Often used loosely in government contracts services parlance, the impermissible bait and switch of key personnel is prohibited for adversely impacting contract performance and integrity of the procurement system. Therefore, prospective contractors can file post-award bid protests, challenging the awardee’s impermissible bait and switch of key personnel provided they can meet specifically defined elements. In such protests, the protestor essentially alleges that the awardee made misrepresentations to the government during the acquisition process by proposing personnel that it had no reasonable basis to expect to perform on the contract. The protest is sustained if the government is found to have relied on the awardee's misrepresentations by favorably evaluating the awardee's proposal, materially impacting the overall evaluation in the process. However, not all situations involving a switch of personnel upon contract award are considered an impermissible bait and switch, partly because whether the personnel identified in an offeror’s proposal will perform on the subsequently awarded contract is generally a matter concerning contract performance. Notably, the Government Accountability Office (GAO), which is a legislative agency that performs a quasi-judicial bid protest function, does not review matters concerning contract performance. Therefore, the GAO will only review bid protests involving an impermissible bait and switch of key personnel when the protestor alleges that the awardee received an evaluation advantage by proposing personnel that it had no reasonable basis to expect to perform on the contract.

Past performance evaluations play an important role in determining the strength and viability of competing offerors’ proposals. It is generally within the procuring agency’s discretion to determine the scope of the past performance history to be considered during evaluation, provided all proposals are evaluated on the same basis and the evaluation is consistent with the terms of the solicitation. While procuring agencies are typically permitted to limit their evaluations to only consider past performance information submitted in response to the solicitation, under certain limited circumstances, outside information not submitted with the offerors’ proposals must also be considered. Under such circumstances, the procuring agency is required to consider outside information as part of its past performance evaluation when the information is determined to be “too close at hand” to require competing offerors to bear the inequities that would arise from the agency’s failure to obtain and consider the information. Notably, the “too close at hand” principle is narrowly interpreted and is only applied to information related to the offerors’ past performance.

In B-275554, the Government Accountability Office (GAO) sustained a bid protest challenging the procuring agency’s past performance evaluation by applying the “too close at hand” principle. In that procurement, the Department of Veterans Affairs (VA) intended to acquire a replacement telephone system for the VA Medical Center in Wilkes-Barre, Pennsylvania. In evaluating the protester’s past performance, the contracting officer (CO), as the source selection authority, identified two directly relevant past performance references but only considered one reference, as an agency official did not complete a required form with respect to the protester’s other past performance reference. Notably, the contract whose reference was not considered involved the same agency, the same CO, and virtually the same services as the solicitation at hand. Furthermore, the CO conducting the procurement not only had the first-hand knowledge of the prior contract but also described the protester’s performance as “exemplary” in a letter provided to the Small Business Administration (SBA) on an unrelated matter. In applying the “too close at hand” principle, the GAO sustained the protest and concluded that it was unreasonable for the CO not to consider the protester’s past performance information on the earlier contract under these circumstances.

In solicitations that require the submission of key personnel resumes, the resumes are considered a material solicitation requirement. Thus, offerors have a duty to notify the procuring agency if one or more of their proposed key personnel become unavailable to perform. The procuring agency may proceed in one of two ways once it receives notification of the unavailability of a key employee from an offeror. It can either evaluate the offeror’s proposal as submitted and reject the proposal as technically unacceptable for failing to meet a material requirement, or the agency may open discussions with all remaining offerors to permit proposal revisions. An offeror must notify the agency of a key employee’s unavailability even when the employee signs a letter of commitment before proposal submission but subsequently resigns or retires during the evaluation period. Alternatively, in addition to the letter of commitment, the offeror must be prepared to present evidence of the employee’s reaffirmation of availability or willingness to return to the offeror’s employment. In this regard, the primary consideration is whether the offeror has actual knowledge of the key employee’s unavailability because the duty to notify the agency is not triggered otherwise. Notably, despite the employee’s resignation or retirement, the Government Accountability Office (GAO) will not find an offeror to have actual knowledge of a key employee’s unavailability if the offeror can advance a credible basis to deny such actual knowledge.

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.