Blogs

Posted on Sunday, November 19, 2017

Offerors May Be Required to Notify Agency When “Key Personnel” Depart before Award

Once a vendor submits an offer to the Government, generally, the ball is in the Government’s court: it can make an award on the basis of those offers without discussions, ask for discussions, or ask for clarifications. However, as a recent Government Accountability Office (GAO) decision shows, the “ball” can also get back in the vendor’s court, because vendors have a duty to keep the government informed of material changes in its proposal, like the loss of key personnel.

The Department of Labor issued a solicitation for the operation of a Job Corps center in Los Angeles.  The position of center director was a key personnel position, and offerors were required to submit a resume for that position. The RFP also required offerors to tell the Government if the availability of the person for this key position changed “at any point in the procurement process.” The RFP also stated that “[a]ny offer, modification, or withdrawal received at the [DOL] office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered.”

After Management and Training Corporation (MTC) had submitted its final proposal revision, MTC told DOL that its proposed key personnel was no longer available. In response, DOL let MTC submit a new resume without re-opening discussions. But after MTC won the contract, a competitor protested because the agency had improperly accepted the new resume after the final proposals were submitted, without opening discussions with all offerors. The protestor won.

GAO held that when a solicitation requires resumes for key personnel, the resumes are a material requirement of the solicitation, and offerors must tell agencies of material changes in its proposal, even after final proposal submissions. GAO found that the plain language of the notification requirement of the RFP prohibited late proposal modifications, and did not include an exception for modifications resulting from when a key person became unavailable. If the agency permitted an offeror to make a late substitution of key personnel, it could do so only through discussions, because without the resumes, the proposal would omit material information required by the RFP.

Thus, according to GAO, the agency had two options here: “either evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or open discussions to permit the offeror to amend its proposal.”  Notifying an agency of key personnel changes during the procurement process must be done carefully. As GAO decisions show, not all agencies know that key personnel substitution may constitute material changes to a proposal, and thus can only be done as “discussions.” Berenzweig Leonard can help offerors in this difficult position navigate the process with the agency.

YWCA of Greater Los Angeles, B-414596, July 24, 2017.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the November 2017 Monthly Insights newsletter. For more information on how to sign up for Monthly Insights, please click here.

Terry O’Connor is the Co-Director of Government Contracts for Berenzweig Leonard, LLP, and can be reached at TOconnor@BerenzweigLaw.com.