Proposal Preparation Instructions in Government Contracting

In accordance with the Uniform Contract Format1, every Request for Proposal (“RFP”) includes, or should include, in Part IV Representations and Instructions, a section called Instructions, Conditions, and Notices to Offerors, also commonly referred to as the “solicitation provisions.” It is usually Section L of the RFP. Generally, this section of the RFP provides critical information to competitors who want to submit a proposal to the Government. These instructions explain the type of information the Government expects to see in the proposals it receives. This information will explain what technical, management, cost, past performance, and contractual information that proposals which exceed one or more of these limitations will be rejected, or that any pages exceeding the limitations in page count will not be evaluated.

The RFP warns Offerors that failure to comply with these requirements may result in their offer being rejected. Generally, the buyer has the right to demand that offers be submitted in a particular format. Sellers may dislike the requirements, but astute veterans of proposals submitted to the Government in response to RFPs never ignore them.

The principal purpose of these Instructions to Offerors is to satisfy the public policy of absolute fairness to all competitors – often called “leveling the playing field.” Hence, no competitor is allowed to gain an unfair competitive advantage over the other competitors. The Government is required to rigidly follow their Instructions to Offerors regardless of the impact on, or any potential unfairness to, a competitor.

This issue was discussed by the Government Accountability Office (“GAO”) in its decision in the Matter of: Matthews Associates, Inc., File No. B-299305, dated March 5, 2007. Matthews had filed its protest after it learned that its proposal to furnish loudspeakers and battery boxes to the U.S. Army Communications-Electronics Life Cycle Management Command had been rejected. The Instructions to Offerors specifically limited the number of pages to 25, specified the margin settings, and font sizes to be used, and required that proposals be submitted electronically. Moreover, the Army stated that any pages that exceeded the margin, font, or page limit would not be evaluated. The proposals were submitted electronically to the Government.

After receipt of proposals, the Agency initially reviewed each proposal and eliminated two proposals for failure to comply with the Instructions to Offerors in the RFP. One of the proposals that were eliminated from further consideration was that of the protester. In other words, they were eliminated from the competitive range. Specifically, the solicitation contained six margin requirements but the Protester's proposal only met two of them.

Matthews argued that the Army was unreasonable and, consequently, prejudicial to Matthews. The Army, Matthews argued, could have easily reformatted the proposal margin, spacing, and headings to meet the solicitation requirements so the proposal did not exceed the 25 page limitation or, alternatively, change the margin requirements and disregard any excess pages.

The GAO stated that “the question is not what the agency could do, but rather what it was required to do.” The GAO decided that the Army here was not required to reformat, or permit the Protester to reformat, the proposal. The GAO continued by stating that “the solicitation requirements at issue are clear, and were not contested by the Protester.”3 Regardless of what the Protester believes what the agency can or should do with respect to reformatting the proposal, there is no “requirement that the agency take such action given the RFP's clear instructions regarding reformatting and the consequences of not complying with those instructions.” The GAO also agreed with the Army that permitting the reformatting of the proposal could, potentially, lead to other disputes, presumably protests, about the manner in which the reformatting is accomplished. GAO stated this was an unacceptable risk for the Army.

The GAO averred that in previous cases, the agency may have downgraded a proposal, rather than eliminating the proposal from consideration, for failure to comply with proposal instructions.4 But the GAO stated that “there is nothing or unduly burdensome about requiring Offerors to assume the risks associated submitting proposals that do not comply with clearly stated solicitation formatting requirements.”

The moral of the story here is clear. Answer the mail exactly as required by the solicitation. Avoid some type of clever “work around” of the instructions. Do not – under any circumstance – ignore the proposal instructions. Do not waste tens or hundreds of thousands of dollars in bid and proposal (“B&P“) monies, and your valuable time, by ignoring the proposal instructions and then be eliminated from the competitive range. Don't be arrogant and assume the proposal instructions do not apply to you. They do!

Tom Petruska, Owner
Contracts Unlimited, Incorporated

The foregoing is not legal advice nor is it a legal opinion. Please contact your attorney for legal advice.

Do you need assistance with proposal preparation or other contracting issues?

Footnotes:

1. FAR 15.204

2. Nash, Ralph C. and Cibinic, John, Competitive Negotiation, 2nd Edition, 1999

3. See All Star Maintenance, Inc., B-244243, September 26, 1991 for an additional discussion regarding this topic.

4. See Client Network Services, B-297994, April 28, 2006

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