In a recent U.S. Government Accountability Office (GAO) decision, the watchdog sustained a pre-award protest filed by an offeror alleging that the government’s solicitation requirements associated with certain certifications were unduly restrictive of competition. This decision is a reminder that an agency will not withstand a protest of its solicitation terms when it does not have a reasonable basis to support requirements may ultimately limit competition.
On December 21, 2021, the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE or the Agency) solicited bids in connection with call center services to support the Agency’s student and exchange visitor program. The request for proposal (RFP) was issued as a two-phase procurement. In phase 1, interested offerors were required to affirmatively respond that they wished to participate in phase 2 of the procurement by October 22, 2021. Offerors that failed to affirmatively respond by that deadline were advised that they would not be allowed to participate in phase 2. With regard to phase 2, the RFP informed offerors that ICE would conduct an initial evaluation of the proposals based on two factors: (i) certifications and (ii) experience. From there, the RFP provided that the Agency would perform a “down-select” to a maximum of four “best-suited” proposals that would be considered further by the Agency in phase 3 for the award.
Notably, after the RFP had been amended by the Agency, it required offerors to demonstrate that they possessed Capability Maturity Model Integration (CMMI) Level 3 or greater certification at the time of proposal submission. Specifically, the RFP stated that the Agency would evaluate proposals under the certifications prong on an acceptable/unacceptable basis, and those deemed unacceptable would not be further evaluated or considered for the award.
On January 18, 2022, Insight Technology Solutions, Inc. (Insight) filed an agency-level protest challenging the CMMI certification requirements as unduly restrictive of competition. Before the Agency, Insight complained that offerors were not given a reasonable opportunity to respond to the amended solicitation that now imposed the CMMI requirement. ICE ultimately denied Insight’s agency-level protest, and on February 18, 2022, Insight filed a timely protest based on the same grounds with the GAO.
In its protest, Insight asserted that (1) ICE lacked a reasonable basis to require a CMMI level 3 or greater certification; and (2) the RFP requirement for each offeror to demonstrate its CMMI certification at the time of proposal submission exceeded the Agency’s needs. Insight challenged ICE’s determination that the CMMI certification levels required by the RFP were necessary, criticized the Agency’s previously expressed rationale for the certification requirements as “vague and unsupported,” and accused the Agency of failing to conduct any actual analysis that would support the need for the CMMI level 3 certification.
The Agency’s response
The Agency responded by asserting that its CMMI certification requirement was not unduly restrictive of competition because the requirement reflected ICE’s actual needs. The Agency further argued that CMMI level 3 or greater certification was required because the call center requirement was constantly evolving and the PWS required the contractor to recommend and participate in process improvements and system upgrades. According to the Agency, in order for an offeror to meet the Agency’s call center requirements, it would need to possess the ability to identify and resolve process issues at CMMI level 3 or higher, rather than level 1 or level 2.
Additionally, the Agency argued that requiring offerors to possess CMMI level 3 or greater certification at the time of proposal submission was necessary because ICE needed to verify compliance with this material requirement and could not risk an awardee not having the required certification at award. The Agency also argued that not verifying certifications at the time of proposal submission would put ICE “at the mercy of a certification process” and further stated, without explanation, that this might create uncertainty due to the uncertain timing for obtaining certification.
GAO analysis and decision
In sustaining the protest, the GAO first concluded that ICE had provided ample evidence that justified the subject certification requirements. The GAO pointed out that Insight even agreed with ICE that requiring CMMI level 3 certification or higher would lead to improved identification and process resolution as compared to requiring certification at CMMI levels 1 or 2. Accordingly, because Insight failed to explain why the process-based justification offered by the Agency was unsupported, the GAO denied this protest ground.
However, the GAO went on to find that the Agency had not demonstrated that it was necessary for an offeror to prove it possessed CMMI level 3 certification or higher at proposal submission. In fact, the GAO held that nothing in the record supported a finding that “the mere possession of CMMI level 3 or greater was relevant before the start of performance, much less before award.”
In defense of the requirement, ICE cited the GAO’s decision in KPaul Properties, LLC, B‑419893, B‑419893.6, Sep. 15, 2021, 2021 CPD, paragraph 317,arguing that the decision there accepts the notion that certification requirements – at the submission stage – are acceptable where the Agency uses them “as part of its evaluation of the offeror’s ability to provide high quality services.” But, in rejecting that argument, the GAO explained that ICE had incorrectly deduced a broad and general conclusion from the fact-specific holding in KPaul, and that nothing in the decision supported the proposition that a procuring agency could justify submission stage certification requirements “merely [by] stating that they are being used as an objective evaluation requirement.”
Accordingly, because ICE failed to offer fact-specific justifications, such as the supply chain concerns cited in the KPaul decision, the Agency had not provided a reasonable basis to support requiring CMMI level 3 or greater certification at the time of proposal submission, and the GAO sustained the protest. The GAO went on to recommend that ICE review its needs and amend the solicitation to allow offerors to provide CMMI level 3 or greater certification at the time of award or performance. In addition, the GAO held that ICE must reopen the competition and allow offerors to submit new or revised proposals.
- Contractors may face an uphill battle if they wish to lodge a pre-award protest challenging an agency’s decision to impose certain requirements that it has determined reflect its needs. The GAO will be reluctant to sustain a protest based on this ground when the agency’s rationale has been documented and considered reasonable.
- Contractors may find the GAO more willing to sustain a protest, however, when an agency claims that certifications are necessary at the time of proposal submission (so an agency can perform its evaluation of the offeror’s ability to provide high-quality services), but the agency has not explained why its objective evaluation of this certification on an acceptable/unacceptable basis would need to happen before award.
- Those seeking to do business with the government are advised to closely scrutinize solicitation requirements to identify any that are unduly restrictive or unreasonable in light of the procuring agency’s needs.