It’s Not Up to Agency to Clarify Layout and Printing Errors in Proposals, Says GAO

It is well understood that offerors must submit proposals that meet the procuring agency’s requirements, including any page limitations set by the solicitation. But what if an offeror’s proposal contains an obvious layout and printing error that inadvertently puts required information outside the established page limits? Does the agency have a duty to seek clarifications or allow corrections? GAO says no.

JJ Glob. Servs., Inc., B-418318 (Feb. 7, 2020), involved a Navy RFP for ground maintenance and tree trimming services at various military installations in Guam and the Northern Mariana Islands. The RFP anticipated the award of a fixed-price, indefinite-delivery, indefinite-quantity contract on a best-value basis, to be made without discussions.

The RFP called for evaluation of both price and non-price factors and said that the agency would assign an unacceptable rating to any non-price factors that did not meet the RFP’s requirements and contained one or more deficiencies. Any proposal with a deficiency would be considered ineligible for award.

The RFP also set page limitations for narratives responding to the technical approach factor and the management plan and quality control factor: “[i]f the offeror submits more than five (5) pages for evaluation [for either narrative], the Government will evaluate the first five (5) pages and will not evaluate information that follows the first five (5) pages.”

The agency received proposals from the protester and one other offeror. Upon evaluation, it found that both of the protester’s proposal narratives exceeded the five-page limitation set by the RFP. The agency assessed deficiencies under both factors because information required by the RFP did not appear within the first five pages of the narratives, and it assigned unacceptable ratings to both factors. The protester’s proposal was considered ineligible and award was made to the only other offeror.

The protester challenged the agency’s rejection of its proposal as ineligible. It argued that the proposal contained the required information but a layout and printing error caused portions of its proposal to inadvertently exceed the five-page limitation. The errors were a minor informality that could have been easily corrected and the agency should have either waived the limitation or allowed a correction.

In response, the agency argued that the informational omissions amounted to material failures and the protester was ineligible for award under the RFP. The agency also asserted that it was not legally obliged to waive or allow the protester to fix the deficiencies.

In reaching its decision, GAO said, “[a]s a general matter, offerors must prepare their proposals within the format limitations set out in an agency’s solicitation, including any applicable page limits.” GAO cited to the RFP’s “clear, unambiguous page limitations” and the statement that the agency would not consider excess pages and would assess deficiencies for missing information. And it explained:

In those instances where a solicitation has established clear page limitations, we have held that an agency is not obligated to sort through an offeror’s proposal to decide which pages should or should not be counted toward that limitation.

GAO found no basis to question the agency’s refusal to consider the information in the additional pages. It said, “it is up to the agency whether or not to seek clarifications or corrections from offerors[,]” because “FAR part 15 offerors have no automatic right to clarifications regarding proposals, and such communications cannot be used to cure proposal deficiencies or, as here, correct material omissions.” GAO also found no basis to question the agency’s rejection of the proposal as ineligible, explaining:

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 and may not form the basis for award.

GAO denied the protest and concluded:

By choosing to format its proposal as it did, [the protester] assumed the risk that portions of its proposal would be rejected for noncompliance with the limits.

This holding serves as a reminder of the importance of submitting a proposal that conforms to the solicitation’s requirements (all of them). The agency is not required to seek correction or clarification of proposal errors—even easily fixable ones. It is the offeror’s responsibility alone to ensure the proposal conforms to the solicitation.