Duty to notify agency of unavailability of proposed Key Personnel?

It isn't there.

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Government contractors frequently find themselves in a sticky situation where, after submitting a “best and final offer” (BAFO), but before award, they learn that material information provided in their proposal has become stale. This type of situation often arises when the contractor learns that proposed key personnel are no longer available, or otherwise will not be able to participate in the contract if awarded. The contractor facing such a situation must quickly decide whether, prior to contract award but after submission of its BAFO, it should notify the contracting officer of the newly discovered potential unavailability of such proposed key personnel. As discussed below, this is a gray area in the law, with Government Accountability Office decisions supporting either notification or remaining silent depending on the specific facts at issue.

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Despite these risks, contractors also should be aware that numerous GAO opinions could be interpreted to require pre-award notification of any “material change” in the offeror’s proposal. In Greenleaf Constr. Co, Inc., B-293105.18, 2006 CPD ¶ 19 (Comp. Gen. Jan. 17, 2006), for example, the GAO sustained a protest where, after submission of the awardee’s proposal but prior to award, both the offeror’s key personnel and the proposed technical approach had materially changed. The GAO reasoned that because of the material changes, “the agency never evaluated the awardee’s actual resources and technical approach as they existed at the time of award.” Similarly, in Paradigm Tech. Inc., B-409221.2, 2014 CPD ¶ 257 (Comp. Gen. Aug. 1, 2014), the GAO sustained a protest where the procuring agency was aware that the awardee’s proposal failed to satisfy a material solicitation requirement concerning key personnel. Citing Greenleaf, the GAO admonished the offeror that it “should not have allowed almost three months to pass before notifying the agency that one of its two key people was no longer available,” noting that identification of key personnel was a material term of the solicitation and any changes must be reported to the contracting officer.

 A number of recent GAO cases cite Greenleaf as mandating that “offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals.” See, e.g., Brandes Assoc. Inc., B-412548.5, 2016 CPD ¶ 245 (Comp. Gen. Aug. 24, 2016) (citing Greenleaf as holding: “The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.”). Additionally, relevant commentary suggests that an offeror likely should notify the government of the change. See, e.g., Steven W. Feldman, Government Contract Awards: Negotiation and Sealed Bidding §10.26 (Oct. 2016) (suggesting that “if in the interval between submission of revisions and the award the offeror learns that the key personnel representations are no longer accurate,” the offeror should “volunteer the information to the agency so as to avoid tainting the award with a possible misrepresentation”).

https://www.law360.com/articles/928640/risks-for-contractor-with-new-info-after-proposal-submission

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Brandes’s allegation that Amelex failed to inform the agency of a material change in its key personnel was not clearly meritorious at the time the agency filed its agency report. In this regard, our Office has held that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10. The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.

Brandes Associates Inc., B-412548.5, Aug. 24, 2016

https://www.gao.gov/assets/680/679861.pdf

What does the solicitation text say regarding changes in Key Personnel?

Here's another recent GAO protest (YWCA of Greater Los Angeles), dealing more with agency action after notification, but I feel to be relevant:

https://www.gao.gov/assets/690/686617.pdf

With regard to the FAR consider going beyond to your agency supplement to the FAR and even your agency policy as you may have language that you did or should have included in your solicitation requiring such notification.    By example  for the Agency of International Development at AIDAR 752.204.70 such a requirement exists.   

Beginner hint - Go to your favorite FAR website that includes all agency supplements and search on "key personnel" you might find what you are looking for and you might not.

Is it there? Is it where? While you eat your green eggs and ham, these are the only reasons you should care:

Is it in the solicitation?

Is it in the contract?

Is it in the FAR? (Is it also included in the solicitation or contract?)

Is it in your agency's FAR supplement(s)? (Is it also included in the solicitation or contract?)

I’ve seen this as a special condition where it requires the contractor to notify the Government anytime their key personnel are changed from what was initially proposed. I don’t know that it’s in the FAR though, and while it doesn't specifically state unavailability, it's something similar in my agency supplement. 

