TITLE: Cybernet Systems Corporation, B-292600, September 30, 2003
BNUMBER: B-292600
DATE: September 30, 2003
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Cybernet Systems Corporation, B-292600, September 30, 2003
Decision
Matter of: Cybernet Systems Corporation
File: B-292600
Date: September 30, 2003
Charles J. Jacobus for the protester.
Dinah Stevens, Esq., Administrative Office of the United States Courts,
for the agency.
Linda S. Lebowitz, Esq., Office of the General Counsel, GAO, participated
in the preparation of the decision.
DIGEST
Agency reasonably rejected the protester*s proposal as technically
unacceptable where the firm failed to provide in its proposal required
hardware and third-party software certifications.
DECISION
Cybernet Systems Corporation protests the rejection of its proposal as
technically unacceptable under request for proposals (RFP) No.
USCA-03-R-0045, issued by the Administrative Office of the United States
Courts for Linux operating system and associated software (referred to as
*Linux distribution,* RFP S: C.4, at 4) and technical assistance and
support. Cybernet argues that its proposal was unreasonably rejected as
technically unacceptable.
We deny the protest.
The RFP was issued on May 21, 2003, and contemplated the award of an
indefinite‑delivery/indefinite-quantity contract for the base period
and six 1-year option periods. The RFP contained requirements for
hardware and third-party software certifications. With respect to the
hardware certification, the RFP stated that the
Linux distribution supported by this contract will be run on hardware
procured via a separate procurement vehicle. The Contractor must certify
that HP [Hewlett Packard] supports the Contractor*s Linux distribution on
the following [six identified] platforms . . . .
The Contractor shall also support these platforms and configurations on
the offered Linux distribution.
HP-Contractor support of the Linux distribution in this context means that
the Linux distributor has made reciprocal arrangements with HP so that the
Linux distributor and HP will work together to resolve any operating
system/hardware problems.
RFP S: C.4.1.3.1, at 5-6.
With respect to third-party software certifications, the RFP stated that
the
applications developed by the Judiciary depend on several third-party
products. The Contractor shall demonstrate that the following list of
[eight] independent software vendors have obtained certifications for, and
support their products under, the Linux distribution being offered.
RFP S: C.4.1.3.2, at 6.
The RFP instructed that an offeror *shall provide [in its proposal] the
certifications required in Section C.4.1.3.* RFP S: L.3, at 37. [1] The
RFP further stated that proposals would be evaluated for technical
compliance, technical excellence, and price. As relevant here, under the
technical compliance evaluation factor, the RFP provided that an offeror*s
proposal would be evaluated for full compliance with the RFP*s minimum
mandatory requirements; for a proposal to be considered technically
compliant, the RFP mandated that the offeror provide in its proposal all
required certifications. RFP S: M.1, at 43.
Cybernet proposed a *[specific name omitted] Linux operating system
product (software distribution) with updates and technical support . . .
meeting all of [the agency*s] requirements.* Cybernet Technical Proposal
at 3. Regarding the RFP*s hardware certification, Cybernet stated that
the
Linux distribution supported by this contract will be certified by
Cybernet to run on hardware procured via a separate procurement vehicle.
Cybernet certifies that HP . . . models [as listed in the RFP] support the
[Cybernet proposed] Linux distribution . . . .
[Cybernet*s proposed Linux operating system] will be fully tested and
supported on these platforms and configurations.
A Cybernet--HP reciprocal arrangement will ensure that [Cybernet*s
proposed Linux operating system] and HP work together to resolve any
operating system/hardware problems.
Id. at 8, 17.
Regarding the RFP*s third-party software certifications, Cybernet stated
that it
has made arrangements with an Ann Arbor local teammate, [Company A], to
support the third party middleware products called for in the [RFP].
[Company A] is partnered with [12 specified vendors] for enterprise
web-based applications. Furthermore, Cybernet has direct relationships
with [4 specified vendors] to support their products on [the specific type
of] platforms [proposed by Cybernet] and to assure that [Cybernet*s
proposed Linux operating system] works smoothly with these vendors*
products. Cybernet will leverage [Company A*s] relationships with [5
specified vendors] to support these products.
