GAO: AWARDEE’S QUOTATION MISREPRESENTS AVAILABILITY OF KEY PERSONNEL – PROTEST SUSTAINED!
by Jack Delman, Retired Judge
In ASRC Federal Data Solutions, LLC, 2022 WL 17505197 (12/2/2022) (ASRC), the GAO sustained a post award protest, ruling that the awardee’s quotation materially misrepresented the availability of a key person; that the Agency relied upon the misrepresentation; and that this had a material effect on the evaluation of the proposals and prejudiced the protester.
Nature of the Procurement
The Department of Health and Human Services (Agency) issued an RFQ under GSA Federal Supply Schedule procedures, FAR 8.4, seeking quotations from small business vendors holding Schedule 70 contracts for IT services. The RFQ contemplated the issuance of a blanket purchase agreement (BPA) with a base year and annual options under which the Agency would place task orders for various services. Award was to be based on a best value tradeoff using the following evaluation factors: approach to hypothetical projects; organizational experience and management; technical capabilities and qualifications of key personnel; and price. With respect to key personnel, vendors were to furnish credentials for three labor categories – Technical Point of Contact (TPOC), Technical Lead and Curation Lead.
The Agency received four quotations, including from ASRC and “Arlluk Technology Solutions, LLC” (Arlluk), the future awardee. As for the key personnel evaluations pertinent here, Arlluk was rated “outstanding”; ASRC was rated “good”. ASRC’s proposed price was 18.5 % lower than that of Arlluk. The agency technical evaluation report assigned a “strength” for the credentials of Arlluk’s proposed TPOC, referred to by GAO as “Dr. B.” The Source Selection Authority (SSA) also noted the strong qualifications of Arlluk’s key personnel, including Dr. B as the TPOC, and noted ASRC’s lesser personnel rating as part of its best value tradeoff. The SSA concluded that, overall, Arlluk’s quote was best value and warranted payment of the higher price.
The Agency notified ASRC that Arlluk was to be the selected vendor. ASRC requested and received a “debriefing” per FAR 8.405-3(b)(3), and thereafter filed this protest with the GAO.
The Protester’s Claim
ASRC contended that Arlluk misrepresented the availability of two key persons in its quotation – Dr. B, the TPOC mentioned above, and “Mr. A”, the Technical Lead. According to ASRC, these individuals signed exclusive letters of commitment with ASRC for this procurement and Arlluk had no reasonable basis to include them in its quotation.
The GAO Rules
The GAO ruled against ASRC regarding Mr. A. The record showed that Mr. A consented to the inclusion of his name and qualifications in Arlluk’s quotation and was willing to accept employment if Arlluk was the selected vendor.
The situation with Dr. B was different. Although Dr. B had accepted a contingent offer of employment from Arlluk in 2021, she declined to confirm that acceptance in 2022 and advised Arlluk that she refused to allow Arlluk to include her name and qualifications in its proposal. In addition, prior to quotation submission, she advised Arlluk that she had signed a document with ASRC stating that she was exclusively committed to ASRC for the project and that no other company was authorized to use her resume in its proposal. Notwithstanding the above, Arlluk’s quotation included Dr. B as one of its key personnel.
GAO concluded that Arlluk had no reasonable basis to include Dr. B in its quotation. Arlluk misrepresented the availability of Dr. B, i.e., that she would work for Arlluk if selected for award. The Agency relied upon this misrepresentation, and it had an impact on the evaluation and award. The agency technical evaluators and the SSA both noted Dr. B’s qualifications and experience as a “strength” in the proposal. This assessment contributed to the Agency’s best value tradeoff that Arlluk’s quote was technically superior to that of ASRC and warranted the payment of a price premium. Accordingly, ASRC was prejudiced by the misrepresentation.
The GAO sustained the protest. It recommended that the Agency terminate the BPA; exclude Arlluk’s quotation from the competition; make a new selection decision; and reimburse ASRC for its protest costs and reasonable attorneys’ fees.
This case is a reminder to all offerors that key personnel representations must be prepared carefully, accurately and based upon information most recently available. We see here that GAO will not hesitate to scrutinize these representations to insure transparency and integrity in our competitive federal procurement system.