The Bait-and-Switch Pitfall

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The Bait-and-Switch Pitfall

By James C. Fontana
Contributing Writer

Consumers often associate the term bait and switch with an unscrupulous retailer's attempt to lure you into the showroom with a false promise of product availability, and then tell you that only higher-priced, lower-quality substitutes are available.

Those in the federal procurement business may have experience with a variation: where an offeror in a service contract proposes someone as key personnel and knows, or should know, that the proposed personnel will not be available to work the contract.

But whether these bait-and-switch tactics, sometimes referred to as résumé fraud, are intentional or not, they could have disastrous consequences for a government contractor whose proposal is, in all other respects, the winning bid.

In the past several years, the General Accounting Office, which has administrative jurisdiction over bid protests in federal procurements, has increasingly scrutinized contractors' use in their proposals of résumés of both key and non-key positions.

The legal standard underlying these cases is that an offeror has the responsibility to propose persons whom it reasonably may expect will be available for contract performance. The rationale for this rule is that proposing to employ specific personnel that the offeror does not expect to actually use during the contract performance has an adverse effect on the integrity of the competitive procurement process. In such cases, the procuring agency has the right to reject the proposal or terminate the contract. Otherwise, the bait and switch may provide a basis for a successful bid protest.

This does not mean that an offeror must use the personnel it proposes or risk losing the contract. For example, where the offeror provides firm letters of commitment and the names are submitted in good faith with the consent of the respective individuals (that is, the offeror is not proposing personnel it has no intention of providing), the fact that the offeror, after submitting its best and final offer, provides substitute personnel does not by itself make an award improper.

The issue is whether the reason for the post-BAFO substitution is related to a lack of intent to use the employee in the first place, or that there was no reasonable basis to believe that the employee would be available to serve at the time of BAFO submission.

Conversely, however, an offeror may not be awarded a contract where it does not have the individuals' permission to use their names for key positions for which they are proposed and cannot provide a satisfactory explanation for its use of the names.

Similarly, where an offeror knows prior to its BAFO submission that proposed key employees are no longer available, the offeror should withdraw the individuals and propose substitutes who will be available. To do otherwise is to, in effect, misrepresent the availability of proposed personnel, which may, in turn, compromise the validity of the technical evaluation, regardless of whether post-award substitutions may later be made and approved by the agency.

The question arises whether constant vigils over initially proposed contract personnel would be overly burdensome on a contractor's resources and, more importantly, jeopardize its competitive position because of continued and possibly disruptive combing for substitutions.

Perhaps equally disruptive is making multiple inquiries and discovering just before the BAFO submission that a proposed person is suddenly unavailable, thereby having precious little time to come up with a suitable alternative and risking downgrading in evaluation while competitors who routinely submit bogus résumés make their proposals look more consistent.

To avoid allegations of résumé fraud, offerors should routinely obtain the permission of any person whom it intends to propose and to inquire, prior to BAFO, about that person's continued availability. Blindly using résumés without inquiring about whether the person is available to work on the contract could be fair game for a successful protest.

If a proposed person later withdraws that permission or is no longer available, then the contractor is obligated to withdraw the résumé from the proposal. A less burdensome but untested (and thus riskier) alternative would be to contact these persons on a preproposal basis to affirm their availability and require them to inform the contractor of any changes in their continued availability. This would put the onus on the individual to communicate any changed circumstances, and may lend to the contractor's reasonable expectation that the individual is still available.

Finally, contractors should avoid proposing the same person on multiple concurrent projects, as it may suggest that availability for one contract means unavailability for another contract. Similarly, a contractor's credibility will be strained if it makes bold statements suggesting that incumbent personnel will be used while at the same time proposing résumés of others for the same position.

James C. Fontana is vice president and corporate counsel of Wang Government Services Inc. in McLean, Va.