By Taimur Rabbani
Government contracts are a major source of revenue for many companies. However, there are inherent risks throughout the contracting process, all the way from bid submission through the completion of a project. A recent GAO bid protest decision helps illustrate one concern for companies early in the contracting process.
According to the GAO decision, Information Management Group (IMG) responded to an Army Request for Task Order Proposals (RTOP). The RTOP asked each offeror to propose 10 key personnel to staff the task order, among other things. In its submission, IMG did so. However, shortly after receiving the award, IMG requested approval to replace five of the proposed key personnel, including the proposed program manager. IMG also, after issuance of the task order, sought to recruit personnel for the project.
Invertex Corporation protested the award. Invertex argued, inter alia, that IMG engaged in an improper bait and switch by misrepresenting the availability of the key proposed personnel. In support of its contention, Invertex pointed to IMG’s recruitment efforts after the issuance of the task order, as well as the substantial number of key personnel who ended up being unavailable to staff the task order. The GAO, however, determined that nothing in the record supported a finding of an improper bait and switch.
The decision cited a number of facts that cut in IMG’s favor. The record reflected that, before submitting its bid, IMG verified the qualifications and security clearance of the proposed 10 key personnel. IMG also collected the social security numbers of the proposed personnel. IMG’s president declared that, at the time it submitted its proposal, IMG intended to provide all of the key personnel on day one, and IMG contacted all proposed personnel upon receipt of the award. IMG’s president further noted that the effort to recruit personnel was done out of “practice and precaution” if the proposed key personnel became unavailable.
The GAO noted that there was “nothing in the record that indicates that [IMG] proposed personnel that it did not expect to actually use during the satisfaction of the requirement.” Because the record did not “establish that IMG misrepresented its intention to staff the task order with the personnel proposed,” Invertex’s bait and switch argument failed.
This decision is useful to illustrate some of the challenges your company may face if circumstances change after bid submission. Our firm assists and advises companies in connection with bid submissions and bid protests. Please contact any of our lawyers if we may be able to assist you with these or other matters.
