GRANTED: February 16, 1994 GSBCA 12700-P STANLEY COMPUTER SYSTEMS, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and ADVANCED MANAGEMENT, INC., Intervenor. Gerald N. Gordon of Sheppard, Mullin, Richter & Hampton, Los Angeles, CA, counsel for Protester. William P. McGinnies and Marc J. Weinberger, Office of the Chief Counsel, United States Customs Service, Department of the Treasury, counsel for Respondent. Claude P. Goddard, Jr., and Leslie H. Lepow of Jenner & Block, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN. DANIELS, Board Judge. Stanley Computer Systems, Inc. (Stanley), alleges that by awarding to Advanced Management, Inc. (AMI), a contract for data entry services and other computer support requirements, the United States Customs Service (Customs), a bureau of the Department of the Treasury, countenanced a bait-and-switch scheme. According to Stanley, AMI intentionally misrepresented the available "key personnel" in its proposal in order to obtain the contract. Stanley maintains that this rendered AMI's proposal non-compliant with mandatory requirements set out by the agency in its solicitation and tainted the entire selection process. We find that the allegations concerning AMI's material misrepresentations as to personnel availability are correct and consequently grant the protest. In various iterations of its protest complaint, Stanley made five other allegations of improper agency actions. It abandoned two of the allegations -- regarding evaluation of AMI's pricing proposal -- after conducting written discovery. Stanley did not object to our granting Government motions as to three additional counts -- a motion for summary relief as to assertions of improper conduct of discussions and improper scoring of technical and cost proposals, and a motion for dismissal as untimely filed as to an allegation that the agency's cost analyses were without basis. We grant those unopposed motions, but this action has no impact on our determination that the contract should not have gone to AMI because that offeror was ineligible for award. Findings of Fact 1. On February 24, 1993, Customs issued a solicitation requesting proposals to provide data entry and other micro and mini computer support services in seventeen Eastern states, the District of Columbia, and Puerto Rico. Protest File, Exhibit G. The solicitation contemplated award of an indefinite quantity contract1 under which the agency would guarantee orders for only $200,000 worth of services over a base period and four option years. Id. at 256 (amdt. 2, Q&A 3), 362 (amdt. 1, Q&A 2), 403 ( B.1), 445 ( I.9),2 463 ( L.5), 497 (Performance Work Statement (PWS) 1.1). ____________________ 1 Technically, offerors were competing for award of a subcontract; the contract itself was to go to the Small Business Administration, which would subcontract the work to the awardee. The procurement was conducted, and the contract was awarded, under section 8(a) of the Small Business Act, 15 U.S.C.A. 637(a) (West Supp. 1993). Protest File, Exhibits B at 4-5, G at 446-49 ( I.12-15). This technical distinction makes no difference in the protest. The parties have referred to the object of the competition as a contract, and we do the same. 2 The solicitation provision at section I.9, "Indefinite Quantity," does not appear in the contract actually awarded. In its place is a different section I.9, "Definite Quantity." Protest File, Exhibit B at 52. The contract also states, however, "The minimum amount of services ordered under this contract is $200,000.00 (including options) and maximum could reach $13,646,274.00." Id. at 8. Customs has not explained the ___ reason for this substitution of contract clauses. Even if the substitution might be deemed a change in the nature of the contract -- a dubious proposition, in light of the stated minimum and maximum amounts -- this would have no impact on our resolution of this protest. 2. Each offeror was required by the solicitation to propose firm, fixed-price hourly billing rates for each of several personnel labor categories, by region and contract period. Protest File, Exhibit G at 403-18 ( B). These rates were to be "loaded" to include wages, fringe benefits, overhead, general and administrative costs, profit, and other burdens. Id. at 485-94 (price proposal requirements). The contractor is to perform work in accordance with delivery orders issued by authorized Customs contracting officers. Id. at 424 ( F.3), 430-31 ( H.7), 444 ( I.7), 497 (PWS 1.1), 520 (PWS 5.1.2), 535 (PWS 5.4). Each delivery order is to be based on a staffing schedule which includes a detailed work breakdown of labor hours by skill category. Id. at 535-39 (PWS 5.4). The order shall specify "the source of work, schedule for completion, technical requirements, performance standards, acceptance criteria for deliverable products, and a total price." Id. at 513 (PWS 2.1). 3. The solicitation was issued under authority of a specific delegation of procurement authority from the General Services Administration. This authorization "require[s] compliance with all applicable Federal statutes, policies, standards and regulations governing the acquisition management and utilization of Federal Information Processing (FIP) resources." Protest File, Exhibit D at 149-51. 4. Each offeror was required to include in its proposal certain "key personnel," who were "considered to be essential to the work being performed" under the contract to be awarded. Protest File, Exhibit G at 428 ( H.2), 523 (PWS 5.3.2). Key personnel were by definition "those individuals for whom resumes were submitted as required by the solicitation." Id. at 429 ( H.3(d)). Individual resumes had to be "submitted for all Contract Manager [sic], Group Managers, Supervisors and Task Leaders that will be assigned initially to the contract. Key personnel sufficient to staff the basic contract requirements and all Benchmark[] Tasks are required." Id. at 478 ( L.10.2.3.8); see also id. at 262 (amdt. 2, Q&A 30). 5. The contract manager was required by the solicitation to supervise task leaders; task leaders, perforce, were to be supervised by the contract manager. Protest File, Exhibit G at 524 (PWS 5.3.2.1), 525 (PWS 5.3.2.3). The contract manager "shall not serve in any other capacity under this contract." Id. at 524 (PWS 5.3.2.1). 6. A task leader is a contractor employee who is responsible, "on-site," for "day-to-day supervision" of contractor employees assigned to a task. Protest File, Exhibit G at 260 (amdt. 2, Q&A 17), 514 (PWS 2.1), 525 (PWS 5.3.2.3). "One Contractor employee may be responsible for supervising employees on multiple tasks but only when these are within close proximity of each other." Id. at 514 (PWS 2.1).3 The contractor is to "designate one person from the skill categories required in the performance of an individual Delivery Order as the person serving as the Task Leader. The person designated as Task Leader shall be considered a key person." Id. at 525 (PWS 5.3.2.3). Customs stated, "Any labor classification can conceivably be a Task Leader." Id. at 261 (amdt. 2, Q&A 21). The agency explained further, "The term Task Leader is not a labor category; it is a functional responsibility that can be performed by any individual the contractor chooses. . . . Every delivery order must have a designated Task Leader." Id. at 260 (amdt. 2, Q&A 17). 7. With respect to key personnel (Finding 4), the solicitation further explains, "Resumes for individuals initially available for assignment shall be included in the Contractor's proposal. Management and key technical personnel shall be available for full-time assignment under this contract on the effective date of the contract. These positions are: Contract Manager, Group Manager(s), Data Entry Supervisor(s), and all persons designated as Task Leader." Protest File, Exhibit G at 523 (PWS 5.3.2). "The contractor agrees to assign to the contract persons whose resumes are submitted with his/her proposal who are necessary to fill the requirements of the contract." Id. at 428 ( H.3(a)), 523 (PWS 5.3.2).4 8. In support of these specifications, "The offeror and individual shall certify that . . . the individuals named shall be available for assignment on the date the contract is effective." Protest File, Exhibit G at 478 ( L.10.2.3.8). Additionally, for all individuals who were not current employees of an offeror, the firm had to "include a letter of intent from the candidate indicating that he/she shall be available to start ____________________ 3 AMI calls to our attention two other statements in the solicitation regarding task leaders. These provisions must be read in context with the requirements for "on-site" supervision of employees who are in close proximity with each other. The two provisions are as follows: "Some delivery orders may require work to be performed at multiple locations, but there will only be one Task Leader on each delivery order regardless of the number of contractor personnel or the number of locations being supported." Protest File, Exhibit G at 260 (amdt. 2, Q&A 17). "The Contractor shall designate a Lead [Data Entry] Operator for each shift and/or location where there is no Data Entry Supervisor or Task Leader." Id. at 526 (PWS 5.3.3.1). ___ 4 This requirement was restated with emphasis insofar as it related to task leaders: "These individuals shall be available for and assigned to performance of work by the successful contractor, as required by the terms of the contract which will be strictly enforced." Protest File, Exhibit G at 260 (amdt. 2, Q&A 17). work within ten (10) working days after notification from the offeror." Id. at 481 ( L.10.2.3.8.1). "All personnel positions . . . for which resumes were submitted for evaluation, must be available to commence work under this contract." Id. Each offeror agreed that during a certain period of time at the inception of contract performance,5 "no personnel substitutions will be permitted unless such substitutions are necessitated by an individual's sudden illness, death or termination of employment." Id. at 428-29 ( H.3(b)), 523 (PWS 5.3.2). 