Awardee Should’ve Notified Agency When Key Person Became Unavailable; Ashlin Management Group, GAO B-419472.3, B-419472.4

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Protest alleging that awardee’s proposal was unacceptable is sustained. The protester contended the awardee failed to notify the agency when one of its proposed key individuals became unavailable. The awardee argued it lacked actual knowledge of this person’s unavailability, so it had no duty to notify. But GAO found the awardee had received a letter of resignation from this individual, which provided actual knowledge and a resulting duty to notify. The awardee also argued that unavailability was a matter of contract administration that could not be addressed in a protest. GAO disagreed, reasoning that the individual became unavailable during the source selection process, so the matter was appropriately raised in a protest.

Background

The Department of Labor (DOL)  issued an RFQ seeking consulting services related to the agency’s Job Corps program. Ashlin Management Group and Booz Allen Hamilton (BAH), among others, submitted quotations. DOL selected BAH for award. Ashlin protested. DOL took corrective action to reevaluate.

Following the reevaluation, DOL again awarded the contract to BAH. Ashlin filed a second protest, contending that during the corrective action, an individual BAH proposed for key project specialist position resigned. BAH didn’t notify DOL this person was unavailable, so, Ashlin argued, BAH’s quotation was unacceptable.

Legal Analysis

  • Duty to Notify and Actual Knowledge of Unavailability — Vendors must advise agencies of changes in proposed staffing when they have actual knowledge of a proposed individual’s unavailability. When an agency is notified, it may evaluate the vendor’s proposal as submitted or hold discussions so vendors can amend their quotations.
  • BAH Had Actual Knowledge of Unavailability — BAH claimed that it did not have actual knowledge of unavailability because while the individual in question had resigned from BAH, it did not necessarily mean that he couldn’t to return to work for BAH under the DOL contract. But GAO found this argument rang hollow. The individual in question submitted a letter of resignation to BAH and left the company. This was sufficient to give BAH actual knowledge.
  • Duty to Notify Applied During Corrective Action — BAH asserted that it did not have a duty to notify because the contract it had been awarded was still in place throughout the corrective action. Thus, the unavailability issue was a matter of contract administration that should not be considered by GAO. But GAO rejected this argumen. The corrective action notice had stated the agency would make a new award decision that would supersede the initial award. Moreover, the source selection process was ongoing during the corrective action, so all competitors still had an ongoing duty to notify during the corrective action.

Ashlin is represented by Jerome S. Gabig, Richard J.R. Raleigh, Jr., and Christopher L. Lockwood of Wilmer & Lee, PA. The intervenor, Booz Allen, is represented by Anthany J. Marchese and Carol L. O’riordan of Or’Riordan Bethel Law Firm, LLP. The agency is represented byJose Otero, Jonathan I. Pomerance, and Robert S. Proudfoot of the Department of Labor. GAO attorneys Heather Self and Peter H. Tran participated in the preparation of the decision.

Ashlin Management