KEY PERSONNEL  

(a) The personnel as specified below are considered essential to the work being performed under this contract and may, with the consent of the contracting parties, be changed from time to time during the course of the contract by adding or deleting personnel, as appropriate.

(b) Before removing, replacing, or diverting any of the specified individuals, the Contractor shall notify the contracting officer, in writing, before the change becomes effective.  The Contractor shall submit information to support the proposed action to enable the contracting officer to evaluate the potential impact of the change on the contract.  The Contractor shall not remove or replace personnel under this contract until the Contracting Officer approves the change.

The Key Personnel under this Contract are:

(specify key personnel)
(End of clause)

Deaner said:

I’ve seen this as a special condition where it requires the contractor to notify the Government anytime their key personnel are changed from what was initially proposed. I don’t know that it’s in the FAR though, and while it doesn't specifically state unavailability, it's something similar in my agency supplement.

This is a clause is pertinent to the administration of a contract. It is not a solicitation provision relevant to the evaluation of proposals.

Thanks everyone!  This was all very helpful.

The USDA has a key personnel clause. 

The prescription states: "The contracting officer shall insert a clause substantially the same as the clause at 452.237-74, Key Personnel, in contracts if contract performance requires identification of the contractor’s key personnel."

The clause reads:

KEY PERSONNEL (FEB 1988)

(a) The Contractor shall assign to this contract the following key personnel: __________________

(b) During the first ninety (90) days of performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment. The Contractor shall notify the Contracting Officer within 15 calendar days after the occurrence of any of these events and provide the information required by paragraph (c) below. After the initial 90-day period, the Contractor shall submit the information required by paragraph (c) to the Contracting Officer at least 15 days prior to making any permanent substitutions.

(c) The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes should have comparable qualifications to those of the persons being replaced. The Contracting Officer will notify the Contractor within 15 calendar days after receipt of all required information of the decision on substitutions. The contract will be modified to reflect any approved changes of key personnel.

(End of Clause)

If you would like to see a non-prescribed Key Personnel Clause with detailed requirements, take a look at the one you will find at this link: http://www.hanford.gov/page.cfm/PrimeContracts which takes you to the prime contracts page. Then scroll down to CH2M Hill Plateau Remediation Company, LLC (CHPRC);

Click on "CHPRC Conformed Contract"

Click on Section H, and then on clause H.15.

Enjoy.

Am I the only one who can read napolik's posts?  Why does everyone continue to post key personnel clauses that govern post-award contract administration?

I faced this same scenario where our folks identified as key personnel in a proposal had moved on by the time our award rolled around. 

Our staffing matrix and qualifications for key personnel held significant weight in the technical evaluation too.

At the time I searched for anything in the solicitation or otherwise that forced a contractor to disclose they’d left and ultimately I did not find anything that required this disclosure. With the eval criteria you could argue there should have been.

Knowing that a disclosure of this change to the agency could have thrown our tech evaluation upsidedown, albeit completely unintentional, it wasn’t worth the risk of disclosing prior to a fully executed contract. 

We abided by the key personnel clause in the award and no one got too bent out of shape. But it was a balance to not appear a bait and switch was going on (which if intentional  would be a much different situation).

The adage better to ask for forgiveness than permission did cross through my mind once or twice

On 10/17/2017 at 2:51 PM, govt2310 said:

I remember seeing somewhere, maybe in a GAO decision now lost, that the FAR requires an offeror to notify the agency of the unavailability of a proposed key personnel, even after submission of proposals. But I can't find this in the FAR (I was mainly looking through FAR Part 15 and FAR 52.215-___).  Can anyone tell me where it says this in the FAR?

As has previously been stated, FAR is silent on the matter. We have to think about this like contracting practitioners, not just as bureaucrats. Think contracts. Think offer and acceptance.

What information did the agency ask for in its RFP?

Did the agency ask the offerors to describe the key personnel that they are offering (promising) to employ under the contract or did it ask the offerors merely to describe the key personnel that they currently employ or that they plan to employ under the contract? Do you see the distinction? One description is prospectively contractually binding, while the other is not.

