Foot Faults Can Cost You a Contract

“You cannot be serious” — John McEnroe

Tennis is one of my favorite sports because the skill and athleticism of an elite player can be breathtaking to witness. But even the best players succumb to seemingly minute glitches. Paramount among these is the foot fault in which the tiniest incursion of one’s toe onto the baseline during a serve constitutes a fault. If the foot fault comes after a missed first serve, say goodbye to the point. Three recent bid protest decisions that all relate to the presentation of key personnel qualifications demonstrate how technical glitches can have material, proposal killing results.

The most recent of these was Deloitte Consulting, LLP, B-416882.4 (Jan. 6, 2020). The Request for Quotation (“RFQ”) was for the provision of information technology services and, among other requirements, the RFQ required the submission of resumes of key personnel to establish that the proposed individuals had the experience required for their particular position. In addition, offerors were required to provide a “crosswalk” that would tie the individual’s experience to the requirements in the RFP. Deloitte was faulted by the agency for proposing an individual who, in the agency’s estimation, only possessed 8.25 years rather than the 10 required years of experience with various software applications. Deloitte argued to the Government Accountability Office (“GAO”) that the agency should have given the individual credit for having 20 years of experience as set forth on his resume.

GAO disagreed and found that the agency’s calculation was reasonable and that the cause of any failure to give due credit for the individual’s experience lay at the feet of the offeror. GAO essentially found that, despite the general statement that the individual had 20 years of experience, the resume’s detailed work history and the crosswalk failed to “demonstrate[] that the candidate possessed the minimum 10 years of experience required by the RFQ.” In other words, the dots simply weren’t sufficiently connected.

The Deloitte case came on the heels of IT Objects, LLC, B-418012; B-418012.2 (Jan. 2, 2020). In IT Objects, the disappointed offeror protested the award of an IT services contract to a competitor that, in ITO’s view, misrepresented the availability of one key individual for the performance of the contract. The RFP directed offerors to identify individuals who would serve in key positions and further required the submission of resumes and letters of commitment from each individual indicating that they would work for the offeror if the company was awarded the contract. Without delving too far into the specifics, suffice to say that, while the awardee had not blatantly misrepresented that the individual would work on the contract, GAO concluded that the award should be overturned because the awardee failed to include a commitment letter for the worker. In other words, in GAO’s view, the failure to comply with the commitment letter requirement should have been fatal to the awardee’s proposal. Thus, GAO sustained ITO’s protest and directed the agency to reevaluate the proposals.

The third member of this troika is T3I Solutions, LLC, B-418034; B-418034.2 (Dec. 13, 2019). T3I protested the award of a contract for the provision of “courseware development and training services” for personnel “responsible for handling intercontinental ballistic missles.” The contract was to be a follow-on to a predecessor contract under which the services already were being provided. The succeeding contract essentially would pick up the same work without interruption. The RFP called for offerors to “‘submit a manning level and personnel mix plan” for the work that would be performed by, among others, an “operators instructor.” Id. at 2, 3.

The awardee stated that it would use the operators instructor who was then doing the job for the incumbent contractor. Of course, it’s customary for a successor contractor to hire the employees who have been performing the same work for the predecessor contractor. Here, however, the awardee did not actually contact the operators instructor and ascertain whether he would, in fact, work for it under the new contract. Rather, the awardee simply asserted that the operators instructor would continue performing his work.

GAO concluded that the award had to be set aside because the awardee’s assertion amounted to a “bait and switch” situation in which an offeror proposes someone to work on a contract with no reasonable expectation that the individual actually will work for them. If that representation was relied upon by the agency and was material to its decision to award the contract, then GAO will recommend the reevaluation of proposals. That’s exactly what it did in this case. While GAO did not find that this was a particularly egregious misrepresentation (presumably because of the nearly universal practice of engaging predecessor employees), it nevertheless, recommended that the agency reevaluate the proposals taking the misrepresentations into account.

So, here we have three cases in which GAO determined that offerors committed what I think basically are foot faults to which even the most elite, sophisticated contractors are susceptible. Like it or not, competing for federal contracts sometimes seems to be a contest to determine the company that does the best job of following the RFP’s instructions regardless of their actual ability to perform the contract. That’s why it’s crucial to vet your proposals carefully to ensure that crosswalks clearly tie experience possessed to experience required, that commitment letters are all in place and organized, and that all key personnel have actually been contacted and plan to work for you if you win.