Protest alleging that the awardee had made a material misrepresentation in its proposal is dismissed. The protester alleged the awardee made a misrepresentation by proposing a program manager who could not perform in that position because she was bound by a non-compete agreement. GAO declined to hear the protest. To determine whether the awardee made a misrepresentation, GAO would first have to determine whether the non-compete was enforceable. But GAO does not consider alleged violations of a non-compete because it involves a dispute between private parties.
The Department of Justice awarded a task order for information technology, enterprise architecture, and program management services to IntePros Federal, Inc. About a week after award, an unsuccessful offeror, AVER, LLC, learned that an employee of one of its proposed subcontractors had resigned from her job and accepted a new position with one of IntePros’ subcontractors. Indeed, this employee was going to serve as the program manager on IntePros new DOJ contract.
AVER filed a protest alleging that IntePros’ proposal had contained a material misrepresentation. Specifically, the program manager IntePros had proposed was subject to a non-compete agreement with AVER’s subcontractor. As a result of this non-compete, IntePros could not have reasonably expected this program manager to be available to perform the contract. By proposing this program manager, AVER alleged, IntePros misrepresented her availability.
GAO noted that it will not review an allegation that an awardee has violated a non-compete agreement because it concerns a private dispute that does not involve government action. AVER contended that it was not asking GAO to opine on the enforceability of the non-compete. Instead, the company argued, the non-compete was simply a material fact that IntePros had misrepresented.
But GAO found that the non-compete was inseparable from the issue of whether IntePros had a reasonable basis to propose the program manager. AVER’s entire argument depended on a presumption that the non-compete was enforceable and prevented the program manager from working with IntePros' subcontractor. The agreement would need to be enforced by a court to preclude IntePros from using the program manager. Because GAO was not a position to opine on the enforceability, it could not consider whether IntePros had a misrepresentation concerning the program manager’s availability.
AVER is represented by Tenley A. Carp, Micah Kanters, and Georgina Shepard of Arnall Gold Gregory LLP. The intervenor, IntePros, is represented by Stephanie D. Wilson and Terrance M. O’Connor of Berenzweig Leonard LLP. The agency is represented by Christopher Radcliffe of the Department of Justice. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.