TITLE: ACS Government Services, Inc., B-293014, January 20, 2004
BNUMBER: B-293014
DATE: January 20, 2004
**********************************************************************
ACS Government Services, Inc., B-293014, January 20, 2004
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: ACS Government Services, Inc.
File: B-293014
Date: January 20, 2004
Robert J. Sherry, Esq., Kathleen M. Paralusz, Esq., and Marc R. Baluda,
Esq., Kirkpatrick & Lockhart, for the protester.
Edward J. Tolchin, Esq., Fettmann, Tolchin & Majors, for Metrica, Inc., an
intervenor.
Maj. Anissa N. Parekh, Capt. M. Turner Pope, Jr., and Kenneth J. Allen,
Esq., Department of the Army, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that awardee misrepresented that three proposed key personnel had
agreed to work for the firm is sustained where the record shows that the
three individuals had not so agreed, and where the misrepresentation
materially affected the evaluation of the awardee*s proposal.
DECISION
ACS Government Services, Inc. (ACS) protests the issuance of a purchase
order to Metrica, Inc. under a request for quotations (RFQ) issued by the
Army Medical Research Acquisition Activity (USAMRAA), Department of the
Army, for installation and training services of the Defense Medical
Logistics Standard System (DMLSS) Deployment Release 3.X. ACS argues that
Metrica materially misrepresented the availability of certain key
personnel, that the Army*s evaluation of Metrica*s quotation was
unreasonable, and that the agency*s source selection decision was
improper.
We sustain the protest.
Background
DMLSS Deployment Release 3.X is part of an automated information system
which standardizes medical inventory management practices, equipment
management, medical maintenance, financial accounting and tracking,
customer area inventory management, electronic and web-based ordering, and
warehousing function throughout a medical treatment facility (MTF) for
defense health care operations. Contracting Officer*s Statement at 1.
The procurement here is to acquire the support services necessary to the
functional implementation of DMLSS Deployment Release 3.X at specified
Army MTFs. The specific tasks required to be performed by the contractor
include: (1) conducting onsite/telephonic pre-deployment site surveys,
(2) coordinating in-briefing and out-briefing meetings, (3) conducting
pre-conversion database validations, (4) providing onsite deployment
support to the gaining MTF, and (5) providing extensive onsite training.
Statement of Work (SOW) S: 1.1.
On July 23, 2003, the Army issued the RFQ to five vendors holding General
Services Administration (GSA) Federal Supply Schedule (FSS) contracts for
information technology services. The solicitation included the SOW,
instructions to vendors regarding the submission of quotations, and the
evaluation factors for award. Contracting Officer*s Statement at 2. The
RFQ contemplated the award of a fixed-price purchase order for 1 year,
with one 1-year option.[1] The solicitation established four evaluation
factors: technical qualifications of key personnel, past performance,
management*s technical approach, and price. The RFQ stated that the first
two evaluation factors were of equal importance and that each was more
important than the management*s technical approach factor. The
solicitation advised vendors that all non-price factors, when combined,
were more important than price (price, however, could become the deciding
factor if quotations were evaluated and determined to be technically
equivalent). The solicitation also notified vendors that the basis for
award was *best value,* based on an overall consideration of the
evaluation factors.[2] Agency Report (AR), Tab 12, Evaluation Factors for
Award, at 1.
Three vendors, including ACS and Metrica, submitted quotations, each
consisting of a technical proposal and price proposal, by the August 8
closing date.[3] An Army source selection evaluation board (SSEB) rated
vendors* technical proposals using an adjectival rating system:
excellent, above average, average, and unacceptable. After the initial
evaluation of quotations, the Army conducted written discussions with all
three vendors. The SSEB subsequently evaluated vendors* revised
quotations as follows:
Factor Metrica ACS Vendor C
Key Personnel Above Avg. Excellent Excellent
Past Performance Excellent Excellent Excellent
Technical Approach Excellent Excellent Excellent
Price $2,202,290 $2,563,627 $2,897,219
AR, Tab 43, Source Selection Decision, at 10-11, Tab 42, SSEB Consensus
Evaluation Record. The SSEB also developed an overall rating for each
vendor*s technical proposal--excellent for ACS and Vendor C, and above
average to excellent for Metrica. AR, Tab 42, SSEB Consensus Evaluation
Record, Tab 43, Source Selection Decision, at 11.
