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Challenger's 'misrepresentation' nets incumbent another shot at Coast Guard contract

It’s a common practice in the government market for a challenger that wins a takeaway contract to hire an incumbent’s workers on that program.

As what's known as “re-badging," one day you work for company X and the next day you get a new ID and you work for company Y.

But apparently there are some lines that shouldn’t be crossed, such as including the resumes of incumbent personnel in your proposal without permission.

Apparently that is what Solutions Through Innovative Technologies did when it challenged Sev1Tech for a $16.3 million professional services contract with the Coast Guard.

The work was competed through the General Services Administration's "OASIS" contract and would support the business operations division of the Coast Guard’s Aviation Logistics Center.

One requirement of the solicitation saw bidders having to submit resumes for 26 positions, six of which were considered key personnel. They also had to submit plans for recruiting and keeping qualified personnel, according to a Government Accountability Office protest decision.

Sev1Tech said it had exclusive employment agreements with 18 people. But in Solutions Through Innovative Technologies’ proposal, it submitted names and resumes for 10 of Sev1Tech’s people. Solutions Through Innovative Technologies said it had contingent employment agreements in place.

The Coast Guard’s scoring of their proposals were even on the technical and management aspects. That left price as the deciding factor. Here Sev1Tech’s price was $18.8 million compared to $16.3 million for Solutions Through Innovative Technologies.

The Coast Guard picked Solutions Through Innovative Technologies because its price was lower and it couldn’t justify paying a premium.

But Sev1Tech filed a protest saying that Solutions Through Innovative Technologies should have been disqualified because it didn’t have permission to use the resumes of Sev1Tech’s employees. They said that Solutions Through Innovative Technologies didn’t contact the people until after the task order was awarded, according to GAO’s protest decision.

The Coast Guard countered that the commitments were not a requirement but it expected Solutions Through Innovative Technologies to provide them nonetheless.

But GAO described it as a “misrepresentation:”

An offeror, however, may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation. A misrepresentation is material where an agency has relied upon the misrepresentation and that misrepresentation likely had a significant impact on the evaluation.

Solutions Through Innovative Technologies was able to get the resumes through a subcontractor, who had a database of resumes from work under an earlier task order, according to GAO.

Another reason that GAO found that Solutions Through Innovative Technologies misrepresented its personnel plan is that is proposal said that it did negotiate commitments with Sev1Tech employees. But Solutions Through Innovative Technologies this was an error because it cut and pasted the language from another proposal. It was not included with the intention to misled or misrepresent.

But whether intentional or not, the impact was material, GAO concluded. In their decision sustaining Sev1Tech’s protest, GAO says that the Coast Guard must re-evaluate its award decision in light of the misrepresentations and make a new selection decision.

The Coast Guard also must reimburse the protest costs incurred by Sev1Tech.

Posted by Nick Wakeman on Jan 04, 2019 at 11:24 AM

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