When Does a Key Employee Become Unavailable?
By: Lori Lange
Published Date: November 9, 2020
Generally speaking, offerors on government procurements must notify the contracting agency when they know that one or more key personnel listed in their proposal become unavailable after proposal submission. Determining when the offeror actually knows that a proposed key person is unavailable, however, is not always as easy to determine as it sounds. What if the person merely states that the person is looking at other job opportunities? Is that enough to say that the key person is unavailable? This was the issue recently faced by GAO in MindPoint Group, LLC, B-418875.2, B-418875.4 (Oct. 8, 2020).
MindPoint Group, LLC
In this case, the solicitation required the offerors to submit resumes and letters of commitment for each of the eleven proposed key personnel. Offerors also had to certify that the key personnel would be available at time of award for no less than six months.
MindPoint submitted a resume and letter of commitment for a proposed key person– the Cybersecurity Architect. A little over a month after MindPoint’s quote was submitted, MindPoint inquired with the contracting agency about the status of the award. The contracting agency responded that it expected to make contract award the following week.
MindPoint then advised the proposed key person of the expected award date. The proposed key person responded that the wait was taking a toll on his family and that he would be pursuing another offer. Despite this statement, MindPoint believed that the proposed key person would remain on the team if contract award was promptly made.
The agency did not award the contract until about two weeks after the expected date. Although MindPoint claimed that it immediately contacted the proposed key person to discuss his starting date, MindPoint also posted a job listing to its website for the Cybersecurity Architect position. A few days later, MindPoint notified the contracting agency that the proposed key person was unavailable. Ultimately, however, the proposed key person did sign an employment letter agreeing to perform the Cybersecurity Architect role.
A protest was filed challenging the award on several bases, including a protest that MindPoint failed to notify the contracting agency of the unavailability of the proposed key person prior to award thereby rendering the award improper due to a material change in proposed staffing. The question before GAO was whether MindPoint had actual knowledge that the proposed key person was unavailable.
Stating that it was a close call, GAO concluded that the statement that the proposed key person would be pursuing another offer was not sufficiently definite to communicate unequivocally that the proposed key person was unavailable to serve as the Cybersecurity Architect on this project. According to GAO, doubts about the proposed key person’s availability is not equivalent to having actual knowledge that the key person in fact is unavailable. Therefore, knowledge of the proposed key person’s intention to pursue another opportunity, without more, did not constitute actual knowledge of unavailability that required MindPoint to notify the contracting agency prior to award.
The issue of key personnel unavailability is problematic for offerors. Under GAO case law, solicitation requirements for key personnel are material requirements. If any of the offeror’s proposed key personnel become unavailable for any reason, the offeror must notify the contracting agency. The contracting agency then must either reject the offeror’s proposal as technically unacceptable or conduct discussions with all offerors and permit the offeror to substitute key personnel. Since the contracting agency often does not want to conduct discussions, many times the unavailability results in the offeror being excluded from the competition. While the results of notifying the contracting agency may be harsh, not notifying the contracting agency is not a good option either as the offeror’s proposal still is not eligible for award and can be protested.