On November 4, 2021, the Government Accountability Office (GAO) sustained a protest in the matter of Ashlin Management Group, Inc., B-419472.3; B-419472.4. Ashlin protested the issuance of an order to Booz Allen Hamilton, Inc. (BAH) under the Department of Labor’s Employment and Training Administration’s request for quotations for consulting services connected to the department’s Job Corps Program. The GAO’s decision serves as an important reminder that an offeror with actual knowledge of a key employee’s unavailability has a duty to notify an agency when that employee becomes unavailable, even after the submission of a proposal or quotation.

Background

The Department of Labor solicited federal supply schedule contract holders for a vendor to assist the National Office of Job Corps in “identifying, developing, and implementing career pathway programming with a ‘focus on transitioning Job Corps from a career technical training program to a career technical education program.’” The solicitation contemplated issuance of a time-and-materials order for a one-year base period and four one-year option periods. Award would be made on a best-value tradeoff basis considering price and four non-price factors that combined were significantly more important than price: (1) technical approach; (2) key personnel, staff experience, and qualifications (key personnel); (3) management plan; and (4) past performance.

Under the key personnel factor, the solicitation established three key personnel positions – project director, project manager, and senior project specialist. Vendors were also required to describe “their processes for recruiting, retaining, and providing [the] highly skilled qualified personnel,” and the solicitation advised that the agency would evaluate “[t]he effectiveness” of a vendor’s proposed plan. Under price, vendors had to include a price schedule that included fixed-price labor rates for a set number of hours for several labor categories. The solicitation did not include FAR provision 52.222-46, Evaluation of Compensation for Professional Employees.

In December 2020, the source selection authority (SSA) selected BAH’s quotation for award. Ashlin protested, but the GAO dismissed Ashlin’s protest as academic because the agency decided to take corrective action by reconsidering quotations and making a new award decision. After reconsidering the quotations, the agency awarded to BAH again. The SSA concluded that BAH’s quotation was a better value to the government and provided a lower price.

Protest grounds

Ashlin once again protested the award to BAH arguing that BAH’s quotation became technically unacceptable during the corrective action period when BAH’s quoted person to fill the senior project specialist key position resigned. Ashlin argued that BAH had actual knowledge of the senior project specialist’s unavailability and was obligated to notify the agency. Ashlin also asserted that the agency erred by not putting vendors on notice of an alleged change in the evaluation method, an argument which was later withdrawn, and by not adding FAR provision 52.222-46.

BAH argued that (1) it did not have actual knowledge of its senior project specialist’s unavailability, (2) it requested a substitution of another key employee after the agency made its new award, and (3) that BAH might seek to re-hire the resigned senior project specialist. BAH also argued that no duty to notify arose because the original task order remained in place throughout the corrective action period.

The GAO’s findings

The GAO found that BAH had actual knowledge of the unavailability of one of its quoted key personnel during the corrective action period and failed to notify the agency. The employee resigned in March 2021 and left BAH’s employ in April 2021; thus, providing BAH with actual knowledge of the employee’s unavailability during the corrective period, which ended on August 13, 2021. The GAO also found that the source selection process was ongoing during the corrective action period, and “that all competitors in consideration for award had an ongoing obligation to notify the agency in the event they obtained actual knowledge that a quoted key person had become unavailable.”

The GAO emphasized that offerors and vendors may not receive awards based on knowing material misrepresentations in its offers. Importantly, vendors are obligated “to advise agencies of material changes in proposed staffing, even after submission of proposals or quotations.” When a key employee becomes unavailable, an offeror or vendor is required to notify an agency. This duty to notify does not arise if an offeror or vendor does not have actual knowledge of the employee’s unavailability. However, because BAH had actual notice in this case, it had a duty to notify the agency.

Regarding Ashlin’s protest that the agency did not add FAR provision 52.222-46, the GAO found the protest was untimely because Ashlin waited more than 10 days after it knew or should have known the basis of its protest. The GAO also found that the agency’s technical evaluation was reasonable and consistent with the stated evaluation criteria and procurement statutes and regulations.

Ultimately, the GAO recommended that the agency (1) evaluate BAH’s quotation without the resigned senior project specialist, or (2) open discussions with all vendors, allow for revised quotations, and make a new source selection decision. The GAO also recommended that Ashlin be reimbursed the reasonable costs of filing and pursuing its protest, including attorneys’ fees.

Takeaways

This decision serves as an important reminder that offerors with actual knowledge of a key employee’s unavailability have a duty to notify the contracting agency of that employee’s unavailability, even after the submission of proposals or quotations. The GAO has a long line of cases that reinforce this obligation to report material changes in proposed staffing, even after submission of proposals, because a company may not properly receive award of a contract based on a knowing material misrepresentation in its offer. The offeror must notify the contracting agency when it knows that one or more key employees have become unavailable, except when it does not have actual knowledge of the employee’s unavailability. Of course, the offeror’s compliance with this obligation is not without risk, because when the contracting agency is notified of the withdrawal of a key person, it has two options: (1) evaluate the proposal as submitted without considering the resume of the unavailable employee (in which case the proposal or quotation would likely be rejected as technically unacceptable for failing to meet a material requirement); or (2) open discussions to permit all offerors the opportunity to amend their proposal. But importantly, if the offeror fails to comply with its obligations, it stands a very real chance of having its award overturned, if challenged.