In the latest issue of The Wright Toolbox:
New Year, New IRS Form
by Don Walsh
The Internal Revenue Service released a revised Form W-4 for 2020 intended to simplify withholding and help employees make more accurate withholding decisions in the wake of tax changes made by the Tax Cuts and Jobs Act of 2017 (TCJA). Employers must use the new Form for all new employees hired in 2020. Employees paid prior to January 1, 2020 need not submit a new Form unless adjusting their withholding. The revised Form no longer uses withholding allowances and replaces complicated worksheets with more straightforward questions intended to promote more accurate withholding. https://www.irs.gov/pub/irs-pdf/fw4.pdf
The Old Bait And Switch
Don’t you hate it when you get lured into buying something only to find out when you go to take delivery that they don’t have what you wanted, instead they have something else that’s not really what you wanted. That’s called the old “bait and switch.” Well, based on a recent case from the U.S. Government Accountability Office (“GAO”) it seems that the government doesn’t like the bait and switch routine either. In Matter of: T3I Solutions, LLC, B-418034; B-418034.2 (December 13, 2019), the Air Force issued an RFP for crew resource management training and courseware development for the operators and security forces that are responsible for handling intercontinental ballistic missiles. Among other things, the successful contractor would be required to provide all personnel, including instructors or subject matter experts. The RFP required offerors to identify their planned personnel, including all instructors, courseware developers and any other required positions. The RFP also explained that the agency’s evaluation would consider whether the qualifications of the proposed personnel met the requirements. There were two bidders on the RFP; the incumbent, T3I Solutions, LLC (“TSI”) and Darton Innovative Technologies, Inc. (“Darton”).
Darton’s proposal identified an individual by name; stated that he currently serves as the instructor and program manager for the incumbent contractor and that he brings the expertise and knowledge to conduct the program. Darton also detailed the instructor’s qualifications, experience, and credentials. The selection committee determined that Darton’s offer provided the best value to the government and it was awarded the contract. TSI protested the award contending that Darton’s proposal contained material misrepresentations. It turns out that Darton proposed an incumbent employee to serve as the instructor when it did not have a reasonable expectation that this individual would be available for performance. The GAO found that Darton did not contact the proposed instructor prior to the submission of its proposal and did not obtain permission to use the qualifications of the proposed instructor in its proposal. In support of its protest, TSI submitted a declaration from the proposed instructor stating that he had not been contacted by Darton or had any discussion with the awardee regarding potential employment opportunities prior to the time for submission of proposals.
When a bidder has no reasonable basis to expect that its proposed personnel will be available during contract performance but proposes the personnel anyway in order to obtain a more favorable evaluation, such circumstance is known as a “bait and switch.” In order to establish an impermissible “bait and switch,” a protester must show: (1) that the awardee either knowingly or negligently represented that it would rely on specific personnel that it did not have a reasonable basis to expect to furnish during contract performance, (2) that the misrepresentation was relied on by the agency, and (3) that the agency’s reliance on the misrepresentation had a material effect on the evaluation results. Such misrepresentations are obviously impermissible because they have an adverse effect on the integrity of the competitive procurement system.
In sustaining the protest, the GAO noted that speculation as to whether someone will be available cannot reasonably support inclusion of an individual in a proposal. While the GAO has recognized that it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor, an offeror may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation. The GAO recommended that the agency reevaluate Darton’s proposal and make a new selection decision. The GAO also recommended that the protester be reimbursed the reasonable costs of pursuing its protest, including attorneys’ fees. The takeaway here is not to count your chickens (incumbent employees) before they hatch (agree to remain with the project) and only offer what you can deliver.
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