If the agency asked offerors to describe the key personnel that they are offering (promising), and if after the submission of offers an offeror finds that it is no longer able to offer (promise) one or more of those persons, then it had better notify the agency and ask for the opportunity to revise its proposal. If it doesn't, and if the agency accepts its offer, then it will breach the contract on Day One. If denied the opportunity to revise its proposal, then the offeror had better withdraw its offer.

If the agency asked offerors merely to describe the personnel that they intend or plan to employ, but did not ask them to make promises in that regard, then there should be no inherent legal obligation for offerors to notify the agency of changes in key personnel since proposal submission, unless the RFP instructed them to do so. I'm not sure what the GAO's stance is in this regard. The case cited by napolik had to do with task order proposals under a MATOC, which may involve different implications than proposals for new contracts.

Agencies must think things through. Why do they want information about key personnel? Do they want promises about what persons offerors will employ or do they want indications of the general quality of offeror employees? It would be stupid to ask for promises, unless the acquisition is for R&D and the agency is going to make its pick primarily on the basis of the relative merits of offerors' principal investigators. In that case, offerors should and might obtain prospectively binding offers for subcontracts with prospective principal investigators in order to bind them to work under the contract. Otherwise, employees come and go and they die, and an offeror would be stupid to promise someone on the basis of simple employer/employee relations. 

Allowing an offeror to revise its proposal in the event of a change in key personnel would entail discussions, not clarifications. Once notified of a change, the agency must think about how to evaluate the proposal, whether to conduct discussions, and whether to include the offeror in the competitive range. Agencies should think about the possibility of key personnel changes between proposal submission and award and decide in advance what such changes would mean, if anything, in terms of offer and acceptance and how they would handle them.

Vern Edwards said:

The case cited by napolik had to do with task order proposals under a MATOC, which may involve different implications than proposals for new contracts.

Would the MATOC, or GSA BPA, contain clauses governing submission and evaluation of quotes/ proposals? Maybe. I used those clauses.

Every contract specialist must read the clauses contained in the MATOC or GSA BPA to see how they affect contract performance AND the solicitation and evaluation of quotes/ proposals. If the the MATOC or GSA BPA clauses don't contain proposal submission and evaluation language, the CO could add the same language on proposal submission and evaluation in the solicitation as seen in provisions in a solicitation for a new contract.

As a contractor in this situation I think it’s important to evaluate things beyond just the terms and conditions spectrum as well. 

Once you have cleared what you see to be the legal hurdles (solicitation language, FAR, contract) will your firms reputation still be in tact?

Even if you’ve determined you’re not obligated to disclose a thing, how will your actions be perceived by the govt or others?

There is a difference between substituting a key position where 1) you know your company has 5 more equally qualified replacements who wouldn’t skip a beat and 2) the one of a kind project lead that you’d be up a creek without a paddle looking to replace.

If it were the latter and you knew the award depended on this person, even if you risk losing the business, it may be worth disclosing to the agency (if you still had the chance to). If you didn’t and you can’t deliver you likely just cost yourself a customer.

If it were the former you can probably sleep well at night knowing that you can still staff a high performing individual at a key position (and one that the govt won’t freak that you’re replacing).

This might not good advice but it was what I thought about after having cleared contractual obligations

What would one do in this scenario?

A Fed agency covered by the FAR issues a solicitation calling for transportation services. The SOW includes a spec for the motor vehicles. The award will be made on a tradeoff basis. Quality of the motor vehicle is an evaluation factor.

Contractor X will compete relying on a subcontractor to furnish the motor vehicles. One subcontractor,  Luxurious Imports Inc. (LMI) furnishes Mercedes. The other subcontractor, Cinque Cento (C2 )motors, provides Fiat 500s. Both meet the solicitation spec requirement. 

Since the source selection will be a tradeoff, X proposes LMI vehicles. Later, after dispute breakouts our between X and LMI, X decides to use C2..

