A recent Government Accountability Office (GAO) bid protest decision reminds government contractors not to throw stones from a glass house. In Orion Government Services, Inc., GAO dismissed a protest because it found that the protester's proposal was technically unacceptable due to unavailability of proposed key personnel. Based on that finding, GAO determined that the protester lacked standing to question the agency's evaluation or source selection decision. 

This decision adds to the growing body of key personnel protest decisions out of GAO and the U.S. Court of Federal Claims (COFC). Thanks to the popularity of LinkedIn and other social media sites, the availability of proposed key personnel is an easy target for both protesters and awardees alike. That said, before throwing the first stone, it is essential that companies review their own proposals for potential issues and evaluate the publicly available information about their proposed key personnel. Only then can a company make strategic decisions about which protest allegations to bring and in which forum to raise them.

We discuss the Orion decision and select recent key personnel decisions from the GAO and COFC. Understanding how GAO and COFC approach key personnel issues is critical to a protester's selection of forum and could avoid tough questions about the availability of their own key personnel. 

GAO Law on Standing and Changes in the Status of Key Personnel 

As discussed briefly above, GAO dismissed a bid protest filed by a disappointed offeror, Orion Government Services, Inc. (Orion), finding that Orion was not an interested party because it had failed to notify the agency that one of its proposed key personnel was no longer available, making Orion's proposal technically unacceptable and thus ineligible for award. Orion Gov't Servs., Inc., B-422978, Dec. 30, 2024, 2024 WL 5277436. In order to have standing to challenge a contract award, a protester must be an "interested party," i.e., an actual or potential offeror with a direct economic interest in the award decision. GAO interprets that as requiring that the protester have a "reasonable possibility" of being "next in line for the award if its protest were sustained." CACI, Inc.-Fed., B-419499, Mar. 16, 2021, 2021 CPD ¶ 125 at 5. Because a proposal that does not satisfy the material terms of a solicitation cannot win the contract award, a technically unacceptable offeror lacks standing to protest at GAO.

Where a solicitation requires the identification of key personnel, their availability is a material requirement. It is settled GAO caselaw that offerors in negotiated procurements have an affirmative obligation to notify agencies of changes in their abilities to meet material requirements even after submission of proposals. See, e.g., Chenega Healthcare Servs., LLC, B-416158, June 4, 2018, 2018 CPD ¶ 200 at 3 n.2. That requirement extends to alerting agencies when offerors become aware that someone proposed for a key personnel position is no longer available to perform on the contract. Once an offeror notifies an agency of the unavailability of a key person in its proposal, the agency has two options: (1) evaluate the proposal without the unavailable key personnel, usually requiring rejection of the proposal as technically unacceptable; or (2) open discussions with all remaining offerors to allow proposal revisions. Id.

After failing to be selected for award by the U.S. Army Corps of Engineers, Orion challenged multiple elements of the agency's evaluation of its own proposal and the proposal of the awardee under the construction execution approach (i.e., technical), past performance, and price factors. Orion also alleged the agency's evaluation errors undermined the Army's best value decision. In response to the protest, the awardee, McCarthy Building Companies, Inc., intervened in the protest and filed a request that GAO dismiss Orion's protest. The agency report produced relevant records including Orion's proposal and the Intervenor's outside counsel were allowed access to Orion's proposed technical and management solutions, including Orion's proposed personnel, under a GAO Protective Order. 

The Intervenor's dismissal request utilized "public information" which it alleged demonstrated that one of the two employees Orion had proposed as a Site Safety and Health Officer (SSHO) had left the company between proposal submission and contract award. As a result, the Intervenor alleged Orion's proposal was ineligible for award and Orion was not an interested party to protest the agency's award decision. Not surprisingly, the agency joined in the dismissal request. 

In response, Orion did not dispute that it was aware of the person's unavailability prior to the agency's award announcement. Instead, Orion argued that removal of one proposed SSHO should not render its proposal technically unacceptable because one was still available and the solicitation only required offerors to propose one. GAO rejected that argument, explaining that, "Where a solicitation specifically requires that offerors identify and offer the resume for key personnel positions and indicate that this information will be considered in the evaluation, the obligation applies for each individual for whom a resume is submitted." Orion Gov't Servs., Inc., B-422978 at 6. GAO's decision pointed out that a position need not be officially designated "key personnel" to be considered material to the proposal and subject to evaluation under key personnel standards. GAO was also unpersuaded by Orion's claim that it remained an interested party with standing because the agency could choose to open discussions and allow proposal revisions rather than reject Orion's proposal outright. 

Court of Federal Claims Breaks with GAO on Obligation to Report Key Personnel Changes 

Because protests of negotiated procurements can be filed at COFC as well as GAO, offerors should consider COFC's latest decisions relating to notification requirements when proposed key personnel are no longer available. In 2022, Judge Matthew H. Solomson issued two decisions rejecting GAO's well-settled precedent. In Golden IT, LLC v. United States, the court held that unless the solicitation says otherwise, an offeror only needs to have a reasonable belief at the time it submits a proposal (or final proposal revisions) that all proposed key personnel will be available to perform the contract. 157 Fed. Cl. 680 (2022); see also IAP Worldwide Services, Inc. v. United States, 159 Fed. Cl. 265 (2022). The opinion said that GAO's rule obligating offerors to inform agencies of changes in the status of proposed key personnel after proposal submission could not be traced to a statute, regulation, or Federal Circuit decision. Judge Solomson called GAO's rule "without legal basis" and "unfair." Golden IT, LLC, 157 Fed. Cl. at 703. Judge Solomson also suggested the analysis may be different, however, where a solicitation requires documentation, such as letters of commitment, attesting to the continued availability of key personnel. Id. at 705.

