The protester argued that a certification requirement was unduly restrictive of competition. GAO found that the certification requirement itself was not unduly restrictive, but it did find that the timing of the requirement was unreasonable. The solicitation required offerors to possess the certification at the time of proposal submission. The agency had not sufficiently explained why this requirement had to be satisfied at the time of submission rather than right before award.
Insight Technology Solutions, Inc., GAO B-420543, B-420543.2
Background
Immigrations and Customs Enforcement (ICE) issued a solicitation seeking call center support services. The initial solicitation required offerors to have level 1 capability maturity model integration (CMMI) certification. But ICE amended the solicitation to require level 3 CMMI at the time of proposal submission. Insight Technology Solutions filed a pre-award protest, alleging that the CMMI 3 requirement was unduly restrictive of competition.
Legal Analysis
Requirement Was Not Unduly Restrictive
Insight argued that there was no reasonable basis to require level 3 CMMI for a call center. GAO disagreed. An agency has discretion to determine its needs. Here, the agency had reasonably explained that it needed level 3 certification because its call center requirements were constantly evolving. Level 3 certification, which allows process improvements, would ensure that standards, process descriptions, and procedures were better tailored to meet the agency needs.
Timing of Certification Requirement Was Unreasonable
Insight also argued that the timing for certification was unreasonable. The solicitation required certification at the time of proposal submission. Insight contended that ICE had not shown why it needed this certification before the commencement of performance.
GAO found this argument more compelling. An agency’s legitimate certification requirements may not be applied prior to when the certification is needed. GAO will sustain a protest where the agency’s justifications do not support a requirement to have certification by the time of proposal submission.
In this case, ICE had not pointed to anything in the solicitation that would require level 3 CMMI certification necessary at proposal submission. ICE argued that the certification was necessary to evaluate proposals, but it had not explained why evaluation of this certification on an acceptable/unacceptable basis could not occur before award.
Insight is represented by Alexander B. Ginsberg of Freid, Frank, Harris, Shriver & Jacobson as well as Meghan D. Doherty and Torghrul Shukurlu of Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by Javier A. Farfan of the Department of Homeland Security. GAO attorneys Christopher Alwood and Christina Sklarew participated in the preparation of the decision.
