TITLE: B-299305, Mathews Associates, Inc., March 5, 2007
BNUMBER: B-299305
DATE: March 5, 2007
*************************************************
B-299305, Mathews Associates, Inc., March 5, 2007

   Decision

   Matter of: Mathews Associates, Inc.

   File: B-299305

   Date: March 5, 2007

   William M. Weisberg, Esq., and Joyce L. Tong, Esq., Sullivan & Worcester,
   for the protester.

   Brian E. Toland, Esq., and Karin S. Wiechmann, Esq., Department of the
   Army, for the agency.

   Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester's contention that agency unreasonably refused to evaluate its
   proposal is denied where the solicitation clearly indicated that any page
   of an offeror's proposal that exceeded the margin, font, or total page
   limits would not be evaluated, and there is no dispute that the
   protester's proposal exceeded the solicitation's margin limits on every
   page.

   DECISION

   Mathews Associates, Inc. protests the rejection of its proposal submitted
   in response to request for proposals (RFP) No. W15P7T-06-R-N204, issued by
   the Department of the Army's Communications-Electronics Life Cycle
   Management Command to procure loudspeakers and battery boxes for use in
   the Single Channel Ground and Airborne Radio System. Mathews argues that
   the Army unreasonably rejected its proposal after concluding that every
   page of the proposal exceeded the solicitation's specified margin
   limitations.

   We deny the protest.

   The solicitation here was issued on October 12, 2006, and anticipated the
   award of up to two fixed-price, indefinite-delivery/indefinite-quantity
   contracts, for a period of 5 years, to the offeror(s) whose proposal(s)
   offered the best value to the government. The solicitation was issued as a
   small business set-aside, and established a minimum contract value of $2.9
   million, and a lifetime ceiling of $120 million.

   The solicitation instructions limited proposals to 25 pages, specified the
   margin settings and font sizes to be used, and required that proposals be
   submitted electronically. RFP sect. L.1. In addition, the RFP advised that
   "pages that exceed the margin, font or total page limit will not be
   evaluated." RFP sect. L.2.

   By the November 27 closing date, the agency received seven proposals,
   which were screened for conformance with the solicitation submission
   requirements before being sent to the Source Selection Evaluation Board
   (SSEB) for evaluation. The proposal submitted by Mathews, and a proposal
   submitted by another offeror, were removed from consideration as a result
   of this screening; thus, they were never evaluated by the SSEB.

   By letter dated December 15, the agency advised Mathews that its proposal
   would not be evaluated because it had not been prepared in accordance with
   the margin requirements specified in the solicitation. Specifically, the
   agency concluded that the proposal submitted by Mathews violated the
   solicitation's limitations, as shown in the table below.

   +------------------------------------------------------------------------+
   |                    |     Solicitation's     |      Margins in the      |
   |                    |                        |                          |
   |                    |     Margin Rqmts.      |     Mathews Proposal     |
   |--------------------+------------------------+--------------------------|
   |Top                 |           1"           |          0.87"           |
   |--------------------+------------------------+--------------------------|
   |Bottom              |           1"           |           0.5"           |
   |--------------------+------------------------+--------------------------|
   |Left                |           1"           |            1"            |
   |--------------------+------------------------+--------------------------|
   |Right               |           1"           |            1"            |
   |--------------------+------------------------+--------------------------|
   |From edge:          |          0.5"          |          0.28"           |
   |                    |                        |                          |
   |-- Header           |          0.5"          |          0.18"           |
   |                    |                        |                          |
   |-- Footer           |                        |                          |
   +------------------------------------------------------------------------+

   After Mathews asked the agency to reconsider its decision, and after the
   agency advised it would not, Mathews filed a protest with our Office on
   December 21.

   Mathews argues that the Army position is unreasonable. It notes first that
   since the proposal was submitted electronically, it would have been a
   simple matter for Mathews--or the Army--to change the margin settings in
   the proposal. Mathews points out that if the proposal, as reformatted,
   exceeds the 25-page limit, the Army could reasonably refuse to read any
   portion of the proposal that exceeds the page limit. In addition, Mathews
   argues that the public policy rationale for including margin, page, and
   font limitations in solicitations is to create a level playing field for
   competition; thus, in Mathews' view, while enforcement of page limitations
   serves to provide equal competitions, no discernible public policy end is
   served by upholding the Army's decision not to allow reformatting of this
   proposal.

