Court of Federal Claims judge splits from precedent regarding the availability of key personnel
In a recent decision, a US Court of Federal Claims judge concluded that, absent a solicitation requirement to the contrary, an offeror is not required to update the government regarding the availability of key personnel included in a proposal if one of the key personnel becomes unavailable after proposal submission but prior to award.
The decision departs from US Government Accountability Office (GAO) decisions providing that offerors have a “duty” to advise the procuring agency of changes in proposed key personnel after proposal submission but prior to award.
In Golden IT, LLC v. United States, one of the key personnel in the awardee’s proposal stopped working for the awardee less than two weeks after proposal submission, but the awardee did not inform the procuring agency of the departure. The protestor argued that this departure rendered the awardee’s proposal unawardable because of the awardee’s failure to inform the procuring agency, and the agency’s evaluation did not reflect that the individual no longer was available to work on the project.
Under GAO precedent, which has been followed by certain US Court of Federal Claims judges, the awardee would have been required to inform the agency of the departure, and the agency would have needed to choose between rejecting the proposal as technically unacceptable or holding discussions with all remaining offerors and allowing proposal revisions with regard to key personnel.
In Golden IT, however, Judge Matthew Solomson stated that there was no statutory, regulatory or solicitation requirement that obligated the awardee to update its proposal regarding the availability of key personnel after proposal submission. The solicitation also did not require letters of commitments from key personnel, and the “substitution of key personnel” clause only applied post-award. Judge Solomson therefore rejected “the GAO’s freestanding rule requiring offerors to update an agency regarding key personnel (i.e., in the absence of a solicitation provision containing some such requirement or mandating a certification regarding the future availability or commitment of proposed personnel).” Moreover, there was no evidence in the record indicating that the awardee had intentionally misrepresented the availability of its key personnel, although the judge signaled that he may have allowed limited discovery into the misrepresentation issue had the protestor requested such discovery.
The Golden IT decision recognizes that requiring an offeror to update the agency regarding departure of key personnel may be “unfair” because proposals are “evaluated over what is often a lengthy period.” Contractors often allocate significant resources to prepare a competitive proposal, and the unexpected departure of key personnel may jeopardize the contractor’s pursuit of the opportunity, depending on whether the procuring agency allows proposal revisions. Indeed, key personnel may pass away, relocate, retire and sometimes simply choose to change employers, and there is nothing the offeror can do about it.
Golden IT, however, is unlikely to be a watershed decision that significantly changes how bid protests involving unavailable personnel are litigated. The decision is not binding on other Court of Federal Claims judges, some of whom have already followed GAO precedent regarding the availability of key personnel, nor is it binding on the GAO. Additionally, the decision may be distinguishable from situations in which the solicitation required a letter of commitment or required offerors to provide updates regarding any changes in proposed key personnel. Thus, contractors will need to pay close attention to the requirements in the solicitation, as well as the associated litigation risks, when determining whether to update an agency regarding the availability of key personnel.
We will continue to monitor developments in this area. If you have any questions, please contact the authors or your DLA Piper relationship attorney.