Is X required to notify the contracting officer that it will provide Fiat 500s instead of Mercedes?

Vern Edwards said:

We have to think about this like contracting practitioners, not just as bureaucrats. Think contracts. Think offer and acceptance.

On that note:

1. What would the government have to gain by maintaining a draconian approach to Key Personnel?   I'm convinced that there are Key Personnel provisions/clauses floating around out there that are probably illegal, as they read more like Mandates for Indentured Servitude than solicitation provisions. And are you really going to T4C someone because one of their people had the temerity to (gasp!) change jobs??  (Cutting off your nose to spite your face comes to mind.)
2. As a contractor, wouldn't you out of normal business practice inform the government of a material change to your offering before award, such as an obsolete part# or model#?  What responsible businessperson would propose a product or level of service they knew they couldn't provide?
3. If Key Personnel are SO critical to success such that a change of name(s) would affect your evaluation, should you be in the R&D or Grants arena?

The FAR isn't necessary to the formation of rational decisions on either side.

REA'n Maker said:

What would the government have to gain by maintaining a draconian approach to Key Personnel?   I'm convinced that there are Key Personnel provisions/clauses floating around out there that are probably illegal, as they read more like Mandates for Indentured Servitude than solicitation provisions.

Brandes’s allegation that Amelex failed to inform the agency of a material change in its key personnel was not clearly meritorious at the time the agency filed its agency report. In this regard, our Office has held that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Greenleaf Constr. Co., Inc., B-293105.18, B-293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10. The failure of an offeror to inform the agency of a change in proposed staffing and resources may render the evaluation and subsequent award decision unreasonable where it results in the agency being unable to evaluate the actual employees as they existed at the time of award.

In the absence of a specific solicitation requiring one to, does ‘relevant commentary’ suggestions, and the GAO’s reasoning where some interpretations could require contractors to notify an agency of a material change, equate to.. contractors must do so?

Michael11 said:

In the absence of a specific solicitation requiring one to, does ‘relevant commentary’ suggestions, and the GAO’s reasoning where some interpretations could require contractors to notify an agency of a material change, equate to.. contractors must do so?

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We conclude that there was a material change in the awardee’s proposed staffing and EMS approach that occurred after CLF certified that its January 2005 FPR remained valid, but more than 2 months prior to the agency’s final evaluation and award of the M&M contract. Under these circumstances**_, CLF was required to advise the agency of the material change in its proposed resources and technical approach, in order to ensure that the evaluation was based on consideration of the staffing and EMS that CLF actually intended to use in performing the contract_**. See Dual, Inc., B-280719, Nov. 12, 1998, 98-2 CPD ¶ 133 at 3-6, as recently explained in SAMS El Segundo, LLC, B-291620, B-291620.2, Feb. 3, 2003, 2003 CPD ¶ 44 at 19-20. Because CLF failed to do so, the agency never evaluated CLF’s actual employees and EMS approach as they existed at the time of award; as a result, the evaluation--and, it follows, the award determination that was based on the results of the evaluation--were unreasonable. Dual, Inc., supra, at 6. To allow such an award to stand would call into question the integrity of the competition. Accordingly, we sustain the protest on this basis.

Greenleaf Constr. Co, Inc., B-293105.18, B-293105.19, Jan. 17, 2006

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Since the agency's evaluation of Camber's proposal was based upon Camber's representation that it would perform much of the TSA contract with its own employees, when, in fact, that will not be the case, the evaluation is flawed. Therefore, the SSA's best value determination and selection of Camber as the second awardee under the partial small business set-aside, which was based entirely upon the results of the flawed evaluation, is also suspect.

 In these circumstances, Camber had an obligation to advise the agency of the sale, at the very latest on June 28, when it agreed to the sale and lease back of facilities. See Professional Safety Consultants Co., Inc., B-247331, Apr. 29, 1992, 92-1 CPD Para. 404 at 4. See also Mantech Field Eng'g Corp., supra. Because Camber did not do so, the agency's evaluation and its selection of Camber were based upon representations concerning Camber's personnel that were no longer true. The award was based on Camber's proposal representations, and to allow such an award to stand in spite of the fact that Camber had not disclosed to the agency that it would not perform the contract as proposed would call into the question the integrity of the competition. See AAA Eng'g & Drafting, Inc., B-250323, Jan. 26, 1993, 93-1 CPD Para. 287 at 6. Accordingly, we are sustaining the protest on this ground.

