If you See it on the Internet, it Must … Prove a lie?

It is not often that you see LinkedIn used as evidence in a legal matter, but it happened recently in a protest. The losing competitor alleged that one of the key personal included in the winning proposal was not qualified under the terms of the solicitation.

The Decision

In sustaining the protest, GAO found that the “… awardee misrepresented the experience of one of its proposed key personnel …” Standing alone that is only part of the necessary findings. The GAO had to also find that “…the misrepresentation was material in that the agency relied upon it …” and further that “…the record indicates that it had a significant impact upon the evaluation.” GAO found that all three elements existed in this protest.

Protecting the Integrity of the Procurement Process

Each element makes sense in protecting the integrity of the procurement process. Factually – there has to be a misrepresentation. A simple error will not necessarily create bad consequences. If it was not something covered in the evaluation, then it is considered “de minimis” or of minimal consequence. In other words, it would not have mattered what was said in that portion of the proposal if the agency paid no attention to it in the evaluation.

The third element is required because a protestor must demonstrate that it was, in some way prejudiced by the awardee’s misstatement or mischaracterization.

“The Record”

Agencies are required to create and maintain a record of all acquisitions. The complexity of the acquisition dictates the level of detail necessary to support the ultimate award decision. Many don’t realize that, similarly, FAR Part 7 indicates that “all” acquisitions are subject to planning. (FAR 7.102(a) - Agencies shall perform acquisition planning and conduct market research (see part  10) for all acquisitions …”) So from planning to award, the acquisition process must be documented to demonstrate what the source selection officer determined to be in the government’s best interests. This is the “record” that GAO relies on to ascertain if a CO decision was “reasonable.”

GAO’s Review

Standing alone, everything above is relatively routine. When there is a misstatement, it must have been considered by the aagency, and it must have impacted the decision. What is interesting about this case is that GAO made reference to a social media platform to demonstrate that a misstatement had, in fact, occurred.

Relevant here, and as noted above, the PWS contained a requirement that the project operations manager have a minimum of 5 years of experience in managing projects, with a focus on business process and re-engineering projects. […]. In addressing this requirement, A P Ventures’s proposal stated that its proposed project operations manager had “9 years of relevant experience including 5 years support and quality oversight of the SEVP Contact Center.” […]

Initially we see that the RFP Performance Work Statement (PWS) had a requirement and the competitor responded by saying its proposed person  had 9 years, with the 5 years of special experience included. So far, so good.

The Protest Grounds

The protestor pointed out the individual’s LinkedIn profile did not match the assertions in the proposal.

In support of its argument, Insight initially pointed to the proposed project operations manager’s LinkedIn profile, [fn omitted] which lists fewer than 5 years work experience at the time of proposal submission. Protest, Exh. E, LinkedIn Profile. Insight further avers that three of the four listed positions in the LinkedIn profile do not demonstrate the required experience managing projects.[fn omitted] […]

Burden of Proof

The protestor met its burden of proof for its assertions by providing external evidence posted on a public platform – namely, LinkedIn, and included a copy of the profile as an exhibit. The protestor’s response is rather intriguing.

In their initial responses to the protester’s challenges, neither the agency nor the intervenor meaningfully dispute the employment information for A P Ventures’s proposed operation manager listed in the above-referenced LinkedIn profile. […] Further, while the intervenor simply states that its key personnel candidate “had the required experience,” it did not attempt to explain or otherwise provide information demonstrating that its candidate had the relevant experience required by the solicitation.[fn omitted] […]

In other words, the awardee claims “we said what we said and since it was in our proposal it must be true.” Sounds a little like the meme that if it appears on the internet it must be true. In this case, what appeared on the internet proved the falsity of the assertions.

Agency Defense

The agency stuck by its award decision, relying on the principle that generally an agency is limited to considering only what appears within the four corners of the proposal. In effect, they agreed with the awardee that they only needed to make bold assertions and the agency must consider them all as true.

Instead, the agency maintains that its evaluation was reasonable because an agency is generally entitled to rely on information provided by an offeror in its proposal, absent significant evidence, reasonably known to the evaluators, casting doubt on the accuracy of the information. […] In short, the agency argues that Insight’s allegations of a material misrepresentation, even if correct, do not provide a basis to sustain a protest because Insight “has not shown that the [a]gency had any reason to believe a misrepresentation had occurred.” […] The agency contends that considering information not before it at the time of evaluation and award would be tantamount to creating a post hoc resume requirement and reevaluating proposals against it.[fn omitted] Id.