9. An employee6 could be assigned to this contract if he "either currently possess[es] or [is] able to favorably pass the security background investigation required by Customs." Customs specifically anticipated that some employees would have to be investigated for security clearances after beginning work. Protest File, Exhibit G at 257-58 (amdt. 2, Q&A 9, 10), 429 ( H.4), 501 (PWS 1.1.3.1), 509 (PWS 1.7). 10. The solicitation contained benchmark tasks for twelve locations -- New York, New York (JFK Airport); New York, New York (Seaport); Boston, Massachusetts; Philadelphia, Pennsylvania; Baltimore, Maryland; Washington, D.C. (Office of Internal Affairs); Washington, D.C. (Washington Dulles International Airport); Norfolk, Virginia; Charlotte, North Carolina; Charleston, South Carolina; Atlanta, Georgia; and Tampa, Florida. Each task was specific to one location. Protest File, Exhibit G at 269-359 (amdt. 2). The benchmark tasks were "representative of the application areas and types of services for tasks expected on the contract." The solutions to these tasks were to be "evaluated for acceptability." Id. at 483 ( L.10.2.3.10). Each offeror had to submit a separate proposal for each benchmark task; that proposal had to include a resume for key personnel associated with it. Id. at 484-85 ( L.10.2.3.10), 545 (attachment 2). The benchmark proposals had "to be complete in themselves as delivery orders may be issued against those proposals after contract award." Id. at 262 (amdt. 2, Q&A 29) ____________________ 5 The period was stated to be sixty days in one part of the solicitation and six months in another part of it. Protest File, Exhibit G at 428-29 ( H.3(b)), 523 (PWS 5.3.2). 6 In specifying the employees to whom this requirement refers, the solicitation in two places mentions "[a]ll ADP Classes I, II and III personnel," a group which is not otherwise defined. Protest File, Exhibit G at 429 ( H.4), 509 (PWS 1.7). In another place, the solicitation says that the requirement applies to "all personnel." Id. at 501 (PWS ___ 1.1.3.1). In answering questions about solicitation provisions, Customs clearly indicated that the requirement applies to personnel proposed by offerors. Id. at 257-58 (amdt. ___ 2, Q&A 9, 10). 11. The solicitation specifically states, "Any written commitments by the Contractor within the scope of this contract shall be binding upon the Contractor. . . . A written commitment by the Contractor shall be limited to the proposal submitted by the Contractor and to specific written amendment(s), further defined as including . . . any warranty or representation made by the Contractor in a proposal." Protest File, Exhibit G at 510-11 (PWS 1.9). 12. The solicitation provided that in evaluating proposals, Customs would assign a maximum of seventy points to a technical proposal and a maximum of thirty points to a price proposal. Protest File, Exhibit G at 495 ( M.2). In evaluating technical proposals, Customs was to make personnel -- by a wide margin -- the most significant factor. Id. ( M.3). The contracting officer, who made the decision to award the contract to AMI, testified that "an important factor in [his] consideration of that award [was] the qualification and competence of the people [AMI] had proposed." Transcript at 334. 13. The solicitation stated that the contracting officer could designate a contracting officer's technical representative (COTR) to give technical direction and surveillance to work under the resultant contract. Protest File, Exhibit G at 425 ( G.1, G.2(a)). This direction, however, "may not constitute . . . change to the expressed terms, conditions or specifications incorporated into this contract." Id. at 425-26 ( G.2(b)(2)). "In no event . . . will any understanding, agreement, modification, change order, or other matter deviating from the terms of this contract be effective or binding upon the Government unless formalized by proper contractual documents executed by the Contracting Officer prior to completion of the contract. . . . On all matters that pertain to the contract terms the contractor must communicate with the contracting officer." Id. at 425 ( G.1). 14. AMI submitted its initial proposal on April 22, 1993. Protest File, Exhibit J. The proposal contains the resumes of twenty-three individuals -- a contract manager, group managers, data entry supervisors, and lead data entry operators. Id. at 1710-57. The proposal separately includes the resumes of twelve of these individuals -- five data entry supervisors and seven lead data entry operators -- each as the task leader for one of the twelve benchmark tasks. Id. at 1792-1920. AMI explained that its "Task Leaders are responsible for the day-to-day performance of assigned tasks." Id. at 1623. The firm committed that "[e]ach task under this contract will be assigned a task leader who will be responsible for all assigned AMI personnel attached to the task . . . . Moreover, he or she will serve as the onsite point of contact for [Customs]." Id. at 1596. Each of the resumes in the proposal contains the following certification: "[Name of individual] and AMI certify that . . . [name of individual] will be available for assignment on the award date of this contract; AMI further certifies that it is committed to providing [name of individual] for the first twelve months of this contract."7 Id. at 1710-57, 1792-1920. AMI considered this certification by the individuals to be the equivalent of a letter of intent or employment agreement. Transcript at 417-18. 15. Customs did not ask any questions about any of AMI's proposed personnel during negotiations. AMI made no effort to contact the individuals to ascertain their continued availability for contract work.8 Transcript at 254-55. On August 26, Customs asked that best and final offers (BAFOs) be submitted by September 9. Protest File, Exhibit G at 251 (amdt. 3). AMI submitted its BAFO on the latter date. Id., Exhibit K. In doing so, it did not make a substitution for any of resumes included in its initial proposal. Id. AMI's president asserted that at all times from submission of initial proposal to the date of the hearing (January 27, 1994), his company "intended to use all the personnel proposed to fill the requirement as long as they were required on the job." Transcript at 256. 16. On November 16, Customs gave AMI oral notification that AMI would be awarded the contract resulting from the subject procurement. Protester's Exhibit 6. The following day, the COTR met with AMI officials to tell them that they should begin "transitioning into the existing work locations and . . . the existing work," providing the people that had been identified in the proposal. Transcript at 387-88. The day after that, the individual proposed as contract manager learned that AMI had been awarded the contract and began calling key personnel listed in the proposal to ascertain their availability for contract work. Id. at 39-41. ____________________ 7 AMI made the commitments for the first twelve months of the contract because the firm's proposal manager thought that a commitment of that length of time was a solicitation requirement. Transcript at 455-56. See Finding 8 n.5 for the length of time ___ required. 8 AMI's proposal manager testified that he told the people that if availability became a problem, they should contact him. Transcript at 419. We find this testimony not credible; the proposal manager spoke with few of the individuals himself, and judging by their subsequent behavior, if he ever asked any of them to keep in touch, he did so in an ineffective manner. Similarly, the proposal manager's testimony that AMI "was looking for . . . people . . . who would have maybe been willing to move from one part of the country to another," id. at 408, is not ___ believable because it is contradicted by the sworn statements of many of the individuals, that they were led to believe that they would be given jobs in their home towns. The proposal manager's testimony was generally unbelievable. See generally Protester's _____________ Posthearing Brief at 21-24. 17. On December 1, the contracting officer sent AMI a letter which states: "The effective date of this contract is December 1, 1993, and Advanced Management, Inc. (AMI) is authorized to perform services starting today in accordance with the terms and conditions of the contract and the individual work requirements previously provided to AMI." Protester's Exhibit 1. The contracting officer characterizes this letter as "constituting notice of our intent to award the contract." Transcript at 328. The contract was not actually awarded until December 10. Protest File, Exhibit B at 4-5. 18. The "individual work requirements" referenced in the preceding paragraph were to have been provided by the COTR. Transcript at 345-46. The COTR did not give AMI any delivery orders, or even any written directives. Id. at 346-47, 224-25. Instead, he simply gave the firm an oral instruction to continue the work being performed by the contractor that AMI was replacing. Id. at 225-26.9 The COTR testified that the statements of work in the solicitation's benchmark tasks were valid descriptions of the work that had been done under the predecessor contract for several years and "were the work that was being done at the site[s] . . . since AMI took over." Id. at 362, 363 ("Q: [W]hen they took over the work, they were performing it to the statements of work in the RFP? A: That's correct."); see also id. at 331-32, 343-44 (contracting officer's understanding as well). AMI's contract manager agreed with this statement. Id. at 225-26, 229-32. He attempted to differentiate AMI's work from the predecessor contractor's by contending that the volume of work being performed by AMI is less than that being performed previously. Id. at 272, 320. He made no workload studies to support this contention, however, and when asked whether it was correct, the COTR said that he was not sure. Id. at 326, 383. We reject the contract manager's unsupported, self- serving testimony as not credible, and find that the work being performed by AMI is more or less in kind and amount the work described in the benchmark tasks. 