GAO found the protester proposed an unavailable key person. The COFC said GAO was wrong. The key person—who was in an opaque limbo between unavailable and available—was not technically unavailable.
KPMG LLP v. United States, COFC No. 22-866
- Key Person Quits Job – The agency posted a solicitation for financial services. The incumbent, KPMG, submitted a bid. KPMG proposed a key person employed by a subcontractor. After KPMG submitted its proposal, this key individual told the subcontractor he was quitting.
- GAO Decision – KPMG told the agency the key person was leaving. Shortly thereafter, the agency awarded KPMG the contract. An unsuccessful offeror filed a GAO protest. GAO sustained, finding KPMG had proposed an unavailable person. The agency reevaluated and determined KPMG’s proposal was unacceptable due to the unavailable key person. The agency awarded the contract to DeLoitte.
- COFC Reverses – KPMG filed a protest with the Court of Federal Claims. The court reasoned GAO erred in finding KPMG proposed an unavailable person. The court noted this person was not really unavailable. He may have quit his job with KPMG’s subcontractor, but that didn’t mean he was unavailable to perform the contract. Indeed, KPMG had been communicating with him and asking him to reconsider his resignation. As a matter of fact, he was still employed by the subcontractor at the time of award.
- Public Policy – The court noted the agency’s decision to find KPMG unacceptable had negative policy implications. KPMG informed the agency of the pending departure of the key person. If the court were to uphold the GAO decision, parties would be encouraged to hide the ball and not disclose personnel changes.
The contractor is represented by Dominique Casimir of Blank Rome LLP. The intervenor, DeLoitte & Touche LLP, is represented by David Samuel Cohen of Cordatis LLP. The government is represented by William Porter Rayel of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
