The protester challenged the rejection of its proposal for lack of certification at the time of proposal submission. The protester claimed it held the required certification due to a recent novation. GAO sustained. Although the protester did not have the certification when it submitted its initial proposal, it had obtained the certification through a novation, and the agency knew of the novation when it reevaluated proposals.
DecisionPoint Corporation- f/k/a Emesec Inc., GAO B-422245.5
- Initial Proposal – EmeSec, as the prime contractor, submitted the initial proposal in response to the agency’s solicitation for defensive cyber support services. The protester wholly owned EmeSec at the time of submission. The solicitation required a level III CMMI certification. EmeSec did not hold this certification, but it provided the protester’s certification and a meaningful relationship commitment letter (MRCL).
- Merger and Novation – Before EmeSec’s submitted the initial proposal it merged with the protester. But it was only after proposal submission (and before the award) that the parties entered a novation agreement that recognized the protester as EmeSec’s successor in interest. The agency awarded the contract to EmeSec/the protester.
- Corrective Action – Another offeror protested, alleging EmeSec did not hold the certification at the time of proposal submission. In response, the agency took corrective action, reevaluated, and ended up making an award to another offeror because EmeSec did not have the required certification. The protester then brought a protest challenging the corrective action. It claimed that the solicitation did not require certification at the time of proposal submission, and even if it did, the agency ignored the novation.
- Solicitation Interpretation – The solicitation required offerors to “[s]ubmit proof of any Level III CMMI Certification.” The protester asserted that use of the word “any” instead of “the” meant that offerors may optionally submit the certification if they held it. GAO was unpersuaded. The language taken in context was better interpreted as any “type” of CMMI certification.
- Novation – The protester argued its rejection for lack of certification was unreasonable because the protester held the certification at all relevant times. As a result of the novation, the protester succeeded to all of EmeSec’s rights and obligations under the contract and proposal. The agency responded that while the novation can work to grant the rights of EmeSec, it did not cause the certification to automatically transfer. EmeSec’s relevant assets were never analyzed by ISACA (the entity that issues the CMMI certificates).
- Decision – GAO sided with the protester. The agency was not aware that the protester was the prime contractor at the time of the initial evaluation, but it was when it conducted its post-corrective action evaluation. Thus, the agency should have considered the impact of the merger on the protester’s proposal in its post-corrective action evaluation. Specifically, that the protester was now the prime contractor and included proof of its level III CMMI certificate in its proposal as required by the solicitation.
The protester was represented by Edward J. Tolchin of Offit Kurman Attorneys at Law.
The intevenor was represented by John E. Jensen and Toghrul M. Shukurlu of Pillsbury Winthrop Shaw Pittman, LLP. The agency was represented by Nina Padalino, Nicholas T. Iliff, Jr., Erika Whelan Retta, and Kent H. Grubb of the Air Force. Heather Weiner and Jennifer D. Westfall-McGrail of GAO participated in the preparation of the decision.
— Case summary by Joshua Lim, Assistant Editor