19. The solicitation required each offeror to include in its proposal a transition plan, which would "reflect the methodology for staffing Task Orders within 30 days from the date of contract award." Protest File, Exhibit G at 467 ( L.3). The plan was specifically to indicate how the offeror would "transition[] current existing Task Orders." Id. at 468 ( L.3). AMI provided such a plan. It stated that during the phase-in period, the contract manager would work with task leaders "in coordinating activities for each site and area of project ____________________ 9 Indeed, no delivery orders were written until January 1994; the COTR saw some initial orders on January 26, and by the date of the hearing, January 27, AMI had still not received even one of them. Transcript at 344-45, 348, 360, 224-25. The COTR anticipates that ultimately, all delivery orders for initial work will be backdated to December 1, 1993. Id. at 363. ___ support." Id., Exhibit J at 1583. The task leaders would "serve as primary Phase-In coordinator[s] for the local sites." Id. at 1584; see also id. at 1590. This plan, the offeror said, "is based on AMI's anticipation of staffing all planned task orders and task orders currently issued to the incumbent within the 30- day transition period. AMI's approach plans for . . . the staffing of all on-going tasks within the 30-day period." Id. at 1590-91. 20. On December 6, AMI provided to Customs a list of personnel assigned to the contract. The contract manager named in the proposal was on duty. At only three of the twelve benchmark sites, however -- New York Seaport, Boston, and Baltimore -- were the individuals named in the proposal serving as proposed. The women proposed as task leaders in Charleston and Charlotte were employed in New York. None of the other people proposed as task leaders or as other key personnel was assigned to the contract. Thirty-three other people were on the job, however. Compare Protest File, Exhibit J at 1792-1920, with Protester's Exhibit 2. 21. In testimony before the Board, AMI's contract manager explained why only three of the proposed task leaders were assigned to the contract. He "underst[ood] that a task leader is required for each location." Transcript at 313. In the absence of any delivery orders, he considered that one of his responsibilities was to decide who should serve as task leader at which locations. Id. at 319. "Due to the complexity of the work and the number of people assigned, there was no need to have a key person" at certain sites. Id. at 98; see also id. at 224, Protester's Exhibit 4. He consequently assigned himself to serve as a task leader at Washington (Dulles Airport), Norfolk, Charlotte, Charleston, and Tampa. Transcript at 274, 291-92, 313. The COTR testified that on January 21, he had authorized the contract manager to act in these capacities. Id. at 382. 22. The contract manager gave extensive testimony about his efforts to contact key personnel whose resumes are included in AMI's proposal. Nine of these individuals who are not now employed on the contract also testified at hearing. Generally, we find that several of the individuals agreed to have their resumes included in the proposal for different jobs, at different salaries, and in different locations from the ones AMI intended; that AMI made scant effort to provide these people to Customs until after the protest was filed; that AMI made little effort to persuade any of the people to honor their commitments to be available for contract work; and that AMI made misrepresentations to Customs about its relationships with the individuals. Specific findings are made below. 23. Ms. A10 was proposed by AMI as a data entry supervisor and the task leader in New York (JFK Airport). Protest File, Exhibit J at 1718-19, 1792-93. When the contract manager called her in November, she "indicated she wasn't interested. . . . She wasn't available, she had taken another job." Transcript at 48. She gave no specific reason. Id. at 281. The contract manager did not pursue the matter further. Id. at 77. AMI waited until December 29 to say anything to Customs about Ms. A's not being assigned to the contract. At that time, the company wrote, "The staff proposed for this area have rejected a transfer at this time to the New York area." Protester's Exhibit 4 at 13, 26. Later, on January 4, AMI told the agency that Ms. A had rejected its job offer. Protester's Exhibit 6 at 4. The firm then advanced this justification for not having provided her: "AMI interprets this refusal of a job offer as termination of our employment agreement with Ms. [A]. As a result of this termination, AMI is required to provide a substitution for the Supervisor position at this facility." Id. From the beginning of December, AMI had assigned Ms. B, who was proposed as task leader at Charleston, to be the supervisor at JFK Airport. Ms. B lives on Long Island, not far from JFK Airport. Protest File, Exhibit J at 1744-45, 1869-70. 24. Ms. C was proposed as a data entry supervisor and the task leader in Philadelphia. Protest File, Exhibit J at 1720-21, 1828-29. Like Ms. A, she told the contract manager in November that she was not interested in filling the position. Transcript at 51. She explained, "I was pretty comfortable where I was, so I didn't know if I was ready to start over again with somebody else." Id. at 184. The contract manager did not make any effort to persuade her to change her mind. Id. at 78. On December 29, AMI wrote to Customs, "AMI has contacted all proposed staff and made several job offers, however, to date all offers have been rejected. The staff proposed for this area have rejected a transfer at this time to the Philadelphia area." Protester's Exhibit 4 at 17. The letter was signed by the contract manager, who is a personal friend of Ms. C and knows that she lives in suburban Philadelphia. Transcript at 108-09. As with Ms. A, AMI claimed that Ms. C's rejection of the job offer was a "termination of our employment agreement," justifying a substitution of personnel. Protester's Exhibit 6 at 8. At contract inception, AMI replaced Ms. C with a woman who had been working on the job for the predecessor contractor, ViaTech Systems, Inc. Protester's Exhibits 2, 4 at 19. 25. Mr. D was proposed as a lead data entry operator and the task leader in Washington (Office of Internal Affairs). Protest File, Exhibit J at 1750-51, 1850-51. Before permitting AMI to use his resume in its proposal, Mr. D understood that if ____________________ 10 The names of the individuals involved are not used in this opinion because their inclusion in AMI's proposal is considered proprietary information. AMI was awarded the contract, he would be a data entry supervisor and would be paid a certain salary. Transcript at 116-18. Mr. D was concerned about the implications of the commitment paragraph of the resume because he was unemployed at the time and wanted to continue looking for other work. He did not sign until his contact at AMI assured him that signing the resume "did not obligate me if I had another offer," and that he should feel free to accept other employment if it was extended to him first. Id. at 121-22, 131.11 AMI did not even attempt to reach Mr. D until December 14, two weeks after contract work had begun -- and the day after the contract manager learned that Stanley had filed this protest. Id. at 77-78, 81, 122. The firm ultimately offered a position to Mr. D, but it was not at a supervisory level and the pay was far less than he expected, so he rejected it. Id. at 81, 293. The job for which Mr. D was proposed was given, at contract inception, to an employee of the predecessor contractor, ViaTech. Protester's Exhibits 2, 4 at 6. AMI did not consider this a substitution because it did not call the incumbent employee a task leader. Transcript at 298-99. 26. Ms. E was proposed as a lead data entry operator and the task leader in Washington (Dulles Airport). Protest File, Exhibit J at 1748-49, 1861-62. On December 29 and again on January 5, AMI told Customs that she was working at the Office of Internal Affairs. Protester's Exhibit 4 at 2, 5; Protester's Exhibit 6 at 2. In reality, however, Ms. E was negotiating with AMI about a job from late November through January. She was interested, but the position was not where she had been led to believe it would be located (Arlington, Virginia), and AMI was reluctant to meet the salary she had understood would be forthcoming. On January 24 or 25, she definitively rejected the job. Transcript at 206-27, 289. AMI hired at Dulles Airport, when contract performance began, a man who had been doing the work there for ViaTech. Protester's Exhibit 2; Protest File, Exhibit C at 145ac-ae. As with the Office of Internal Affairs position, AMI did not consider this a substitution because it did not call the incumbent employee a task leader. Transcript at 299. 