• Joshua Duvall

RFP Amendment Adds Page Limitation, Contractor's Violation Sinks Proposal

Government contracting is a challenging yet lucrative business model.  First, contractors often face stiff competition in this $550 billion marketplace.  And second, it also requires contractors to be familiar with an extensive––and complex––legal and regulatory framework under which Federal agencies procure goods and services.


Among the vast web of rules and regulations is that a contractor must generally adhere to a solicitation's requirements in order to be eligible for an award.  This might mean, for example, that a small business contractor comply with the requirement that it be a "small business concern" to be eligible for a set-aside procurement.  While that rule might seem facially significant, contractors must still pay close attention to other, seemingly trivial, solicitation requirements like proposal filetype and page limitations.  Failure to do so might harm your chances for award, as was the case in this protest concerning the latter.


In VetsTech, LLC, B-418164, November 7, 2019, 2019 CPD ¶ ___, the Veterans Affairs ("VA" or "Agency") conducted a procurement for an "enterprise telecommunications expense management solution."  Relevant here, under the request for proposal's ("RFP") technical factor, offerors were instructed to include a draft Concept of Operations ("CONOPS") that addressed how its solution would function within the VA environment.


Notably, the RFP did not contain any page limitations and it did not affirmatively state that the table of contents or list of acronyms would be excluded from the page count.  The RFP also explained that if an offeror's proposal failed to meet the minimum requirements, it would be rated as "unacceptable," rendering the offeror ineligible for a contract award.


Here, the protester timely submitted a proposal in response to the RFP.  Ten days after receiving proposals, the Agency issued Amendment 0004 to clarify portions of the RFP as well as the technical volume's page limitation.  Specifically, Amendment 0004 provided the following language:


  • The page limit for Volume I is 40 pages.  Volume I shall be submitted in PDF format as indicated in the solicitation.  All pages submitted within Volume I including but not limited to cover page / title page, cover letter, table of contents, annexes, documentation, attachments or the like, etc., not specifically required by this solicitation will be counted toward the 40 page limit.  The page count will be determined by counting the pages in the order they come up in the print layout view.  All Offerors are reminded that in accordance with the terms of the solicitation, pages which exceed the total page limit for a particular volume will not be evaluated. (emphasis added).


In response, the protester acknowledged Amendment 0004 and stated that it "requests that our original proposal submitted June 9, 2019 be evaluated. We are not submitting a revised proposal." Unfortunately, the protester's failure to modify its proposal resulted in a lost opportunity because it failed to address CONOPS, which was required under the technical factor.


During proposal evaluations, the Agency evaluated the protester's proposal as technically unacceptable because the "draft CONOPS portion" of its proposal was outside of the page limitation (on page 42) and was therefore not evaluated.  The protester argued that it included a draft CONOPS (on page 39) and that the original RFP did not "affirmatively state" that the table of contents or acronyms would count toward the limit.


GAO was unpersuaded, however, because Amendment 0004 clearly identified the technical volume's page limitation (40 pages), that the title page, table of contents, annexes, and attachments would count towards that limitation, and noted that the Agency would not consider any information in an offeror's proposal that exceeded the page limitation.  Ultimately, GAO found that the VA acted reasonably when it determined that the protester's proposal did not include the required draft CONOPS requirement––rendering it technically unacceptable––and dismissed the protest. [1]


Takeaway


This protest is arguably a tough loss, as it appears that the contractor somehow missed the page limitation in Amendment 0004.  Despite that notion, the protest illustrates the steep consequences facing contractors who address a required technical element beyond the page limitation.  To that end, it also serves as a cautionary reminder: agencies can amend solicitations in a variety of ways, so contractors should closely scrutinize each amendment to see what you need to change to be both compliant and competitive.


__________


[1] In dismissing the protest, GAO concluded that the protester was not an "interested party" because its technically unacceptable proposal was ineligible for award.  See RELM Wireless Corporation, B-405358, Oct. 7, 2011, 2011 CPD ¶ 211 at 4 (finding that a protester is not an interested party where, even if the protest is sustained, the protester will be ineligible for award under the remaining terms of the solicitation).


. . .


#govconjudicata #govcon #bidprotest


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