When evaluating key personnel qualifications, agencies generally assess the experience of the personnel proposed by the contractor against the requirements of the solicitation. Depending on the evaluation criteria, a proposal may be subject to downgraded ratings and even elimination if it fails to provide the necessary information demonstrating that the proposed key personnel possess the type and level of experience and qualifications required by the solicitation. Therefore, it is crucial that offerors include current, accurate, and responsive experience information in key personnel resumes and other relevant sections of their proposals. The evaluation of proposed key personnel qualifications is based on all information provided to the agency, sometimes including information not specifically stated in key personnel resumes. For instance, the government must consider any key personnel qualifications information received from the offeror during discussions. On the other hand, agencies are not required to consider information that an offeror fails to provide, even if evaluators have personal knowledge of the information through other sources. In this respect, the evaluation of key personnel qualifications differs from that of past performance information due to the inapplicability of the “too close at hand” principle, under which evaluators are required to consider certain past performance information personally known to them even if that information is not provided by the offeror in response to the solicitation.

When the contractor’s performance requires the government to furnish a work site, failure to make the site available may result in liability for the government. Even when furnished by the government, the availability of a work site may depend on many variables. Therefore, unless the contract can be interpreted to imply an unqualified guarantee, contractors may find it challenging to prove the existence of a warranty of site availability. The extent of definitiveness of the contract language pertaining to availability of the work site is key in determining whether a warranty exists. General government representations specifying a date for making a work site available are typically insufficient to amount to a warranty absent express and unqualified contractual language. If the availability of the site is dependent on factors outside the government’s control, such as completion of performance on another contract, a finding that a warranty of site availability exists becomes highly unlikely. On the other hand, if the government alone has complete control over site availability, it makes it more likely that a claims adjudicative forum will find that a warranty exists. Additionally, certain facts may indicate the presence of a warranty of site availability, including the critical importance of the site and the limited period within which the work must be performed. Similarly, contract clauses can be important indicators, with a warranty of site availability more likely to be found in contracts that include a suspension of work clause.

When submitting key personnel resumes and information with their proposals, offerors must have a reasonable basis to expect that the proposed personnel will perform on the subsequently awarded contract. In this connection, offerors often obtain signed letters of commitment from the individuals proposed as key personnel either independently or under express instructions of the solicitation. For highly specialized positions, sought-after individuals may sometimes provide letters of commitment to multiple offerors. When one or more letters of commitment by the same individual also contain exclusivity language, disappointed offerors may challenge the award by alleging that the awardee misrepresented the key individual’s availability to perform on its contract. The Government Accountability Office (GAO) will typically deny such protests as long as the awardee had a reasonable basis to represent the availability of the personnel before proposal submission and there is no countervailing evidence suggesting that the individual revoked or rescinded his commitment to the awardee. As for the exclusivity language appearing in the protester’s letters of commitment signed by the same key individual as in the awardee’s proposal, the GAO treats this issue akin to a potential violation of a non-compete agreement. Accordingly, arguments raising this issue are rejected as concerning a private dispute between the protester and the awardee, not involving any government action. At the same time, offerors are not permitted to include information of key personnel in their proposals if they have knowledge that those individuals do not intend to join them.

Government typically has no obligation to assist the contractor in completing work before the contract completion date. Despite this lack of obligation, it is still not permissible for the government to hinder or otherwise prevent a contractor’s early completion of performance. In this regard, when the contractor’s early completion of work is delayed due to government actions, the government may be liable for the delay it causes even when the contractor completes performance within the agreed-upon contract completion deadline. Contractors must satisfy three elements to establish entitlement to benefits of a planned early completion which is adversely impacted by government-caused delays. First, from the outset of the contract, the contractor must establish its intent to complete performance on an accelerated schedule and ahead of the contractually mandated completion date. Notably, while it is necessary for the contractor to convey its intent to complete early performance, it need not inform the government of a specific early completion date. Second, the contractor must have the capability to perform early, and its intent must be supported by consistent actions and performance activities during the performance period. Third, the contractor must establish that had it not been for the government-caused delays, its actions in pursuing acceleration would have led to an early completion. Once the three elements are established, the government is liable for damages arising from its dilatory actions that prevent the contractor’s early performance.