Protest challenging agency’s rejection of protester’s proposal for non-compliance with a formatting requirement is denied. The protester contended that the agency had twice evaluated its proposal but never raised the formatting issue, so it was unreasonable for the agency to suddenly start enforcing this formatting requirement. But the agency had amended the solicitation after those first two evaluations to specifically revise the formatting requirement and make it mandatory. The agency's failure to raise the formatting issue before that amendment was irrelevant. Moreover, the protester had not been misled by the agency’s failure to previously raise the formatting issue. The amendment should have put the protester on notice that the formatting requirement was now mandatory.
The Army issued a solicitation for construction services at the Dugway Proving Ground in Utah. The solicitation’s formatting instructions for the price proposal referred to Excel spreadsheets and stated that pdf files “may not be considered adequate.” Tope Technology, LLC responded to the solicitation, but it submitted its price proposal in a pdf format. The Army sent discussion questions to Tope, but did not mention the price proposal format. The Army ended up excluding Tope form the competition, finding that its proposal was non-compliant under a mission capability factor. Tope protested, and the Army took corrective action.
As part of the corrective action, the Army received revised proposals from the offerors. Tope once again submitted its price proposal in a pdf format. Tope was not selected for award due to a neutral past performance rating a price that was 30% lower than the government estimate. Tope filed another protest objecting to the Army’s past performance and cost realism evaluations. Again, the Army took corrective action.
But this time, the Army amended the solicitation as part of its corrective action. This amendment included express language requiring that price proposals be in an Excel format and that pdf formats would be unacceptable. Despite this amendment, Tope once again submitted its price proposal in a pdf format. As a result of the pdf price proposal, the Army found Tope’s proposal non-compliant and refused to consider it for award.
Tope filed a third protest claiming that the rejection of its proposal was unreasonable. While acknowledging that the solicitation required price proposals in Excel format, Tope asserted that this requirement had remained unchanged throughout the procurement and thus Army should have raised any concerns regarding the format of Tope’s price proposal during the previous discussions debriefings. Tope alleged that it had been misled by the Army’s failure to raise this formatting issue earlier.
Contrary to Tope’s assertions, however, GAO found that the formatting requirement had not stayed the same throughout the procurement. Rather, the amendment issued after the second corrective action materially revised the price proposal format requirements. It added language that instructed offerors to use Excel format only. What’s more that amendment also added an initial screening of proposals to assess whether they complied with the formatting requirements. The amendment put all offerors on notice of changed formatting requirements.
Nor did GAO believe that Tope had been misled by the Army’s failure to raise these formatting requirements earlier. The revised price proposal formatting requirements had been tied to the agency’s decision to revise its price evaluation to include a price realism analysis. The Army’s concerns with the format of Tope’s price proposal stemmed from the revision to the price evaluation criteria that had not existed during the previous evaluations of Tope’s proposal. Because those criteria were not part of the solicitation during the earlier evaluations, there was no basis for Tope to claim it had been misled by the Army’s previous silence on formatting issues.
Tope is represented by John C. Dulske and Bryan L. Kost of Dykema Gossett PLLC. The agency is represented by Scott N. Flesch, Robert Neill, Robert Nelson, and Eugenee M. Gray of the U.S. Army. GAO attorneys Heather Weiner and Jennifer D. Westfall-McGrail participated in the preparation of the decision.