The contracting officer then determined that ACS*s superior rating under
the key personnel factor (primarily the result of program manager
experience) did not outweigh the $361,337 price difference between its
quotation and that of Metrica, and deemed Metrica*s quotation to be most
advantageous to the government, all factors considered. This protest
followed.
In its protest ACS raises numerous issues regarding the agency*s
evaluation of Metrica*s quotation as to key personnel as well as the
resulting source selection decision. ACS*s protest centers, however, upon
the assertion that Metrica*s quotation materially misrepresented the
availability of certain personnel proposed. Specifically, ACS contends
that three of the individuals offered and certified as available by
Metrica (i.e., Messrs. A, B, and C) had never agreed to work for Metrica,
nor given their consent to be proposed by Metrica, but instead had
exclusively committed themselves to the incumbent ACS for the DMLSS 3.X
effort. ACS contends that by inaccurately certifying the availability of
the individuals proposed, Metrica committed misrepresentations that
materially affected the agency*s evaluation of quotations and award
decision. As a result, ACS argues, the agency*s award decision should be
overturned and Metrica disqualified from further consideration for award
here.
Metrica contends that its quotation did not misrepresent the availability
of the three individuals in question, and that the certifications
submitted were accurate. Metrica argues that based upon the statements
made by the three individuals in question, together with existing facts
and circumstances, Metrica had a valid belief upon which it based the
certifications of availability submitted as part of its technical
proposal.
Analysis
Where, as here, an agency solicits FSS vendor responses and arrives at its
source selection decision using negotiated procurement procedures, our
Office will review the agency*s actions, if challenged pursuant to our bid
protest regulations, to ensure that the evaluation was reasonable and
consistent with the terms of the solicitation. See COMARK Fed. Sys.,
B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD P: 34 at 4-5.
In our review of protests involving service contracts, where the most
qualified personnel are often those currently performing the services, we
are mindful of the difficulty faced by a nonincumbent contractor in
securing a qualified workforce sufficient to win the competition.
Aerospace Design & Fabrication, Inc., B-278896.2 et al., May 4, 1998, 98-1
CPD P:139 at 5; ManTech Advanced Sys. Int*l, Inc., B-255719.2, May 11,
1994, 94-1 CPD P: 326 at 5. Specifically, providing certifications of
availability may create difficulties both for non-incumbent offerors and
incumbent employees, and, as result, should be required only when
necessary to meet the agency*s needs. Nevertheless, where a proposal
ultimately selected for award included certifications concerning the
availability of personnel, a material misrepresentation in the
certifications generally provides a basis for rejection of the proposal or
reevaluation of the award decision. ManTech Advanced Sys. Int*l, Inc.,
supra, at 5, 13 (misrepresentation of personnel commitments, reevaluation
recommended); CBIS Fed. Inc., B-245844.2, Mar. 27, 1992, 92-1 CPD P: 308
at 6-7, 17 (misrepresentation of personnel availability, reevaluation
recommended); Ultra Tech. Corp., B-230309.6, Jan. 18, 1989, 89-1 CPD P: 42
at 5 (misrepresentation of availability of key person and use of name in
proposal without permission, termination recommended absent other agency
findings); Informatics, Inc., B-188566, Jan. 20, 1978, 78-1 CPD P: 53 at
13 (misrepresentation of results of a survey of the availability of
incumbent*s personnel, exclusion of awardee from further consideration
recommended). A misrepresentation is material where the agency relied
upon it and it likely had a significant impact upon the evaluation.