27. Ms. F was proposed as a lead data entry operator and the task leader in Norfolk. Protest File, Exhibit J at 1754-55, 1874-75. Ms. F is interested in being hired for this position, but is not now on the AMI payroll. Transcript at 166. AMI did not contact her until December 14, and as of January 27, it had only exchanged paperwork with her. Id. at 167-72, 294-95. AMI told Customs on December 29 and January 5 that it would place Ms. F as the lead data entry operator in Norfolk "as soon as her ____________________ 11 AMI's proposal manager's very different testimony was so vague, and so conflicting with Mr. D's specific, convincing recollections, that we do not find it credible. See Transcript ___ at 419-25; see also id. at 454 ("I wasn't sure what I proposed _________ ___ this man for, so I don't have that vivid of a recollection."). security clearance is complete." Protester's Exhibits 4 at 8, 6 at 3. Meanwhile, since the beginning of December, a former ViaTech employee has had the position. Protester's Exhibits 2, 4 at 12. AMI says that this woman is not a task leader, so she is not a substitute for Ms. F. Transcript at 300. The contracting officer was troubled by the personnel assignment in Norfolk; on January 5, he wrote to AMI, "Ms. ___________ was not proposed or authorized to occupy this position. Why was Ms. [F] not available at contract start up as stated in AMI's proposal[?]" Protester's Exhibit 5 at 2. 28. Ms. G was proposed as a lead data entry operator and the task leader in Charlotte. Protest File, Exhibit J at 1742- 43, 1885-86. AMI contacted her in November, offered her a job only in New York, and placed her at the Seaport facility there when contract performance began. Protester's Exhibit 2; Joint Exhibit 1; Transcript at 308. Ms. G lives in New York; AMI justifies putting her there because of that fact and also because it believes a lead position is not required in Charlotte. Protest File, Exhibit J at 1742, 1885; Transcript at 233-36. AMI does not label either of the women working in Charlotte as task leaders, so it considers that they are not substituting for Ms. G. Id. at 300-01. 29. Ms. H was proposed as a lead data entry operator and the task leader in Atlanta. Protest File, Exhibit J at 1756-57, 1907-08. The contract manager told Customs on January 4 that on or about November 16, he had "contacted Ms. [H], informed her of the award and made a verbal job offer. Ms. [H] rejected my job offer." Protester's Exhibit 6 at 13. On the witness stand, the contract manager admitted, "[T]hat isn't a true statement." Transcript at 110. He said that he made no effort whatsoever to reach her until December 14. Id. at 54, 73. Before Ms. H allowed her resume to be used in AMI's proposal, an AMI representative told her that her job would be in the Norfolk area, where she lives.12 Id. at 143-45, 147. When the contract manager finally reached her, in late December or early January, he offered a position in Atlanta (and possibly also Washington and Boston). She rejected the invitation. Id. at 82, 146-47, 295-96. AMI made the same argument to Customs regarding Ms. H that it did with regard to Ms. A and Ms. C -- her refusal of a job offer was a termination of the employment agreement, so the firm was required to provide a substitute for her. Protester's Exhibit 6 at 13. Contradictorily, AMI also maintained that her replacement was not a key person because she was not designated a task leader. Transcript at 302. This ____________________ 12 This man was presented as a rebuttal witness by AMI. His only testimony was that he could not recall his conversation with Ms. H. Transcript at 401. AMI's proposal manager thought that Ms. H was interested in a stable job at any location, but he, too, had a very vague memory of his conversation with her. Id. at 425-27. We give no weight to this testimony. ___ individual, who had been on the job since contract work started, was a holdover ViaTech employee. Protester's Exhibits 2, 4 at 24. 30. Ms. I was proposed as a data entry supervisor and the task leader in Tampa. Protest File, Exhibit J at 1726-27, 1919- 20. Ms. I was led to believe, in the spring of 1993, that she was being proposed for a position in Atlanta, which would pay a certain salary. Transcript at 201-02, 204-05. The contract manager told Customs on January 4 that he had attempted, but failed, to reach Ms. I by phone in late November and early December, and that because she had not returned his calls, he assumed that she was not interested in accepting a job offer. Protester's Exhibit 6 at 17. On the witness stand, he testified that he had not called, but rather, had tried to reach her by letter. Transcript at 220. The only letter to Ms. I produced by AMI is dated January 11. Protester's Exhibit 14; see Transcript at 390. In January, the contract manager offered Ms. I a lead data entry operator position in Washington. She refused it because she currently has a managerial position. Transcript at 203-05, 287-88. As with Ms. H, AMI told Customs both that this constructive termination of an employment agreement required a substitution for Ms. I, and also that there is no need for a task leader in Tampa. Protester's Exhibit 6 at 17; Transcript at 286. A former ViaTech employee has been holding down the Tampa job since early December. Protester's Exhibit 2; Protest File, Exhibit C at 145aj. 31. Ms. J was proposed as a data entry supervisor, but not as a task leader at any benchmark site. Protest File, Exhibit J at 1728-29. She testified that an AMI representative had promised her that any job she would be offered under this contract would be in her home town of Norfolk, at a specified rate of pay. Transcript at 372. The contract manager called her on December 14 and left a message on her answering machine. Joint Exhibit 1; Transcript at 305. He testified that she has never returned the call. Transcript at 305. She testified that she did call back, and that at that time, he offered her a supervisory position in Philadelphia or a lesser job in Norfolk at a much lower salary than she had been led to believe would be forthcoming. Id. at 374-75. 32. Ms. K was proposed as a data entry supervisor. Protest File, Exhibit J at 1732-33. She understood that this position would be in Norfolk, where she lives. Transcript at 152, 154. The contract manager called her in November; she said she was interested in a position, and they agreed on a rate of pay. Id. at 156. When she called him two weeks later, he said that a job was not yet available. In late December, he offered her non- supervisory positions in Washington and Atlanta; she rejected them. Id. at 157, 160, 305-06. 33. Ms. L was proposed as a data entry supervisor. Protest File, Exhibit J at 1738-39. In the spring of 1993, an AMI representative told her that she would be proposed for a job in Norfolk, where she has lived for many years, at a certain salary. Transcript at 186, 189, 192. The contract manager did not call her until December 14. Id. at 195-96. At that time -- two weeks after contract performance had begun -- he said that AMI hoped to get the award, but was not sure that it would. Id. at 190. In early January, he said that AMI had gotten the contract; he offered her a job in a subordinate position, at lower pay than she had expected. Id. at 192-93. He testified that this job would be in the Washington area. Id. at 307. She rejected it. Id. at 194-95. 34. Ms. M, Ms. N, Ms. O, Ms. P, and Ms. Q were all proposed as data entry supervisors. Protest File, Exhibit J at 1724-25, 1730-31, 1734-35, 1736-37, 1740-41. The contract manager gave the following testimony about his communications with these women. He offered Ms. M a position, but she rejected it because the pay was insufficient. Transcript at 78-79, 305. He "was never successful in reaching" Ms. N. Id. at 305. (There is no record that he even attempted to call her until December 14. Joint Exhibit 1.) "I don't recall ever getting an answer from [Ms. O]." Transcript at 73; see also id. at 306. (She, also, was not called until December 14. Joint Exhibit 1.) He attempted to contact Ms. P "and I was told that she didn't live there any more." Transcript at 306. (This call as well was not made until December 14. Joint Exhibit 1.) When he called Ms. Q, on December 14, she told him that she had found a job and was no longer interested in working for AMI under this contract. Transcript at 70, 309. Discussion A. In many procurements for the provision of services to the Government, agencies demand in their requests for proposals that offerors commit to make specified people available for work once a contract has been awarded. The agencies then inform offerors that evaluation of proposals will rely heavily on the assessment of the worth of those particular people in performing contract tasks. If a firm is awarded the contract, but the individuals named in the proposal are not made available for work, the Government will not have received the benefit of its bargain. The agency's evaluation of the offeror's proposal would not be an assessment of the firm's ability to accomplish prospective contracts, in violation of regulation. 