Eric:

The key point is that one must be careful about rejecting all or even part of a proposal simply because of a "format" violation. Not all format violations are alike. Most of the GAO decisions in this regard involve page limitations in one way or another.

I suspect that the GAO would support an agency that says in its RFP: (1) that it will refuse to evaluate an electronically transmitted proposal if the agency's system signals that the document is virus-infected, and (2) that it will not allow an offeror to resubmit an initially virus-infected proposal after the deadline for the receipt of proposals.

On the other hand, an agency might want to allow an offeror whose proposal was rejected as virus-infected to resubmit the proposal after the deadline if the initial submission was timely.

Either way, agencies that are taking the electronic submission approach had better think ahead and address these kinds of issues in their RFPs.

By Eric Ottinger on Tuesday, May 16, 2000 - 05:51 pm:

I have to agree with Vern up to a point.

I can’t really find a case where an agency rejected a proposal for a format noncompliance per se. (Of course, there are several cases where the agency refused to consider noncompliant pages in the evaluation and rejected the offer for the resulting technical deficiencies.)

Generally, the GAO would want the agency to evaluate the remaining compliant pages and determine whether or not to reject the proposal on the basis of this evaluation.

Years ago, my (only slightly facetious) approach was one, which I suspect, would have Joe Blow’s approval. “You can use any typeface you want for charts and graphs. But you antagonize my evaluators at your own risk.” That word to the wise always seemed to be sufficient.

Vern has put this in more elegant language, as cited in Matrix General, Inc., (June 10, 1999)—

“The RFP specifically provided that the government would “consider an offeror’s noncompliance with [proposal] instructions to be indicative of the type of conduct that it may expect from the offeror during contract performance.” RFP §L.1.”

Note: If the agency says, “may reject,” the agency is expected to be fairly flexible and permissive, to avoid being arbitrary and capricious.

Generally, I think, the GAO has the same attitude that I had. Neither of us wants to be arbitrating trivial format noncompliances. Life is too short.

As for the issue at hand, an offeror, who submits a proposal with a virus, has probably goofed in a way that may be “indicative of the type of conduct” (i.e. careless and unprofessional) that we might expect during contract performance.

Getting back to Gene’s question, I suspect that if we feel strongly that we don’t even want to touch a virus infected document, say as much in the solicitation (using the imperative and avoiding the permissive “may”), and simply reject the proposal when we find a virus, I expect that GAO would back us up.

In our organization, disks are checked at the Access Control Center and e-mail is checked going through the fire wall. On the off chance that the virus checker had somehow given a false positive reading, I would get back with the offeror to be sure that there really was a virus. If the offeror could demonstrate that the document was actually virus free, I would accept it. Otherwise, I think sending a proposal with a virus is even dumber than submitting a proposal five minutes late.

This is just personal opinion, and I would be curious to see what the case law will say. I don’t really think the format precedents are the best precedents. A contractor who walked into the Pentagon Concourse with a live explosive (or even a dud explosive) wouldn’t get much sympathy. I would have the same attitude toward an offeror careless or stupid enough to send me a proposal with a virus in it.

Eric

By Vern Edwards on Tuesday, May 16, 2000 - 10:27 am:

Melissa:

McFadden is a page limitation case. The GAO has said that an agency should not evaluate pages in excess of a proposal page limitation because it would give the offeror an unfair advantage over offerors who complied with it.

But the word "format" includes many proposal attributes, including typeface, binding, line spacing, margins, etc. You said, "[T]he Government does not need to evaluate parts of proposals that do not meet the format requirements." Underlining added. That goes too far: first, because some format violations would not give the offeror an advantage over other competitors, and second, because although the entire proposal may violate the format requirement, the GAO may allow the agency to reject only part of it.

McFadden proves my point. The GAO sustained the protest, holding that the agency acted unreasonably in rejecting the protester's entire proposal without evaluation, and basing its decision in part on language in the RFP. It said that the agency should have removed the excess pages and then evaluated what remained.

What if an RFP specified that a proposal must be printed in Times New Roman and an offeror submitted the proposal in Courier, instead? That would be to the disadvantage of the offeror who submitted the proposal, because Courier is not a proportional font. Would it be reasonable for the agency to refuse to evaluate the proposal for that reason? What if an offeror submited a proposal in a five-ring binder instead of a three-ring binder? In order to be reasonable, an agency must consider the nature and significance of a format violation and the language in its RFP before taking action.

A reasonable course of action would be to evaluate "compliance with instructions" during source selection and downgrade proposals that do not comply. I have recommended that agencies include the following evaluation factor in their RFPs:

"Compliance with Instructions. In assessing your capability, we will consider how well you complied with the instructions in this RFP. We will consider any failure to comply with our instructions to be indicative of the kind of conduct that we could expect from you during contract performance."

