All government contractors should recognize that even relatively small errors in a bidder’s proposal can torpedo a winning bid. The U.S. Court of Federal Claims recently held that an incumbent contractor’s proposal was ineligible for a follow-on award because it failed to include a signed employment agreement for one of its key staff employees who was currently working on the existing contract.
The U.S. Court of Federal Claims recently denied a bid protest and upheld as reasonable an agency’s determination that an incumbent contractor’s proposal was not awardable because the contractor proposed an existing employee for a key staff position on a follow-on procurement, but did not include in its proposal a bilaterally-signed employment agreement for the employee establishing that the employee’s employment was contingent upon contract award.
Background
In Apt Research v. United States, No. 21-1102C, 2021 U.S. Claims LEXIS 1389 (Fed. Cl. June 22, 2021), the U.S. Court of Federal Claims (COFC) denied APT Research, Inc.’s (APT) bid protest challenge to the evaluation process and award decision by the Missile Defense Agency (MDA) that resulted in the MDA’s determination that APT’s proposal was not awardable for a solicitation valued at $55 million.
On June 1, 2020, the MDA issued a best value solicitation to procure continued safety engineering services to support the United States’ Missile Defense System. In pertinent part, section L of the solicitation required that offerors provide “a bilaterally-signed employment agreement (employment contingent on contract award) for the key staff position.” Id. at 4-5. Likewise, section M of the solicitation required offerors to provide “a bilaterally-signed employment agreement that stipulates employment beginning on or before the first day of contract period of performance for this effort.” Id. The solicitation further noted that each offeror should assume that the government has no prior knowledge of the offeror’s experience, that the MDA would base its evaluation on the information contained in the offeror’s proposal, and that offerors were required to meet all solicitation requirements. Id. Finally, the solicitation advised that the agency would make awards without providing discussions, but that the MDA may seek clarifications. Id.
APT, the incumbent contractor, submitted a proposal in response to the solicitation, and proposed an existing employee as the contract program manager, the key staff position. APT did not, however, include in its proposal a bilaterally-signed employment agreement for the employee that it had proposed for the key staff position. The MDA determined that, for this reason alone, APT’s proposal was unresponsive to the RFP and, accordingly, not awardable. APT filed a bid protest before the Government Accountability Office, which was denied. APT subsequently protested to the COFC. In considering APT’s motion for judgment on the administrative record (MJAR) and the MDA’s and intervenor’s cross-MJARs, the COFC found that the agency had acted reasonably in determining that APT’s proposal (missing the fully signed employment agreement) was not awardable.