Protest challenging the scope of agency’s corrective action is sustained. As part of a corrective action, the agency allowed offerors to substitute key personnel but did not allow them to revise other portions of their proposal. The protester contended that it should be allowed to revised its technical proposal because the substitution of key personnel impacted portions of its technical approach. GAO agreed with the protester. If offerors were allowed to substitute new key personnel with different qualifications, then they should be allowed to revise their technical approach to account for the change in personnel qualifications. Moreover, GAO reasoned, by allowing offerors to substitute key personnel without allowing revisions to the technical proposal, the agency was essentially forcing offerors to submit technical proposals that were inconsistent with their staffing plans.
The Department of State (DOS) awarded a contract for server and software deployment to ManTech Advanced Systems International. An unsuccessful offeror, Peraton, Inc., protested, alleging, among other things, that the letters of commitment from ManTech’s key personnel did not meet the solicitation requirements. GAO held an alternative dispute resolution conference and informed the parties that it was likely to sustain the protest based on the Peraton’s letters of commitment argument.
In light of  GAO’s outcome prediction, DOS took corrective action to reopen discussions to confirm the availability of key personnel and update letters of commitment. Peraton filed a second protest alleging that the corrective was unreasonably narrow and favored ManTech. GAO denied that protest.
After the denial of the second protest, Peraton requested that offerors be allowed to substitute key personnel as part of the corrective action. DOS granted the request allowing offerors to substitute key personnel. Thereafter, Peraton notified the agency that substation of key personnel would materially affect it technical and price proposals. Thus, the company asked if it could also revise all aspects of its technical and price proposals. DOS refused and confirmed that offerors could only make changes to key personnel resumes, letters of commitment, and a staffing template. Peraton then filed a third protest, challenging the scope of DOS’s corrective action.
Peraton argued that the limitations on the corrective action were too narrow. Peraton contended that its technical proposal discussed previously proposed key personnel at length. If offerors were allowed to propose new key personnel, then, Peraton argued, it should be allowed to revise the portions of its proposal that discussed key personnel. By refusing additional revisions to the technical proposal, Peraton posited, DOS was forcing it to submit a proposal that was inconsistent on its face and did not comply with solicitation requirements.
DOS argued that allowing changes to the technical approach was unnecessary because the agency did not evaluate specific key personnel as part of the technical evaluation. Additionally, DOS contended, Peraton’s argument was unfair. Following the second protest, DOS had granted Peraton’s request to allow offerors to substitute key personnel, believing this would be fair and help foster competition. If GAO were to sustain the protest, it would be penalizing the agency for acceding to Peraton’s request and attempting to foster competition.
In reviewing the reasonableness of an agency’s restrictions on the extent of discussions to implement corrective action, GAO will consider whether restrictions on discussions will have a material impact on other areas of an offeror’s proposal. Even when an agency is justified in restricting discussions as part of a corrective action, the agency may not prohibit offerors from revisions related to areas of their proposal that are materially impacted by the discussions.
In this case, the restrictions on the corrective action impacted other parts of Peraton’s proposal. GAO found that Peraton’s technical approach was meaningfully reliant on the qualification and credentials of its key personnel. Because Peraton’s key personnel had different qualifications, and its technical approach relied on those qualifications, the permitted revisions should have extended to allowing Peraton to revise its technical proposal as necessary to reflect the skills of the new personnel.
Additionally, GAO reasoned, by not allowing Peraton to revise its technical proposal, DOS was effectively requiring the company to submit a material inconsistent proposal. The solicitation required the agency to evaluate the extent to which offerors’ staffing plans and key personnel reflected an understanding of the government’s requirements. This, GAO reasoned, appeared to contemplate that DOS would evaluate key personnel in the staffing plan and the hours per labor category to determine whether they align with the offeror’s technical approach. But if offerors were only allowed to amend their staffing plan, then the technical approach and narratives—which could not be revised—would include references to entirely different key personnel than those listed in the staffing plan, which could be revised. DOS would then be faced with a facially inconsistent proposal that it could not ignore.
GAO also rejected DOS’s contention that the agency did not evaluate individual personnel as part of the technical evaluation. GAO noted that the previous evaluation had referenced staffing narratives as part of a strength assigned to Peraton’s technical approach.
Finally. GAO noted that it was sympathetic to DOS’s fairness concerns. Nevertheless, once the agency decided to allow proposal revisions, it was required to seek those revisions in a reasonable manner. The agency could have declined Peraton’s request to substitute key personnel. But once it decided to permit substitutions, it had to permit offerors to conform the portions of their proposals that refer to key personnel they were no longer proposing.
Peraton is represented by J. Scott Hommer III, Rebecca E. Pearson, Emily A. Unnasch, Christopher G. Griesedieck, and Taylor A. Hillman of Venable LLP. The intervenor, ManTech, is represented by Paul F. Khoury, Brian G. Walsh, Cara L. Lasley, Lindy C. Bathurst, and Nicholas J. Perry of Wiley Rein LLP. The agency is represented by Tudo N. Pham of the Department of State. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.