Integration Techs. Group, Inc., B-291657, Feb. 13, 2003, 2003 CPD P: 55 at
2-3; Sprint Communications Co. LP; Global Crossing Telecomms.,
Inc.--Protests and Recon., B‑288413.11, B-288413.12, Oct. 8, 2002,
2002 CPD P: 171 at 4.
For the reasons set forth below, we find that Metrica misrepresented that
three of the key personnel that it proposed had agreed to work for the
firm. We also find that Metrica included in its quotation the names and
resumes of these three individuals without having gained their permission
to do so, and cognizant of the fact that the individuals had given
exclusive permission to ACS to submit their resumes. Further, we conclude
that these actions resulted in a material misevaluation of the key
personnel portion of Metrica*s proposal.
The SOW set forth the requisite position descriptions, a government
estimate of the number of personnel needed for each position (11 personnel
total), and established that vendors were required to provide personnel
who possessed the knowledge, skills, and abilities to fully perform the
SOW*s identified tasks and functions. SOW S: 1.4.2, 1.4.4. The
solicitation also deemed all personnel to be key in nature. AR, Tab 11,
Instructions to Vendors, S: L.2.1.1. With regard to the technical
qualifications of key personnel, the RFQ instructed vendors to list the
personnel and skill level categories available to work on the start-up
date. Relevant to the protest here, the solicitation expressly required
that vendors *[i]dentify personnel proposed for assignment to the project,
[and] certify that the information on each person is accurate and complete
and that the individuals named are available for assignment on the date
the award is effective.* Id. S: L.2.1.2.
The personnel staffing plan of incumbent ACS, as set forth in its
technical proposal, was to use all the employees and subcontractor
employees then performing the DMLSS contract. Among the 11 names and
resumes submitted by ACS in its quotation were those of Messrs. A, B, and
C. Attached to the resume of each of these individuals was a signed
statement declaring, *I have authorized ACS exclusive rights to submit my
resume as part of a proposal submitted in response to the [DMLSS
Deployment Release 3.X] solicitation.*[4] AR, Tab 27, ACS*s Technical
Proposal, attach. 2, at 12, 17, 30.
Metrica, the incumbent prior to ACS, proceeded similarly. In its
technical proposal Metrica declared that its staffing approach was *to
maintain the existing teams that are currently involved in the DMLSS 3.X
deployment process, if possible,* AR, Tab 28, Metrica*s Technical
Proposal, at 4, and when not possible, that Metrica*s staff would be
comprised of those individuals as represented by the resumes submitted.
Among the 11 names and resumes provided by Metrica in its quotation were
those of Messrs. A, B, and C.[5] For each of the other eight key
personnel proposed by Metrica, the named individual certified that his or
her resume was accurate and that he or she was available to work on the
contract if awarded to Metrica. By contrast, included with the resumes of
Messrs. A, B, and C were certifications signed by a Metrica
representative, each stating in relevant part, *Metrica hereby certifies
that this resume is accurate and that [the named individual] has agreed to
work on this contract if awarded to Metrica, Inc.*[6] AR, Tab 28,
Metrica*s Technical Proposal, at 18, 20, 27.
After ACS, following the filing of its protest, submitted affidavits from
the individuals in question casting doubt on the certifications of
availability submitted by Metrica as part of its quotation, our Office
conducted a hearing to ascertain the facts and to assess the credibility
of the respective parties* witnesses concerning the nature of the
commitments that were made to Metrica. Testimony was obtained from two
representatives of Metrica (a vice president and project manager), and
from each of the three key individuals mentioned above, as to the nature
of the commitments in question.