48 CFR 15.608(a) (1993). The contracting officer could not be sure that he was awarding the contract to the firm whose proposal is most advantageous to the Government, as statute and regulation require him to do. 41 U.S.C. 253b(d)(4) (1988); 48 CFR 15.611(d) (1993). This concern has led the Court of Appeals for the Federal Circuit, this Board, and the General Accounting Office to hold that in such procurements, material misrepresentations by an offeror as to the availability of personnel promised as being ready for contract performance taint the evaluation process. They undermine the integrity of the procurement process and statutory requirements for full and open competition, and therefore should result in disqualification of the proposal involved. See, e.g., Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992); RGI, Inc. v. Department of the Navy, GSBCA 11752-P, 93-1 BCA 25,402, 1992 BPD 156; PSI International, Inc. v. Department of Energy, GSBCA 11521-P, et al., 92-2 BCA 24,755, 1992 BPD 35; Omni Analysis, 68 Comp. Gen. 300, 89-1 CPD 239 (1989); Informatics, Inc., 57 Comp. Gen. 217, 78-1 CPD 53 (1978). The material misrepresentations with which we are here concerned have been given the shorthand name of "bait and switch." "This Board has considered many times the issue of 'bait and switch' in connection with service contracts. The issue has always been whether the offeror actually intended to supply the offered personnel, or merely proposed highly qualified personnel for purposes of evaluation with the intention of switching personnel after award of the contract." PRC Inc. v. Department of Justice, GSBCA 12053-P, 93-2 BCA 25,772, at 128,239, 1993 BPD 6, at 13-14 (1992). Intent "frequently must be proved by circumstantial evidence." Planning Research, 971 F.2d at 742. Such evidence includes post-award conduct of the offeror in question. To resolve protest allegations, the Board may evaluate testimony as to the firm's explanations of what was intended and why personnel substitutions were made. Id. Intent may not be proved by a simple conclusive assertion, as made by AMI at hearing, that a contractor planned to provide the people it proposed for the job. See Finding 15. Nor may an offeror avoid challenges to its intent by failing to make contact with the individuals to ascertain their continued availability, as AMI did, and then pleading ignorance when the people turn out not to be prepared to assume their assignments. The Board has held that merely to assume the availability of personnel for whom resumes are submitted, based on information months old, is not reasonable. An offeror has a duty to ensure the continuing validity of its commitment to have these people ready for work at contract inception. RGI, Inc., 93-1 BCA at 126,514, 1992 BPD 156, at 8. B. The case at bar involves a procurement for data entry and other computer support services. Finding 1. Each offeror was required by Customs' solicitation to include in its proposal the resumes of "key personnel," who were considered to be essential to the performance of contract work. Finding 4. The offeror and the key personnel both had to certify that each of the individuals "shall be available for assignment on the date the contract is effective." Finding 8. In addition, the offeror had to agree "to assign to the contract persons whose resumes are submitted with his/her proposal who are necessary to fill the requirements of the contract." Finding 7. The last requirement was to be stringently enforced during a period of time at the inception of contract performance; personnel substitutions would only be permitted in the event of an individual's "sudden illness, death or termination of employment." Finding 8. These commitments were important because in evaluating proposals, Customs was to weigh technical proposals more than twice as heavily as price, and personnel was by far the most significant factor in assessment of technical proposals. Finding 12. AMI and its proposed personnel made all the requisite certifications and promises for all twenty-three individuals identified in the AMI proposal as key personnel. Finding 14. When time came to perform contract work, however, only six of these people were assigned to the job, notwithstanding a need for considerably more personnel. Finding 20. We must determine whether AMI actually intended to make available the individuals who were not supplied, or whether those people's resumes were merely included in the proposal to "bait" Customs into awarding a contract the performance of which would be staffed by other individuals. Customs and AMI have offered a panoply of theories for resolving this matter. On the one hand, they maintain that AMI was obligated, because of the nature of the contract and its implementation, not to provide any key personnel at all. Thus, these parties say, no "switch" could ever have occurred because there was never anything to switch from. On the other hand, they contend that AMI has provided necessary key personnel, in conformance with Customs' direction under the contract. In our view, Customs and AMI have made this case far more complex than need be. The solicitation, in using terms such as "shall" and "must," demanded that every one of the key personnel be available for work when the contract began. Thus, whether Customs actually ordered services that would have been performed by any of the individuals has nothing to do with whether AMI actually intended to comply with the availability requirement. OAO Corp. v. General Services Administration, GSBCA 12484-P, 1993 BPD 247 (Sept. 3, 1993), at 12, appeals docketed, Nos. 94-1106, 94-1130 (Fed. Cir. Dec. 13, 1993, Jan. 4, 1994). AMI's president testified that throughout this procurement, his company did intend to provide the key personnel included in its proposal. Finding 15. We find to the contrary. The parties have focused, in examining AMI's intent, on the personnel for the performance of work at sites for which benchmark tasks were described in the solicitation. Customs and AMI maintain that AMI has been staffing that work with task leaders identified in AMI's proposal as key personnel whenever such individuals have been demanded by Customs. Stanley maintains that AMI has not made these individuals available as promised. AMI's lack of intent to have key personnel ready for work when required to do so is effectively demonstrated with regard to these people. A task leader, as the term is defined in the solicitation, is a contractor employee who is responsible, on-site, for day-to- day supervision of contractor employees' work on a delivery order. Although such work may be performed at more than one place, the solicitation makes clear that a delivery order must be structured in such a way that the task leader can provide daily supervision of it through physical presence. Finding 6. An example of a task that can meet this test is the benchmark task for Boston, which could be performed at both the New Boston Federal Center in Boston and Logan Airport in East Boston. Protest File, Exhibit G at 373. Every delivery order had to have a task leader. Finding 6. The solicitation included benchmark tasks for twelve separate locations. Proposals for responding to these tasks had to be evaluated for acceptability. Each proposal had to include the designation of a specific key person as task leader. Offerors were warned that delivery orders could be ordered against the proposals for completing the benchmark tasks. Finding 10. AMI supplied the requisite benchmark proposals. Finding 14. On November 17, when the COTR told AMI to begin "transitioning into the existing work locations and . . . the existing work," Finding 16, he was in effect directing AMI to take over the benchmark tasks set out in the solicitation; these were the descriptions of the work that the predecessor contractor had been performing for several years, and also of the work that AMI has been doing since December 1. Finding 18. Thus, the constructive delivery orders that were given to AMI were orders to fulfill the firm's proposals for the benchmark tasks. Those proposals included supplying specific individuals as task leaders at the various locations. AMI's written commitment to perform work in accordance with its benchmark proposals, if such work was ordered, obligated it to make good on every element of those proposals.13 At only three of the twelve benchmark sites, however, has AMI provided the key personnel designated in its proposal as task leaders. Finding 20. The evidence shows that AMI did not intend to supply any of the other specified personnel as promised. (1) Several of the people who were proposed as benchmark task leaders in AMI's proposal allowed their resumes to be submitted for positions which they understood to be substantially different from the ones for which they actually were submitted. ____________________ 13 AMI was further obligated by its transition plan to provide those task leaders at the benchmark sites. That plan was based on continuing the previous contractor's work during the first month of contract performance. The plan envisioned that on-site task leaders would be the primary coordinators of that work. Finding 19. Mr. D expected, after talking to AMI staff, that he would have a higher-level position than the one for which he was proposed. Finding 25. He, Ms. E, and Ms. I were all led to believe that they would be paid more than AMI was ultimately prepared to offer. Findings 25, 26, 30. Ms. E, Ms. H, and Ms. I all were told that the jobs would be at different locations from the ones specified in the proposal. Findings 26, 29, 30. Thus, four of the proposed task leaders -- D, E, H, and I -- had no mutual understanding with AMI about availability for the jobs specified in the proposal. Furthermore, Ms. B and Ms. G were apparently offered jobs only at different cities from the ones for which they were proposed as task leaders -- which, coincidentally, happened to be the cities in which they lived. Findings 23, 28. Whether AMI ever intended to provide B and G for the jobs they were planned to fulfill is problematic. (2) AMI did not even contact three of its proposed task leaders -- Mr. D, Ms. F, and Ms. H -- until two weeks after contract performance began. Thus, the company had no idea of the availability of these individuals when they were required to come to work. AMI has offered an excuse for not having Ms. F in the job she was designated to fulfill: she does not yet have a security clearance. Finding 27. The solicitation permits assignment of an individual to contract work before a clearance is granted, however. Finding 9. Thus, even if AMI had made this excuse when the contract became effective, it would not be good cause for her unavailability to Customs at the time the work started. (3) AMI filled the jobs of D, F, and H -- as well as those of Ms. E, Ms. G, and Ms. I -- at the inception of performance, with employees of the predecessor contractor. Findings 25-30. AMI maintains that the other employees were not substitutes for the key personnel included in the proposal