Id. at 9, 17.
The agency evaluated Cybernet*s proposal as technically noncompliant,
i.e., technically unacceptable, for failing to provide the certifications
required by the RFP, as described above. In this respect, while Cybernet
self-certified and/or offered to certify that the specified HP hardware
supports its proposed Linux operating system, Cybernet did not demonstrate
in its proposal that it had made any reciprocal arrangement with HP as
required by the RFP. Furthermore, while Cybernet offered assurances that
it and its teammate, Company A, have relationships with the specified
third-party software vendors, Cybernet did not demonstrate, as required by
the RFP, that these vendors have obtained certifications for, and support
their products under, the particular Linux operating system proposed by
Cybernet. For these reasons, the agency rejected Cybernet*s proposal as
technically unacceptable, advising the firm that its proposal would no
longer be considered in this competition.
Cybernet challenges the evaluation and subsequent rejection of its
proposal as technically unacceptable.
In reviewing an agency*s decision to exclude a proposal from further
competition, we review the agency*s evaluation of proposals to determine
whether the evaluation was reasonable and consistent with the terms of the
solicitation. Essex Electro Eng*rs, Inc., B-284149, B-284149.2, Feb. 28,
2000, 2000 CPD P: 72 at 6. An offeror must submit an initial proposal
that is adequately written and that establishes its merits, or run the
risk of having its proposal rejected as technically unacceptable. An
agency may exclude a proposal with significant informational deficiencies
from further consideration whether the deficiencies are attributable to
omitted or merely inadequate information addressing fundamental factors.
Generally, a proposal that is technically unacceptable as submitted and
would require major revisions to become acceptable is not required to be
further included in the competitive selection process. LaBarge Prods.,
Inc., B-287841, B‑287841.2, Aug. 20, 2001, 2001 CPD P: 177 at 2.
Here, in order for a proposal to be evaluated as technically compliant,
the RFP mandated that an offeror provide in its proposal the hardware and
third-party software certifications as described in the RFP. With respect
to the hardware certification, Cybernet does not dispute that its proposal
lacked the reciprocal arrangement with HP as called for by the RFP. As a
result, and consistent with the terms of the RFP, this omission reasonably
rendered Cybernet*s proposal technically noncompliant with the terms of
the RFP. To the extent Cybernet points to language in its proposal where
it self-certifies or *guarantees* compliance with the RFP*s technical
requirements, we note that this language basically reflects a *parroting*
back of the RFP language itself, which does not comport with the RFP*s
specific requirement for a reciprocal arrangement with HP. With respect
to the third-party software certifications, by amendment, the agency
permitted an offeror to submit these required certifications up to 2 weeks
after the proposal closing time. Cybernet does not dispute that while it
discussed in its proposal the relationships that it and its teammate have
with specified third-party software vendors, Cybernet did not furnish the
requisite software certifications as called for by the RFP and the
amendment. Again, consistent with the terms of the RFP, Cybernet*s
failure in this regard reasonably rendered its proposal technically
noncompliant. For these reasons, we have no basis to object to the
reasonableness of the agency*s rejection of Cybernet*s proposal as
technically unacceptable.
Finally, for the first time in its submissions filed with our Office,
Cybernet references various websites and printouts for HP and the software
vendors as evidence that its proposed Linux operating system will comply
with the requirements of the RFP. Even assuming, arguendo, that these
items support Cybernet*s position of compliance, this information was not
included within the four corners of Cybernet*s proposal and, as a result,
was not evaluated by the agency. Because Cybernet did not furnish in its
proposal all of the information required by the RFP, Cybernet must suffer
the consequences of its failure in this regard, that being the agency*s
determination to reject its proposal as technically unacceptable. Chek F.
Tan & Co., B-277163, Sept. 8, 1997, 97-2 CPD P: 66 at 5.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Amendment No. 2 permitted an offeror up to 2 weeks from the proposal
closing time to submit any third-party software certifications not in its
possession at the closing time. To the extent Cybernet believes that this
amendment, for example, gave an unfair competitive advantage to any
particular competitor, there is no evidence in the record to support
Cybernet*s speculation.