Dual, Inc., B-280719, Nov. 12, 1998

napolik said:

What would one do in this scenario?

A Fed agency covered by the FAR issues a solicitation calling for transportation services. The SOW includes a spec for the motor vehicles. The award will be made on a tradeoff basis. Quality of the motor vehicle is an evaluation factor.

Contractor X will compete relying on a subcontractor to furnish the motor vehicles. One subcontractor,  Luxurious Imports Inc. (LMI) furnishes Mercedes. The other subcontractor, Cinque Cento (C2 )motors, provides Fiat 500s. Both meet the solicitation spec requirement. 

Since the source selection will be a tradeoff, X proposes LMI vehicles. Later, after dispute breakouts our between X and LMI, X decides to use C2..

Is X required to notify the contracting officer that it will provide Fiat 500s instead of Mercedes?

Two questions:

1. You say that the source selection will be a tradeoff. How will the government evaluate the cars? Will it look to see only whether a proposed car meets the spec or will it evaluate the cars on other value-adding attributes, as well?

2. What will the contract say? Will it retain the spec in the solicitation or will it specify the car by make and model?

Vern Edwards said:

1. You say that the source selection will be a tradeoff. How will the government evaluate the cars? Will it look to see only whether a proposed car meets the spec or will it evaluate the cars on other value-adding attributes, as well?

First, the cars must meet the minimum spec. Then, additional value will be assigned based upon horsepower, max velocity, seat space, IT mechanisms, etc.

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2. What will the contract say? Will it retain the spec in the solicitation or will it specify the car by make and model?

Like many, if not most, solicitations, there is no clause explicitly stating that the proposed vehicle must be furnished. However, the solicitation defines clearly the contents of the proposal/ offer, and the contracting officer will accept the proposal/ offer.

PS - Another competitor will offer a Renault.

What do you mean by "proposal/offer"? Did the offeror promise to provide Mercedes, clearly and unequivocally?

napolik,

My practice:  Whenever I conduct a trade-off, and the winner is selected because of some feature or aspect of its offer or proposal (yes, these are different), I want to incorporate that feature or aspect into the resulting contract. 

Vern,

i hope your efforts here will result in a contracting officer somewhere shifting more towards evaluating offers (promises) and less on evaluating proposals.  This means our solicitations should ask more for offers (promises) and less for proposals.

Vern Edwards said:

What do you mean by "proposal/offer"? Did the offeror promise to provide Mercedes, clearly and unequivocally?

The solicitation stated that a proposal/ offer consisted of, inter alia, prices and an identification/ description of the vehicles to be used to meet the requirements set forth in the Section C/ SOW. The solicitation includes the SF 1449 which the contractor signed and which the contracting officer will sign to create a contract after signing in block 31a and after checking block 29 and entering info relevant to the proposal/ offer.

ji20874 said:

My practice:  Whenever I conduct a trade-off, and the winner is selected because of some feature or aspect of its offer or proposal (yes, these are different), I want to incorporate that feature or aspect into the resulting contract.

How do you incorporate it into the contract?

I usually include text in my solicitation Section L that any aspect or feature of the offeror's proposal may be incorporated into any resulting contract.