In effect, the agency wanted to absolve itself of all responsibility for allowing the offeror to lie since there was nothing in the proposal suggesting that it was a lie. GAO does not let the agency off so easily.

The agency’s response misstates the issue before us. Here, we are not reviewing a straightforward protest of the agency’s evaluation; rather, the protester has claimed that the awardee’s proposal contains a material misrepresentation that had a significant impact upon the evaluation.

GAO draws a distinction between a challenge to the evaluation, per se, and to the fact that the information provided to the agency was false and corrupted the entire evaluation.

Material Misrepresentations

GAO treats lies, which it refers to tactfully as “material misrepresentations,” as more serious than a flawed evaluation.

When resolving allegations of material misrepresentation, our Office may consider information raised during the protest that was not reasonably known to the agency during the evaluation. See, e.g., Patricio Enterprises, Inc., B-412738, B-412738.2, May 26, 2016, 2016 CPD ¶ 145 at 8-9 (considering whether the awardee actually possessed signed employment offers from proposed key personnel); see also Johnson Controls Sec. Sys., supra, at 11-12 (considering whether the awardee had actually scheduled required certification training that its proposal represented it had done). In the instant protest, we find it not only appropriate, but necessary, to consider information not contained in A P Ventures’s proposal in order to determine whether it misrepresented its stated project operations manager’s experience. [Other citations in GAO’s opinion were omitted.]

There are occasions when GAO will look outside of the four corners of the proposal. In recent times this has been expanded to cover certain past performance and other information that is “reasonably close at hand” to the agency and will fault the agency for exercising willful ignorance.

Using Verified Evidence

The awardee argued that the protestor had not proven that the LinkedIn profile was current or accurate. GAO then asked the awardee to explain the discrepancy between the profile and the assertions in the proposal. The awardee failed to offer anything clearly demonstrative and even considering what they did offer, GAO failed to see how the response provided sufficient information to show that the proposed key personnel met or exceeded the RFP requirements at all. GAO naturally held that against the awardee.

In sum, we see no support in the record for A P Ventures’s claim that its proposed project operations manager had 9 years of experience managing projects. Based on our review of the record, we find clear support only for a conclusion that that the proposed project operations manager had 11 months of experience managing projects at the time the intervenor submitted its proposal. [fn omitted] Accordingly, we conclude that A P Ventures’s statement in its proposal that its proposed project operations manager had 9 years of project management experience was a misrepresentation of the proposed key person’s relevant experience.

A misrepresentation is a lie, no matter how much sugar coating you put on it.

Materiality

GAO went on to find that the key personnel qualifications were material and that they were relied upon by the agency. Further, this reliance was prejudicial to the protestor. Thus all three elements were met. The agency attempted to make arguments that the misrepresentation was not material or was not relied upon. GAO found these arguments “unpersuasive” and additionally points out that elsewhere the agency already admitted that it relied specifically on the misrepresentation. On the whole, it seems to have been a rather disingenuous argument.

Other Grounds to Sustain

GAO then turned to a secondary reason to sustain the protest that concerned disparate treatment in the evaluation. Finding disparate treatment based on the “contemporaneous record” rather than the one generated in response to the protest, GAO sustained the protest on that basis as well.

The Remedy

When considering material misrepresentations, and finding them, GAO has a rather rigid and decisive remedy. While GAO did not use these words, allow me the flexibility to say, “You lie, you are out.” The awardee here was to be totally disqualified from further participation in this procurement. Additionally, the protestor was awarded its costs of bringing the protest.  

Lessons to Take From this Decision

1.      Don’t lie;

2.      Don’t try to cover up lies;

3.      Don’t enlist the agency to cover for your lies (even though apparently you can sometimes meet with success in doing so);

4.      Create a solid contemporaneous record that fully justifies the source selection

5.      Be careful to vet the credentials and qualifications of any key personnel you propose;

6.      If you are going to lie, cover your tracks and make sure that social media accounts support the lie; and

7.      If you get caught lying, don’t be surprised if an agency seeks suspension or debarment for your lack of responsibility. While there is nothing in the record to suggest Homeland Security made such a referral, it seems they would have been justified to do so.

See:  Insight Technology Solutions, Inc., B-420133.2; B-420133.3; B-420133.4, December 20, 2021.

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