because they were not task leaders. Id.14 If this was so, AMI had no task leaders in those locations, and was consequently acting in violation of its obligation to have a task leader for each of the sites. The firm's contract manager apparently realized this predicament; he testified that task leaders are required for all the benchmark locations, and that he has designated himself the task leader for the places which do not have a task leader present. Finding 21. This is clearly an arrangement that is not countenanced by the solicitation. Task leaders must be on site to perform day-to-day supervision, Finding 6, and the contract manager, being located in only one place, cannot perform this function at other sites. ____________________ 14 Contradictorily, AMI also told Customs that substitutions were required for Ms. H and Ms. I as task leaders at the sites for which they were proposed. Findings 29, 30. This view is correct. As described above, however, the asserted reason for replacing these individuals -- they had terminated their employment agreement with AMI -- was not valid cause for substitution. Further, the solicitation specified that a contract manager had to supervise task leaders and could not be one. Finding 5. (4) When AMI learned that Ms. A and Ms. C were not interested in working on this contract, the firm made no effort to persuade them to change their minds, or even to find out why they were no longer available. Findings 23, 24. AMI had earlier assured Mr. D that signing his resume did not obligate him to accept work under the contract if he had accepted another offer first. Finding 25. Thus, the firm showed a disregard, both before and after contract award, for the commitments to which both it and the individuals had bound themselves, and for the certifications made in the proposal as to personnel availability at the time of contract award. See Finding 14. We note additionally that AMI's relationship with key personnel who were not designated task leaders shows a similar disregard for the requirement that individuals be available for work when contract performance begins. Ms. J, Ms. K, Ms. L, and Ms. M were all offered jobs that were of lesser stature, paid less, and/or were in different cities from the ones for which they had been led to believe they were being proposed. Findings 31-34. AMI did not try to contact six of the individuals, to determine availability, until two weeks after the work began. Findings 31, 33, 34. AMI has never contacted three of the people, and does not even know where one of them lives. Finding 34. When Ms. Q rejected an offer, AMI did not pursue the matter. Id. AMI also made a number of misrepresentations to Customs with regard to the availability of the key personnel designated as task leaders. These included the statements as to why Ms. A and Ms. C were not available to work on the contract; where Ms. C lives; Ms. E's being on the job when she had not accepted employment; the timing and nature of communications with Ms. H regarding employment; and the firm's efforts to contact Ms. I (which involved, at hearing, an attempt to correct one misstatement which became yet another misstatement). Findings 23, 24, 26, 29, 30. The record shows, in summary, that AMI did not intend to honor its commitment to have the key personnel ready for work when contract performance began. This was a material misrepresentation which rendered invalid Customs' evaluation of proposals and determination that acceptance of AMI's offer would be most advantageous to the Government. On this conclusion rests our decision to grant the protest. C. To give each of the defenses raised by Customs and AMI its due, we examine them separately. In the first part of their argument, Customs and AMI point out that work is requisitioned under this contract not by the award of the contract itself, but by the issuance of delivery orders under the contract. See Finding 2. Consequently, the parties say, AMI must at any time provide only those key personnel who are necessary to perform work that is subject to those orders. Because no delivery orders were actually issued until the end of January 1994, Finding 18 n.9, Customs and AMI maintain that for the first two months of contract performance, the contractor was under no obligation to supply any of the key personnel (except, apparently, the contract manager). Respondent's Posthearing Brief at 10; Intervenor's Posthearing Brief at 16; see also Respondent's Posthearing Brief at 13-14 (efforts made by the Government to enforce contract requirements "may have even been slightly premature since the delivery orders had not yet been issued"). If we make one assumption, accepting this argument would read completely out of the contract the requirement that the contractor have key personnel available when contract performance begins. The assumption is that between the two contract clauses governing the period of time in which the requirement applies, the clause mandating a sixty-day period governs. See Finding 8 n.5. Customs' contracting officer's technical representative gave AMI oral notification on November 17 that it should begin "transitioning into the existing work locations and . . . the existing work." Finding 16. The contracting officer told AMI on December 1 that it should begin providing services in accordance with the COTR's previous instructions. Finding 17. Thus, the sixty-day period would expire on January 30. If AMI did not have to have people available until delivery orders were issued, and the orders did not arrive until the very end of January, the requirement would never apply.15 This interpretation clearly makes no sense, for it would render surplusage the mandate that key personnel be available when contract performance commences. The preferred construction of a solicitation or contract is one which gives meaning to all of the document's provisions. E.g., Centel Federal Systems, Inc. v. Department of the Navy, GSBCA 12011-P, et al., 93-2 BCA 25,648, at 127,631, 1992 BPD 359, at 19. An additional problem with this Customs/AMI position is that it implies that during the first two months that AMI has been performing data entry work for Customs, it has not been doing that work under lawful authorization. That does not appear to have been what happened. The only reasonable meaning we can give to post-award events is that the COTR's instructions, as blessed by the contracting officer, were constructive delivery orders. ____________________ 15 Then again, if the delivery orders are backdated -- as the COTR expects they will be, Finding 18 n.9 -- under this theory, if the orders are written to require the services of key personnel who have not been on the job, at the end of the sixty- day period the contractor could find itself considered to have been out of compliance with the requirement for the preceding two months! This conclusion brings us to the other side of the Customs/AMI theories: the claim of "bait and switch" is defeated by the fact that AMI has been providing necessary key personnel all along, in conformance with Customs' direction under the contract. One variant of this argument is Customs' postulate that "AMI is being required to either supply the people proposed, or to supply people of equal or superior qualifications under the substitution clause. . . . In light of this, there has been no 'switch.'" Respondent's Posthearing Brief at 14. This argument falters on the words of the solicitation: no substitutions could be made at all, during the contract's initial period, except for limited, specific reasons -- sudden illness, death, or termination of employment. Finding 8. Whether a replacement was better or worse than a named key person was immaterial. Perhaps sensing this problem, Customs also posits that key personnel who rejected offers from AMI could be replaced because their decisions "not to accept the positions is the functional equivalent of 'termination of employment'" -- which is a permissible reason for substitution. Respondent's Posthearing Brief at 12-13. This view distorts beyond comprehension the concept of employment; how can someone's job be ended before it has begun? (AMI apparently appreciates this dilemma; it claimed only that a refusal of a job offer constituted termination of an "employment agreement." Findings 23, 24, 29, 30.) If Customs' theory were valid, the limitation on switching personnel would be rendered meaningless. The commitment of availability could be extinguished at will by any key person, and an offeror could comply by proposing employees it knew would decline the positions if offered. The solicitation/contract cannot reasonably be read to make so flimsy the Government's guarantee that it will receive persons who were proposed. D. In its posthearing brief, AMI raises an entirely new issue, which it maintains should preclude us from even examining any of what we have discussed above. According to AMI, the proposal submitted by the protester, Stanley, was not in compliance with mandatory solicitation requirements. Specifically, AMI contends that Stanley's initial proposal contains improperly certified resumes (which were never corrected) and its BAFO contains some resumes for which no letter of intent to accept an employment offer has been provided. See Finding 8. Consequently, AMI says, Stanley is not eligible for award. Therefore, the awardee concludes, Stanley is not an interested party to bring this protest and the Board must dismiss the case for lack of jurisdiction. As authority for this conclusion, AMI cites Federal Data Corp. v. United States, 911 F.2d 699 (Fed. Cir. 1990). That decision, applying the Brooks Act's definition of "interested party," 40 U.S.C. 759(f)(9)(B) (1988), holds that "the right to protest an agency's procurement practices before the board is limited and may be exercised only by an actual or prospective bidder who would have been in a position to receive the challenged award." Id. at 703 (emphasis added). Customs, along with its reply brief, provided a declaration by the contracting officer stating that upon his review of AMI's allegations and Stanley's proposal, he has determined that the allegations are correct and that Stanley's proposal was not eligible for award. A similar challenge to the standing of a protester was raised in Centel Federal Systems, Inc., GSBCA 11238, et al., 91-2 BCA 24,028, 1991 BPD 123. There, as here, the agency considered the protester's technical proposal acceptable at all times during the procurement, but asserted while the protest was pending that the proposal did not comply with mandatory requirements and was therefore ineligible for award. Because the agency's motion raised an issue of jurisdiction, we considered it, notwithstanding its having been filed late in the proceedings. 