You write contract text saying that the particular aspect or feature is incorporated into the contract.  Using your example, where the requirement was for an automobile that goes at least 65mph and has trunk capacity of at least 1 cubic yard and seats five comfortably and so forth, and the best value offer was a Mercedes Model Z, you include text that the contractor will provide a Mercedes Model Z.  If the reason for the selection was an offeror's superior approach to nickel-cadmium plating using a specific subcontractor, you include text that the contractor's approach to nickel-cadmium plating using that named subcontractor, as described in pages 14-16 of its technical proposal, is incorporated into the contract.  NOTE:  This is not incorporating the entirety of the offeror's technical proposal into the contract -- generally, I do not like doing that -- and this is not incorporating pages 14-16, either.  Anyway, I might also include a statement that this incorporation of the feature or aspect of the proposal into the contract does not waive, relax, or alter any other requirement of the contract -- the Mercedes Model Z still has to meet all of the performance requirements and/or design criteria in the statement of work (the contractor offered the Model Z to meet exactly those requirements).

Normally, I would call this contract text a clause -- but there is some sensitivity in this forum about contracting officers and home-made clauses, so I haven't used the term.  But I am all in favor of home-made clauses when appropriate -- I think drafting clauses for use in contracts is a crucial skill for contracting officers to have -- a contracting officer who cannot do it is to worth his or her pay.  Agency and local rules that prohibit contracting officers from writing home-made clauses are stupid rules.  NOTE:  I am talking about clauses drafted by the contracting officer that are not deviations -- also I am not talking about clauses promulgated by the agency head.

ji20874 said:

I usually include text in my solicitation Section L that any aspect or feature of the offeror's proposal may be incorporated into any resulting contract.

So, after source selection, you draft, and both parties sign, a contract containing a clause with the pertinent Section L material. Correct?

The Section L blurb is already in the solicitation, saying that any aspect or feature of the proposal may be incorporated into the resulting contract:

• L-6. Incorporation into Contract
  The Government may incorporate any aspect or feature of the offeror's proposal into the resulting contract.

Then, in the awarded contract, you include text such as in Section H (Special Contract Requirements):

• H-19. Incorporation into Contract
  The automobile provided by the contractor shall be a Mercedes Model Z.  This requirement does not waive, relax, or alter any other requirement of this contract.

or

• H-19. Incorporation into Contract
  The Contractor shall use the approach to nickel-cadmium plating with Acme Platers described on pages 14-16 of the offeror's proposal.  This requirement does not waive, relax, or alter any other requirement of this contract.

These are simplified examples.  In real life, there would be a few more words.

ji20874 said:

Then, in the awarded contract, you include text such as in Section H (Special Contract Requirements):

Do you do this unilaterally by accepting the contractor's offer or bilaterally by drafting a new contract for signature by both parties?

Bilateral:  by including the new text in Section H proper.

Unilateral:  by including the new text in the award document.

ji20874 said:

Unilateral:  by including the new text in the award document.

How do you add new text unilaterally?

On 10/17/2017 at 2:51 PM, govt2310 said:

I remember seeing somewhere, maybe in a GAO decision now lost, that the FAR requires an offeror to notify the agency of the unavailability of a proposed key personnel, even after submission of proposals.  But I can't find this in the FAR (I was mainly looking through FAR Part 15 and FAR 52.215-___).  Can anyone tell me where it says this in the FAR?

As ji20874 pointed out, there is nothing in the FAR about this. (Maybe in an agency supplement--I did not check.)

Here is the "rule" as stated by the GAO earlier this year in General Revenue Corp., B-414220.2, 2017 CPD ¶ 106:

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Our Office has explained that offerors are obligated to advise agencies of changes in proposed staffing and resources, even after submission of proposals. Pioneering Evolution, LLC, B–412016, B–412016.2, Dec. 8, 2015, 2015 CPD ¶385 at 9; Greenleaf Constr. Co., Inc., B–293105.18, B–293105.19, Jan. 17, 2006, 2006 CPD ¶19 at 10; Dual, Inc., B–280719, Nov. 12, 1998, 98–2 CPD ¶133 at 3–6. When the agency is notified of the withdrawal of a key person, it has two options: either evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or open discussions to permit the offeror to amend its proposal. Pioneering Enters., LLC, supra.

