BNUMBER:  B-275502
DATE:  February 27, 1997
TITLE:  Macfadden & Associates, Inc.

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Matter of:Macfadden & Associates, Inc.

File:     B-275502

Date:February 27, 1997

Shelton H. Skolnick, Esq., Skolnick & Leishman, P.C. for the 
protester.
Arthur I. Rettinger, Esq., and William P. McGinnies, Esq., United 
States Customs Service, for the agency.
Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where solicitation provides type-size and page limitations for 
proposals and states that noncompliance "may" be grounds for 
exclusion, agency must have a reasonable basis to reject a technical 
proposal that complies with the page limit, but also includes 
appendices exceeding the page limit; it may not automatically reject 
the proposal simply for failing to meet the page limit.

DECISION

Macfadden & Associates, Inc. protests the rejection of its proposal by 
the Department of the Treasury, U.S. Customs Service, under request 
for proposals (RFP) No. CS-95-064, issued for support services 
involving the design, development, programming, testing, 
implementation and maintenance of automated information systems.  The 
protester contends that its proposal was improperly rejected for 
exceeding the page limit established in the RFP.  We sustain the 
protest.

The RFP was issued in May 1996, and contemplated the award of an 
indefinite delivery, indefinite quantity type contract with firm, 
fixed unit prices.  The RFP included detailed instructions regarding 
the preparation of proposals, providing a specific format that 
offerors were to follow.  Offerors were cautioned that: "[f]ailure of 
a proposal to comply with these instructions may be grounds for 
exclusion of the proposal from further consideration."  [Emphasis 
added.]  The RFP also reminded offerors not to submit any extraneous 
narrative material with their proposals.  Proposals were to be 
submitted as three separate volumes covering the following: business 
management information; technical proposal and oral presentation; and 
cost/price proposal.  The technical proposal was to be divided into 
five sections, with a total length not to exceed 100 pages, and was to 
be in Times Roman font with a 12-point type size.  

Fifteen firms, including Macfadden, submitted proposals by the June 27 
closing date.  When the contracting officer examined Macfadden's 
proposal, he found that the technical volume included 97 pages 
followed by a 94-page set of appendices.  In addition, he noted that 
the first 97 pages included 13 pages that were in a smaller type size 
than the required 12-point type.  The Customs Service notified 
Macfadden by letter that its proposal was "technically unacceptable 
and incapable of being made acceptable."  Macfadden filed a protest 
with the agency, contending that the Customs Service was required to 
disclose the basis for its determination that Macfadden's proposal was 
technically unacceptable.  The agency denied Macfadden's protest by 
letter, informing the protester that its technical proposal was 
considered noncompliant with the terms of the RFP because it exceeded 
the page limit.  This protest followed.

The agency and the protester properly acknowledge that a contracting 
agency may not accept excess proposal pages in contravention of a 
solicitation page limitation when that action would result in unequal 
treatment of offerors.  However, Macfadden argues that it is entitled 
to an evaluation of the pages of its proposal that do not exceed the 
100-page limit.  In this instance, the Customs Service failed to 
conduct any technical evaluation of the pages of Macfadden's proposal 
that were within the page limits, based on its belief that a review of 
the first 97 pages of the proposal would have been "contrary to law."  
The agency argues that Macfadden ignored the RFP's instructions at its 
own peril and asserts that Macfadden's proposal is simply not entitled 
to further consideration because of this violation.  

Where an appendix included with a proposal causes the proposal to 
exceed a page limit established in the RFP, it would be improper for 
the agency to consider the appendix because to do so would confer upon 
the offeror furnishing the appendix a competitive advantage over those 
offerors whose proposals complied with the page limit. ITT Electron 
Technology Div., B-242289, Apr. 18, 1991, 91-1 CPD  para.  383.  
Accordingly, where solicitations have imposed page and type limits, we 
have found reasonable the agency's removing pages beyond the 
solicitation limit and evaluating only those pages within the limit.  
All Star Maintenance, Inc., B-244143, Sept. 26, 1991, 91-2 CPD  para.  294; 
Infotec Dev., Inc., B-238980, July 20, 1990, 90-2 CPD  para.  58.  See 
Management & Indus. Technologies Assocs., B-257656, Oct. 11, 1994, 
94-2 CPD  para.  134; S.T. Research Corp., B-233115, Feb. 15, 1989, 89-1 CPD  para.  
159.  Whether the approach taken by the agency here--automatic 
rejection of an entire proposal exceeding a page limit rather than 
evaluation of only the proposal pages within the limit--is proper 
depends, in the first instance, upon the language of the solicitation.  
If the solicitation provides that a proposal exceeding a specified 
page limit will be rejected and an offeror, without protesting that 
provision, chooses to compete in accordance with the RFP's terms but 
nevertheless submits a proposal that exceeds the limit, rejection of 
the proposal, at least in general, would seem to be unobjectionable.  
Where, however, the solicitation states that a proposal exceeding a 
page limit may be excluded from consideration, we think offerors are 
reasonably put on notice that rejection for exceeding the page limit 
will not be automatic but instead will occur only if there is a 
reasonable basis for such action.

