Protest challenging rejection of offeror’s proposal is denied. The agency rejected the protester’s proposal because the protester had only proposed a key project manager for the base year but not the option years of the contract. The protester argued that the solicitation did not require offerors to propose key personnel for the option years. But GAO found the protester’s interpretation of the solicitation unreasonable. The protester asserted that the agency had disparately evaluated proposals because it had not penalized the awardee for proposing a person for the same project manager position that was likely unavailable. In support of this argument, the protester noted that the awardee had posted a job announcement seeking a project manager. GAO reasoned that an awardee’s posting of a job announcement did not prove it had proposed unavailable personnel. What’s more, there was no disparate treatment, because unlike the protester, the awardee had proposed a project manager for the base and option years.
The Navy issued a solicitation to holders of the agnecy’s Seaport NxG IDIQ contract. The solicitation sought information technology services. Ten offerors, including HumanTouch, LLC, submitted proposals. The Navy found HumanTouch’s proposal ineligible. Following award to another company, PSI Pax, Inc., HumanTouch protested.
The Navy found HumanTouch’s proposal unacceptable under the solicitation’s key personnel factor. The solicitation required offerors to submit resumes for key personnel. The sonication stated that offerors should not propose prospective employees for key positions. For a key project manager position, HumanTouch only proposed an individual for the base year of the contract. The Navy reasoned that by only proposing someone for the base year, HumanTouch had effectively proposed a prospective hire for the options years. Because the solicitation did not permit prospective key personnel, HumanTouch’s proposal violated the solicitation’s terms.
HumanTouch alleged that it had reasonably interpreted the requirement to provide resumes for “any proposed key personnel” as only applying to individuals proposed to work at the start of the contract. HumanTouch reasoned that it had not “proposed” a prospective hire for the project manager position, so it didn’t need to include a resume for the option years. Rather, HumanTouch contended, it had simply put the Navy on notice that the it may need to avail itself to the key personnel substitution process during the option years.
GAO found this argument unavailing. Nothing in the express language of the key personnel section indicated that key personnel only referred to people proposed to perform during the base year of the contract, or that the prohibition on prospective hires only applied to the base year of the contract. Indeed, GAO continued, HumanTouch’s interpretation failed to give effect to all the solicitation’s terms. The solicitation had required offerors to complete an attachment in which they had to identify personnel for the base and option years.
HumanTouch also argued that it was not required to propose key personnel for the option years because the solicitation included a key personnel substitution clause, which allowed it use a new key person during performance of the contract. But GAO found that the inclusion of this clause did not relieve offerors of the obligation of a material requirement to provide resumes for key personnel.
Aside from its challenge to the rejection of its proposal, HumanTouch also argued that the Navy disparately evaluated proposals. HumanTouch contended the Navy permitted PSI to propose a prospective hire while penalizing HumanTouch for doing the same. HumanTouch noted that PSI had proposed a person for the project manager currently performed other duties for PSI and would not have time to devote to the project manager position. Additionally, HumanTouch contended that this proposed person lived in South Carolina, but the project manager position had to be performed in Maryland. What’s more, HumanTouch noted that after award, PSI had posted a hiring announcement with requirements similar to the project manager position. All of this, HumanTouch concluded, indicated that PSI’s proposed project manager was, at best, a contingent hire.
GAO, however, reasoned that HumanTouch’s argument was built around an assumption that the individual PSI proposed cannot and will not be reassigned to new duties and cannot move. HumanTouch had provided no support for this assumption. Moreover, the fact that PSI had posted a job announcement was irrelevant. A non-incumbent’s offeror’s attempts to recruit incumbent personnel after award does not establish that the personnel proposed by the awardee were unavailable.
Ultimately, GAO reasoned the difference in the evaluations of HumanTouch’s and PSI’s key personnel stemmed from differences their proposals—HumanTouch only proposed a project manager for only the base year of the contract; PSI proposed a project for the base and option years.
HumanTouch further alleged that the procurement was tainted by a conflict of interest. HumanTouch asserted that one of the evaluators had left employment with PSI to join the agency six months before proposals were submitted. GAO found that the HumanTouch had its facts wrong. The record actually showed that the person in question left the awardee six years before the solicitation was issued. The evaluator signed a non-disclosure and financial interest statement prior to participating in the evaluation. There was nothing to indicate this person had evaluated proposals in bad faith.
HumanTouch is represented by Norah D. Molnar, John J. O’Brien, and Daniel J. Strouse of Cordatis LLP. The intervenor, PSI, is represented by Paul F. Khoury, Nicholas L. Perry, and Jennifer E. Retener of Wiley Rein LLP. The agency is represented by Autumn W. Webster, Sarah M. Erly, and Jennifer E. Lee of the Navy. GAO attorneys Heather Self and Peter H. Tran participated in the preparation of the decision.
