Protesters Complained They Weren’t Given Choice to Participate in Second Phase of Evaluation, But They Hadn’t Even Qualified for Phase One; DBISP, LLC; Federal Merchants Corp., GAO B-419893.8, B-412893.9

Protests challenging rejection of proposals as noncompliant is denied. The solicitation provided for a two-phase evaluation. The protesters argued that offerors could elect to participate in the second phase, so the agency erred in rejecting their proposals after the first phase. But GAO found that the protesters had submitted noncompliant proposals, so the agency had not been required to evaluate their proposals in either the first or second phase.

Background

The Department of Homeland Security (DHS) posted an RFP for information technology services. The RFP provided for a two phase evaluation. In the first phase, offerors had to submit one of two International Organization for Standardization (ISO) certifications and indicate on a compliance checklist which certification had been submitted.

Following the first phase, DHS would provide a notification letter to each offeror, advising that (1) their proposal had not passed initial compliance review, (2) their proposal was not among the most highly rated, or (3) their proposal was highly rated and could go to phase two. But the letter was advisory only; offerors that were not highly rated could elect to participate in the next phase.

The RFP provided that DHS would conduct a compliance review at each stage of the evaluation. Proposals found to be non-compliant would not be evaluated.

DHS rejected proposals from DBISP, LLC and Federal Merchants Group because they did not include ISO certification. Both companies protested, arguing that regardless of ISO certifications, DHS could not reject their proposals but had to give them a choice to participate in the next phase.

Legal Analysis

• The Protesters Submitted Noncompliant Proposals — The RFP instructed offerors to include ISO certification with the proposals to indicate which certification they had submitted in a compliance checklist. It was clear DHSD would consider ISO certification as part of the initial compliance review. The RFP stated that noncompliant proposals would not be evaluated. The protesters did not include ISO certifications and thus submitted noncompliant proposals. The agency did not evaluate the proposals in the first phase and did not err in precluding noncompliant proposals from moving to the second phase.
• ISO Certification Was a Matter of Acceptability, Not Responsibility — The protesters argued that ISO certification was a matter of responsibility, and, because the procurement was a small business set aside, DHS could not reject their proposals without input from the SBA. GAO reassumed that even if certification was a responsibility requirement, agencies may use responsibility criteria as technical evaluation factors. Here, the ISO certification was a material solicitation term. Failure to submit the certification was a matter of acceptability, not responsibility. DHS was not required to refer the matter to SBA.

The protesters are represented by J. Bradley Reaves and Beth V. McMahon of ReavesColey, PLLC. The agency is represented by Peter G. Hartman and Roger A. Hipp of the Department of Homeland Security. GAO attorney Mary G. Curcio and John Sorrenti participated in the preparation of the decision.