Note that the GAO's rule does not take into consideration whether the names of key personnel are part of an offer (promise) that will become binding upon acceptance or just information for evaluation. There is no consideration of why or how the agency is going to evaluate key personnel, whether on a pass/fail or variable value basis. There is no consideration of whether the names of key personnel will be included in the resultant contract and whether there will be a key personnel clause providing for substitutions during performance with CO approval. The GAO looks at the matter strictly from the standpoint of fairness in proposal evaluation.

The simple facts of biology (illness, injury, incapacitation due to various causes, and death) and the realities of business life (people quit or must be fired) make it hard or unreasonable to require contractors to employ and use specific persons throughout contract performance. A substitution process is essential. The GAO's rule is unfair, because it requires offerors to tell agencies when a substitution must be made, but does not guarantee them a process of substitution. 

In the protest, the agency issued the RFP in December 2015. It announced awards a year later, in December 2016. A year is a long time. It's not surprising that some key personnel might move on in that period. So what if an offeror identified someone as a key person and then, after the proposal submission, that person moved on? According to the GAO, the offeror would have to notify the CO. However, for the CO to entertain any revision, even the notice that a key person's name has to be removed because the person has become unavailable, would constitute discussions. For an offeror to notify the CO that a key person was no longer available, even if it had not promised that particular person, even though it would have to opportunity to make a substitution if the change had happened after award, would expose it to the risk that the CO would refuse to conduct discussions in order to allow it to submit a substitute. Absurd.

I don't know whether this is a significant problem, but it has been a problem of sorts in some cases. So what's the solution?

In light of the GAO's "rule," I propose that agencies include language such as the following in RFP Section L when they intend to require offerors to identify key personnel as merely indicative of offeror qualifications, but do not intend to require them to promise to employ those persons during contract performance:

SUBSTITUTION OF PROPOSED KEY PERSONNEL

(a) If, after submission of proposals, but before contract award, an offeror learns that any of its proposed key personnel are no longer available for contract performance, the contracting officer will permit the offeror to substitute another person, provided, however, that: (1) the Government finds that the person proposed would have been acceptable in accordance with the evaluation factors and (2) the person proposed is no longer available to the offeror for contract performance.

(b) Depending on the substitute’s resume, he or she will receive either the same evaluation as the person proposed or a lower evaluation, as appropriate in accordance with the evaluation factors for award. However, under no circumstances will the substitute receive a better evaluation than the person proposed. An offeror will not be permitted to improve the evaluation of its proposal through key personnel substitution.

(c) An offeror seeking to make such a substitution before award must notify the contracting officer in writing by submitting the substitute’s resume in accordance with Section L of this solicitation.

(d) Substitutions made before contract award shall not be considered proposal revisions. Approval of any such substitution by the Government shall not constitute discussions as described in FAR 15.306(d) and FAR 52.215-1(a) and shall not require the Contracting Officer to make a competitive range determination. Such substitutions shall not be considered late proposal submissions, as described in FAR 52.215-1(c). After contract award, key personnel substitutions shall be processed in accordance with the contract Key Personnel clause.

Would that be a FAR deviation? Some will think so. I will not debate it. If you think so, then don't use it, or seek approval for a FAR deviation. Innovators should do as they think best.

There is another possibility. If the successful offeror must make a substitution before award, and if the proposed substitute is better than the one originally proposed, a CO might allow a late proposal modification in accordance with FAR 15.208(b)(2) and 52.215-1(c)(3)(ii)(B).

Quote

However, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

Note that, as I posted previously, if proposed key personnel are part of an offer (promise), then an offeror must notify the CO and withdraw the offer in order to avoid the possibility of breach of contract.

Those of you who believe in the Section 809 Panel might tell suggest to them that the current procedures in FAR 15.306, which are largely the product of GAO case law, are simply too stupid to keep in the regulation.

Vern, I would appreciate your views on whether the GAO rule, as you describe it, is something that is within the protest jurisdiction of the GAO.  31 U.S.C. 3554(b) says " With respect to a solicitation for a contract, or a proposed award or the award of a contract, protested under this subchapter, the Comptroller General may determine whether the solicitation, proposed award, or award complies with statute and regulation. If the Comptroller General determines that the solicitation, proposed award, or award does not comply with a statute or regulation, the Comptroller General shall recommend that the" agency take one or more of the actions listed in the statute.  Thus, the basis for sustaining a protest is that government action did not comply with law or regulation.  The GAO rule is predicated on contractor action, but does not mention any law or regulation that requires the contractor to do what the GAO thinks should be done.

