Takeaways

The decision departs from well-settled GAO precedent.
The decision creates a forum selection distinction for protestors choosing between GAO and COFC.
Access to LinkedIn allows potential protestors to easily discover changes to awardee’s key personnel.

On February 4, 2022, the Court of Federal Claims (COFC) issued a decision that rejects GAO precedent regarding whether contractors must notify the awarding agency of changes to key personnel availability during the time the agency is evaluating the contractor’s proposal before award. The GAO has long held that a contractor had a duty to notify the agency of any key personnel changes during this time. Breaking with GAO’s precedent, Judge Matthew H. Solomson of the COFC held in Golden IT, LLC, v. United States that a contractor did not have such a duty to inform the agency. In its holding, the COFC acknowledged the obligation of an offeror to ascertain the continuing availability of key personnel at the time of submission of final proposal revisions, but it could not determine the basis for GAO’s rule that offerors are obligated to notify agencies of material changes in proposed staffing after submission of proposals.

In Golden IT, the protestor determined via LinkedIn that key personnel of the awardee no longer worked at the company by the time the contract was awarded. The protestor brought its protest to the COFC, claiming the awardee had made a material misrepresentation of its proposed key personnel, citing the line of GAO cases which imposed a duty on the contractor to notify the agency upon any changes of key personnel availability before award. The COFC, however, declined to follow the line of cases cited by the protestor, finding that the GAO’s rule was “without legal basis” and “unfair.” Industry commentators have highlighted this unfairness before, noting that because source selection can take a very long time, the GAO’s rule penalizes the offerors for the agency’s delay in issuing the award. As the decision in Golden IT quoted: “The 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’s rule had long frustrated contactors for these reasons. It appears by this decision that the COFC is sympathetic to that frustration.

It is noteworthy that this decision now creates a distinction between the GAO and the COFC that a contractor should consider when deciding where to bring its protest. However, because the COFC decisions of one judge are not binding on other COFC judges, it remains to be seen what the impact of this decision by Judge Solomson will be. Further, it is also worth noting that protests like this are becoming much more frequent with the accessibility of personnel information available on LinkedIn and other social media. 

These and any accompanying materials are not legal advice, are not a complete summary of the subject matter, and are subject to the terms of use found at: https://www.pillsburylaw.com/en/terms-of-use.html. We recommend that you obtain separate legal advice.