91-2 BCA at 120,303, 1991 BPD 123, at 10. There were two fundamental problems with the agency's position in Centel, however, and they are the same ones we find here. First, the agency never called to the protester's attention during the procurement the deficiency which was eventually said to be so great as to result in disqualification. This was itself a violation of the Federal Acquisition Regulation's requirement (at 48 CFR 15.610(c)(2) (1993)) that an agency advise each offeror, during discussions, "of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the Government's requirements." 91-2 BCA at 120,303, 1991 BPD 123, at 11. Thus, even if the contracting officer is correct as to his factual and legal conclusions about Stanley's initial proposal, Stanley is entitled to an opportunity to revise the proposal so as to remove the deficiencies. The proposal against which those conclusions have been reached is not necessarily Stanley's final offer.16 AMI's invitation to dismiss the protest for lack of jurisdiction must be rejected. The second problem with the motion in Centel, and with AMI's position here, is that when this sort of allegation is raised, we are not in a position to rule on it until the record is ____________________ 16 Although some of the alleged debilities are in the BAFO, others are in the initial proposal. Our conclusion about the need for and impact of discussions relates only to the supposed problems with the initial proposal, but if an offeror is given a chance to revise its initial proposal, one cannot foretell the contents of the firm's BAFO. Thus, the only failings in a BAFO which could be relevant to an effort to show that a protester does not have standing are ones which repeat deficiencies that appeared in an initial proposal and were the subject of discussions, and ones which were not present in the initial proposal and appear only in the BAFO. AMI and Customs do not contend that defects in Stanley's proposal fall only into either of these categories. appropriately developed. When a challenge to a protester's standing is raised early, such a record can be the basis for a finding of lack of jurisdiction. See, e.g., RGI, Inc. Here, however, we cannot determine, simply from looking at a few pages of Stanley's proposal, whether, even if discussions had been held on the items in controversy, disqualification would be appropriate. In other circumstances, we have held that an offeror's failure to provide required certifications of an individual's availability was suitably addressed by the deduction of points from the proposal's score, CBIS Federal, Inc. v. Department of Labor, GSBCA 12302-P, 93-3 BCA 26,121, at 129,839, appeal docketed, No. 93-1514 (Fed. Cir. Aug. 16, 1993), or that such a failure was "a technical violation that neither invalidates the competitive nature of the procurement nor prejudic[es other offerors]." PRC Inc., 93-2 BCA at 128,239, 1993 BPD 6, at 14 (1992). There is no telling what evidence might be adduced here as to whether Stanley's certifications were insufficient, and if they were, what the consequences of that problem should be. E. Even apart from the matters already discussed, we are troubled by Customs' management of the procurement that has spawned this protest. We discuss this concern because it is relevant to the remedy we order to rectify the violations of law we have found. The agency gave prospective offerors two months -- from February to April, 1993 -- to craft their proposals in response to the solicitation. Findings 1, 14. Whatever Customs did in reviewing the proposals took so long, however, that the agency did not request BAFOs until four months later. Finding 15. Offerors were given two weeks to submit those offers, but Customs took two months -- until mid-November -- to review them and pick a winner. Findings 15, 16. Because Customs spent more than twice as much time analyzing proposals as offerors did compiling them, seven months elapsed between the date on which resumes of key personnel were initially submitted and the date on which AMI learned that it would be awarded the contract. The agency's lethargic pace imposed a great burden on all conscientious offerors to keep in contact with their key personnel for the purpose of ascertaining whether those individuals remained available for contract performance and modifying proposals when necessary as individuals became unavailable. This in itself may well have driven up the costs associated with proposal preparation -- costs which will ultimately have to be borne by the taxpayers because firms can be expected to incorporate them into general and administrative costs which are to be built into each offeror's pricing proposal. See Finding 2. The increased costs, if anticipated by firms with the capability to provide data entry services in accordance with solicitation requirements, may have further increased the taxpayers' bill for these services by dissuading some companies from submitting proposals, thereby reducing competition for the contract. This result is inconsistent with Congress' direction that agencies obtain full and open competition to meet their requirements. 41 U.S.C. 253(a)(1)(A) (1988). We are also concerned by the large number of resumes of key personnel required to be submitted as part of each proposal. In a recent procurement for computer support services which was the subject of another protest, another agency required that offerors submit resumes for only seven people who were to supervise a staff of 700 involved in performing a contract worth more than $150,000,000. OAO Corp., 1993 BPD 247, at 10. We recognize that as a matter of law, the Board cannot interfere with an agency's determination of its requirements for automatic data processing equipment or services. Data General Corp. v. United States, 915 F.2d 1544, 1551-52 (Fed. Cir. 1990), cert. denied sub nom. SMS Data Products Group, Inc. v. United States, 111 S. Ct. 2011 (1991). The difficulty in keeping current a proposal which promises the availability of large numbers of key personnel persuades us, however, that an administrative review of this procurement should include an inquiry into whether the number of people who are critical to contract performance is really as high as Customs has demanded. Based on the window we had into Customs' contracting practices through our hearing on the merits of the protest, we are additionally concerned about how the agency implements service contracts. The solicitation and contract we are dealing with here do not appear to have been drafted as a coherent whole. They contain many redundant provisions -- particularly between the performance work statement and the remainder of the document -- and at least one glaring inconsistency (regarding the amount of time that specified key personnel must remain available for assignment after the contract starts). See generally Findings 1- 2, 4-13, & specifically Finding 8 n.5. The document is consequently more difficult to follow than need be and contains fodder for protests and contract disputes. Because the proof of AMI's intent which was properly placed before us included circumstantial evidence as to actions that occurred during contract performance, we necessarily learned a bit about Customs' management of the contract in considering the merits of the case. SMS Data Products Group, Inc. v. United States, 853 F.2d 1547, 1555 n.* (Fed. Cir. 1988). The events concerning the end of the competition phase of the procurement and the initiation of the contract are unusual. Customs told AMI on November 16 that it would receive the contract. Finding 16. It then authorized performance to begin on December 1. Finding 17. It did not get around to actually awarding the contract until December 10, however. Id. Thus, AMI had to work without a contract for nearly a month due to administrative delay. Also, Stanley and the other offerors, to the extent that they did not know about the pre-contractual arrangements, had to keep their key personnel ready for work, awaiting word of possible contract award, for longer than necessary. Further, although the solicitation provided that work would be requisitioned through the issuance of delivery orders, and the work that AMI was expected to perform was more or less the same work that was described in benchmark tasks, Customs did not begin issuing written delivery orders until two months after work began. Findings 2, 18, 18 n.9. It now intends to backdate the orders, so that the record will eventually look as though the documents were written when the work they purport to authorize began. See Finding 18 n.9. These delivery orders are under the general supervision of the COTR, who, by authorizing AMI's contract manager after-the-fact to act as task leader at several locations, Finding 21, demonstrated a profound lack of understanding of both contract provisions and his own authority. As stated above, the contract manager is expressly prohibited from serving as a task leader. Finding 5. The COTR is expressly prohibited from changing the terms of the contract; only the contracting officer may do this. Finding 13. Decision Because AMI misrepresented the availability of key personnel identified in the firm's proposal, the protest is GRANTED. The protested procurement was conducted under a specific delegation of procurement authority from the General Services Administration (GSA) to Customs. Finding 3. Because we have serious doubts regarding Customs' ability to administer the procurement, we REVOKE this delegation of procurement authority. 