   As the Army notes, there is no dispute here that every page of the
   protester's proposal exceeded the margin limitations in the solicitation,
   and that the solicitation clearly advised that no page that exceeded the
   margin, font, or page limitations would be read. In addition, while
   conceding the relative technical ease with which reformatting could be
   accomplished, the Army raises several concerns about the impact of a
   decision holding that it was required to reformat the protester's
   proposal, or allow the protester to do so.

   Among the concerns the Army raises is the potential dispute between it and
   Mathews about how the reformatting should be accomplished. In the Army's
   view, any reformatting should only involve a change to the margin settings
   in the electronic document, which, it claims, would add four pages to the
   proposal. In the protester's view, the Army should not only change the
   margins in its submission, but should make some additional changes to
   spacing and headings that would allow the proposal to meet the 25-page
   deadline. Alternatively, the protester argues that the Army should change
   the margins and simply not read the portion of the proposal that exceeds
   the page limitation.

   In our view, the protest here is rendered a closer call than it might have
   been several years ago because of the nature of electronic submissions.
   For example, in 1991 our Office considered a protest from an offeror that
   had disregarded both a solicitation's page limitation and the requirement
   that proposals be double-spaced. After 59 pages of the protester's
   117-page submission were not read--with the expected negative result on
   its competitive posture--the protester argued that it "could retype the
   proposal using double space in a few days." Our Office held that the
   agency was not required to give the protester a few more days to retype
   its proposal. All Star Maint., Inc., B-244143, Sept. 26, 1991, 91-2 CPD
   para. 294 at 4.

   In contrast, the agency here would not be required to wait for a
   reformatted proposal, and could, in fact, complete the reformatting itself
   in a matter of minutes, without the offeror's involvement. The question
   before us, however, is not what the agency could do, but what it was
   required to do. Viewed in this light, we do not think the Army was
   required to reformat, or allow Mathews to reformat, the proposal.

   We note first that, as in All Star Maint., Inc., the solicitation
   requirements at issue in this protest are clear, and were not contested by
   the protester.[1] In addition, there is no dispute about the facts of this
   case--the proposal here did not contain a single page that complied with
   the solicitation's margin requirements. Simply put, we know of no reason
   why an agency should be required to allow an offeror to reformat its
   proposal when the solicitation's requirements were so clear. While the
   protester asserts that reformatting--or allowing the protester to
   reformat--its proposal does not appear to pose a significant risk of
   unfairness to other offerors, that view does not translate into a
   requirement that the agency take such action, given the RFP's clear
   instructions regarding formatting and the consequences of not complying
   with those instructions. In addition, we think the record here supports
   the agency's contention that the approach urged by Mathews raises the
   possibility of further disputes about the manner in which the reformatting
   is accomplished. In our view, the agency should not be forced to assume
   the risk of such potential disruptions to the procurement due to the
   reformatting made necessary by Mathews' failure to comply with the
   unequivocal requirements of the RFP.

   Finally, we recognize that many of our prior cases, cited by both the Army
   and the protester, involve situations where agencies took less severe
   action than in this case. See, e.g., Client Network Servs., B-297994, Apr.
   28, 2006, 2006 CPD para. 79 at 8 (agency reasonably downgraded proposal
   for failing to comply with the solicitation's formatting requirements). On
   balance, however, we think there is nothing unfair, or unduly burdensome,
   about requiring offerors to assume the risks associated with submitting
   proposals that do not comply with clearly stated solicitation formatting
   requirements. Id.; Coffmann Specialties, Inc., B-284546, B-284546.2, May
   10, 2000, 2000 CPD para. 77 at 3.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] In this regard, as noted above, the solicitation advised that "pages
   that exceed the margin, font or total page limit will not be evaluated."
   RFP sect. L.2 (emphasis added). In a case where the solicitation
   instructions were less clear--i.e., where the solicitation advised that
   failure to follow type-size and page limitations "may" be grounds for
   exclusion--we reached a different result based on our conclusion that the
   agency did not have a reasonable basis for excluding the proposal.
   Macfadden & Assocs., Inc., B-275502, Feb. 27, 1997, 97-1 CPD para. 88 at
   4.