The keys to deciphering solicitation consequences of "key personnel"

This post is built around the GAO protest decision in Deloitte Consulting, LLP, B-416882.4. As often warned, I make use of resources as tools to make a didactic point, even if it stretches the facts or law of the article or case. So, read the case at the link, and don't come back to me saying you were misled. I often paraphrase, reorganize, omit, insert, and generally slice and dice such resources to meet the space and objectives of this blawg. I don't try to mislead, but rely on your own judgment of the material.

The Comptroller's Decision and Digest: This is a protest challenging the agency’s evaluation of the protester’s quotation as unacceptable is denied where the agency reasonably found, consistent with the stated evaluation criteria, that one of the protester’s proposed key personnel failed to satisfy the solicitation’s minimum requirements.

The Food and Drug Administration (FDA) issued an RFQ to acquire information technology services of a very particular and special type. Deloitte offered its services. The RFQ included the following evaluation factors, in descending order of importance: technical approach, relevant experience, and price. The RFQ stated that award was to be made to the responsible vendor whose quotation represented the best value to the government, but this case turned on something else, the "technical approach" factor.

The technical approach subfactor required the submission of resumes for qualified key personnel, one of which was an enterprise solutions architect. The RFQ required that the proposed enterprise solutions architect satisfy the following minimum qualifications:

• Possesses extensive knowledge of and hands-on experience with [Oracle] Hyperion or [Oracle Business Intelligence Suite, Enterprise Edition (OBIEE)] or custom applications;
• Minimum Skills/Qualifications: At least 10 years [of] experience in Oracle Enterprise or OBIEE Oracle or Custom applications.
• Has Public Sector experience.

The agency was to evaluate the relevance of each listed key person’s experience, knowledge, certification, and identified skill sets for the ability to successfully complete the activities listed in the statement of work.

Subsequently, the agency amended the RFQ to require offerors to provide a "crosswalk", describing how general experience leads to the specific experience required in the solicitation. Offerors were specifically required to detail in which positions held by the proposed key personnel, did they obtain the required skills, qualifications, and minimum years of experience.

The proposed key person's resume in this instance explicitly stated that the proposed candidate possessed over 20 years of experience using Hyperion and Essbase, which are “core technologies of the Oracle [EPM] that [pre-date] Oracle’s 2007 acquisition of Hyperion and their subsequent rebranding of the software.” The agency didn't disagree with that assessment, but did disagree that Deloitte's proposed architect failed to detail "at least 10 years experience" with the Oracle, Hyperion and custom software required.

The agency contracting officer evaluated the material presented in support of the required experience and concluded that some of the dates listed in the detailed work history overlapped where the proposed candidate worked simultaneously for different employers. To compute the length of experience with Oracle EPM, OBIEE framework, or custom UI applications, the contracting officer eliminated duplicative periods of time for the overlapping and simultaneous employment, and only credited the total time worked with the required systems. The contracting officer’s computation showed that the proposed candidate had a total of 99 months, or 8.25 years, of relevant experience.

The agency then determined that, because the minimum 10 year experience requirement was not met. A quote that fails to conform to a material solicitation requirement is technically unacceptable and cannot form the basis for award. Qualifications for key personnel, specifically where the solicitation requires resumes for key personnel, are material requirements of a solicitation such that an offeror’s failure to propose personnel meeting those requirements would render a proposal unacceptable. The protest was denied.

This case involves the responsiveness of the offer, not the responsibility of the offeror, illustrating distinctively different and often confused fundamental procurement elements. It is not an unreasonable confusion given the way those elements are presented in laws and regulations. For instance, the ABA Model Procurement Code describes responsibility to mean a person who has the capability to perform the contract requirements and provide good faith performance. On the other hand, it defines responsive bidder to mean a person who has submitted a bid which conforms in all material respects to the invitation for bids. At first blush, both of those descriptions could describe the questions presented here. So how do I justify the assertion this case involves responsiveness not responsibility?

The key is in the language used; the artful procurement vocabulary that does not always carry the vernacular connotations of every day speech.

Look at the first sentence used in describing the matter above. It says the protest involves agency "evaluation" of the "unacceptability" of the offer. This is language used to describe responsiveness. The code, and the ABA Model Regulations, require that bids be "evaluated" based on criteria in the solicitation specifications, including criteria used to determine "acceptability". The regulations state, specifically, "any bidder's offering which does not meet the acceptability requirements shall be rejected as nonresponsive". And the nail in the coffin is the statement that qualifications for key personnel, specifically where the solicitation requires resumes for key personnel, are material requirements of a solicitation. As noted above, the definition of responsiveness rests on conformity with material respects of the bid. The language of responsiveness rests on issues of evaluation, unacceptability and materiality.


On the other hand, responsibility is not an objective evaluation of any kind based on criteria in a bid. It is a subjective judgment, based on a weighing of various "standards of responsibility", one of which is the bidder's record satisfactory performance. A determination that a bidder is, in the satisfaction of the Procurement Officer, responsible, and can be made by resort to information extrinsic to the bid submission, at any time up to award or even time of due performance. Responsibility is for practical matters presumed unless the Procurement Officer determines that the bidder is non-responsible.

It can be noted here that questions about the responsiveness or responsibility of bidders are decided at entirely different times and by entirely different standards.

Recalling, in this case, that the offeror was required to substantiate proof of experience in its submission, Cibinic and Nash, in their text, Formation of Government Contracts, Third Edition, also note the confusion that can arise between responsiveness and responsibility.

"When data or information is required to be submitted with the bid, the Comptroller will consider the purpose for which the data of information is to be used when determining whether it is a matter of responsiveness or responsibility. Thus, if descriptive data are to be used to determine a bidder's ability or capacity to perform, the matter will be one of responsibility, and failure to submit the information with the bid will not cause its rejection. (Citations mostly omitted but, noting one particular case where "failure to submit personnel resumes did not render bid nonresponsive".)  On the other hand, information or data may be required to be submitted with the bid for purposes of more precisely determining the nature of the work the bidder is agreeing to accomplish. Such data can be considered to go to the responsiveness of the bid." Id, pp 537-538. (emphasis in original)

Responsiveness, an area in which the contracting officer has limited discretion,deals with the question of whether the contractor has promised to do exactly what the Government has requested. Responsibility, however, involves the question of whether the contractor can or will perform as it has promised, and the contracting officer is accorded a great deal of discretion. Questions of responsiveness are determined only on the basis of information submitted with the bid and on the acts available at the time of bid opening. Conversely, responsibility determinations are made on the basis of information submitted or available up to the time of award. ... As a general rule, matters that deal with bidder responsibility cannot be converted into matters of responsiveness merely by inserting a provision into the IFB requiring rejection of bids that do not comply. Id, p 545. (emphasis in original)

It can be added that a similar analysis is conducted when licenses and permits are required as an element of a solicitation. See Cibinic and Nash, supra, pp 414 et seq.