Awardee’s Attempts to Recruit Incumbent’s Employees after Award Does Not Necessarily Mean It Engaged in a Bait and Switch Regarding Key Personnel
March 28, 2016
By: Lindsay Simmons
When incumbent contractors passed over for follow-on contracts seek to protest the award decision, they often challenge the evaluation of staffing and/or key personnel, arguing that the awardee’s proposal could not possibly be as strong as theirs because they proposed to use the current, experienced staff, something that the awardee was not able to do. If the incumbent learns after the award that the awardee is attempting to recruit its key personnel, the protester is likely to go further and allege that the awardee used bait and switch tactics to win the contract. Disappointed incumbents should be careful, however, not to rely too heavily on such a theory.
The recent Government Accountability Office (GAO) decision in Allied Technology Group, Inc., B-412434; B-412434.2 (February 10, 2016) explains why. The underlying procurement involved the issuance of a task order by the Department of Homeland Security, U.S. Customs and Border Protection (CBP) for support services. Under the request for proposals (RFP), award was to be made on a best-value tradeoff basis considering the following evaluation factors, in descending order of importance: technical/management, past performance, and price, with the price and non-price factors approximately equal in weight.
For the first factor, offerors were required to propose their technical approach to meeting the technical requirements in the Statement of Work (SOW) and a staffing plan and description of their approach to meeting SOW management and staffing requirements. As part of the management approach, offerors were also to propose specific individuals (and submit resumes) for seven key personnel positions that CBP considered essential to the work -- and for which the RFP specified roles and qualifications. The RFP explained that the evaluation of the technical / management factor would involve, among other things, an assessment of the degree to which the offeror provided expertise, including whether the offeror’s personnel met SOW requirements, their relevant skills and experience level for their proposed SOW tasks, how personnel would contribute to the OTIA, and their availability dates. With respect to key personnel and non-key functional leads in particular, the RFP expressly stated that the agency would evaluate their resumes, qualifications, and availability to begin work on the date of award.
CPB received proposals from eight contractors, including Allied Technology Group, Inc. (ATG) (the incumbent) and MacAulay Brown, Inc. (MacB). The agency evaluation of proposals gave both offerors a Superior rating for Past Performance but MacB was rated higher (Good / low risk) on Technical / Management than ATG (Satisfactory / medium risk). In addition, MacB had proposed a higher price. Nevertheless, CPB determined that the higher rated lower risk proposal was worth the difference in price and awarded the contract to MacB.
ATG protested, arguing in part that MacB had engaged in an improper bait and switch by proposing key personnel that it did not intend to provide. Based on the record, the GAO disagreed.
As the GAO noted, “To establish an improper bait and switch scheme, a protester must show that a firm either knowingly or negligently represented that it would rely on specific personnel that it did not reasonably expect to furnish during contract performance, and that the misrepresentation was relied on by the agency and had a material effect on the evaluation results.” The GAO found that ATG failed to meet its burden because it did not furnish any basis to conclude that MacB either knowingly or negligently represented that it would rely on specific personnel that MacB did not expect to furnish during contract performance.
The problem was that ATG’s entire bait and switch allegation was based on MacB’s post-award recruitment efforts. However, as the agency and intervenor correctly pointed out and the GAO confirmed, the mere fact that MacB was recruiting incumbent personnel after award does not establish that MacB’s proposed key personnel were unavailable to perform the contract work. Indeed, the GAO has previously noted that “it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor.” ATG pointed to nothing else in the record indicating that MacB’s proposed key personnel were unavailable, unwilling, or unlikely to perform under the task order when MacB submitted its proposal.
In contrast, MacB’s comments on the agency report included a declaration from the individual who oversaw the entire recruitment process for MacB’s preparation and submission of its proposal. That declaration explained that: (i) MacB was fully prepared to provide, and intended to staff the task order with, the individuals that it proposed as key personnel; (ii) MacB had actually obtained formal letters of intent from at least some of the proposed key personnel; (iii) during the 18 months between proposal submission and award, MacB did not maintain on-going communications with its proposed key personnel regarding their employment commitments; (iv) the RFP did not require such communications; (v) the proposed personnel never contacted MacB to inform MacB that they were unavailable; (vi) those personnel were not required to do so; and (vii) following the submission of its proposal, MacB was never contacted by the agency to confirm the continued availability of MacB’s key personnel. ATG did not address the declaration or MacB’s explanation whatsoever, much less challenge its veracity.
The moral of the story is this: The bait and switch theory remains a valid protest ground. But if you want to win a protest based on a bait and switch theory, you’re going to need more than the fact that the awardee is now trying to recruit your key personnel.
© 2016 Jackson Kelly PLLC