Cherie Owen is Of Counsel in the Washington, D.C., office of Jones Day.
In over nine years as a Government Accountability Office (GAO) bid protest attorney, I handled more than 600 protests. These filings ranged from a single paragraph e-mail submitted by a pro se contractor to hundreds of pages of filings submitted by a team of outside bid protest attorneys. In reviewing these protests, I found that even filings submitted by attorneys specializing in bid protests often contained flawed arguments — allegations which, if pleaded correctly, might have been successful. Three of the most misused or mis-argued allegations were (1) “improper bait and switch,” (2) the Boeing Sikorsky rule supplementing the record, and (3) the “too close at hand” principle. Gaining a better understanding of the pitfalls that await a protester arguing these concepts will allow bid protest attorneys to draft more effective arguments.
Improper Bait and Switch
The concept of bait and switch originates in advertising — it describes the unethical (and often illegal) process of advertising a good or service that seems to be a good bargain, then once the customer has been “hooked,” substituting something of inferior quality or higher price. In government procurements, just as in advertising, the process is prohibited. Therefore, if a contractor performs a bait and switch of its contract personnel by proposing employees who seem like an attractive bargain to the government then and later substituting inferior employees, GAO may sustain a challenge to a contract award based on a proposal containing such a flaw. This could result in the procuring agency having to make a new source selection decision or even having the contractor eliminated from the competition.
GAO has stated that there are three elements of a successful bait and switch claim: (1) the awardee either knowingly or negligently represented that it would rely on specific personnel who it did not have a reasonable basis to expect to furnish during contract performance; (2) the misrepresentation was relied on by the agency; and (3) the agency’s reliance on the misrepresentation had a material effect on the evaluation results.1 However, protesters rarely allege and are able to demonstrate all three of these elements.
For example, in Alamo City Engineering Services, Inc., Alamo City protested the issuance of a task order for IT professional services, alleging that the awardee had engaged in an improper bait and switch of key personnel.2 Alamo City based its bait and switch allegations on the fact that, after award, the awardee began recruiting efforts for 28 positions identified in the solicitation, including eight key personnel positions. The solicitation required offerors to specifically identify in their quotations the individuals proposed to fill key personnel positions; therefore, Alamo City alleged that the awardee’s recruiting efforts demonstrated that it did not intend to supply the individuals identified in its quotation.
GAO denied the protest, finding that the awardee’s postaward recruitment efforts were insufficient to establish an improper bait and switch. Specifically, GAO found that the protester presented no evidence to indicate that any of the personnel named in the awardee’s proposal were unavailable, unwilling, or unlikely to perform under the contract when the awardee submitted its proposal. GAO has repeatedly stated that it is neither unusual nor inherently improper for an awardee to recruit and hire incumbent personnel.3 Therefore, attempting to base a bait and switch argument solely on the awardee’s post-award recruiting efforts will likely be unsuccessful.
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