Little Things: Bid Protest Decision Demonstrates (once again) How Technicalities Can Eliminate a Proposal

It’s the little things, the little, little, little, little, little things…

— Company: A Musical Comedy by Stephen Sondheim

The canon of bid protest decisions is littered with many, many cases in which the Government rejected a proposal due to a technical glitch. A recent decision issued by the Government Accountability Office (“GAO”) demonstrates, once again, that little things can consign a proposal to the waste bin. See Benaka, Inc., B-418639 (July 9, 2020) (Benaka).

Benaka, Inc., a small business construction services firm, submitted a proposal to the Army Corps of Engineers (“Corps”) to provide design build services for construction projects throughout 12 states and the District of Columbia. Clearly, a lot of work was at stake.

The Government set up a two-step proposal process in which the first step required offerors to submit a technical proposal that the Corps would evaluate on the factors of experience, technical and management approach, and past performance. The Government then would narrow the universe of offerors to four contractors that would progress to the second step of the solicitation process to select the firm that would provide the best value to the Government.

The Government’s solicitation called for offerors to submit a single volume proposal for the first step that could not exceed 35 pages in length. The Corps explained in bold print that:

[a]ll pages, including cover letters, Table of Contents pages, tables, illustrations, and appendices will be counted in the page calculation; with the exception of Past Performance Questionnaires. Past performance questionnaires WILL NOT count against the page limit. Pages that exceed the above noted page limitations will not be evaluated. Additional pages over the maximum allowed will be removed, not read, and will not be evaluated by the Government.

Benaka at 2. One prospective offeror inquired about whether page breaks or blank pages that would separate sections of the proposal would count against the page limit. In response, the Corps basically told offerors to do whatever they want BUT that all pages “WILL” count against the page limit except for “specifically stated” exceptions (i.e., past performance questionnaires). Id.

The solicitation instructed offerors that they “shall include” an organizational chart to illustrate how their project teams would be organized and managed. If an offeror failed to submit any element with respect to which the Corps stated that the offeror “shall” or “must” include, the absence of the element would constitute a “deficiency” that would further result in an “unacceptable” rating for the factor to which the element was addressed. In such a case, “the Offer will be considered un-awardable unless revised.” Id. at 3.

Benaka’s organizational chart was placed on the last page of its proposal. And, depending on whose side you take, the chart was on page 35 or 36. At issue was whether Benaka’s unnumbered cover page should have been counted as a page against the limit. The Corps took the position that its solicitation made it unambiguously clear that, yep, it did. Id. at 4. For that reason, the Corps effectively ripped the org chart from the back of the proposal and scored Benaka’s proposal as unacceptable on the management and technical factor. The Corps then eliminated Benaka from the competition because the unacceptable rating made the offer “unawardable.” Id.

Benaka protested its elimination from the competition and argued to the GAO that no, no, no the cover page doesn’t count because it’s just a title page that is neither substantive nor numbered. Id. at 3. The GAO, however, sided with the Corps because the solicitation, in GAO’s view, was unambiguous that any page that was in the technical volume would count unless it was expressly excluded from the page count. Therefore, the Corps was within its rights to ignore the chart and eliminate Benaka from the competition. Id. at 4-5.

While I would have made the same argument as did Benaka, I can’t really argue that this protest should have been decided any other way. The solicitation was clear that anything that was in the volume other than past performance questionnaires would count against the page limit. If page breaks or blank pages could count against the page limit, then Benaka’s cover page surely could also count.

But, as much as I can accept the decision, I’m troubled by the outcome for two reasons. First, the solicitation stated that the absence of a required element would render a proposal “un-awardable unless revised.” Without diving into the ocean of decisions over discussions and clarifications in negotiated procurements, I recall a case in which the Government permissibly allowed an offeror to supply a missing certification as a clarification that did not require the Government to open up discussions with all offerors. If that’s ok, perhaps the Corps could have allowed Benaka to clarify its proposal by deleting the offending title page that I have to assume was not a required element.

The second reason this outcome troubles me is because such technicalities can deprive the Government from obtaining goods or services that might have provided the best value but for the offending glitch. Now, I get that little things can matter. For example, the failure to follow a fairly obvious instruction casts doubt on an offeror’s ability to fulfill contract requirements down the road. Or, allowing an offeror to have a second bite to correct something that other offerors got right is arguably unfair.

Nonetheless, should a nonsubstantive glitch lead to a substantive outcome? In this particular case, I can’t tell. It appears that the proposal had other weaknesses that would have eliminated Benaka from the running in which allowing a clarification would have made no difference. See id. at 5 (in which the GAO noted that Benaka protested other aspects of its evaluation).

However, there is a clear lesson from this decision that has been stated many, many times. Government contractors have to be vigilant to ensure that their proposals are the correct length, that they’re submitted on time—down to the second, that cross references are correct, or that myriad other minor details are checked off. Little things can have mammoth implications.