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Ignoring RFP Formatting Requirements Is Risky




by:
Stephen J. Kelleher
Smith, Currie & Hancock LLP - Washington Office

 
January 8, 2014

Previously published on January 3, 2014

Specific RFP Requirement Disregarded

With the advance of technology and the importance of delivering information to the government by electronic means using that technology, a contractor must stay aware of the specific requirements set forth in Requests for Proposals (“RFPs”) for the submission of proposals and ensure that its submissions to the government comply with those requirements. If the requirements in the RFP appear unnecessary, it can be very risky to simply elect to make a submission in an alternative format.

In a recent bid protest decision, Herman Construction Group, Inc., B-408018.2, 2013 CPD ¶139, a contractor learned that lesson the hard way. Herman Construction submitted a proposal in response to an RFP for infrastructure maintenance and repair services. The RFP required submission of a detailed price proposal. The price proposal was to be submitted in an electronic format using the XLS format for spreadsheet files at minimum using the version of XLS formatting utilized by Microsoft Excel 2003. As explained by the Department of Homeland Security, the requirement for submission in XLS format was to “ensure submission of information essential to the understanding and comprehensive evaluation of the offerors’ proposals.” The spreadsheet files were encoded by the agency with formulas allowing for fast computation of work category and total price for each offeror.

Herman Construction failed to submit its price proposal using the XLS format specified in the RFP. Instead, it submitted its price proposal as a portable document format file (“PDF”) and in paper form. Although Herman Construction included formulas with its submission of its price proposal, the agency rejected the proposal on the basis that it failed to comply with the formatting requirements included in the RFP.

The Government Accountability Office (“GAO”) denied Herman Construction’s protest of the rejection of its proposal by the agency. The basis for the denial was clear: GAO determined that Herman Construction failed to show that it had submitted its proposal in the format required by the solicitation. Specifically, it ruled that the agency is not required to adapt its evaluation to make up for deficiencies in a submission. Furthermore, the agency is under no obligation to reformat a proposal that is not compliant with the RFP.

Comment

For contractors pursuing federal contracts, the moral of Herman Construction is clear: Read and take all steps necessary to comply with the formatting requirements for proposals, and all other requirements of an RFP, before submitting it to the government. If an RFP does not give options for the format of a proposal, a contractor should not be making independent decisions on the best way to present the information requested. This is an area where the government may not have any obligation to be flexible, if the agency provides any justification for its decision. Creativity on the part of a contractor, despite it being a good idea, may be the reason that a contractor is excluded from the competition for a contract.

If the contractor believes that the submission requirements of the RFP are overly restrictive or that there is an alternative (better) method for submitting its proposal, the contractor should take the following actions:

  • Contact the agency prior to submitting the proposal and explain how it wishes to submit the proposal;
  • Provide a rationale or justification for the request; and
  • Request a specific response by a date certain.

If the agency fails to reply to a request for an alternative submission format, it is very risky to conclude that this silence constitutes agreement. If the agency rejects the proposed alternative submission format, that may be grounds for a protest. However, any such protest must be submitted prior to the due date for submission of proposals.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Stephen J. Kelleher
Practice Area
 
Construction Law
 
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