The Price of Silence: GAO Dismisses Protest Because the Protester’s Key Personnel Were Unavailable
On December 30, 2024, the Government Accountability Office (GAO) dismissed a protest by Orion Government Services, Inc. (Orion) after determining that Orion lacked standing to protest because one of its proposed key personnel had become unavailable prior to contract award.[1] This decision highlights yet another risk to contractors that neglect to notify the government of changes in proposed key personnel during a procurement competition.
The US Army Corps of Engineers (Corps) issued a solicitation for construction services that identified five key personnel positions, including a site safety and health officer (SSHO). Last summer, the Corps selected McCarthy Building Companies, Inc., (McCarthy) for contract award, and Orion protested the loss at GAO.
McCarthy, as intervenor in the protest, filed a request for dismissal on the basis that one of two individuals who Orion proposed for the SSHO key position left Orion before the award; Orion knew about the departures; and Orion failed to inform the Corps. McCarthy and the Corps argued that the departure made Orion’s proposal technically unacceptable and therefore unawardable. Thus, they maintained that Orion lacked standing as an interested party to protest.
This case has limited precedent. An allegation that an offeror’s proposal was unacceptable because a proposed key person had become unavailable is typically one brought by a protester against the awardee, not the other way around.[2] In fact, this was Orion’s primary defense: that there had not been a previous case where GAO held that a protester lacked status as an interested party due to the unavailability of a proposed key person. But GAO rejected this argument, explaining that “[t]here is nothing in our decisions that suggest that the obligation with respect to material requirements such as key personnel applies to awardees only.”
GAO then distinguished the prior limited precedent where an agency sought dismissal on the basis that the protester’s proposed key personnel had become unavailable. In those cases, GAO explained, the protesters survived dismissal because they furnished evidence rebutting the allegations. In one case, the protester submitted a declaration from the key person in question confirming continued availability.[3] In another, the protester produced an affidavit from its president and chief executive officer attesting that the employees in question were available.[4] In both instances, GAO found no basis to conclude that the protesters had “actual knowledge” that the proposed key employees were available before award.
In Orion, however, the protester did not contest that it knew the proposed key person became unavailable, nor did the protester argue that the key person in fact remained available. GAO therefore concluded that Orion’s proposal was unacceptable, and for that reason, Orion did not qualify as an interested party to protest the Corps’ award decision.
This case is notable for offerors and potential protesters. At least for protests filed at GAO, the risk of key personnel departure prior to award now clearly falls equally on protesters and awardees alike. Of course, the issue must come to light, though it often does through publicly available information and industry intelligence. Where the issue does come to the fore, a disappointed offeror considering a protest should confirm the availability of its proposed key personnel to assess dismissal risk in a GAO protest. But if the company lacked “actual knowledge” that the key person became unavailable, it can rebut the concerns with evidence such as declarations, as GAO explained in Orion.
Jenner & Block will continue to monitor developments in bid protest jurisprudence related to key personnel availability.
The US Army Corps of Engineers (Corps) issued a solicitation for construction services that identified five key personnel positions, including a site safety and health officer (SSHO). Last summer, the Corps selected McCarthy Building Companies, Inc., (McCarthy) for contract award, and Orion protested the loss at GAO.
McCarthy, as intervenor in the protest, filed a request for dismissal on the basis that one of two individuals who Orion proposed for the SSHO key position left Orion before the award; Orion knew about the departures; and Orion failed to inform the Corps. McCarthy and the Corps argued that the departure made Orion’s proposal technically unacceptable and therefore unawardable. Thus, they maintained that Orion lacked standing as an interested party to protest.
This case has limited precedent. An allegation that an offeror’s proposal was unacceptable because a proposed key person had become unavailable is typically one brought by a protester against the awardee, not the other way around.[2] In fact, this was Orion’s primary defense: that there had not been a previous case where GAO held that a protester lacked status as an interested party due to the unavailability of a proposed key person. But GAO rejected this argument, explaining that “[t]here is nothing in our decisions that suggest that the obligation with respect to material requirements such as key personnel applies to awardees only.”
GAO then distinguished the prior limited precedent where an agency sought dismissal on the basis that the protester’s proposed key personnel had become unavailable. In those cases, GAO explained, the protesters survived dismissal because they furnished evidence rebutting the allegations. In one case, the protester submitted a declaration from the key person in question confirming continued availability.[3] In another, the protester produced an affidavit from its president and chief executive officer attesting that the employees in question were available.[4] In both instances, GAO found no basis to conclude that the protesters had “actual knowledge” that the proposed key employees were available before award.
In Orion, however, the protester did not contest that it knew the proposed key person became unavailable, nor did the protester argue that the key person in fact remained available. GAO therefore concluded that Orion’s proposal was unacceptable, and for that reason, Orion did not qualify as an interested party to protest the Corps’ award decision.