One such reasonable basis, suggested by the cases cited above, is that 
the proposal, when evaluated after removal of the pages exceeding the 
limit, is unacceptable or, in cases where a competitive range is 
established, is otherwise inappropriate for inclusion in the 
competitive range.  Here, although a significant portion of 
Macfadden's proposal--97 pages--are within the page limit, the agency 
did not  evaluate that portion of the proposal and thus did not 
determine whether the proposal was actually technically unacceptable 
or otherwise should be excluded from the competitive range either 
because the proposal would not have a reasonable chance for award or 
because its inclusion would be unfair to other offerors.  

Our review of the 97-page proposal shows that it includes sections 
covering the five main areas listed in the RFP:  past performance; 
technical approach; understanding the requirements; overall 
operational approach; and personnel resources and staffing and 
transition plan.  The appendices, on the other hand, include documents 
such as examples of forms that Macfadden has developed to use as 
worksheets.  In this regard, it is commonly understood that an 
appendix is supplementary material to what is normally a complete 
text.  The 97 pages thus are easily severable from the appendices and 
cover all of the areas required by the RFP.   Thus, there is nothing 
on the face of the proposal to indicate that the proposal could not be 
acceptable.

The agency alleges, however, that Macfadden's proposal was also 
unacceptable because it included 13 pages that appear to be in 
10-point, instead of the required 12-point, type size.  In response, 
the protester asserts that those 13 pages consist of three figures, 
and that amendment 0001 expressly permitted reductions in font sizes 
in print appearing in figures, provided it remained easily readable.  
Further, Macfadden notes that the same print included in those 13 
pages, when reprinted in the larger type size, still fits onto 13 
pages.  

The 13 pages in question consist of project summaries arranged in a 
chart format to represent Macfadden's experience in three areas.  
Macfadden developed a form to standardize the presentation of 
information from past contracts, inserting certain categories of 
information into squares (requiring smaller type to fit entire lines 
of information into the various adjacent boxes), followed by a 
narrative summary of each contract.  While we question whether this 
arrangement of information reasonably justifies classifying these 
pages as figures, we note that the record shows that reformatting the 
print into the requisite 12-point type results in print that still 
fits onto the same number of pages.[1]  Moreover, a cursory 
examination of the 13 pages immediately reveals that three pages--one 
page at the end of each figure--have only a few lines of type at the 
top of the page, making it obvious that the use of the smaller type 
did not result in condensing the information to circumvent the page 
limitation.  In addition, since the technical proposal (without its 
appendices) numbered only 97 pages, it was 3 pages under the limit in 
any event, and thus there was some leeway available to cover any 
additional volume of print that the change in type size might have 
effected.  Thus, we fail to see how the agency's acceptance of these 
pages as figures (permitting the acceptance of the smaller type) would 
confer any competitive advantage on Macfadden.  

In short, what we have here is the rejection of a proposal based on an 
automatic, mechanical application of the RFP's page limit even though 
the RFP provided only that the agency "may" reject the proposal for 
that reason.  As indicated above, we believe when such language 
appears in an RFP the agency must have a reasonable basis, above and 
beyond the page limit itself, for the rejection.  The Customs Service 
has offered no reasonable basis for the rejection--it has not 
determined that the proposal is unacceptable or should not be in the 
competitive range, and it has not suggested any other reason, apart 
from the RFP page limit, for the rejection.  Accordingly, the protest 
is sustained.

By letter of today to the Secretary of the Treasury, we are 
recommending that the agency, in accordance with the Federal 
Acquisition Regulation, evaluate that portion of Macfadden's technical  
proposal that does not exceed the page limit and determine whether the 
proposal should be in the competitive range.  We also recommend that 
the protester be reimbursed its costs of filing and pursuing its 
protest, including attorneys' fees.  Bid Protest Regulations,  sec.  
21.8(d)(1), 61 Fed. 
Reg. 39039, 39046 (1996) (to be codified at 4 C.F.R.  sec.  21.8)).  The 
protester should submit its certified claim for costs to the 
contracting agency within 60 days of receiving this decision.  Bid 
Protest Regulations,  sec.  21.8(f)(1), supra.

Comptroller General
of the United States   

1. Macfadden has reprinted the 13 pages in the required type size, to 
demonstrate that expanding the type does not require more space.