During the hearing, the Metrica vice president testified that he had
signed the certifications regarding Messrs. A, B, and C because he was
certain that each would come to work for Metrica if Metrica received the
DMLSS deployment purchase order. Hearing Transcript (Tr.) at 88. The
Metrica vice president acknowledged, however, that he had not personally
talked with any of the three individuals in question, Tr. at 95, 110, and
that the certifications he had signed were based entirely on information
received from various staff members, primarily Metrica*s project manager.
Tr. at 88, 95-96.
The Metrica project manager testified that he had personally talked to
Messrs. A and B prior to the submission of Metrica*s proposal.
Tr. at 117-19, 121. From the discussion with Mr. A, he learned that the
incumbent employees, including Mr. A, had signed statements allowing only
ACS to submit their resumes. Tr. at 117. The Metrica project manager
also testified that while Messrs. A and B never gave their permission for
their resumes to be used in Metrica*s quotation, Tr. at 139, they never
said that Metrica could not use their names and resumes, and Metrica never
asked that question. Tr. at 125, 139. Additionally, the Metrica witness
did not indicate that his discussions with Messrs. A and B entailed any
exchange of information about salary benefits, or the precise positions
which might be offered, other than inquiring whether the individuals might
want to continue performing the DMLSS effort. Tr. at 118-21. From the
responses given by Messrs. A and B, to the effect that both still hoped to
be employed regardless of which vendor won the DMLSS competition, Tr. at
118, 121, the Metrica project manager testified that he was convinced that
both would come to work for Metrica if it received the award. Tr. at 118.
The Metrica project manager also testified that he had not talked with Mr.
C personally about whether he would agree to work for Metrica. However,
based on discussions Mr. C had with another Metrica employee, [7] during
which Mr. C indicated that he did not like working for ACS, and the fact
that Mr. C had approached Metrica on prior occasions looking for
employment, Tr. at 123, the Metrica project manager testified that *we
were pretty sure that [Mr. C] would come to work for us.* Tr. at 123.
Messrs. A, B, and C all testified that they had not agreed to work for
Metrica. Tr. at 40, 51, 67. All three individuals stated that they never
gave Metrica permission to use their names or their resumes, Tr. at 32,
49, 63; see also Protester*s Comments, Declarations of Messrs. A, B, and
C, and believed that in light of their statements giving ACS the exclusive
right to submit their resumes, no other vendor could use their names or
resumes. Tr. at 31, 45, 57. Messrs. A, B, and C also testified that they
did not know that Metrica was going to use their names and resumes and
propose them here. Tr. at 33, 49, 64.
In terms of discussions with Metrica prior to the submission of its
quotation, Mr. A confirmed that he had talked with a Metrica
representative. Tr. at 31. Mr. A testified that he informed Metrica that
he could not commit to any other vendor in light of the letter he had
signed with ACS. Tr. at 31-32. Finally, Mr. A testified that he did not
tell the Metrica representative that he would be available if Metrica
won. Tr. at 33. Mr. B testified that he also talked with a Metrica
representative about his availability. Tr. at 46. Mr. B expressed his
willingness to *work for the contract,* Tr. at 47, but testified that he
never committed himself to work for Metrica and that Metrica *took it for
granted* that he would work for the company. Tr. at 51. Mr. C testified
that no one from Metrica contacted him about his availability. Tr. at 58,
64. Moreover, Mr. C stated that he never told anyone at Metrica prior to
the award announcement that he would be willing to work for the company on
the DMLSS effort, and had never agreed to work for Metrica as alleged in
the certification.[8] Tr. at 59, 67.
