By Andrew Victor, Robert Nichols, and Sam Van Kopp
February 17, 2022
On February 4, 2022, the Court of Federal Claims (COFC) released a decision that both rejected a longstanding GAO rule regarding key personnel proposed for performance on government contracts and opened a rift within COFC’s own precedent.
In Golden IT, LLC v. United States, Judge Solomson made the otherwise prosaic observation that employees, beholden to “the simple facts of biology,” necessarily change jobs, retire, or die with an unpredictability unassuaged by its regularity. No. 21-1966C, 2022 WL 334369, at *20 (Fed. Cl. Feb. 4, 2022). As a result, key persons who were with a contractor when a proposal was submitted may no longer be available when a proposal is evaluated, or re-evaluated, or re-re-evaluated. For decades,[1] GAO addressed this problem by obligating offerors “to advise agencies of material changes in proposed staffing, even after submissions of proposals.”[2] COFC recognized this obligation in 2018.[3]
This rule obviously put both offerors and agency acquisition offerors in a precarious position. Through no fault of their own, and only due to the laws of nature, an offeror’s proposal would not become ineligible for award – unless the agency engaged in discussions to allow the offeror to amend its proposal. Opening the door to discussions for this simple issue could mean that every offeror receives an opportunity to make changes to its proposal in order to keep the discussions equal.[4] This could mean significant delays to the acquisition. And heaven forbid biology strikes again during the intervening period!
Judge Solomson gave voice to many an offeror’s frustrations by noting that the rule appeared to have no “legal basis” in statute and imposed a blanket reporting obligation that might be irrelevant to the proposal at issue. “[C]andidly,” Judge Solmson concluded, such a general rule was “unfair.”
In place of the old rule, Golden IT proposed a loose test: if the contractor “had a reasonable belief, at the time of its quote,” that the key person at issue would perform on the contract, the contractor’s proposal would not constitute a misrepresentation.[5] That ‘reasonable belief’ would depend in part on the requirements of the proposal at issue: whether it required commitment letters from key personnel, or verification of key personnel availability, or updates regarding key personnel departures.[6]
Golden IT represents only one judge’s opinion, and it remains to be seen whether COFC, much less GAO, chooses to depart from precedent to spare contractors the additional responsibility of tracking its key personnel. Golden IT may provide a quantum of solace, but contractors should be neither shaken nor stirred.
[1] Golden IT traced the rule that deliberate misrepresentations of key personnel in response to agency questions provided grounds for protest to Informatics, Inc., B-188566, 57 Comp. Gen. 217, 78-1 CPD ¶ 53, 1978 WL 13361 (Jan. 20, 1978), but it did not opine on how that logic metastasized into a reporting obligation.
[2] M.C. Dean, Inc., B-418553, 2020 CPD ¶ 206, 2020 WL 3639639, at *3 (June 15, 2020).
[3] Chenega Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644, 652 (2018)
[4] AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 369, opinion clarified, 87 Fed. Cl. 654 (2009) (discussing unequal pricing discussions).
[5] 2022 WL 334369, at *22
[6] Id. at 21.
