Agency: Department of Justice
Disposition: Protest Dismissed
Decided: November 2, 2020
General Counsel P.C. Highlight:
Protest dismissed where the protester argued the awardee materially misrepresented the availability of an individual proposed for a key personnel position, due to the existence and enforceability of a non-compete agreement. Such arguments concern private disputes that GAO does not review.
Summary of Facts
AVER, LLC, a small business, challenges the issuance of a task order to IntePros Federal, Inc., by the Department of Justice (DOJ), Justice Management Division, under RFP No. 15JPSS20R0000048. The solicitation was issued on June 10, 2020, seeking proposals to provide information technology, enterprise architecture, and program management office services for Executive Office for Immigration Review (EOIR).
The competition was limited to firms that hold indefinite-delivery, indefinite quantity (IDIQ) Chief Information Officer-Solutions and Partners 3 contracts. The solicitation anticipated the award of a time-and-materials task order with a base period of 1 year and four 1-year options. The RFP required offerors to propose four key personnel positions: (1) program manager, (2) enterprise architect, (3) business process requirements analyst, and (4) quality assurance specialist.
DOJ informed AVER on September 8 that it had selected IntePros’s proposal for award. On September 16, AVER’s proposed subcontractor Citizant, Inc. received notice from one of its employees that she would be resigning from the company, effective September 30. On September 22, Citizant learned that this individual had accepted employment with iTech AG, a proposed subcontractor for IntePros, and that she would be serving as the program manager for the awardee. Citizant terminated the individual’s employment on September 22, based on a breach of the non-compete agreement between the individual and the company. AVER filed this protest.
Basis of Protest
AVER argues that IntePros’s proposal contained a material misrepresentation concerning the availability of an individual proposed for a key personnel position. Specifically, AVER argued that the proposed individual was prohibited from working for IntePros’s proposed subcontractor as she was subject to a noncompete agreement. AVER argues that because of the noncompete agreement, IntePros could not have reasonably expected this individual to be available to perform on the contract, and that the misrepresentation of her availability renders IntePros’s proposal technically unacceptable. IntePros argues that AVER’s allegations are predicated on the existence and enforceability of a non-compete agreement, and that GAO does not review such matters.
GAO explained that whether personnel identified in a vendor’s proposal actually perform under the subsequent award is generally a matter of contract administration that GAO does not review. However, GAO will consider “allegations that a vendor proposed personnel that it did not have a reasonable basis to expect to provide during contract performance in order to obtain a more favorable evaluation, as such a material misrepresentation has an adverse effect on the integrity of the competitive procurement system.”
Here, AVER argues that IntePros proposed an individual for the program manager position that it knew or should have known that it could not provide, since she was subject to a contract which prevented her from assuming the position for IntePros. AVER argues that IntePros could not have reasonably expected to provide the individual on Day 1 of the contract when she was legally prohibited from becoming an employee of IntePros or its subcontractors.
GAO explained that AVER’s arguments rely on contractual obligations between the individual and the protester’s proposed subcontractor. GAO concluded that AVER’s arguments concern disputes between private parties that it does not review. GAO confirmed that it “generally does not review disputes between private parties that do not involve the procuring agency.” Specifically, GAO previously held that it “will not review a protester’s allegation that the awardee will violate a non-compete agreement, as it concerns a private dispute that does not involve government action.”
AVER then argued that it isn’t requesting that GAO enforce the terms of the noncompete agreement or that the award is improper based solely on the agreement. AVER alleges that, instead, the existence of the non-compete is a material fact that supports the proper ground for protest that IntePros failed to comply with the material requirements of the Solicitation to bid a Program Manager who would be available on Day 1 of contract performance. However, GAO determined that “the enforceability of the non-compete agreement is inseparable from the issue of whether the awardee had a reasonable basis to propose the individual.” Since AVER’s argument that IntePros did not have a reasonable basis to propose the individual for the program manager position depends on a presumption that the noncompete agreement is enforceable and will prevent her employment with iTech, GAO concluded the issues were inextricably linked.
The GAO dismissed the protest on this basis.