Government Contracts Monitor

Proposal Preparation: Make Clear Your Proposed Personnel Are Available

November 10, 2015

Two recent decisions by the Government Accountability Office (GAO) highlight the importance of making clear, in your proposal, that your proposed staff and key personnel are locked-in and will be available and ready to go at the start of the proposed effort. This is particularly so where the solicitation requires express availability commitment letters. In each of these cases the offeror failed to clearly establish personnel availability, and paid the price for such lack of clarity when the respective agencies rejected their proposals as technically unacceptable, and GAO sustained the reasonableness of the agencies’ evaluations. In the first case the offeror relied on staff personnel who were assigned to other work, raising unresolved questions as to their availability for the instant work. In the second case, one of the offeror’s commitment letters contained open-ended exceptions undermining and raising questions as to a key person’s availability.

The first case is Dynamic Systems Technology, Inc., B-411795, Oct. 23, 2015. The case involved an Army small business task order competition for education counseling and services, including an estimated 65 mobile workshops, for service members being separated from active duty. Award was to be made on a lowest-price, technically acceptable (LPTA) basis, with consideration to technical, past performance and price. The technical elements included “staffing approach,” as to which the government would evaluate whether the offerors’ “labor mix, labor hours, qualifications and cross-utilization of proposed workforce … address the offeror’s ability to perform all performance work statement [PWS] requirements to include … mobile workshop requirements.” The solicitation stated that an “unacceptable” rating under any technical element would render the proposal ineligible for award.

DST provided an estimated number of hours to support the required workshops. However, DST apparently relied, at least initially, on staff assigned to a contract at another agency or to another function in order to provide the workshops. The Army was concerned as to the contingent aspects of these people’s availability, and DST’s flexibility to perform the workshops as required. The Army therefore determined the staffing proposal unacceptable and DTS ineligible for award. DST predictably challenged its disqualification, arguing that the Army mis-read its proposal.

GAO denied DST’s protest challenge, noting that a protestor has the burden to prove the unreasonableness of the agency’s evaluation, and that mere disagreement, without more, is insufficient. GAO found the agency’s evaluation reasonable, since DST’s proposal did not provide information or otherwise explain how it would meet the workshops requirement if the proposed otherwise assigned staff were unavailable.

In SRA International, Inc., B-411773, B-411773.2, Oct. 20, 2015, a task order solicitation for information technology support services under GSA’s Alliant Government Wide Acquisition Contract (GWAC) required offerors to provide signed letters of commitment for each proposed Key Person. The letters were required to include a statement that the proposed Key Person is employed and available to start work on the Project Start Date. The solicitation was later amended, in response to offeror inquiries, to permit contingent hires. The solicitation stated that failure to provide such letters at proposal submission would result in elimination from further award consideration.

SRA’s commitment letter for its proposed infrastructure lead stated that “Barring any unforeseen circumstances or conflicts, I anticipate[] being available … upon award,” and went on to state that the referenced “conflicts may include, but are not limited to, termination of employment, promotion, movement to a different position and internal business group within Microsoft, illness, death, medical or personal leave, [and] any leave of absence as provided for by Microsoft.” The agency understandably did not find this language sufficient to ensure that the infrastructure lead would be available on the start date, and eliminated SRA from further consideration.

SRA naturally protested, challenging the rejection as unreasonable. SRA argued that the letter met the literal requirements for a signed commitment letter stating that the employee is available to begin work on the start date. According to GAO, SRA argued that the agency rejected the letter because the individual might not be available if he died or became ill. The agency responded that its rejection was based not on the person possibly dying or getting sick, but because the proposed availability was contingent upon actions under the person’s control, such as taking a leave of absence.

GAO looked at the plain language of the commitment letter, and easily determined that the agency reasonably concluded that the person was not unequivocally committed to being available when performance began. GAO specifically noted the commitment letter’s broad exceptions stating that the lead could be unavailable based on events within his employer’s or his control, such as his taking a leave of absence. GAO therefore denied SRA’s protest.

Interestingly, the SRA decision also addressed the commitment letter language of two other offerors. First, GAO held that a commitment to continue working on the contract in the event of award is sufficient to establish that the employee will be available when performance starts, and that, under the circumstances here, all that was required was the intent of the signatory to work for the offeror, and not a binding bilateral employment agreement. Second, GAO held that a “commitment” to “be employed and available on the project start date” constitutes a sufficient commitment that the person “will be available” on the start date.

These decisions reinforce that offerors must be careful to establish, in their proposals, the assured availability of their proposed personnel. This is particularly so where, as in SRA, the solicitation explicitly requires signed commitment letters. Moreover, in the latter situation, offerors need to ensure that the provided letters are unequivocal, comply strictly with the solicitation requirements and do not include disqualifying exceptions.