Using this factor, an agency could downgrade an offeror for failing to comply with format instructions without having to take the drastic and risky course of rejecting all or part of the proposal without evaluation (except for pages in excess of a limitation). Several agencies have used this factor since I started teaching its use. The Department of the Interior used it last last year, and it was cited by the GAO in denying a protest against an offeror's exclusion from the competitive range. See Matrix General, Inc., B-282192, June 10, 1999.

Any reader who would like a copy of the model RFP language that includes this evaluation factor can send me an e-mail.

By bob antonio on Tuesday, May 16, 2000 - 10:14 am:

What about firewalls? Can a firewall programmed against a virus, prevent a virus-infected document from entering the server? If so, an infected item would not be received. What happens then?

By Melissa Rider on Tuesday, May 16, 2000 - 09:04 am:

Vern, see McFadden and Associates, Inc, Feb 27, 1997 (B-275502). If the proposal states a format requirement and warns offerors that their proposals will be rejected if they do not comply with the requirement, then the Government does not need to evaluate noncompliant proposals.

By Vern Edwards on Monday, May 15, 2000 - 06:09 pm:

I would not treat a virus-laden proposal as late unless it was late.

Melissa overstates the GAO's position with regard to compliance with RFP instructions about proposal formats. I believe that the case she's talking about is Coffman Specialties, Inc., B-284546; B-284546.2, May 10, 2000. In that case the GAO reported, "Coffman presented a disorganized proposal that did not comply with the RFP's formatting requirements and that violated the page and project limitations applicable to various evaluation subfactors." The agency did evaluate the proposal and found it to be "acceptable," but they "downgraded" it. The protester complained that the agency did not consider all of the pages in the proposal; the GAO said that the agency did not have to evaluate pages in excess of the RFP page limit.

Nowhere in the decision does the GAO say that an agency "does not need to evaluate parts of proposals that do not meet the format requirements." The rules about format compliance are more complicated than that. What an agency can do in that regard depends on the language in the RFP and the materiality of the failure to comply.

While an agency does not have to read pages submitted in excess of a page limitation if the RFP warns offerors to that effect, they generally must evaluate proposals that fail to comply in ways that do not make it impracticable to evaluate them. Agencies may downgrade a proposal that does not comply with proposal format requirements, but as a general rule they may not reject them out of hand.

Most computer viruses are harmless. The GAO might not let an agency to refuse to evaluate a legible and otherwise compliant proposal merely because it carries a virus, unless the virus was transmitted intentionally or had a significantly disruptive effect on the agency's operations.

In any event, I think that it would be appropriate to downgrade a proposal that transmits a virus if the RFP warns offerors to that effect. After all, transmitting a virus would be a careless thing to do.

By genejones on Monday, May 15, 2000 - 03:50 pm:

Appreciate the comments. I guess I was trying to ask two questions at once. The first is, would treating a virus infected proposal as late be in the government's interest? The second is, are directions saying how to treat such a proposal necessary?
The approach in FAR 15.207(c) for unreadable proposals makes sense (get a resubmission). I wish I could have seen what turbo-streamliner meant to suggest.

By Melissa Rider on Monday, May 15, 2000 - 03:38 pm:

Fine. The Government may specify in Section L of the solicitation that electronic proposals must be virus-free. This would be treated as other "normal" format requirements. By that I mean that the Government does not need to evaluate parts of proposals that do not meet the format requirements. There is a new GAO decision that supports my opinion. See www.gao.gov and look under legal products/decisions/last 7 days.

By Vern Edwards on Monday, May 15, 2000 - 02:48 pm:

Don't presume that a document with a virus is unreadable! Many readable documents contain and transmit viruses. Moreover, not all viruses are harmful or immediately harmful. A virus can reside in your computer without having any discernable effect.

By Melissa Rider on Monday, May 15, 2000 - 02:30 pm:

If the proposal has a virus, it presumably will be unreadable. See FAR 15.207(c) on unreadable electronic proposals.

By Vern Edwards on Monday, May 15, 2000 - 12:39 pm:

I'm not sure what you're asking.

Are you asking whether it's fair for the government to penalize an offeror who transmits a virus to a government computer with the submission of an electronic proposal?

By Gene Jones on Friday, May 12, 2000 - 01:56 pm:

Hi

Turbo spec writer has a broken hypertext link to a clause that is introduced with a paragraph reading in part "…desiring to rely on evaluation of electronic media, while avoiding a virus recurrence, the contracting office successfully utilized this provision in subsequent solicitations." Several questions occur to me, but the overriding one is; is this fair or a good idea? Before the love-bug I'd have said no, but now I'm unsure. Is being virus infected like being too wordy or too late, or on the other hand is it like a badly bound proposal or one done in a difficult to read font with an ugly cover?