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.

Contractors should be aware that just because a key employee signs a letter of commitment before the submission of proposals does not mean that they are afforded a permanent or unrebuttable presumption of that employee’s continued availability. In B-422985.4; B-422985.5, a bid protest decision issued on June 11, 2025, the GAO found the offeror ineligible for award because it had failed in its duty to notify the procuring agency of the unavailability of a key employee despite having actual knowledge of the unavailability. The key employee signed a letter of commitment before quotation submission and did not affirmatively withdraw his commitment at the time of his pre-award resignation. The GAO found that the letter of commitment did not immunize the offeror from knowledge of the key employee’s unavailability because the employee had resigned and left the offeror’s employment after the letter of commitment was signed and the quotations were submitted. Consequently, the letter of commitment was not, by itself, sufficient to relieve the offeror from its duty to inform the agency of the change in the key employee’s availability. Furthermore, the offeror failed to provide a statement from the key employee or other such evidence that would reaffirm his availability or willingness to return to the offeror’s employment. Stated another way, the offeror failed to provide a credible basis for denying that it had actual knowledge of the key employee’s unavailability. Consequently, because the offeror possessed actual knowledge of the key employee’s unavailability, it had a duty to notify the agency. Since the offeror failed to do so, its quotation was rendered ineligible for award.

Meanwhile, in cases where the offeror can advance a credible basis for denying actual knowledge of unavailability despite the key employee’s resignation or retirement, the GAO will typically find that the offeror need not have notified the agency because it lacked actual knowledge of the unavailability. In B-422118.2, a bid protest decision issued on July 30, 2024, the GAO determined that an offeror did not have actual knowledge of the unavailability of a proposed key employee when, after learning of the key employee’s retirement, the offeror affirmatively sought and received confirmation of the employee’s continued availability from the subcontractor that employed her. In that bid protest, the protester alleged that the offeror was ineligible for award because one of its proposed key personnel had retired from her position with the offeror’s subcontractor, and the offeror had failed to notify the procuring agency of her unavailability. In response, similar to the offeror in B-422985.4; B-422985.5 described above, the offeror maintained that the retired key employee had signed a letter of commitment, which was not rescinded and contained no expiration date. Additionally, at the time of the key employee’s retirement, the offeror specifically sought and received confirmation of her continued availability from the subcontractor. Thus, in a critical distinction from the protest described above, here the offeror was able to advance a credible basis for denying that it had actual knowledge of the key employee’s unavailability, based on the subcontractor’s confirmation that the employee would return from retirement should the offeror be awarded the contract. Hence, the GAO concluded that the offeror did not have actual knowledge of the key employee’s unavailability and denied the protest, finding the offeror eligible for award.

Since key personnel resumes are considered material requirements, offerors must inform the procuring agency when one or more of their proposed key personnel become unavailable. This duty to notify the agency continues to apply when key employees resign or retire after the submission of proposals but before the award is made. Furthermore, even when key personnel sign letters of commitment before proposal submission, offerors are not relieved of their duty to notify the agency of a key employee’s subsequent unavailability before contract award. The primary consideration for the applicability of this duty to notify is whether the offeror has actual knowledge of the key employee’s unavailability. Notably, despite the resignation or retirement of a key employee during the evaluation period, an offeror is not deemed to have actual knowledge of unavailability when the offeror can advance a credible basis to deny such actual knowledge. Contractors should be mindful that the credible basis must be in addition to any commitment letters signed by the key employee before her decision to resign or retire. Such credible basis to deny actual knowledge of key employee unavailability can include a written statement from the employee or other similar evidence that can reasonably reaffirm the key employee’s availability or willingness to return from the offeror’s perspective, should it eventually be awarded the relevant contract.

This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.