Protest against alleged ‘misrepresentation’ of Census MAS awarding centers

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Service contractor Acme submits a bid using Sally, Bill, and Jesse as the main talent. Sally leaves for another company once the offers are received. Does this mean that the offer is no longer valid? Well, not necessarily. Federal Drive with Tom Temin spoke to Smith, Pachter, McWhorter’s procurement attorney Joe Petrillo about a recent protest case.

Tom Temin: Joe, this case shows that even if you do switcheroo on people, it doesn’t necessarily eliminate you from the competition, does it?

Joseph Petrillo: Well, it depends on where the protest is filed, among other things, what you knew and when you knew it. So let’s get into the weeds here. We now have new guidelines from the United States Federal Claims Court. In Golden IT, LLC v. United States. It’s a protest offer that stems from an acquisition by the Census Bureau. And they have something called the master address file, and they needed IT services to maintain this large database of information, which they get from tribal, state, and local governments. The Census made the acquisition under a GSA’s multiple award schedule and did not set aside small businesses owned by women or small businesses owned by veterans with disabilities. After evaluating the quotes, Census awarded the order to Spatial Front and one of the competitors, Golden IT, filed a protest in the Federal Court of Claims. He raised several issues. And one of them, I think, is of particular importance for other contexts and for other bidders. Golden IT alleged that Spatial Front made a material misrepresentation in its proposal, that key personnel of the individual in question went to work for another company shortly after submitting the proposals. So Golden said, “Look, either Spatial Front knew when they submitted their proposal that they couldn’t produce this person for the performance of the contract, or they found out afterwards and should have notified the census. ” This case came before, as I mentioned, the Federal Claims Court, and their judge, Solomson, considered these issues, and he recognized that at least since the 1992 court of appeals decision , misrepresentation and proposal void the proper award. And if that misrepresentation, material misrepresentation, I’m talking about something that makes a difference in the award decision, whether done knowingly or recklessly, it would even disqualify the bid committee from receiving a reward or participate more in procurement.

Tom Temin: But there is a “but” there.

Joseph Petrillo: Well, in this case, there was no evidence on file that Spatial Front knew or had reason to know when it submitted its proposal that the key person would not be available for the performance of the contract. . Another “but” is that there is a second part to this argument, and I think it’s the one that has more general applicability and raises some interesting questions for the future. Golden had also argued that even if Spatial Front was unaware when he submitted his proposal, after his proposal was submitted and being evaluated, and that person quit his job, he should have inform the Census Bureau that the person would not be available. And there, Golden IT was basing that argument on a long line of decisions protesting GAO offers. Some of them that we’ve discussed over the years, which say that when an offeror knows that key personnel are becoming unavailable, after submitting their proposal, they must notify the agency.

Tom Temin: We speak with Joe Petrillo. He is a procurement attorney at Smith, Pachter McWhorter. But these are GAO decisions, and this was happening in court.

Joseph Petrillo: To the right. And the Court of Federal Claims had never really addressed this issue, nor had the Court of Appeals. It is therefore, as they say, a first impression, and what is the judge going to do? Well, the judge reviewed the statute, regulations and previous appeal decisions, and nothing in those decisions imposes this obligation on a bidder, furthermore, he noted that there had been criticisms of the regard to the GAO rule. And not only was that not based on legal requirements, but because it was kind of unfair, because presumably a bidder has to tell the agency something that they’re going to do, in most cases, disqualify his proposal. But the agency is not required to do anything to allow the replacement of another person. Also, we have a situation here where this particular fact, which is interesting and important, has changed after the deadline for the proposals, and we are developing a rule that you must inform the agency and possibly disqualify your offer. But a lot can happen after the deadline for proposals, which can be important for the award decision. And we pick this one for that special treat.

Tom Temin: The court therefore concluded that there was some kind of arbitrary art in allowing the protest on this ground, then based on the absence of appeal rulings and previous lower court rulings.

Joseph Petrillo: The judge refused to follow the doctrine that the GAO had built around this duty that it had created. And so now we have at least one judge in the Court of Federal Claims, saying no, that’s not a requirement, the GAO says it is, and we’ll have to see what happens the way the court is structured, other judges of the Court of Federal Claims do not have to follow this decision. And they won’t get a final resolution until the Federal Circuit Court of Appeals hears the case.

Tom Temin: In a case like this, if the soliciting agency in this case, the Census Bureau had said, here’s our selection criteria, and number one, who would get I don’t know, I’m doing this up to 60 % of the weight of the evaluation, is it the talent that is proposed, could this change the calculation in court? Hard to say?

Joseph Petrillo: Well, the misrepresentation or change must be material and, in your case, it clearly would be. The question is, however, what are the agencies going to do? Will they require in their solicitation that offerors notify them of changes in key personnel? If they do that? Will they allow substitutions? If they do, they may have to redo part of the evaluation and, as we know, these final proposal evaluation processes can take some time.

Tom Temin: Yeah, so if the agency goes ahead and grants that award, then day one of the contract, well, “Where’s Sally?”, “Well, she’s gone.” She went well, Spatial Front. But in this case, it didn’t happen, didn’t go to the winning bidder, so the agency is kind of stuck with their decision.

Joseph Petrillo: Yes, it’s true. Agencies, if you look closely, they are in a difficult position. Either they want to carve out an information class, like key personnel, where they want to be notified of changes and then have a way to evaluate them. And if that’s the case, the evaluation process might continue almost to the end and then have to be redone to some degree. Or they can say, Look, we’re freezing it at this time. We have the possibility, of course, that changes occur after contract award. And we have contractual clauses to take care of these things. But we will freeze the evaluation at some point, evaluate the proposals, make an award decision, and then deal with other issues like contract administration issues. And that’s the choice they have to make.

Tom Temin: Yeah, so they need to make those choices before they jump into source selection and make sure everyone understands the ground rules before they get there.

Joseph Petrillo: Yes, that should probably be done as a matter of regulation, at least setting out those rules in the solicitation.

Tom Temin: Joe Petrillo is a procurement attorney at Smith, Pachter, McWhorter. Thank you so much.

Joseph Petrillo: Thanks Tom.

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