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After a recent Court of Federal Claims (“COFC”) decision limited the circumstances under which a departure of key personnel may doom an offeror’s proposal, an even more recent GAO decision might have swung the pendulum right back. In Sehlke Consulting, LLC, GAO sustained a protest because the agency failed to penalize the awardee when a proposed key person employed under the incumbent contract provided notice that he planned to resign. Even though the key person was still employed on the date of award, GAO held that the agency’s failure to consider his “prospective unavailability” for the follow-on contract undermined the contract award.

The following dates were relevant:

  • Performance of the follow-on contract was scheduled to begin February 1, 2022.
  • On January 11, 2022, one of the awardee’s proposed key personnel (who was then an employee of a subcontractor on the incumbent contract) announced that he planned to resign effective January 28, 2022. The awardee timely notified the Contracting Officer’s Technical Representative (“COTR”) for the incumbent contract.
  • On January 25, 2022, the agency completed its evaluations and awarded the contract.
  • On January 28, 2022—after award but before performance was to begin—the key person’s resignation became effective.

The agency and awardee argued that the key person’s departure did not affect the award decision given that the key person was still employed on the date of award. They also argued that the resignation only specifically related to the incumbent contract, and they directed GAO to the COFC’s recent decision in Golden ITholding that a contractor has no duty to notify an agency of a mid-procurement departure by key personnel (absent a specific solicitation requirement to do so). GAO rejected each of these arguments.

To begin, GAO held it was irrelevant that the key person was still employed on the date of award because the issue in this case turned on “whether there was definitive knowledge of the proposed key person’s unavailability to perform the intended contract.” GAO noted that the key person “unambiguously resigned to take a position with a different firm, thereby making it clear that the individual would not be available to perform as part of the follow-on contract effort.”

Next, because the key person was resigning to join another firm, GAO held there was “no basis to assume, without evidence to the contrary,” that the individual might return to perform the follow-on contract. GAO also emphasized that the key person’s resignation was definitive enough that the awardee saw fit to notify the COTR for the incumbent contract.

Finally, in a footnote, GAO emphasized that it is not bound by decisions of the COFC, and distinguished Golden IT on its facts. GAO asserted that Golden IT concerned an offeror’s duty to notify an agency during a procurement of a key-personnel departure, whereas here the agency was aware of the key person’s resignation through COTR notification under the incumbent contract.

Given these holdings, GAO sustained the protest and recommended that the agency either (1) reevaluate the awardee’s proposal as submitted, without considering the now-unavailable key person; or (2) re-open the procurement and conduct discussions with all offerors.

GAO’s decision is notable for at least two reasons. First, it signals GAO’s continued willingness to sustain bid protests when key personnel become unavailable after proposal submission. In fact, it arguably extends the doctrine, as even prospective future unavailability can now be problematic. For example, would GAO have reached the same conclusion if, instead of announcing his intention to switch employers in two weeks, the proposed key person had announced his definitive intention to retire in two months? The permutations under which key personnel can potentially become unavailable are countless and often wholly outside offerors’ control. Yet GAO’s decisional law affords offerors no relief and, instead, incentivizes them to avoid learning of key personnel changes and potentially to avoid notifying agencies when they do learn of actual or prospective unavailability.

Second, the decision highlights how incumbent contractors are particularly disadvantaged under GAO’s key personnel case law because they, unlike non-incumbent offerors, cannot avoid learning about and notifying agencies of key personnel departures under the incumbent contract. Indeed, the awardee here properly and timely notified the COTR for the incumbent contract of the key person’s planned resignation, and that notification was what spelled its doom. Cf. NCI Info. Sys., Inc., B-417805.5 et al., 2020 CPD ¶ 104 (holding duty to notify did not attach because non-incumbent offeror lacked actual knowledge that proposed key person had accepted job with another company and relocated across the country).

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Photo of Amy Laderberg O'Sullivan Amy Laderberg O'Sullivan

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and

Amy Laderberg O’Sullivan is a partner in the firm’s Washington, D.C. office, a member of the Steering Committee for the firm’s Government Contracts Group, and former chair of the firm’s Diversity Council. Her practice involves a mix of litigation, transactional work, investigations, and counseling for corporate clients of all sizes and levels of experience as government contractors. On the litigation side, she has represented corporate clients in bid protests (agency level, GAO, ODRA, Court of Federal Claims, Court of Appeals for the Federal Circuit, as well as state and local bid protests in numerous jurisdictions), size and status protests before the U.S. Small Business Administration, claims litigation before the various Boards of Contract Appeals, Defense Base Act claims litigation at the Administrative Law Judge and Benefits Review Board levels, civil and criminal investigations, and she has been involved in complex commercial litigation.

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 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.