proposed personnel along with resumes (and everything else that was originally required to evaluate key personnel). . . . [O]nly revisions to key personnel and other sections directly affected by the revisions to key personnel will be accepted.
In response, Manhattan Strategy Group confirmed that 18 of its proposed staff remained available and revised its proposal to incorporate its new staff member. On the other hand, STG International confirmed that all 19 of its staff remained available.
Interestingly, Manhattan Strategy Group and STG International proposed largely the same staff. Many of these proposed staff were employees of Manhattan Strategy Group and were working under the incumbent contract.
Manhattan Strategy Group learned from its employees that STG International had not contacted many of them to confirm their continued availability. Consequently, STG International had confirmed to DOI that all its staff continued to be available, despite not communicating directly with several staff to verify their availability.
STG International was named the awardee under the reevaluation of proposals. Manhattan Strategy Group quickly protested alleging that STG International had misrepresented the availability of its staff and should have been disqualified from further competition. According to Manhattan Strategy Group, STG should have individually contacted each of its proposed staff to confirm they remained available.
As a general matter, GAO will not consider protests of staffing changes because staffing changes are a matter of contract administration over which GAO does not have jurisdiction. The exception to this general rule is where a contractor conducts a “bait and switch” with proposed staff. As GAO explains:
In order to establish an impermissible “bait and switch,” a protester must show that: (1) 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) the misrepresentation was relied on by the agency, and (3) the agency’s reliance on the misrepresentation had a material effect on the evaluation results.
As applied to STG International’s staffing investigation, GAO was not convinced any bait and switch occurred. According to GAO “[DOI’s] request did not necessarily obligate offerors to contact all proposed personnel to obtain written or verbal confirmation of their continued commitment prior to representing to the agency that the personnel remained available, as MSG’s arguments suggest.” GAO noted that DOI also “did not require that offerors submit new letters of commitment, but rather limited proposal revisions to key personnel substitutions if applicable.” As such, STG International’s certification of its staff’s eligibility was deemed reasonable.
Frankly, this decision is surprising. DOI asked offerors to “confirm” the continued availability of their proposed key personnel. STG International did not contact several of its proposed staff, but certified to their continued availability, anyway. Arguably, STG International’s representation was improper because it failed to verify continued eligibility of many proposed staff.
GAO’s suggestion that DOI did not obligate STG International to contact its proposed employees to confirm continue availability is also difficult to reconcile with the facts. DOI expressly requested offerors confirm continued staff availability. How else would STG International confirm continued availability without communicating with its proposed staff? GAO does not answer this question.
According to GAO, certain may be better, but it’s sure not necessary.
Awardee Pretty Sure Key Personnel Are Available was last modified: June 4th, 2021 by