• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Matter of M.C. Dean

  • By GCPC GovCon Legal Team
  • August 7, 2020
  • Key Personnel
  • 0 Comments

Matter of M.C. Dean, Inc.

Agency: National Security Agency

Disposition: Protest Sustained

Decided: June 15, 2020

Keywords: Key Personnel

General Counsel P.C. Highlight: Offerors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals.

 

Summary of Facts

M.C. Dean, Inc. protests the award of a contract to PTSI Managed Services, Inc. (PTSI) under RFP No. H98230-19-R-0148, issued by the National Security Agency (NSA) to provide maintenance, installation, and distribution services for the agency’s comprehensive enterprise class physical security system.

NSA intends to award a single indefinite-delivery, indefinite-quantity contract with fixed-price and time-and-materials delivery orders. The solicitation provided for a best-value tradeoff decision based on multiple factors, including personnel qualification. The RFP identified seven key personnel labor categories, including the program manager. The RFP also stated that the program manager “shall be responsible for the successful cost, schedule, and performance of the contract” and is required to possess top secret/sensitive compartmented information clearance with a full scope polygraph at award.” The RFP required offerors to provide resumes for all of the key personnel and to notify the NSA for approval of any changes to the key personnel. Three offerors submitted proposals and PTSI’s proposal was selected for award. M.C. Dean filed this protest.

On December 12, 2019, PTSI’s program manager was denied a security clearance. The program manager received his official denial letter on January 21, 2020. PTSI believed that the program manager would appeal the decision, but on March 16, 2020, after contract award, PTSI learned that the program manager had not appealed the denial.

Basis of Protest 

M.C. Dean argues that PTSI was aware that several of its proposed key personnel, including its program manager, became unavailable prior to award and remain unavailable to perform on the contract and, thus, PTSI’s proposal is unacceptable. The NSA acknowledges that after the award, it was notified that three of PTSI’s key personnel needed to be replaced, but argues that PTSI “had no reasonable basis to expect either at or before contract award that the program manager would be unavailable to perform, and therefore had no obligation to inform the agency prior to award that the program manager was unavailable.”

Protest Sustained

GAO explained that “offerors are obligated to advise agencies of material changes in proposed staffing, even after submission of proposals. While an offeror generally is required to advise an agency where it knows that one or more key employees have become unavailable after the submission of proposals, there is no such obligation where the offeror does not have actual knowledge of the employee’s unavailability.” GAO reasoned that “a firm may not properly receive award of a contract based on a knowing material misrepresentation in its proposal.” When an agency is notified of the withdrawal of a key person, it can either evaluate the proposal as submitted without considering the resume of the unavailable employee or open discussions to permit the offeror to amend its proposal.

GAO noted that the RFP required that the program manager have a security clearance to accessclassified information specific to the contract. However, one month after PTSI submitted its proposal with a specific program manager, NSA denied a security clearance for the proposed program manager, who received official notice of this decision in January 2020. GAO determined that “as a result of the denial, PTSI had actual knowledge that its program manager would not be able to obtain the security clearance necessary” to work on the contract, and thus would not be available to perform under the contract.  Thus, GAO concluded that PTSI was required to inform the NSA of the program manager’s unavailability, which it did not do.

The NSA argues that the program manager had until March 6, 2020, to appeal the denial and had not yet exhausted his legal remedies when the contract was awarded. The NSA further argues that given the program manager’s ability to appeal, PTSI didn’t have “actual knowledge” of the program manager’s unavailability. However, GAO explained that PTSI stated that it merely “understood” that the program manager was going to appeal the security clearance decision, but provided no information about whether or why PTSI believed an appeal would be successful, much less that an appeal decision would be made before the contract award. GAO determined that “the fact that the program manager could appeal the denial does not, by itself, excuse PTSI from having actual knowledge of the unavailability of its proposed program manager.”

The NSA also argues that it does not matter whether the program manager was unavailable because reliance on the program manager’s resume was not material to the evaluation. However, GAO determined it is irrelevant whether the program manager’s resume was material to the NSA’s evaluation of PTSI’s proposed key personnel. GAO ultimately concluded that PTSI had actual knowledge prior to award that its program manager would not be able to perform on the contract after he was denied a security clearance and had an obligation to inform the NSA of the unavailability of its program manager, which it did not do. 

GAO sustained the protest on this basis. GAO recommends that the NSA either evaluate PTSI’s proposal as submitted, without considering the previously proposed program manager, or open discussions with all offerors and allow for revised proposals to be submitted.

Tagged

Key Personnel

Share

Related Posts

Key Personnel Turn the Lock on the Contract Clock

September 14, 2022

Matter of: PAE National Security Solutions, LLC

July 22, 2021

Coastal Environmental Group, Inc., B-407563; B-407563.3; B-407563.4, January 14, 2013

January 23, 2013

Lamar Strong Associates, LLC, B-407170, November 19, 2012

December 5, 2012

Leave a Reply Cancel reply

You must be logged in to post a comment.

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411