#GovConThoughts: GAO Decision Shows that Agencies May Reject Bids for Failing to Adhere to Solicitation Instructions

[My #govconthoughts series provides a quick take on recent developments in the government contracting space.]

A recent U.S. Government Accountability Office ("GAO") bid protest decision is interesting because it highlights the importance of following a solicitation's instructions and how a seemingly trivial hiccup can upend a proposal. Moreover, in the competitive world of federal contracting, the decision also provides a timely reminder of the methods that agencies employ to whittle down a pile of proposals.

Briefly, the bid protest of FI Consulting, Inc., B-423274, April 11, 2025, 2025 CPD ¶ __ involved a request for quote ("RFQ") to establish a multiple award BPA for program support at the U.S. Department of Agriculture. The agency conducted the procurement under FAR subpart 8.4 via GSA's eBuy system.

Relevant here, the RFQ stated that offerors were required to follow instructions to a "T" and that failure to do so would make a proposal ineligible for award. The RFQ further stated that offerors could use illustrations as an embedded picture but that pictures were not allowed to include text. The agency's response to Q&As confirmed that offerors were not allowed to include branding information as a picture if the picture included text.

Notably, the RFQ advised offerors––in multiple ways––of the importance of following the instructions (e.g., critical to performance of orders) and reiterated that an offeror would be deemed deficient and ineligible if it did not follow the instructions. The protester timely submitted its bid in four volumes. Each volume included a cover with the company's corporate logo picture, which spelled out “FI CONSULTING." After a compliance check, the agency eliminated the protester's quote for failing to follow instructions: “cover pages contain images with text (Branding Images)."

The protester challenged the agency's exclusion decision. It argued that the RFQ contained a latent ambiguity and that the agency was required under the FAR to waive the error as a minor informality. GAO easily dispensed both arguments.

Briefly, GAO denied the first argument and said the RFQ was not latently ambiguous because the "instructions and agency response to the [Q&A on picture formatting] both cautioned that pictures should not contain text." In GAO's view, the protester's interpretation that logos with text were somehow exempt from the format instructions was incompatible with the plain language of the RFQ instructions and Q&A response. In denying the protest, GAO concluded that the protester's interpretation was unreasonable, the RFQ was not ambiguous, and the agency's decision was resonable and consistent with the RFQ.

GAO dismissed the second argument that the agency was required to waive the error as a minor informality after concluding that the cited provision––FAR 14.405––was inapplicable. In dismissing its argument, GAO said the provision applied to sealed bidding and did not apply to the instant procurement, which used the federal supply schedule procedures under FAR subpart 8.4.

Takeaways

This is an important bid protest decision and reminder for contractors. To begin, the decision provides contractors with a cautionary reminder to always pay close attention to RFP/RFQ instructions. As the decision shows, failure to do so can upend your proposal. So beware.

More broadly, GAO's decision provides insight into the tactics that agencies employ to navigate a pile of proposals. Here, the agency received 48 quotes – that's a considerable amount, in any procurement. The agency may have anticipated this, which may be part of the reason the RFQ emphasized the importance of following instructions.

Indeed, and anecdotally, we (bid protest attorneys) have seen proposals upended for a host of seemingly trivial compliance issues, which only underscores another key takeaway: agencies sometimes use compliance reviews (instructions) to whittle down the number of bids they have to read and evaluate. Like it or not, this is par for the course in federal contracting.

Ultimately, as competition continues to stiffen for lucrative government contracts, in part because of Executive Orders (e.g., procurement consolidation) and other DOGE efficiency efforts, offerors should heed this decision and plan accordingly.

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#govcon