Monday, December 31, 2018

Material Misrepresentation in Offeror's Proposal

The Coast Guard issued a solicitation for a fixed-price task order for project management, technical support, and logistics services for its Aviation Logistics Center. The solicitation required offerors to submit resumes for all positions, which the Government would evaluate to determine whether the qualifications and experience met or exceeded the position requirements. The Coast Guard received six proposals and after reviewing them, established a competitive range consisting of Sev1Tech and STI-TEC. Ultimately, the award went to STI-TEC whereupon Sev1Tech appealed contending that STI-TEC's proposal contained a material misrepresentation in that it proposed personnel for which it did not have a reasonable expectation would be available for performance under the task order.

Sev1Tech proposed a team comprised of 95 percent incumbent personnel, stating that it had met the current employees on two occasions and negotiated exclusive letters of commitment with incumbent personnel. STI-TEC provided the names and resumes for 10 of the same incumbent staff that Sev1Tech had proposed stating that it had "reached out to and negotiated contingent offers of employment with candidates for each position.

Sev1Tech called STI-TEC a liar. Sev1Tech stated that STI-TEC did not obtain permission to use the resumes of incumbent personnel in its proposal and did not contract the individuals concerning working on the task order until after the task order was awarded.

Sev1Tech's appeal did not go well for STI-TEC. The GAO (Government Accountability Office) noted that offerors may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation. A misrepresentation is material where an agency (the Coast Guard, in this case) has relied upon the misrepresentation and that misrepresentation likely had a significant impact on the evaluation. The GAO concluded that the STI-TEC materially misrepresented the availability of incumbent staff without receiving prior assurances that the incumbent staff was interested in continuing to work on the new task order and the Coast Guard relied on the resumes of the incumbent staff in its evaluation of proposals. Accordingly, GAO sustained the protest.

GAO recommended that the Coast Guard reevaluate STI-TEC's proposal, taking into consideration the awardee's misrepresentations and make a new selection decision. GAO also recommended that Sev1Tech be reimbursed reasonable costs of filing and pursuing the protest, including attorney's fees.

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