Thursday, February 28, 2019
"Bait and Switch" in Government Contracting
The term "bait and switch" in Government contract law sometimes refers to cases where awardees' listed certain key personnel in their proposals, then made extensive post-award submissions. For example, a Comptroller General case used the term in a case where the awardee proposed key personnel who never authorized the awardee to use their names.
A bait-and-switch has four elements: (i) the awardee represented in its proposal that it would rely on certain specified personnel in performing the services, (ii) the agency relied on this representation in evaluating the proposal, (iii) it was foreseeable that the individuals name in the proposal would not be available to perform the contract work, and (iv) personnel other than those proposed are performing the service.
The third element is the one that ends up in dispute. Does "foreseeable" require actual knowledge or is "negligence" sufficient to establish an improper bait-and-switch. Courts have ruled that negligence is the minimum level of knowledge necessary to establish the foresee-ability element of an improper bait-and-switch. Foreseeable has a plain meaning - being such as may be reasonably anticipated and lying within the range for which forecasts are possible. It requires that an offeror knew or should have know, at the time of proposal submission, that its proposed key personnel would be unavailable to perform.
In a recent bid protest decided by U.S. Court of Federal Claims, an offeror used the resume of a certain individual without that individuals permission. When it was awarded the contract, that individual declined the employment offer so the contractor substituted a different person. One of the unsuccessful bidders appealed on the bait-and-switch grounds and won the appeal.