We find that the record in this case, including the testimony received at
the hearing, establishes that Metrica failed to exercise due diligence to
ensure the accuracy of its certifications that Messrs. A, B, and C had
agreed to work on the contract if it was awarded to Metrica.[9]
With respect to Messrs. A and B, the record does not support Metrica*s
claim of an agreement. As set forth above, both testified that they had
not provided a commitment to Metrica. Tr. at 40, 51. This is supported
by the fact that both individuals never gave Metrica permission to use
their names or resumes in its proposal. Tr. at 32, 49. Metrica*s own
witness admitted that he never received permission to use these
individuals* resumes--only that he was never told that he could not use
their resumes.[10] Tr. at 139. It is the obligation of the offeror,
however, to gain the permission to use an individual*s name and resume in
its proposal. Ultra Tech. Corp., supra, at 5. The record also shows that
Messrs. A and B did not know that Metrica was going to use their names and
resumes in its proposal. Tr. at 33, 49. While Messrs. A and B may have
each expressed the desire to remain employed regardless of which vendor
received the DMLSS purchase order, Tr. at 118, 121, the record does not
indicate that the discussions with Metrica ever reached the specifics of
salary, benefits, or the precise job involved, which suggests the lack of
a commitment on the individuals* part. See Aerospace Design &
Fabrication, Inc., supra, at 7.
With respect to Mr. C, the record not only shows that Metrica
misrepresented having received a commitment from this individual, but also
that Metrica had never inquired as to his availability to work for Metrica
on the DMLSS deployment effort. As set forth above, Mr. C testified that
likewise he never provided a commitment to Metrica. Tr. at 59, 67. As
with Messrs. A and B, Mr. C also never gave Metrica permission to use his
name or resume, and was not aware that Metrica had used his name and
resume in its quotation. Tr. at 63-64. Moreover, Mr. C explained that he
never told anyone at Metrica prior to the award announcement that he would
be available to work for Metrica on the DMLSS deployment because, prior to
the award announcement, no one from Metrica ever asked him if he would be
available to work for Metrica. Tr. at 59, 64. Even Metrica*s description
of its efforts here--that it was *pretty sure* that Mr. C would come to
work for Metrica in light of the fact that he had previously approached
the company looking for employment, and was allegedly unhappy working at
ACS, Tr. at 123--undercuts its claim of a commitment. Quite simply, there
is no way to reconcile Metrica*s certification that *Mr. C has agreed to
work on this contract if awarded to Metrica, Inc.* with the testimony
received from both Mr. C and Metrica*s own witness.
Metrica*s actions after receiving notice of award are also inconsistent
with its certifications that Messrs. A, B, and C had agreed to work for
the company. The record indicates that Metrica did not approach Messrs.
A, B, and C and inform them, as one would anticipate, that the Metrica
team--of which the certifications would suggest they were a part--had
received the DMLSS contract and that they could now proceed to fulfill
their alleged agreement to work for Metrica. Instead, the record
indicates that Metrica made a general, public announcement that it had
been awarded the contract, and invited those incumbent employees who were
interested in working for Metrica to come to its offices and express their
interest.[11] Tr. at 38, 51, 65. It was only after Metrica*s general
announcement failed to result in sufficient proposed and/or incumbent
employees coming forth that Metrica approached Mr. A about whether he
would come to work for Metrica.[12] Tr. at 38. Moreover, Metrica was
then forced to find replacements for both Messrs. A and B, when both took
other positions with ACS, because Metrica had not in fact received
commitments from these individuals agreeing to work for Metrica as
represented in its proposal.
In sum, while individuals at Metrica may have believed that the employees
in question would be available to work for Metrica, the record does not
show that the vendor had received commitments from Messrs. A, B, and C
such that it could validly certify, as it did, that each had *agreed to
work on this contract if awarded to Metrica.* Accordingly, we find that
the totality of the evidence establishes that Metrica disregarded the
facts known to it that conflicted with its desire to propose certain
incumbent employees, and thereby misrepresented the level of commitment
for 3 of the 11 personnel in its quotation.
Metrica argues that a finding that it misrepresented the availability of
its proposed personnel cannot be made without proof that the awardee made
intentional, bad faith misrepresentations, with an intent to deceive the
agency. In support of its assertion that any misrepresentation must be an
intentional one, Metrica cites to our decision in Informatics, Inc.,
supra.
