One of the 50 Ways to Lose a Contract

The number of ways a federal bidder can lose a contract award on an otherwise winning proposal is mind boggling. The Government Accountability Office (GAO) has sustained hundreds of protests on issues such as late proposals, proposals sent to the wrong location, proposals missing required attachments, proposals failing to acknowledge amendments, unsigned proposals, proposals containing typographical errors and others.

Most of these problems would be overlooked in the commercial world, but the rigid rules of federal procurement leave virtually no margin for error. Some commentators argue that the rigid rules are nonsensical, they improperly raise form over substance and they deprive the government of the best value over inane technicalities. This probably is a correct view, and it is clear the rules are in need of modification. In the meantime, the trees keep falling.

This week, the GAO released a decision in DKW Communications Inc., B–412652.6, recommending that the Energy Department rescind the award of a $250 million task order because the winning bidder improperly compressed the line spacing of their proposal. By altering the spacing, the GAO found, the winning bidder had effectively exceeded the applicable page limits. The GAO ruled that this gave the awardee an improper competitive advantage and, as a result, it recommended the Energy Department either reject the winning proposal and award to the protester or amend the solicitation and seek new proposals.

The government missed—or ignored—the spacing issue in the evaluation, and it was exposed only because a competitor filed a protest and gained access to a copy of the winning proposal. Had no protest been filed, this would have never come to light and the original awardee would have kept the contract.

Until the rules are changed, bidders need to read and adhere to the proposal preparation instructions as gospel. Before proposals go out, proposal reviewers should test compliance with each instruction, including formatting issues. Even text size in charts should be tested. Otherwise, as this GAO case teaches, even if you win an award, it can be rescinded because of a simple error that has nothing to do with technical merit, price or past performance.

Al Krachman is a Partner at Blank Rome, LLP and may be reached at krachman@blankrome.com.