Government Contracts Monitor

Don’t Get Eliminated on a Technicality - But Don’t Play Games in an Attempt to Meet Solicitation Requirements

June 12, 2016

A recent decision by the Government Accountability Office (GAO) illustrates the importance of properly meeting a solicitation’s requirements in full, to include page limits and font sizes. While these may seem like insignificant details, failure to follow the instructions to the letter can mean the difference between a proposal being evaluated on its technical merits and being eliminated from competition without consideration. Increasingly, every opportunity for federal procurement dollars counts. Following the terms of a solicitation is the first and most basic step in ensuring that your proposal is competitive, but playing word processor games in order to meet formatting requirements is not a sound strategy.

GAO released its decision in DKW Communications, Inc., B-412652.3, .6, on May 2, 2016. DKW concerned a Department of Energy (DoE) solicitation for three fixed price task orders for various services; the three awards, to be issued on a best value basis, were each for a base year plus 4 option years, and totaled over $348 million. The RFQ for each of the task orders limited an offeror’s technical proposal was limited to 10 single-spaced pages, using one of four 12 point font options. It further stated that pages beyond the 10 page limitation would not be considered.

Unsuccessful offeror DKW initially protested the evaluation of its own proposal, alleging that its proposal was rated lower than was appropriate and in a manner inconsistent with the terms of the solicitation. It further alleged that the agency requested a level of detail that was impossible to achieve within the 10 page limit for technical proposals. Upon receipt of the agency report, however, DKW filed supplemental protests challenging the evaluation of successful offeror Criterion, alleging that its offers were improperly evaluated. GAO sustained these protests.

The crux of DKW’s argument in its supplemental protests was that Criterion had improperly circumvented the stated page limits in all three of its technical proposals by compressing line spacing, and that Criterion thus gained an unfair competitive advantage. DKW also protested Criterion’s liberal use of large tables addressing substantive RFQ requirements in its proposals, using 10 point font. However, because the solicitation did not govern font size for tables and graphs, or limit the scope of their use, GAO denied these claims. On analysis of Criterion’s spacing, however, GAO determined that Criterion compressed the line spacing in a “deliberate and intentional effort to evade the page limit imposed by the RFQ.” While the agency argued that it had not mandated which word processing program offerors must use in proposal drafting, and thus it, ostensibly, could not determine whether spacing had been compressed, GAO found that Criterion’s spacing was inconsistent: in volumes 1 and 3, which had no page limitations, Criterion used spacing that yielded 44 lines per page. In the technical volume, Criterion had compressed spacing to yield 66 lines of text her page to fit its proposal within the 10 page limit imposed by the agency. This created a clear and unreasonable competitive advantage significant enough for GAO to set aside the awards.

Interestingly, the agency countered DKW’s allegations with the argument that DKW, too, had failed to comply in full with the single-spacing requirement; the last paragraph of DKW’s 10 page technical proposal used 0.9 spacing, rather than the 1.0 spacing required in the RFQ. The GAO found that any advantage gained by such an adjustment was de minimus when compared to the significant advantage Criterion had gained with its modified spacing. Nonetheless, there is still a lesson here for offerors: creative spacing, or other attempts, conscious or otherwise, to circumvent proposal requirements, may do far more harm than good if an agency, or a competitor, takes notice and objects to them.

Tacitly acknowledging the argument that the agency required more detail that was possible in a 10 page technical proposal, GAO also recommended that DoE re-evaluate its page limitation to determine whether it accurately reflected its requirements.

This decision demonstrates why an offeror needs to follow the terms of a solicitation in full, without playing games. Every proposal in federal procurement is a significant investment in an offeror’s resources, and that investment must be protected to ensure that the proposal receives due consideration. A key aspect of such protections is ensuring that the proposal properly meets the solicitation requirements.