How Inaccessible Must a Key Person Be Before They’re “Unavailable”?

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The protester alleged the awardee’s proposed key personnel were unavailable because they did not reside near the place of performance or had accepted new positions with other employers. GAO, however, found the protester had not demonstrated unavailability. A proposed key person’s current location or position with another company is not probative of that person’s availability. Here, the key individuals had submitted letters of intent stating they planned to work for the awardee if the awardee won the contract. The key individuals had not indicated that their letters were no longer valid.

ASRC Federal Data Network Technologies, LLC, GAO B-419519.4

Background

The Army issued an RFP seeking support for a computer modernization program. The RFP contemplated the award of an IDIQ contract.

After reviewing proposals, the Army awarded a contract to ASRC Federal Data Network Technologies. An unsuccessful offeror, Bowhead Total Enterprise Solutions, protested. In response to the protest, the Army took corrective action to reevaluate proposals. Following the reevaluation, the Army awarded the contract to Bowhead.

ACRC then filed a protest, challenging the Army’s past performance evaluation. GAO held an outcome prediction conference and advised the parties that it was likely to sustain ASRC’s past performance argument. The Army took corrective action to reevaluate past performance.

After the second reevaluation, the Army again selected Bowhead for award. ASRC filed another protest with GAO.

Analysis

Unavailability of Key Personnel

ASCRC contended that the key personnel Bowhead proposed were no longer available. ASRC reasoned that one of the proposed individuals did not reside within commuting distance of the place of performance. Two other individuals had started new jobs with new employers.

An offeror is generally required to advise an agency when it knows that key personnel have become unavailable. Here, however, GAO did not think Bowhead’s personnel were unavailable. Bowhead’s proposal had included letters of intent from each of these individuals, which stated they were available to accept future employment with Bowhead if Bowhead was awarded the contract. Additionally, Bowhead avowed that none of the key personnel had indicated they were unavailable. While these individuals may have worked for other companies or lived outside the place of performance, a proposed key person’s current location or position with another company is not probative of that person’s availability.

Past Performance

The RFP instructed offerors to provide past performance references for key subcontractors. The RFP defined a key subcontractor as any subcontractor performing more than 20% of the work. ASRC alleged that the Army had used an unreasonable method for calculating subcontractors’ percentage of work and consequently credited Bowhead for the past performance of subcontractors that did not meet the definition of a key subcontractor.

GAO sided with ACRC, finding that the Army had used an improper method for calculating percentage of work. The Army had based the calculation on the work subcontractors would perform on two sample task orders included with the solicitation. GAO reasoned that the calculation for the percentage of work should have been based on the entire IDIQ, not merely on two task orders.

Nevertheless, while the Army had botched the past performance evaluation, GAO determined that ASRC had not been prejudiced by the error. Without the past performance of its subcontractors, Bowhead would have received a neutral past performance rating. Even with this neutral rating, Bowhead still had the highest-rated, lowest-priced proposal.

ASRC is represented by Amy L. O’Sullivan, Zachary Schroder, and William B. O’Reilly of Crowell & Moring LLP. The intervenor, Bowhead, is represented by Robert K. Tompkins, Hillary J. Freund, Kelsey M. Hayes, and Sean R. Belanger of Holland & Knight, LLP. The agency is represented by Karl W. Kuhn of the Army. GAO attorneys Uri R. Yoo, Christopher Alwood, and Alexander O. Levine participated in the preparation of the decision.

–Case summary by Craig LaChance, Senior Editor

GAO - ASRC Federal Data Network Technologies