Proposed Key Personnel Departures Continue to Impact GAO’s Bid Protest Decisions

by Heather Mims, Senior Associate

  • Bid Protests, Case Reviews

Recent bid protest decisions from the U.S. Government Accountability Office (GAO) continue to focus on departures of proposed key personnel. As there continues to be shifts in the labor market, it is important to be aware of recent decisions from GAO on this topic, should a contractor be faced with the departure of a key employee after proposal submission. The recent decision from the GAO in Sehlke Consulting, LLC, B-420538 (May 18, 2022) is instructive.

The RFP at issue in that decision sought combined finance support services within the Department of Defense, National Reconnaissance Office’s (NRO) Business Plans and Operations Directorate, Office of Finance. The award was to be made on a best-value tradeoff basis with a key personnel subfactor to be evaluated as a non-cost factor. In this respect, the RFP required offerors to provide resumes and letters of commitment for four specific key personnel positions, and specified experience and education qualification requirements. The evaluation of key personnel would include a review of the personnel proposed in relation to the experience and education requirements and assignment of an adjectival rating. The awardee receiving an “Exceptional” for its Key Personnel Factor. In conducting the best value tradeoff, the source selection authority found that the awardee’s key personnel warranted a cost premium.

Following a debriefing, the protest followed by a disappointed offeror, arguing that the agency should have evaluated the awardee’s proposal as technically unacceptable when, prior to completing its evaluation of proposals and making its award decision, the awardee advised the agency that one of its proposed key personnel had submitted a formal notice of resignation and was thus not available to perform the contract. In response, the agency argued that despite the individual’s pending departure and knowledge of the same, the individually technically remained an employee on the date the agency executed the source selection decision.

In sustaining the protest, the GAO noted that “when a solicitation requires resumes for—or otherwise requires the identification of—specific personnel, the proposed person forms a material requirement of the solicitation.” In the event that a change in availability to such an individual occurs, the agency may either evaluate the proposal as submitted in light of the change, or hold discussions to allow for proposal revisions. As such, the GAO rejected the agency’s argument that it could ignore the pending departure of the key person and could not base its evaluation on a key individual it had “no realistic expectation would perform on the contract.”

In rendering its decision, the GAO thus recommended that the agency either evaluate the awardee’s proposal as submitted, without considering the previously proposed an unavailable key individual, or open discussions with all offerors and allow for revised proposals to be submitted. After either open, the GAO instructed that the Agency should then make a new source selection decision based on the reevaluation.

This decision serves as an important reminder about the implications that changes to identified personnel can have on the proposal evaluation process. Contractors should be aware of the impact that the departures that key personnel can have on their submitted proposals and act accordingly.