A recent Government Accountability Office (GAO) Bid Protest decision serves as a stark reminder to carefully review the Request for Proposal (RFP) requirements. Herman Construction Group, Inc. (“Herman”), a San Diego-based contractor, protested the Department of Homeland Security’s rejection of its bid for a potential five-year repair and maintenance service contract along the U.S. southwest border with Mexico.
Issued in December 2012, the RFP instructed offerors to submit their proposals electronically and in hard copy, but also to “provide all required information in the format specified.” The solicitation emphasized that electronic proposals were to be submitted in Microsoft Excel file format, providing all formulas and calculations. The RFP explained that the submission of price proposals in the Excel file format was required “to ensure submission of information essential to the understanding and comprehensive evaluation of the offeror’s proposal” and that failure to comply with the RFP’s proposal submission requirements would result in rejection of the firm’s proposal.
Herman’s confusion apparently stemmed from an Amendment (Amendment 4) to the RFP that provided the potential bidders with a cost template guide (in Excel) that included all of the electronically encoded Excel formulas to calculate the work category subtotals and overall prices. Bidders were then advised that the cost template guide “is a recommended guide” and that “[i]f a different format is used, be sure to include all formulas from which to retrace the figures and include the cost breakdown and basis of estimate.”
Nineteen proposals were received, but six proposals, including Herman’s, were rejected for failing to submit the price proposal in an Excel format. In Herman’s case, the agency rejected Herman’s proposal because it submitted its spreadsheets in PDF. Herman protested the matter with the GAO, arguing that Amendment 4 allowed offerors the option to submit a “different format” so long as the formulas were provided and that Herman’s PDF submittal met those requirements. Although the decision did not indicate where Herman’s bid price fell in relation to the other eighteen proposals, based on Herman’s protest of the rejection, we can assume Herman was the low bidder or fairly close. Otherwise, a successful protest would have been moot.
Nevertheless, the GAO was not convinced. Instead, focusing on the offeror’s burden of submitting an adequately written proposal in the format established by the solicitation, the GAO denied Herman’s protest.[i] The GAO stated:
[a]n agency is not required to adapt its evaluation to comply with an offeror’s submission; even if a reformatting effort by the offeror or the agency could be accomplished to allow for evaluation, the question is not what the agency could possibly do to cure a noncompliant submission, but rather, what it was required to do. See Mathews Assocs., Inc., B-299305, Mar. 5, 2007, 2007 CPD ¶ 47 at 3. Where proposal submission requirements are clear, an agency is not required to assume the risks of potential disruption to its procurement in order to permit an offeror to cure a defective proposal submission initiated by its failure to comply with mandatory solicitation requirements. Id.
(Emphasis added.) The GAO also determined that although Amendment 4 allowed for a different format, this format still had to be in Excel based on the RFP requirements as well as the substantial time it would take the agency to reformat Herman’s PDF format back into Excel.
Comment: Here, it appears that at least six bidders were confused by the electronic format requirement which calls into question whether the RFP requirements and Amendment 4 were as clear as the GAO held them out to be. Nevertheless, the GAO’s decision stands and as bidding opportunities continue to increase, this case serves as a strong reminder to read the RFP requirements carefully to ensure there is no confusion. Furthermore, if there is any question as to an RFP requirement, be sure to seek clarification so potential issues can be resolved prior to bid opening.
[i] Matter of: Herman Construction Group, Inc., B- 408018.2, (Comp. Gen., 2013).