GAO Bid Protest Material Requirement for Key Personnel

GAO bid protest disputes often include challenges to the awardees technical proposals for existence and material solicitation requirements of key personnel. When you have to changes to the proposal after submission, you should always notify the agency of such changes. Do not simply let the evaluation process continue.

For example, if there is a material chance of keep personnel such as a Program Manager, or if the person will no longer be working for your company, for whatever reason, you have an obligation to notify the Contracting Officer. Failure to meet the obligation will cause your proposal to be rated as unacceptable.

GAO bid protest cases look to the reasonableness of the Agency’s source selection decision. The Agency decision must be reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. See Technology Concepts & Design, Inc., B-403949.2, B-403949.3,Mar. 25, 2011, 2011 CPD ¶ 78 at 8.

Non-Conformance With Material Requirements

Government contract law requires that in a negotiated procurement that if your proposal fails to conform to a material solicitation requirement the Agency must consider it as technically unacceptable and cannot form the basis for award.

Key Personnel Leaving Firm

If one of your key personnel gives notice that he or she is leaving your employ, you want to first see how that notice impacts the proposal already submitted to the Agency. If the person was named in the bid, then chances are that you have to report it. The government may choose to rate this as a weakness. However, in a GAO bid protest,  if no revised proposals are submitted, then you should be rated as deficient. Hence, unacceptable.

Weakness versus Deficiency

A weakness generally reflects a proposal flaw that increases the risk of unsuccessful performance, while a deficiency reflects the failure of a proposal to meet a material requirement. See, e.g., FAR § 15.001; see also Special Operations Group, Inc., at 5 (protest sustained where awardee failed to provide a required key person, rendering its proposal technically unacceptable).

GAO Bid Protest Decisions

If you fail to notify the Agency about a material change to your proposal, when your competition files a GAO bid protest, it will probably be sustained because your bid has now become deficient.

For additional help with filing a protest for evaluation mistakes made due to a deficiency, call or GAO bid protest lawyers at 1-866-601-5518.