Moreover, the GAO rule is establishing a procurement rule that is within the power of the FAR Councils to write.  I see nothing that gives the GAO the power to establish procurement rules that contractors must follow.

I think that GAO is engaging in rulemaking in this case in the guise of deciding protests.

I agree that GAO is imposing a duty on offerors that is not imposed by statute or regulation (as far as I know) by requiring that offerors disclose post-submission changes in the status of persons and other resources described in a proposal. Moreover, ironically, a CO should ignore such a disclosure, since it would constitute a proposal revision, and acceptance of that revision would constitute discussions. I also agree that GAO has no business sustaining a protest because of an omission by an offeror, rather than an act or omission by an agency. 

I won't say whether I think that GAO has jurisdiction, because GAO determines its own jurisdiction, and since GAO is not part of the court system agencies cannot appeal to a court if it thinks GAO exceeded its authority by going beyond its jurisdiction. (At least, I don't think they can appeal to a court.) What agencies can do is tell GAO that they won't follow GAO's recommendations. If GAO recommends that an agency make a new award decision based on an omission by the successful offeror, and if the agency decides to comply with the GAO's recommendation, the successful offeror could protest the agency's decision at the Court of Federal Claims.

And this is where proposal information vs. offer comes in.

If an agency wants information about "proposed" key personnel, they should be clear about why they want it. If they want information about an offeror's personnel as merely indicative of the kinds of persons that the offeror would employ, but not as a promise that particular individuals will perform, then they should make that clear. On the other hand, if they want to bind the successful offeror to ensuring the performance of specific individuals, then they should make that clear by demanding promises about key personnel and writing the resultant contract accordingly. (I don't think that would be wise in most cases, but that's a topic for another thread.)

If an RFP requires information about key personnel as merely indicative of the kinds of persons that offerors would employ, but not as promises about the performance of particular persons, then the agency should evaluate key personnel accordingly, without counting on getting particular persons. If the successful offeror failed to notify the CO of a change in the status of its personnel, then the agency's award decision should stand. Agencies should know that the status of people and resources often change within companies in the course of a lengthy source selection. In such a case the unavailability of a particular individual need not change the judgment about the kinds of persons the offeror would employ.

But if the RFP required an offer, a promise, about the performance of particular persons, and if an offeror learns after submission that it can no longer keep its promise in that regard, then the offeror must notify the agency and may have to withdraw its proposal. If (a) the successful offeror did not notify the agency or withdraw, and if (b) the agency relied on the offeror's promise of particular key personnel in evaluating and choosing that offeror for award, and if (c) the agency unknowingly accepted a nonconforming offer, then the contractor is in breach, and the award should not stand. The agency should T for D and make a new award decision.

The key to all this, in my opinion, is for "contracting" officers to think in terms of the law of contract formation (offer and acceptance) and think clearly about proposal information vs. offers.

By the way, if you, as an offeror, learn that a "proposed" key person is no longer available, notify the CO by sending the resume of the substitute and let it go at that. If the CO acknowledges the notification that revises the proposal to remove the person who is no longer available, you can argue that the CO has engaged in discussions and must consider the substitute. If the CO refuses to consider the substitute, and if the procurement is worth the cost, protest--not to the GAO, but to the Court of Federal Claims, where I speculate you'd have a real chance to win.

napolik,

I have done it by including a statement in the award document that I sign.  For example, an awarded contract might contain (a) the acceptance -- a few pages with the contracting officer's signature on the contract SF-1447; and (b) the offer -- the underlying solicitation A-J with the offeror's signature on the solicitation SF-1447 and fill-ins in Sec. B.  The acceptance (a) and the offer (b) combine to form the contract.  The incorporation statement goes in (a).