Protest alleging that the awardee misrepresented the availability of its proposed personnel is sustained. The awardee proposed a key person who it never contacted before submitting its proposal. GAO found that the awardee made a material misrepresentation. The awardee had specifically named this individual in its proposal and indicated they would be working on the contract. The awardee, having not contacted this person, had no reasonable basis to believe that this person would be available. What’s more this misrepresentation was material; the agency had relied on the availability of the proposed individual in finding that the awardee met the solicitation’s minimum requirements.
The Air Force issued a solicitation seeking crew resource management training for agency personnel responsible for handling ballistic missiles. Darton Innovative Technologies, Inc. submitted a proposal in response to the solicitation. Darton proposed to use one of the incumbent instructors. Based in part on this representation, the Air Force awarded the contract to Darton.
A disappointed bidder, T3I Solutions protested, claiming that Darton had misrepresented the availability of the incumbent instructor because it did not have reasonable expectation that this person would be available for performance. Indeed, T3I submitted a declaration from the incumbent contractor. He stated that he had not been contacted by Darton and had not discussed employment with the company when Darton submitted its proposal.
Darton and the Air Force, however, claimed that the company had not made a misrepresentation because it never made a specific representation in its proposal that it had a reasonable basis to believe this person would be available. GAO rejected this, noting that Darton had specifically stated in its proposal that it was using incumbent employees. Its proposal identified the individual at issue by name and stated that he would “bring the experience and know-how to conduct this program.” Darton clearly represented that it would provide this individual for the contract.
Nevertheless, Darton and the Air Force contended this was still not a misrepresentation because Darton had a reasonable basis to believe that the individual would be available for the contract. GAO disagreed, reasoning that Darton had not contacted this individual before submitting its proposal. It could not have had a reasonable belief as to his availability. Indeed, although Darton contacted the individual after award, it offered him a salary that was significantly less than what he had been earning as part of the incumbent contract. An offeror cannot represent the commitment of incumbent employees based only on the hope that it will ultimately be able to make good on its representation.
The Air Force also contended there was no misrepresentation because the solicitation did not require offerors to provide commitment letters for proposed staff. GAO dismissed this argument, opining that the real issue was what the solicitation required and what Darton proposed to meet that requirement. Any arguments about what the solicitation did not require were irrelevant.
Having determined that Darton made a misrepresentation, GAO also found that the misrepresentation was material and that the agency relied on it. In fact, the individual Darton proposed was the only person it intended to use for the required position. The Air Force had relied on this person’s availability to find that Darton’s proposal met the minimum requirements.
T3I is represented by J. Bradley Reaves and Beth V. McMahon of ReavesColey, PLLC. Darton is represented by Michelle F. Kantor and William J. Beckley of McDonald Hopkins LLC. The agency is represented by Colonel Patricia S. Wiegman-Lenz, Lawrence Anderson and Colonel Tammie L. Sledge of the Air Force. GAO attorneys
April Y. Shields and Christina Sklarew participated in the preparation of the decision.