40 U.S.C. 759(f)(5)(B) (1988). The consequence of this order is that GSA is now responsible for the procurement. GSA may fulfill this responsibility either directly or by delegation to an agency or senior official thereof which has sufficient experience, resources, and ability to fulfill the responsibility on GSA's behalf. Id., 759(b)(2), (3). AMI's contract shall be terminated. To ensure that Customs receives necessary computer support services while other essential actions occur, however, we stay the effect of this order for sixty days or such shorter period of time as GSA finds appropriate. In the meanwhile, GSA shall review the contracting officer's determination that Stanley's proposal contains deficiencies which are not curable through clarifications. See 48 CFR 15.601 (1993). If GSA concurs in this determination, and further finds that some or all of those deficiencies are contained in Stanley's initial proposal, necessary discussions shall be held with Stanley and the other offerors and another round of BAFOs shall be requested and evaluated. 48 CFR 15.611(c) (1993).17 ____________________ 17 If such further competition is appropriate, GSA shall additionally determine whether the misrepresentations made by (continued...) Otherwise, GSA may proceed with the procurement (including the awarding of a contract to an eligible offeror) in accordance with the requirements of statute and regulation. GSA may reinstate its delegation of procurement authority to Customs only after it has determined that Customs is capable of administering the procurement and resulting contract. Before making such a determination, GSA should consider the concerns we have enunciated in part E of the discussion portion of this decision. _________________________ STEPHEN M. DANIELS Board Judge I concur: _________________________ ALLAN H. GOODMAN Board Judge HYATT, Board Judge, concurring in part and dissenting in part. I partially concur in the result reached by the majority for the following reasons. In a nutshell, the plain language of the solicitation dictated that key personnel proposed by offerors would be available and assigned to perform applicable contract work at the time of contract award. The solicitation was equally clear in informing offerors that the qualifications of proposed key personnel would be evaluated and would have a significant impact on the ranking of offers and resultant award decision. Finally, under the solicitation, substitutions of personnel, prior to a specified period of time after commencement of work, would be permitted only in the event of an individual's sudden illness, death, or termination of employment. ____________________ 17(...continued) AMI, as described in this decision, constitute a demonstration of sufficient lack of integrity that AMI should not be permitted to participate. See OAO Corp. v. General Services Administration, ___ _____________________________________________ GSBCA 12718-P, slip op. at 2-3 (Jan. 28, 1994), appeal docketed, _______________ No. 94-1170 (Fed. Cir. Feb. 10, 1994). Against this backdrop, it is also apparent, given the facts found by the majority, that AMI was not, and could not have been, in a position to supply the personnel it had proposed at the time of award. In this case, no meaningful advance employment arrangements were effected for proposed key personnel who were not current employees of AMI. The recruitment efforts made were not adequate to avoid the inference, drawn by the majority, that this contractor did not fully intend to supply the proposed individuals. See Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992). When the individuals proposed declined employment for the reasons described in the majority opinion, AMI had not and could not have, at the time of award, satisfied the solicitation's limited conditions for permitting a substitution of personnel. As such, it was ineligible for award, and the protest is properly granted. At the same time, I dissent from the drastic relief imposed by the majority. Although I recognize that the Board has the authority to revoke (in addition to revising or suspending) an agency's delegation of procurement authority, this is a remedy that is rarely imposed. I am not persuaded that this measure is either necessary or justified in the circumstances of this case. Admittedly, there have been a growing number of successful "bait and switch" protests. This is not an issue over which this agency has repeatedly lost protests, however. Moreover, each protest involving this issue has generally raised a new nuance to be addressed by the Board. In this case, the decision provides fairly explicit guidance to the agency as to the proper manner in which to proceed if it chooses to continue with the procurement. I see no reason to assume that Customs is not able, or would be unwilling, to adhere to the guidelines contained in the Board's decision and take appropriate corrective action. As such, I am not persuaded that at this juncture it is either necessary or proper to remove the authority to conduct the procurement from the agency's hands and require GSA to micromanage this acquisition. The justification advanced by the majority for imposing this additional remedy is that the agency was dilatory in reaching an award decision and has mismanaged the contract after award by inducing AMI to perform prior to the actual formal award of the contract, and thereafter by permitting performance in the absence of written delivery orders. As to the latter point, this is basically a matter of contract administration -- not the type of conduct that may customarily be monitored under the Board's protest jurisdiction, which applies to matters of contract formation.1 As to the first point, the majority's criticism of ____________________ 1 I am not convinced that the contract administration errors noted by the majority support the conclusion that the agency is unable to reach a proper contract award determination. I recognize that this evidence was properly received by the Board (continued...) the length of time required to perform evaluations and arrive at an award decision seems unduly severe. The fact that the agency took more time to evaluate proposals than it permitted for offerors to prepare proposals is not necessarily indicative of incompetence or indolence on the part of the procurement officials responsible for this acquisition. The efforts required to evaluate proposals differ from those necessary to prepare one. The evaluation process requires the agency to carefully review multiple proposals. Usually, a number of evaluators review all proposals. These individuals then meet to iron out differences and try to form a consensus as to the rating to be given the technical portion of each proposal. In negotiated procurements like this one, an initial assessment leading to a competitive range determination must be made once initial evaluations are completed. Then, discussion questions must be prepared and discussions conducted with each offeror remaining in the competition prior to requesting and reviewing best and final offers. The evaluators often must juggle numerous other responsibilities as well. All things considered, the time taken by the agency to evaluate offers and reach an award decision seems to fall well within reasonable bounds.2 As stated, I find the reasons advanced by the majority to support the imposition of this draconian remedy to be unpersuasive. I see no conduct in the record that is sufficiently egregious to justify this action. The Board's customary remedy -- to return the matter to the agency to proceed ____________________ 1(...continued) in hearing this matter. I do not interpret the footnote in SMS ___ Data Products Group, Inc. v. United States, 853 F.2d 1547, 1555 ___________________________________________ n.* (Fed. Cir. 1988), relied upon by the majority, to suggest that the Board should automatically feel free to attempt to remedy such matters under its protest jurisdiction, however. Rather, the Court appears simply to have advised the Board that it should entertain all evidence necessary to reach a reasoned decision in the matter before it, even if that requires it to address issues ordinarily not within the purview of a Brooks Act protest. The events criticized by the majority are incidental to the basis for sustaining the protest. Thus, I cannot agree that the language in this footnote somehow justifies the relief ordered by the majority. 2 I am entirely unpersuaded by the implication that the solicitation as drafted may have imposed some indirect duty on the agency to expedite the award process because of the large number of key personnel involved. The majority questions the large numbers of resumes required to be submitted and evaluated. Whether or not this approach was ill-founded, as the majority also recognizes, it is not the Board's prerogative to second guess it, particularly at this point, given the failure of the offerors to protest either the potential restrictiveness or inherent ambiguousness of the terms of the solicitation. in accordance with statute and regulation -- is all that is required by way of relief. I thus respectfully dissent from this aspect of the decision. _________________________ CATHERINE B. HYATT Board Judge