Unavailability of key personnel: a growing protest risk

Government Contracts Alert

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A recent decision from the US Government Accountability Office (GAO) confirms that an offeror may be excluded from a competition if an employee proposed as "Key Personnel" becomes unavailable before award.

Troublingly, this risk exists even if the individual's unavailability was unforeseeable and due to no fault of the offeror (eg, the agency's delay in making an award). It also exists even if the offeror can provide a fully compliant substitute, and even if rejection of the proposal meaningfully reduces the competitive range.

In YWCA of Greater Los Angeles (B-414596.3, 2017 CPD ¶ 245, July 24, 2017), the GAO affirmed that if the solicitation requires the submission of Key Personnel resumes for evaluation, this is considered a "material" requirement. Thus, offerors have a duty to notify the procuring agency of any changes to proposed Key Personnel, even after proposal submission and even if the solicitation does not expressly require such notice.

The GAO further affirmed that when the procuring agency receives notice of a Key Person's unavailability, the agency may find the proposal technically unacceptable and eliminate it from consideration. Only if the procuring agency elects to formally engage in discussions with all offerors – a decision subject to broad agency discretion – will the offeror have an opportunity to provide a substitute Key Person for evaluation.

Long acquisition lead times and the perceived risk of protest may incentivize agencies not to open discussions and allow revised proposals. When an agency elects not to open discussions and allow an offeror to remedy Key Personnel unavailability, the agency can significantly alter the competitive range by rejecting a proposal that was technically acceptable when submitted and that could easily become technically acceptable again if Key Personnel substitution was allowed. Although an agency's refusal to open discussions may directly influence the overall source selection decision, the GAO has routinely held that it will not question the agency's decision-making in this regard.

This risk and its implications were recently addressed by DLA Piper lawyer Brad Jorgensen during a recent meeting of the ABA Public Contract Law Section's Bid Protest Committee, of which he is a co-chair. To find out more and to see our key takeaways and potential remedies, see the slide deck. Learn more about these issues by contacting either of the authors of this alert.