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Protest alleging that awardee failed to include a letter of commitment required by the solicitation is sustained in part. The solicitation required offerors to submit letters of commitment for key personnel. The awardee did not submit a letter for the person it proposed for a key systems administrator position. The agency argued that the teaming agreement the awardee had with a company owned by the individual proposed for the systems administrator position was a substitute for the letter. GAO rejected this, reasoning there was no evidence the agency considered the teaming agreement to be a substitute for a letter. Moreover, there was nothing that indicated a commitment from the proposed individual in the teaming agreement. The protester also argued that the awardee had misrepresented the availability of the individual proposed for the systems administrator position. But GAO found that the absence of a commitment letter from this individual meant the awardee had never actually represented that this person was committed to perform.

The National Oceanic and Atmospheric Administration (NOAA) awarded a contract to Athna RDI, JV, LLC for information technology services. An unsuccessful offeror, IT Objects, protested alleging that Athna had (1) misrepresented the availability of an individual proposed as key personnel, and (2) failed to provide a letter of commitment from this key person as required by the solicitation.

As to the alleged misrepresentation, Athna had entered a teaming agreement with a company owned by an individual who Athna planned to propose for a key Systems Administrator position. Before the proposal deadline, this individual told Athna that he no longer wanted to be part of the team. Due to a dispute over termination of the teaming agreement, Athna never formally released this individual from the teaming agreement. Instead, Athna proposed this person for the Systems Administrator position. Athna claimed this was not a misrepresentation because the individual it proposed never terminated the teaming agreement.

Although acknowledging that it was a close call, GAO declined to find that Athna made a misrepresentation. Athna’s proposal did not represent that it had received any particular commitment from the proposed Systems Administrator. It named the individual and stated that it intended to perform with that individual. But the RFP required offerors to submit letters of commitment for each proposed key person. And Athna had not submitted a letter for its proposed Systems Administrator. The company therefore did not technically represent that the individual had committed to perform the contract. What’s more, GAO reasoned, Athna appeared to have had a reasonable basis to conclude—based on the failure to terminate the teaming agreement—that the individual it proposed would perform.

Despite this, Athna was not out of the woods. The solicitation unequivocally required offerors to submit a letter commitment from individuals proposed as key personnel. It was undisputed that Athna had not submitted a letter for its Systems Administrator. NOAA attempted to argue that it viewed the teaming agreement with the System Administrator’s company as a substitute for the letter of commitment.

GAO chucked this argument. The record contained no evidence that NOAA considered the teaming agreement a substitute for the letter. Rather, it appeared from the evaluation that NOAA did not even realize that Athna had failed to include a letter in its proposal. Aside from that, there was nothing in the teaming agreement that identified any particular person for the position. It simply provided that the company owned by the person proposed as the Systems Administrator would serve as a subcontractor. Thus, it would have been unreasonable for NOAA to accept the teaming agreement as a substitute for a letter.

IT Objects is represented by John R. Tolle and H. Todd Whay of Baker, Cronogue, Tolle & Werfel, LLP. The awardee/intervenor, Athna, is represented by Ryan C. Bradel and Miles McCann of Ward & Berry PLLC. The agency is represented by James Rhodes of the Department of Commerce. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the preparation of the decision.