In Informatics, a case which involved a pervasive disregard for the truth
regarding both the nature and number of commitments obtained by the
awardee from incumbent personnel, we determined that the offeror*s
intentional, bad faith misrepresentations concerning personnel that
materially influenced an agency*s consideration of its proposal provided a
basis for proposal rejection or termination of a contract award based upon
the proposal. An offeror*s misstatements, however, need not be
intentional ones in order to constitute misrepresentations, ManTech
Advanced Sys. Int*l, Inc., supra, at 6 n.10 (a reasonable basis to believe
that the incumbent personnel would be available to work for the awardee
did not negate the awardee*s misrepresentations that it had obtained
commitments from the incumbent personnel whose resumes it submitted);
Integration Techs. Group, Inc., supra, at 5 (an awardee*s reasonable
expectation that appropriate agreement could be reached after award does
not alter the fact that a proposal which reflects something much different
constitutes a misrepresentation), and the degree of negligence or
intentionality associated with the offeror*s misrepresentations is
relevant instead to the remedy we recommend. See Aerospace Design &
Fabrication, Inc., supra, at 19.
We also find that Metrica*s misrepresentations here were material to the
agency*s evaluation of vendors* quotations. As noted above, a
misrepresentation is material where an agency has relied upon the
misrepresentation and that misrepresentation likely had a significant
impact on the evaluation. Integration Techs. Group, Inc., supra, at 5;
ManTech Advanced Sys. Int*l, Inc., supra, at 5. Here, the record shows
that Metrica*s misrepresentations were relied upon by the Army and likely
had a significant impact on the evaluation of quotations, such that, in
the absence of the misrepresentations, Metrica might not have been
selected for award.
As set forth above, the solicitation established that all personnel were
key in nature, and required that vendors provide the requisite number of
personnel who were both qualified to perform the SOW*s identified tasks
and certified as available for assignment on the date the award was
effective. At the hearing our Office conducted, the contracting officer
testified that the agency relied upon the names, resumes and
certifications of availability submitted by Metrica to determine that it
met the solicitation*s personnel requirements. Tr. at 20-23. Moreover,
the record clearly shows that in the Army*s evaluation of Metrica*s
quotation under the key personnel factor, Metrica received credit for the
names, resumes, and certifications of availability submitted by Metrica as
part of its technical proposal. In fact, based on a determination that
each individual within Metrica*s staffing plan was qualified and had
agreed to work for Metrica here, the Army rated Metrica*s quotation as
above average under the key personnel factor. [13] Consequently, we
believe that the misrepresentations had a significant impact on the
evaluation and award decision.
Recommendation
We conclude that Metrica materially misrepresented the level of commitment
by 3 of 11 key personnel as part of its quotation here. While, as our
discussion of prior cases above shows, we have not always recommended
exclusion notwithstanding a material misrepresentation, we believe that
the submission of a misrepresentation that materially influences the
agency*s evaluation should disqualify the offer (or, as in this case, the
quotation). As our Office stated in Informatics, Inc., supra, the
integrity of the system demands no less. We therefore recommend that the
Army exclude Metrica*s quotation from consideration,[14] and, in light of
the evaluation results regarding the other two vendors,[15] issue a
purchase order to ACS.
We also recommend that the protester be reimbursed the reasonable costs of
filing
and pursuing its protest, including attorney*s fees.[16] 4 C.F.R.
S: 21.8(d)(1)(2003). ACS should submit its certified claim for costs to
the contracting agency within 60 days of receiving this decision. 4
C.F.R. S: 21.8(f)(1).
The protest is sustained.
Anthony H. Gamboa
General Counsel
------------------------
[1] The agency informed vendors that while travel costs and other direct
costs would be treated on a cost-reimbursement basis, and quoted as a
separate line item, the remaining aspects of the contemplated purchase
order would be fixed-price items.
