Legal Review: GAO: AWARDEE’S PROPOSAL MISREPRESENTED PROFESSIONAL EXPERIENCE OF KEY PERSONNEL

GAO: AWARDEE’S PROPOSAL MISREPRESENTED PROFESSIONAL EXPERIENCE OF KEY PERSONNEL – PROTEST SUSTAINED!

In Insight Technology Solutions, Inc., 2022 CPD 13, 2021 WL 6619306 (12/20/21) (ITS), the GAO sustained a post award protest, ruling that the awardee’s proposal materially misrepresented the professional experience of its proposed project operations manager which had a material effect upon the government’s evaluation and award.

The Procurement

Under a small business governmentwide acquisition IDIQ type contract, the Department of Homeland Security (Agency) issued a proposal request to those firms holding contracts, seeking IT services to support its student and exchange visitor information system (SEVIS) application. The request contemplated the award of a task order for a base period plus options on a “best value” basis. The source selection decision was to consider four evaluation factors in descending order of importance: Technical approach; experience; management approach and price.

After initial evaluation, four offerors remained in the competition, including ITS and AP Ventures, LLC (APV), the ultimate awardee.

Insofar as relevant here, the Performance Work Statement (PWS) provided that the project operations manager (POM) for this task order “shall have a minimum of five (5) years of experience in managing projects, with a focus on business process and re-engineering projects.” In response to this requirement, APV’s proposal stated that its proposed POM had “9 years of relevant experience including 5 years support and quality oversight of the SEVP Contact Center.”

Agency Evaluation and Award

In reviewing APV’s proposed key personnel under the “management approach” evaluation factor, the Agency noted that APV’s proposed key personnel had experience exceeding the minimum experience required by the PWS, and that this additional experience “added value” and “increased the likelihood of success.”  The Agency report specifically cited the POM’s claimed 9 years of experience, and concluded that this additional experience “causes the Government to have high confidence” that APV could successfully perform “with enhanced expertise.”

On an unrelated issue, the Agency report noted that APV’s approach to filling vacancies under its management approach warranted a “raises confidence” observation. However, ITS proposed a similar approach to filling vacancies, but the Agency did not give ITS a “raises confidence” observation.

The source selection authority concluded that APV’s proposal, albeit higher priced, represented “best value” to the government. In so doing, it also noted the above professional experience of APV’s key personnel. The Agency advised ITS of its award decision. ITS obtained a debriefing, and thereafter filed this protest.

The Contentions of the Parties

ITS contended that APV misrepresented the professional experience of its proposed POM. ITS cited to the POM’s LinkedIn Profile, which showed that the POM did not have the 9 years of experience claimed, and did not even have the minimum requirement of 5 years of experience. ITS argued that the Agency relied upon this misrepresentation, which caused a flawed evaluation and award. As for the Agency position, it did not dispute the employment information listed in the LinkedIn Profile but argued that ITS was unable to show that the Agency had “reason to believe” that a misrepresentation had occurred and therefore the protest should be denied.

The GAO Rules

The GAO agreed with the protester. There was no support in the record for APV’s assertion that its proposed POM had 9 years of relevant experience managing the contracts identified; at best, the record showed only 11 months of experience managing such contracts at the time of the proposal. This was a material misrepresentation. This misrepresentation was relied upon by the Agency when evaluating key personnel qualifications because it formed the basis for the Agency’s conclusion that APV’s proposal met and exceeded minimum qualifications for key personnel.

The GAO also concluded that ITS was prejudiced by APV’s misrepresentation. If AVP’s proposal had been eliminated or less favorably evaluated, ITS would have had a substantial chance of receiving the award.  Based upon the foregoing, it sustained the protest.

In addition, the GAO found alternative grounds to grant the protest. It held that the Agency’s failure to provide ITS with a “raises confidence observation” for a vacancy-filling plan when it did so for a similar APV plan constituted disparate treatment of the proposals.

Lessons Learned

The takeaway from this decision is clear. The GAO will carefully scrutinize claims of proposal misrepresentation, and disparate treatment of proposals by the government to insure fairness and to protect  the integrity of our federal procurement system.