This case is notable for offerors and potential protesters. At least for protests filed at GAO, the risk of key personnel departure prior to award now clearly falls equally on protesters and awardees alike. Of course, the issue must come to light, though it often does through publicly available information and industry intelligence. Where the issue does come to the fore, a disappointed offeror considering a protest should confirm the availability of its proposed key personnel to assess dismissal risk in a GAO protest. But if the company lacked “actual knowledge” that the key person became unavailable, it can rebut the concerns with evidence such as declarations, as GAO explained in Orion.
Jenner & Block will continue to monitor developments in bid protest jurisprudence related to key personnel availability.
[1] Orion Govt. Servs., Inc., B-422978, B-422978.2, Dec. 30, 2024, 2025 CPD https://www.gao.gov/products/b-422978%2Cb-422978.2
[2] See, e.g., NCI Info. Sys., Inc., B-417805.5, B-417805.6, Mar. 12, 2020, 2020 CPD ¶ 104.
[3] See Tiya Support Servs., LLC, B-421538.3, May 24, 2024, 2024 CPD ¶ 134.
[4] See DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155.
Footnotes
[1] Orion Govt. Servs., Inc., B-422978, B-422978.2, Dec. 30, 2024, 2025 CPD https://www.gao.gov/products/b-422978%2Cb-422978.2
[2] See, e.g., NCI Info. Sys., Inc., B-417805.5, B-417805.6, Mar. 12, 2020, 2020 CPD ¶ 104.
[3] See Tiya Support Servs., LLC, B-421538.3, May 24, 2024, 2024 CPD ¶ 134.
[4] See DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155.
Related Lawyers
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
On December 30, 2024, the Government Accountability Office (GAO) dismissed a protest by Orion Government Services, Inc. (Orion) after determining that Orion lacked standing to protest because one of its proposed key personnel had become unavailable prior to contract award.[1] This decision highlights yet another risk to contractors that neglect to notify the government of changes in proposed key personnel during a procurement competition.
The US Army Corps of Engineers (Corps) issued a solicitation for construction services that identified five key personnel positions, including a site safety and health officer (SSHO). Last summer, the Corps selected McCarthy Building Companies, Inc., (McCarthy) for contract award, and Orion protested the loss at GAO.
McCarthy, as intervenor in the protest, filed a request for dismissal on the basis that one of two individuals who Orion proposed for the SSHO key position left Orion before the award; Orion knew about the departures; and Orion failed to inform the Corps. McCarthy and the Corps argued that the departure made Orion’s proposal technically unacceptable and therefore unawardable. Thus, they maintained that Orion lacked standing as an interested party to protest.
This case has limited precedent. An allegation that an offeror’s proposal was unacceptable because a proposed key person had become unavailable is typically one brought by a protester against the awardee, not the other way around.[2] In fact, this was Orion’s primary defense: that there had not been a previous case where GAO held that a protester lacked status as an interested party due to the unavailability of a proposed key person. But GAO rejected this argument, explaining that “[t]here is nothing in our decisions that suggest that the obligation with respect to material requirements such as key personnel applies to awardees only.”
GAO then distinguished the prior limited precedent where an agency sought dismissal on the basis that the protester’s proposed key personnel had become unavailable. In those cases, GAO explained, the protesters survived dismissal because they furnished evidence rebutting the allegations. In one case, the protester submitted a declaration from the key person in question confirming continued availability.[3] In another, the protester produced an affidavit from its president and chief executive officer attesting that the employees in question were available.[4] In both instances, GAO found no basis to conclude that the protesters had “actual knowledge” that the proposed key employees were available before award.
In Orion, however, the protester did not contest that it knew the proposed key person became unavailable, nor did the protester argue that the key person in fact remained available. GAO therefore concluded that Orion’s proposal was unacceptable, and for that reason, Orion did not qualify as an interested party to protest the Corps’ award decision.
This case is notable for offerors and potential protesters. At least for protests filed at GAO, the risk of key personnel departure prior to award now clearly falls equally on protesters and awardees alike. Of course, the issue must come to light, though it often does through publicly available information and industry intelligence. Where the issue does come to the fore, a disappointed offeror considering a protest should confirm the availability of its proposed key personnel to assess dismissal risk in a GAO protest. But if the company lacked “actual knowledge” that the key person became unavailable, it can rebut the concerns with evidence such as declarations, as GAO explained in Orion.
Jenner & Block will continue to monitor developments in bid protest jurisprudence related to key personnel availability.
The US Army Corps of Engineers (Corps) issued a solicitation for construction services that identified five key personnel positions, including a site safety and health officer (SSHO). Last summer, the Corps selected McCarthy Building Companies, Inc., (McCarthy) for contract award, and Orion protested the loss at GAO.
McCarthy, as intervenor in the protest, filed a request for dismissal on the basis that one of two individuals who Orion proposed for the SSHO key position left Orion before the award; Orion knew about the departures; and Orion failed to inform the Corps. McCarthy and the Corps argued that the departure made Orion’s proposal technically unacceptable and therefore unawardable. Thus, they maintained that Orion lacked standing as an interested party to protest.