[2] The RFQ also stated that the agency*s award decision would be made
through a competitive source selection conducted in accordance with
Federal Acquisition Regulation (FAR) Subpart 15.3.
[3] Because the record refers to these submissions as *proposals,* we use
that term here as well, despite the fact that submissions in response to a
request for quotations are not proposals. See FAR S: 13.004.
[4] Similar statements were included with nearly all of the resumes
submitted by ACS as part of its technical proposal here. While Metrica
argues that ACS*s quotation failed to provide the certifications required
by the solicitation, Protester*s Post-Hearing Comments, at 11-12, we think
that based upon the resumes and declarations included in ACS*s quotation
the Army reasonably determined that ACS*s technical proposal satisfied the
RFQ*s requirements.
[5] Metrica possessed older versions of the resumes of Messrs. A, B, and
C, which Metrica updated prior to submission to reflect each individual*s
current DMLSS work as employees of ACS.
[6] While the Army states in its report that it had no reasonable basis
upon which to conclude that Metrica had misrepresented the availability of
the personnel proposed, Agency Report at 6-7; Contracting Officer*s
Statement at 8, this position ignores the obvious inconsistency between
the statements signed by Messrs. A, B, and C giving ACS the exclusive
right to submit their resumes as part of ACS*s proposal, and the fact that
resumes for these three individuals also appeared in Metrica*s proposal.
A further point that the Army apparently did not notice was that the
certifications of commitment submitted by Metrica for these three
individuals, unlike the certifications for the other eight personnel
proposed, were signed by a Metrica representative (rather than by the
individuals themselves).
[7] This third Metrica representative did not testify at the hearing we
conducted, because injuries from a recent accident precluded his doing so.
[8] Mr. C testified that the prior occasions on which he had expressed an
interest in working for Metrica dealt instead with an unrelated computer
hardware contract. Tr. at 59-60, 71.
[9] We note that in its post-hearing comments the Army found all witnesses
for both ACS and Metrica apparently truthful and, in light thereof,
expressed no opinion as to whether our Office should sustain or deny the
protest here. Agency*s Post-Hearing Comments, at 1-6.
[10] The record also shows that Metrica never sought permission to use the
three individuals* resumes, presumably because it was aware that the
individuals had all given ACS the exclusive right to submit their resumes
for the DMLSS deployment solicitation.
[11] Only one of the three individuals from whom Metrica certified that it
had received an affirmative commitment--Mr. C--actually approached Metrica
and sought employment. Tr. at 67.
[12] The record does not show that Metrica ever approached Mr. B after
receiving notice of award to seek his employment.
[13] In contrast to many other cases in this area, the Army here was on
actual notice of a potential misrepresentation from the language in the
proposals themselves. Specifically, as noted above, there was an obvious
inconsistency between the fact that the statements signed by Messrs. A, B,
and C gave ACS the exclusive right to submit their resumes as part of
ACS*s proposal, and the fact that Metrica likewise submitted resumes for
these same individuals, and the certifications of commitment submitted by
Metrica for them, unlike the certifications for the other eight key
personnel, were signed by a Metrica representative rather than by the
individuals themselves. In light of this conflicting evidence, the Army
clearly had reason to question the awardee*s representations.
[14] This recommendation is consistent with the Army*s position as to the
appropriate remedy. Specifically, in its post-hearing comments, the Army
requests that, if we sustain the protest, we recommend that the purchase
order issued to Metrica be canceled and that the agency issue a purchase
order to ACS.
[15] As noted above, both ACS and the third vendor received identical
ratings of *excellent* under the three non-price factors, and the third
vendor*s price is higher than ACS*s price.
[16] We also direct the agency*s attention to FAR S: 33.102(b)(3),
permitting an agency to require the awardee to reimburse the government*s
costs where a postaward protest is sustained as the result of an awardee*s
intentional or negligent misstatement, misrepresentation, or
miscertification, which would appear applicable here.