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personnel before proposal submission and there is no countervailing evidence suggesting that the individual revoked or rescinded his commitment to the awardee.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.

The Buy American Act (BAA) generally requires federal agencies to procure only domestic end products when acquiring supplies and construction materials in government contracts over the micro-purchase threshold unless an exemption applies. In response to defense solicitations that incorporate the provision at Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7000, offerors must provide a certification as to whether their proposed products are domestic end products from the United States, foreign end products from a qualifying country, or foreign end products from a non-qualifying country. When an offeror certifies that it will furnish end products in accordance with the BAA, it undertakes a contractual obligation to comply with that representation. The procuring agency can typically rely upon an offeror’s certification of compliance without further investigation unless there is a reason to believe, before making an award, that the offeror will not provide compliant products. On the other hand, if prior to award, significant countervailing evidence creates doubts concerning the offeror’s ability to comply with the BAA requirements, the agency must investigate beyond the firm’s representation of compliance before making an award. Under its bid protest function, the Government Accountability Office (GAO) will review whether an agency reasonably relied on an offeror’s certification of compliance. Similarly, when the agency investigates beyond the offeror’s representation of compliance, the GAO will review the agency’s evaluation and the resulting country of origin determination under the BAA to ensure they were reasonable.

Proposals that fail to satisfy the material terms of a solicitation for a negotiated procurement are considered unacceptable and may not form the basis of an award. It is well-established that it is the offeror’s responsibility to submit an adequately written proposal in accordance with the solicitation’s terms that contains all the required information. Despite this obligation, offerors may inadvertently omit necessary information from their proposals. Similarly, proposals may inadequately address or otherwise fail to convey information required by the solicitation. In such cases, the offeror risks adverse evaluation by the procuring agency or elimination from the competition altogether. Protests challenging the agency’s adverse decisions in such cases can have a low success rate because the Government Accountability Office (GAO) does not reevaluate proposals or substitute its judgment for that of the agency but only ensures the reasonableness of the evaluation against the stated evaluation criteria and applicable procurement laws and regulations. Contractors should also be mindful that their disagreement with the agency’s judgment alone is insufficient to establish the unreasonableness of the evaluation. Furthermore, while the agency may elect to seek clarifications, when a solicitation contemplates award without discussions, providing an opportunity for offerors to resolve even minor or clerical errors in their proposals is firmly within the agency’s discretion, as there is no automatic right to clarifications.