Ann Riley & Associaties, Ltd.--Reconsideration

B-271741.3 Mar 10, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protester has not made requisite showing of "bait and switch" by awardee where there is no evidence in the record that (1) the awardee represented in its proposal that it would rely on certain specified personnel in performing the services. (3) it was foreseeable that the individuals named in the proposal would not be able to perform the contract work. Agency was not required to hold discussions regarding every weakness identified in the protester's proposal. Failed to properly consider Ann Riley's claim that discussions were misleading. " a protester must show not only that personnel other than those proposed are performing the services. (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work. View Decision Matter of: Ann Riley & Associaties, Ltd.--Reconsideration File: B-271741.3 Date: March 10, 1997 * Redacted Decision DIGEST Attorneys DECISION Ann Riley & Associates, Ltd. requests reconsideration of our decision, Ann Riley & Assocs., Ltd., B-271741.2, Aug. 7, 1996, 97-1 CPD Para., in which we denied its protest of the award of a contract to Bayley Reporting, Inc. under request for proposals (RFP) No. SECHQ1-94-R-0008, issued by the Securities and Exchange Commission (SEC) for court reporting and transcription services. Ann Riley argues that our prior decision failed to address whether Bayley had engaged in "bait and switch" tactics in its proposal, and failed to properly consider Ann Riley's claim that discussions were misleading. We deny the request for reconsideration. Our decision reviewed Bayley's size, capacity, and rapid growth, as well as its proposal, with an eye towards whether the agency could reasonably conclude that Bayley would be able to comply with the statutorily-mandated limitations on subcontracting clause--i.e., the requirement that at least 50 percent of the cost of personnel incurred be for Bayley employees. Our decision concluded that the agency reasonably found both that Bayley's proposal evidenced its intent to comply with the requirement and that Bayley would be able to perform as proposed. In so doing, our decision answered the main thrust of Ann Riley's argument that "Bayley could not, would not, and did not intend to comply" with the limitations on subcontracting clause. As its first basis for reconsideration, Ann Riley argues that our prior decision failed to resolve whether Bayley's performance of the contract following award constituted proof of an impermissible "bait and switch" tactic. While we considered this issue as part of our earlier decision, the decision does not specifically address the issue; hence, we do so here. [1] See Minigraph, Inc.--Recon., B-237873.3, Dec. 10, 1990, 90-2 CPD Para. 492. The SEC correctly points out that the term "bait and switch" generally refers to an offeror's misrepresentation in its proposal of the personnel that it expects to use during contract performance. Planning Research Corp. v. United States, 971 F. 2d 736 (Fed. Cir. 1992) (personnel misrepresentation); CBIS Fed. Inc., 71 Comp.Gen. 319 (1992), 92-1 CPD Para. 308 (misrepresentation of personnel availability); Informatics, Inc., 57 Comp.Gen. 217 (1978), 78-1 CPD Para. 53 (awardee misrepresented its survey of the availability of incumbent's personnel); KPMG Peat Marwick, LLP, B-259479.2, May 9, 1995, 95-2 CPD Para. 13 (awardee replaced 13 of 18 key personnel immediately after award); ManTech Advanced Sys. Int'l, Inc., B-255719.2, May 11, 1994, 94-1 CPD Para. 326 (awardee misrepresented availability of incumbent's personnel); ManTech Field Eng'g Corp., B-245886.4, Mar. 27, 1992, 92-1 CPD Para. 309, recon. denied, B-245886.5, Aug. 7, 1992, 92-2 CPD Para. 89 (misrepresentation of personnel availability). Where such a misrepresentation materially influences an agency's evaluation of an offeror's proposal, it undermines the integrity of the competitive procurement system and generally provides a basis for proposal rejection or termination of a contract award based upon the proposal. ManTech Advanced Sys. Int'l, Inc., supra. To demonstrate a "bait and switch," a protester must show not only that personnel other than those proposed are performing the services--i.e., the "switch"--but also that: (1) the awardee represented in its proposal that it would rely on certain specified personnel in performing the services; (2) the agency relied on this representation in evaluating the proposal; and (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work. Combat Sys. Dev. Assocs. Joint Venture, B-259920.6, Nov. 28, 1995, 95-2 CPD Para. 244; Free State Reporting, Inc., B-259650, Apr. 14, 1995, 95-1 CPD Para. 199. Each of these three elements must be present to establish the "bait" portion of a "bait and switch" claim.