This case has limited precedent. An allegation that an offeror’s proposal was unacceptable because a proposed key person had become unavailable is typically one brought by a protester against the awardee, not the other way around.[2] In fact, this was Orion’s primary defense: that there had not been a previous case where GAO held that a protester lacked status as an interested party due to the unavailability of a proposed key person. But GAO rejected this argument, explaining that “[t]here is nothing in our decisions that suggest that the obligation with respect to material requirements such as key personnel applies to awardees only.”
GAO then distinguished the prior limited precedent where an agency sought dismissal on the basis that the protester’s proposed key personnel had become unavailable. In those cases, GAO explained, the protesters survived dismissal because they furnished evidence rebutting the allegations. In one case, the protester submitted a declaration from the key person in question confirming continued availability.[3] In another, the protester produced an affidavit from its president and chief executive officer attesting that the employees in question were available.[4] In both instances, GAO found no basis to conclude that the protesters had “actual knowledge” that the proposed key employees were available before award.
In Orion, however, the protester did not contest that it knew the proposed key person became unavailable, nor did the protester argue that the key person in fact remained available. GAO therefore concluded that Orion’s proposal was unacceptable, and for that reason, Orion did not qualify as an interested party to protest the Corps’ award decision.
This case is notable for offerors and potential protesters. At least for protests filed at GAO, the risk of key personnel departure prior to award now clearly falls equally on protesters and awardees alike. Of course, the issue must come to light, though it often does through publicly available information and industry intelligence. Where the issue does come to the fore, a disappointed offeror considering a protest should confirm the availability of its proposed key personnel to assess dismissal risk in a GAO protest. But if the company lacked “actual knowledge” that the key person became unavailable, it can rebut the concerns with evidence such as declarations, as GAO explained in Orion.
Jenner & Block will continue to monitor developments in bid protest jurisprudence related to key personnel availability.
[1] Orion Govt. Servs., Inc., B-422978, B-422978.2, Dec. 30, 2024, 2025 CPD https://www.gao.gov/products/b-422978%2Cb-422978.2
[2] See, e.g., NCI Info. Sys., Inc., B-417805.5, B-417805.6, Mar. 12, 2020, 2020 CPD ¶ 104.
[3] See Tiya Support Servs., LLC, B-421538.3, May 24, 2024, 2024 CPD ¶ 134.
[4] See DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155.
Footnotes
[1] Orion Govt. Servs., Inc., B-422978, B-422978.2, Dec. 30, 2024, 2025 CPD https://www.gao.gov/products/b-422978%2Cb-422978.2
[2] See, e.g., NCI Info. Sys., Inc., B-417805.5, B-417805.6, Mar. 12, 2020, 2020 CPD ¶ 104.
[3] See Tiya Support Servs., LLC, B-421538.3, May 24, 2024, 2024 CPD ¶ 134.
[4] See DZSP 21, LLC, B-410486.10, Jan. 10, 2018, 2018 CPD ¶ 155.
Related Lawyers
Related Capabilities
© 2026 Jenner & Block LLP. Attorney Advertising. Jenner & Block LLP is an Illinois Limited Liability Partnership including professional corporations. This publication, presentation, or event is not intended to provide legal advice but to provide information on legal matters and/or firm news of interest to our clients and colleagues. Readers or attendees should seek specific legal advice before taking any action with respect to matters mentioned in this publication or at this event. The attorney responsible for this communication is Brent E. Kidwell, Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60654-3456. Prior results do not guarantee a similar outcome. Jenner & Block London LLP, an affiliate of Jenner & Block LLP, is a limited liability partnership established under the laws of the State of Delaware, USA and is authorised and regulated by the Solicitors Regulation Authority with SRA number 615729. Information regarding the data we collect and the rights you have over your data can be found in our Privacy Notice. For further inquiries, please contact dataprotection@jenner.com.
News and Insights
Event
Associate Steven Arango to Speak at the Veterans' Legal Career Fair
On September 18, Associate Steven Arango will speak on a panel at the Veterans' Legal Career Fair (VLCF), the only legal career fair in the United States dedicated to veterans, active-duty service members, and military spouses.
September 18, 2026
Publications
In American Banker, Partner Laurel Loomis Rimon Weighs in on OCC's Handling of Fintech Bank Charter Applications
Partner Laurel Loomis Rimon spoke with American Banker about how the Office of the Comptroller of the Currency is approaching bank charter applications from fintechs, amid a growing wave of companies seeking charters from federal regulators.
August 18, 2026
Event
Partner David Greenwald to Speak at PLI Program on Privilege and AI
On August 17, David Greenwald will speak at "Fitting New “Tech” Into the Attorney-Client Privilege and Work Product Protection," a virtual program hosted by the Practising Law Institute (PLI).
August 17, 2026
Publications
Special Counsel Kimberly Cook Featured in FCBA Member Spotlight
The Federal Communications Bar Association (FCBA) featured Kimberly Cook in its Member Spotlight series.
August 13, 2026
Recognition
Three Jenner & Block Partners Named to Crain's New York Business' 2026 Notable Leaders in Accounting, Consulting & Law List
Crain's New York Business recognized Jenner & Block Partners Anthony Barkow, Alison Stein, and Damian Williams among its 2026 Notable Leaders in Accounting, Consulting & Law.
August 10, 2026