Protest alleging that the awardee engaged in an impermissible bait and switch regarding its key personnel is denied, where the awardee’s quotation stated its intention to recruit from the incumbent workforce in addition to supplying its own candidates, and attested that it would finalize its staffing prior to the commencement of performance. GAO also denied protest grounds challenging multiple disadvantages to the protester’s quotation, finding the agency was reasonably concerned that the protester attempted to circumvent key personnel provisions by reducing the number of annual hours worked by their personnel.
Knight Point Systems LLC protested the Export-Import Bank of the United States’ award of a task order for IT support services to InquisIT LLC, challenging the evaluation of its proposal and arguing that the awardee contemplated an impermissible bait and switch scheme with regard to its proposed personnel.
KPS’s principal argument is that InquisIT engaged in an impermissible bait and switch of its key personnel. According to KPS, the awardee’s quotation improperly identified key personnel that InquisIT did not intend to use for performance of the contract. KPS alleged the awardee jettisoned its proposed personnel and instead attempted to hire its own incumbent workforce and posted public advertisements for the same positions. In response, EXIM maintained that the awardee’s quotation identified its proposed key personnel and signaled its intention to hire from KPS’s incumbent workforce.
GAO found that InquisIT identified its 18 key personnel by name, noted whether each individual was a current employee or contingent hire, described the expertise of each individual, and explained why each proposed person was essential to the project’s viability and success. In addition, the vendor also discussed its effort to recruit KPS’s incumbent staff. Overall, InquisIT attested that it would be fully staffed on day one of the contract.
GAO found no evidence of an impermissible bait and switch. First, GAO agreed with the agency that InquisIT’s proposal did not misrepresent its staffing approach. In addition, outside of its complaint, KPS provided no evidence that the proposed key personnel would not be available on the effective date of the task order. Indeed, shortly after being issued the order, InquisIT began the process of submitting security clearance documentations for its proposed personnel. Nothing in the record suggested that these individuals would not be able to perform, if incumbent staff were not recruited. Finally, GAO noted it is not unusual nor improper for an awardee to recruit incumbent personnel.
KPS also argued InquisIT’s recruitment of KPS’s incumbent employees violates the RFQ’s limitation on key personnel substitutions during the first 90 days of performance. In response, EXIM explained that the provision only precluded the unilateral substitutions of key personnel, and that the limitation should be read in the context of the entire key personnel section of the solicitation. According to the agency, the substitution provision did not require the agency to find a vendor unacceptable because they proposed to recruit incumbents. GAO found this persuasive.
As an initial point, GAO found that InquisIT did not take exception to this provision or otherwise indicate that it did not intend to comply. Instead, InquisIT explained that it would promptly recruit incumbent personnel and provide EXIM a “final roster” of its personnel within 10 days of being issued the order. Further, within 25 days of award, the awardee would work with any incumbent recruits and new hires to complete onboarding, in anticipation of being fully stated and prepared to perform on day one. At no point did the awardee indicate that it intended to unilaterally substitute key personnel once performance began.
Further, GAO found that whether the agency ultimately waives the substitution limitation and permits InquisIT to substitute personnel during the first 90 days of performance would not constitute a material change to the terms of the solicitation. According to GAO, KPS did not establish that InquisIT would gain an unfair advantage if the agency were to allow early substitutions, especially given that the protester has not argued that its incumbent personnel—the same individuals KPS proposed for performance—were less qualified than InquisIT’s.
Next, KPS challenged three “disadvantages” the agency identified in its quotation under the management approach factor. First, the agency found that while KPS proposed 19 FTEs for performance, it provided that only a portion of those 19 would perform up to 1,920 labor hours per years. KPS proposed that most of the remaining FTEs would be full-time, but perform slightly less than 1,920 labor hours per year each such that the key personnel provisions would be inapplicable to most of the vendor’s personnel. The agency expressed concern that one position would be staffed at 956 labor hours annually and that the proposed individual did not possess adequate skills to meet the performance expectations.
GAO found the agency reasonably expressed concern about KPS’s proposal to provide a lower number of personnel covered by the key personnel provisions. The agency explained that the solicitation’s key personnel provisions were specifically designed to ensure basic coverage, curb staff churning and create a pre-agreed financial disincentive for failure to staff, which the agency explained is a key risk in this type of requirement. The agency concluded that KPS’s failure to have most of its proposed staff subject to this clause—without suggesting a clear alternative—represented a risk to performance.
Contrary to KPS’s contention, the agency was not precluded from downgrading a quotation based on a vendor’s staffing mix, merely because vendors were free to propose their own staffing mixes. The RFQ specifically advised that the agency would evaluate the vendor’s staffing plan to determine whether it identifies the staff mix and the amount of resources required to accomplish the requirements outlined in the PWS. According to GAO, the RFQ plainly permitted the agency to evaluate whether a vendor was attempting to “circumvent” the key personnel protections, as was the case here.
Knight Point Systems LLC is represented by Thomas O. Mason, Francis E. Purcell, Jr., Raymond C. McCann, and Joseph R. Berger of Thompson Hine LLP. InquisIT LLC is represented by Gunjan R. Talati, Lawrence M. Prosen, Nicholas J. Nieto, and Stephanie N. Bedard of Kilpatrick Townsend LLP. The government is represented by Calvin F. Boles, Export-Import Bank of the United States. GAO attorneys Noah B. Bleicher and Peter H. Tran participated in the preparation of the decision.