April 28, 2017

Bloomberg Law quotes James Boland on bait-and-switch contract protests

2 min

Venable partner James Boland was quoted in a Bloomberg Law article on bait-and-switch protests for government contracts. According to the Government Accountability Office, a contractor may file a bait-and-switch protest if a competing company promises to use a specific employee, that employee leaves for a new job, and a federal agency still awards the contract to the company.

Boland said "it is always difficult to prevail" in a traditional bait-and-switch protest because a contractor must show an awardee knowingly or negligently misrepresented the availability of key personal in a bid. He noted that it is not uncommon for employees proposed as key personnel to change jobs before an award, which "can have devastating consequences on a contractor." Since employers rarely have control over when someone changes jobs, he said, "It would be a good practice for contractors to take these cases to heart and consider ways to incentivize key employees to remain on the job both through and beyond award."

On possible step for agencies to take to help with the process might be to reduce the number of key personnel they request to minimize the risk of losing them. "Certain agency missions place significant value on key personnel," said Boland. "Additionally, discussions with one offeror would require the agency to hold discussions with everyone. The agency, and the rest of the competition, should not have to expend resources going through a round of discussions merely because one offeror's key person is no longer available."