Exceeding Solicitation’s Page Limit Renders Offer Technically Unacceptable, Even if It’s the Cover Page

In a recent decision, the GAO laid down a stark reminder of its unwavering demand that offers be meticulously compliant with the instructions of a solicitation.  In the decision, GAO denied a protest challenging the agency’s evaluation of a proposal as technically unacceptable where certain required proposal information was in pages that exceeded the solicitation’s page limits. The agency’s decision to ignore that information was reasonable and consistent with the solicitation’s terms.

The Army Corps of Engineers issued a small business set-aside RFP on October 11, 2019.  The solicitation contemplated a two-phase procurement and sought to establish multiple-award IDIQ contracts to four offerors on a best-value tradeoff basis for design-build construction services throughout 12 states and the District of Columbia.

Per the solicitation, offerors were required to submit a single volume (referred to as phase 1/volume 1) not more than 35 pages addressing evaluation factors of experience, technical and management approach, and past performance.  Directly beneath the table setting forth the page limits for the various proposal volumes for the two phases, the solicitation included the following, in bold:

NOTE: All 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.

To answer questions from offerors concerning the solicitation, the Corps issued an amendment on November 1, 2019.  In response to a question about whether page breaks, including blank pages meant to separate the sections of a proposal volume, would count against the page limit, the agency responded: “[t]he offeror can package their proposal with page breaks if de[s]ired; however, all pages WILL count toward the stated page limit, with only those exceptions specifically stated in the solicitation.” The solicitation also plainly explained that some requirements under the solicitation were essential, providing:

For submission requirements designated as “shall” or “must,” failure to provide the requested information will be considered a deficiency and the specified factor will be rated “unacceptable,” and the Offer will be considered un-awardable unless revised.

One such essential item was an organizational chart, as the solicitation stated offerors “shall include” in their proposals an organizational chart of the offeror’s overall structure and management of the project team. The solicitation also provided that during the phase 1 evaluation, a marginal or unacceptable rating under the experience or technical and management approach factors would result in the entire proposal being eliminated from the competition.

Benaka timely submitted a phase 1 proposal which the Corps decided was 36 pages long (excluding past performance information). As a result, the Corps removed page 36 from Benaka’s proposal and submitted the first 35 pages to the source selection evaluation board (SSEB) for evaluation.  The organizational chart required by the solicitation was on the discarded page 36 of Benaka’s proposal.  Since it lacked the organizational chart, the Corps assessed Benaka’s proposal a deficiency in its evaluation and assigned the proposal a rating of unacceptable under the technical and management approach factor, effectively eliminating it from contention.

At GAO, Benaka argued that the Corps’ determination that its proposal exceeded the page limitation was unreasonable because it included Benaka’s cover page in its calculation.  To Benaka, since cover pages were not specifically identified with the other listed types of pages subject to the RFP’s page limitation, which followed the word “including” in the relevant portion of the solicitation, it was unreasonable for the Corps to count them.  Benaka also argued that because its cover page was unnumbered and non-substantive, it should not have been counted toward the page limit.

In rebuttal, the Corps argued its exclusion of the 36-page proposal was reasonable in accordance with the requirements of the solicitation, which distinctly allowed only 35 pages per proposal.  Further, the Corps noted that the omission from the proposal of the organizational, an explicitly required piece, rendered it unacceptable. 

In the end, the Corps’ argument carried the day.  GAO found nothing improper about the Corps’ decision to count the cover page against the page limitation, and as a consequence, not to consider the organizational chart on page 36 in its evaluation. 

In reaching its conclusion, GAO revealed it will “first examine the plain language of a solicitation”, and that disagreements over language in the solicitation are resolved “by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner.”  Under this approach, GAO found the Corps’ view to be reasonable.  GAO noted the RFP specifically advised 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.”  So, this plain language did not limit the types of pages which would count against the 35-page limit and cover pages were not excluded from the page count.

GAO also decided that Benaka’s argument, to include only specifically listed pages in the page count limit, was not plausible when the plain language of the page limitation provision was read as a whole. This was because under Benaka’s interpretation, the Corps would have been precluded from counting any proposal pages other than cover letters, table of contents pages, tables, illustrations, or appendices, so in theory, offerors could include infinite technical proposal information as long as they did so in specific page formats.

GAO was also unpersuaded by Benaka’s argument that the cover page should not be counted because it was unnumbered and non-substantive. The Corp’s amendment had clearly explained even blank pages acting as section dividers would count toward the page limit, and only those exceptions specifically stated in the solicitation would not.  Thus, GAO similarly found this argument from Benaka was unreasonable and contrary to the plain language of the solicitation.

GAO explained, as a general matter, offerors must prepare their proposals within the format limitations set out in an agency’s solicitation, including any applicable page limits. Offerors that exceed a solicitation’s established page limitations assume the risk that the agency will not consider the excess pages, as clearly stated solicitation technical requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is technically unacceptable.

In conclusion, GAO found no basis to disturb the agency’s evaluation of Benaka’s phase 1/volume 1 proposal as unacceptable under the technical and management approach factor for failing to include the required organization chart. Since Benaka was found unacceptable under the technical and management approach factor, it was not an interested party, and additional protest allegations it attempted to raise were also dismissed.

This decision reminds contractors they should diligently abide by even the most miniscule of details in the solicitation, down to the cover page.  

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