A Victory for Common Sense: GAO Refuses to Allow Agency To Elevate Form Over Substance

Good news for contractors: the GAO has ruled that an agency evaluation cannot be based on unimportant or meaningless distinctions, in which the agency appears to care more about the form of an offeror’s proposal than its substance.  In GAO Protest of Engineering Management & Integration, Inc., B-400356.4 (May 21, 2009), the GAO sustained a protest of a Department of Education contract award, holding that the agency improperly elevated form over substance in its evaluation.

The solicitation at issue in the Engineering Management GAO protest called for each offeror to include with its proposal a staffing plan that identified the total number of staff and the percentage of the staff holding a third party certification.  Engineering Management & Integration, Inc. submitted a proposal that identified its total number of staff, and stated which of those individuals possessed a third-party certification, but did not express the certified staff as a percent of total staff.  The agency rejected the proposal as unacceptable.

The GAO sustained EMI’s bid protest, holding, in not so many words, that the agency had elevated form over substance.  The GAO wrote that there was no evidence in the record to suggest that furnishing the “actual number of its employees with certifications,” as opposed to a percent, somehow resulted in the agency’s being unable to determine the acceptability of EMI’s staffing plan.  Indeed, the GAO held, EMI’s furnishing of information as to whether specific employees held certifications was “more meaningful” data than a rote percentage.

The Engineering Management decision is a victory for common sense.  Agencies should be required to differentiate between offerors based on substantive proposal provisions, rather than relying upon matters of pure form, and the GAO appropriately ruled that EMI met provided the appropriate substantive information in this case.

However, the line between substance and form can blurry, so contractors would be wise to carefully comply with each and every provision of a solicitation, no matter how meaningless and devoid of substance it may seem.  Even in this case, strict compliance with the solicitation might have saved EMI the costs of its GAO protest.

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