Error in Table of Contents Dooms Proposal

By now, our frequent readers are familiar with GAO’s mantra that it is an offeror’s responsibility to submit a well-written proposal that complies with the solicitation’s requirements and risks being found unacceptable if it fails to do so.

That rule serves its purpose: it helps maintain an organized bidding process, under which the agency can evaluate proposals on an even footing. But it can also lead to harsh results, like it did in a recent protest challenging a proposal’s unacceptability due to its non-compliant table of contents.

Let’s take a look.

In Nexagen Networks, Inc., B-416947 et al. (Jan. 11, 2019), Nexagen submitted a proposal under a request for task execution plan issued by the U.S. Army. The solicitation sought technical support for communications capabilities, and was competed among the 20 companies holding contracts under the Army’s Global Tactical Advanced Communication Systems IDIQ vehicle.

As is relevant here, the solicitation required proposals to be organized in a certain manner. Part 4 of the required Technical Volume was to have the offeror’s response as to the Service Desk Location requirements and was to be evaluated on an acceptable/unacceptable basis. The solicitation said that each factor “shall contain clearly identified sections,” and, throughout, the solicitation further admonished offerors (sometimes in bold, capitalized font) that they had to meet the solicitation’s instructions.

Nexagen’s proposal scored acceptable ratings under all but Technical Factor Part 4, where it was evaluated as unacceptable. According to the Army, Nexagen’s proposal wasn’t clear as to its effort under this Part—it was not listed in Nexagen’s table of contents or addressed later in the Technical submission. Because the Army believed that Nexagen did not address this aspect of the solicitation, it found Nexagen’s entire proposal to be unacceptable.

The Army instead issued an award to Nexagen’s competitor—for a little bit more money than Nexagen proposed.

Perhaps thinking this outcome a bit harsh, Nexagen protested the evaluation to the Government Accountability Office. Nexagen acknowledged that “the numbering of the proposal and the nomenclature used in the table of contents is slightly confusing,” but nonetheless argued that the required information was included in its table of contents at Section 3.3.3 (labeled “Service Desk Location”). According to Nexagen, the Army was required to interpret this section as its response to Part 4.

GAO disagreed with Nexagen. Noting that it is an offeror’s responsibility to submit an adequately-written proposal or risk being downgraded or excluded if it doesn’t, GAO found that “Nexagen’s proposal explicitly identified Parts 1, 2, and 3 and provided a corresponding response, but did not clearly identify similar information for Part 4.” GAO continued:

To the extent Nexagen contends that the agency should have recognized that section 3.3.3., Service Desk Location, should have been interpreted as its Part 4 response because its proposal referenced Part 4 in another section of the proposal, we disagree. The agency is not required to piece together disparate parts of Nexagen’s proposal to determine its intent. Since offerors are expected to respond explicitly to RFP requirements, the protester acted at its own peril in not submitting a clear and appropriately organized proposal.

Given Nexagen’s failure to comply with the solicitation’s requirements, GAO denied its protest.

At first blush, Nexagen’s exclusion seems somewhat harsh—Nexagen was essentially excluded for a labeling error, which ended up costing taxpayers a bit more than they otherwise might have spent. But keep in mind that the point of the rule is to ensure that offerors are evaluated, as close as possible, under a level playing field. Could the agency have opened discussions with offerors and allowed Nexagen to fix this (relatively minor) error? Sure. But there’s no requirement that an agency do so, further cementing the importance that offerors provide their best effort in their initial offer.

These facts also help bring home an important point about bid protests: the stronger an offeror’s proposal, the better (in general) its odds of success in a bid protest. After all, having an acceptable effort means that you’ll likely have standing to challenge any errors in the evaluation.

If you have questions about whether to protest an evaluation or award decision, please give us a call.