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Arguably the hottest bid protest topic of the past several years just reached its boiling point. On Friday, the Court of Federal Claims (COFC), in Golden IT, LLC v. United States, rejected the Government Accountability Office’s (GAO) rule that an offeror must notify an agency if its proposed key personnel become unavailable after proposal submission but before award.

As we’ve been tracking for years, GAO’s key personnel rule has evolved from a general rule that offerors may not misrepresent their capabilities or otherwise pull a “bait and switch” (whereby the resources identified in the proposal are not those that the offeror actually intends to provide) into an affirmative, ongoing obligation to notify an agency—even after proposal submission and absent an opportunity for proposal revision—when a proposed “key personnel” becomes unavailable for any reason. Upon receiving such notification, GAO has held that an agency has two options: either (1) evaluate the proposal as having been submitted without a required key personnel position—regardless of the reason for that unavailability (be it illness, the poaching of the proposed person by a competitor, etc.), or the amount of time that has passed since the procurement commenced—meaning the proposal will likely be rejected as technically unacceptable; or (2) open discussions with all offerors to allow for proposal revisions. This framework has left offerors between a rock and a hard place: do they notify agencies of key personnel departures and risk summary elimination; or do they remain silent and risk sustained post-award protests? GAO’s framework also arguably incentivizes offerors to avoid learning any information about the availability of their proposed key personnel following proposal submission.

In Golden IT, the COFC rejected GAO’s notification requirement for post-proposal key personnel departures. In that case, shortly after the awardee submitted its proposal, one of its proposed key personnel left the company. The awardee never notified the agency of the departure. One of Golden’s many protest arguments challenging the award was that the awardee had violated GAO’s key personnel rule, and thus that the agency’s award decision was arbitrary and capricious. The COFC rejected the argument, explaining that it “is unable to locate the basis for the GAO’s rule,” which “strikes the Court, candidly, as without legal basis and ‘unfair’” (citation and quotation omitted). The COFC further held that it would “not conjure up a rule – and particularly not one untethered from a statute, regulation, or Federal Circuit decision – requiring offerors or quoters to routinely update the government when facts and circumstances change post-proposal or quote submission, during the course of the government’s evaluation period.”

The COFC noted that the situation might be different were there a solicitation provision expressly requiring such notification, or if the awardee had had an opportunity to address the issue and failed to do so in a subsequent proposal revision. But since neither of those facts were present, the COFC concluded that “all that is necessary here is that [the awardee] had a reasonable belief, at the time of its quote, that [it] would deploy [its proposed] key personnel upon contract award.”

Golden IT is not binding on the GAO or even other COFC judges. However, it signals some potential relief for contractors attempting to traverse the key personnel quagmire. We’ll have more detailed analysis of this potential watershed decision in the near future.

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Photo of Anuj Vohra Anuj Vohra

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of…

Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.

Photo of Rob Sneckenberg Rob Sneckenberg

Rob Sneckenberg is a government contracts litigator in Crowell & Moring’s Washington, D.C. office. He routinely first chairs bid protests before the U.S. Government Accountability Office (GAO) and U.S. Court of Federal Claims (COFC), and has successfully argued multiple appeals before the U.S.

Rob Sneckenberg is a government contracts litigator in Crowell & Moring’s Washington, D.C. office. He routinely first chairs bid protests before the U.S. Government Accountability Office (GAO) and U.S. Court of Federal Claims (COFC), and has successfully argued multiple appeals before the U.S. Court of Appeals for the Federal Circuit. He also represents contractors in contract claim and cost accounting disputes before the Armed Services Board of Contract Appeals (ASBCA), and counsels clients on a wide array of government contracts investigations. Rob is very active in Crowell & Moring’s pro bono program, where he focuses on civil and criminal appeals.

Photo of Cherie Owen Cherie Owen

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court…

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court of Federal Claims. As a former GAO bid protest hearing officer, she resolved some of the most challenging bid protests on procurements ranging from thousands to billions of dollars involving solicitation challenges, proposal evaluation challenges, organizational conflicts of interest, Procurement Integrity Act violations, affirmative responsibility determinations, the conduct of discussions, and competitive range determinations. In this role, Cherie held numerous bid protest hearings. At GAO she handled more than 600 protests and issued more than 500 decisions.

Photo of Issac Schabes Issac Schabes

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and…

Issac D. Schabes is an associate in the firm’s Washington, D.C. office, where he is a member of the Government Contracts Group.

Prior to joining the firm, Issac clerked for the Honorable Matthew H. Solomson on the U.S. Court of Federal Claims and the Honorable Robert N. McDonald on the Maryland Court of Appeals. Issac received his J.D., magna cum laude, from the University of Maryland Carey School of Law, where he graduated Order of the Coif and served as an executive editor for the Maryland Law Review. He received numerous awards, including the Judge Simon E. Sobeloff Prize for Excellence in Constitutional Law. During law school, Issac was a member of a low-income taxpayer clinic team that successfully appealed an IRS assessment resulting in a substantial tax liability reduction, and also interned for the Honorable Beryl A. Howell, Chief Judge, on the U.S. District Court for the District of Columbia and the Honorable Marvin J. Garbis on the U.S. District Court for the District of Maryland.