Judge Solomson's criticism of GAO's doctrine echoed longstanding industry complaints, explaining that it penalizes offerors for an agency's lengthy evaluation process. In particular, the court reasoned "[t]he simple facts of biology (illness, injury, incapacitation due to various causes, and death) and the common realities of business life (people retire, quit, or must be laid off or fired) make it unreasonable to expect that offerors will not experience changes in the status of their staffing over the course of such lengthy periods. The GAO requires offerors to tell agencies when there is a change, but does not require or permit agencies to provide a simple process of substitution." Id. (quoting Vernon J. Edwards, Key Personnel Substitutions After Proposal Submission: An Unfair Rule, 31 Nash & Cibinic Rep. ¶ 59 (2017)).

Because COFC decisions are not binding on other COFC judges, companies cannot be sure that all COFC judges will follow Judge Solomson's reasoning rather than a previous COFC case consistent with GAO precedent. See Chenega Healthcare Servs., LLC v. United States, 138 Fed. Cl. 644 (2018). In the only COFC case to address the issue since 2022, Judge Loren A. Smith adopted Judge Solomson's position. See KPMG LLP v. United States, 166 Fed. Cl. 588 (2023). COFC decisions are also not binding on GAO attorneys. While two GAO cases have referenced COFC's contrary rule in footnotes, neither addressed the court's logic. Jacobs Technology, Inc., B-421739.3, Jan. 31, 2024, 2024 CPD ¶ 43 at 7 n.5; Sehlke Consulting, LLC, B-420538, May 18, 2022, 2022 CPD ¶ 119 at 9 n.8.

Orion's Move to COFC

Not surprisingly, Orion re-filed its protest at the COFC on January 16, 2025. Whether Orion's COFC protest will reach the merits and whether GAO's standing analysis will face scrutiny remains to be seen. Logic would have it that Judge Solomson's criticism of GAO's decisions on key personnel notifications would also apply to GAO's "interested party" analysis in Orion.  

Until then, companies considering filing protests of awards involving proposed key personnel would be smart to evaluate whether their proposed key personnel have publicly announced a new position outside the company before choosing to file a protest. Launching a protest allegation at GAO that will expose your own proposal to Intervenor's counsel may unintentionally result in broken glass.   

Takeaways

• Understand the areas of your proposal that are susceptible to allegations of technical unacceptability. Bid protest deadlines are tight, but it is still worth taking time to critically review your own proposal before deciding to bring protest grounds that open your proposal to scrutiny. If you challenge the agency's evaluation of your proposal, an intervenor will have access to it. Determine if the risk of losing standing to challenge other aspects of the procurement is worth raising the arguments that put your proposal in the intervenor's hands. Alternatively, choosing to file at COFC initially may be a better pathway but may lack the immediate guarantee of a stay on performance.
• Be strategic about checking on the continued availability of your key personnel. The obligation to report a change in the status of key personnel only applies where the offeror has "actual knowledge" of the person's unavailability. DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155 at 10. If your proposed key personnel were employees at the time of proposal but left the company to take another job before contract award, there is likely no way to argue a lack of actual knowledge. But it is common to propose key personnel who are not current employees as long as they have committed to working on the contract after award. However, GAO has held that an offeror did not have actual knowledge of unavailability where a non-employee had signed a letter of intent and had no basis to question the non-employee's intent to perform. NCI Information Systems, Inc., B-417805.5, March 12, 2020, 2020 CPD ¶ 104 at 8. On the other hand, if someone proposed for a key position has posted publicly about a change in their status and also withdrawn their express commitment to working in the role proposed, there is risk that GAO could determine a protester lacks interest to file a protest.
• Pay attention to solicitation requirements. The obligation to report changes in availability of key personnel or other material changes could turn on the wording of the solicitation, particularly under the latest COFC caselaw. 
• Be thoughtful about forum selection. Consider the weak spots in your proposal, the claims you wish to bring, and the scope of the record that may be produced at either GAO or COFC before deciding where to file. 
• Re-confirm commitment. Where a company is considering filing a protest and discovers a key personnel availability issue, securing a new express commitment to perform on the contract by the candidate in question may avoid challenges to standing at a later date.

For more information, please contact:

Scott N. Flesch, sflesch@milchev.com, 202-626-1584

Elissa B. Harwood, eharwood@milchev.com, 202-626-5890

Jason N. Workmaster, jworkmaster@milchev.com, 202-626-5893

Alex L. Sarria, asarria@milchev.com, 202-626-5822 

Ashley Powers, apowers@milchev.com, 202-626-5564

Connor W. Farrell, cfarrell@milchev.com, 202-626-5925

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