TITLE: B-310123.2, Optimal Solutions & Technologies, September 21, 2007
BNUMBER: B-310123.2
DATE: September 21, 2007
****************************************************************
B-310123.2, Optimal Solutions & Technologies, September 21, 2007
Decision
Matter of: Optimal Solutions & Technologies
File: B-310123.2
Date: September 21, 2007
Shelton H. Skolnick, Esq., Skolnick & Leishman, P.C., for the protester.
David A. Ingold, Esq., Department of Treasury, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
In a negotiated procurement, which required the submission with proposals
of a Capability Maturity Model Integration (CMMI) appraisal dated within
the 12 months prior to the proposal closing date, the agency reasonably
rejected the protester's proposal that provided a CMMI appraisal dated
almost 24 months before the proposal closing date.
DECISION
Optimal Solutions & Technologies protests the rejection of its proposal
under request for proposals (RFP) No. TIRNO-07-R-00013, issued by the
Internal Revenue Service, Department of Treasury, for middleware support
services for the agency's information technology infrastructure.[1]
We deny the protest.
The RFP provides for the award of a contract for a base year with 2 option
years for monthly operation and maintenance and software development
services. Offerors were informed that award would be made on a "best
value" basis considering identified technical and price evaluation
factors, and that all non-price factors were of equal importance and
together were significantly more important than price.
With respect to software development services, offerors were informed that
[i]t is mandatory that all contractors awarded delivery order for any
activity related to software development for the IRS shall comply with
the IRS policy. All tasks that fall within the software development life
cycle shall at minimum comply with Level 2 of the staged representation
of the software engineering standard Capability Maturity Model
Integration (CMMI). There are no exceptions to this policy.
RFP sect. C.2.3. The RFP also included clause 1052-239-9005, "Software
Development Prerequisite," as a special contract requirement that would
require the contractor to substantiate its CMMI rating "on an annual
basis." RFP sect. H.4.f. As a part of the RFP's proposal preparation
instructions, offerors were required to provide an appraisal, "dated
within the 12 month period preceding the proposal due date," showing that
the firm had achieved at least CMMI Level 2. RFP sect. L.8.
Optimal submitted a proposal in response to the solicitation that included
an appraisal dated August 4, 2005, indicating that the firm had achieved
CMMI Level 3. On August 20, Optimal was informed by IRS that its proposal
was unacceptable because the firm's CMMI appraisal was "almost 24 months
old and falls outside of the 12 month period preceding the proposal due
date of August 6, 2007." See Agency Report, Tab B, Contracting Officer's
Letter to Optimal. This protest followed.
Optimal argues that the firm's submitted CMMI appraisal satisfies section
L.8 of the solicitation. Specifically, Optimal states that it has achieved
CMMI Level 3 (which exceeds the level required by the RFP) and that its
CMMI appraisal is valid until August 4, 2008. Optimal argues that, because
its appraisal is valid during and after the 12 months preceding the
closing date for receipt of proposals, its appraisal satisfies the RFP's
requirement that offerors submit an appraisal "dated" within that period
of time. In this regard, Optimal contends that the only "rational
requirement is one that seeks a current and valid appraisal." Protester's
Comments at 4.
The IRS recognizes that a CMMI appraisal can be valid for a maximum period
of 3 years, but contends that, in its view, accepting an appraisal dated
more than 12 months prior to the closing date for proposals is risky,
given that "due to mergers or other organizational changes, vendors may no
longer have the capability that they formerly attained."[2] Agency Report
at 6.
We agree with the agency that the RFP was unambiguous and required the
submission of a CMMI appraisal, bearing a completion date within the 12
months prior to the proposal closing date. Under no reasonable reading of
the solicitation can Optimal's CMMI appraisal, which bears a date of
August 4, 2005, be viewed as complying with the requirement for an
appraisal dated within the 12 months prior the RFP's August 6, 2007
closing date for submission of proposals. We therefore find that the IRS
reasonably found that Optimal's proposal failed to satisfy this RFP
requirement.[3]
Optimal also argues that the requirement for submission of a CMMI
appraisal dated within the 12 months prior to the closing date was
effectively removed from the solicitation by amendment No. 3. We disagree.
That amendment, which provides the agency's answers to offerors'
questions, merely confirms that the CMMM appraisal must be submitted with
offerors' proposals by the closing date for receipt of proposals and does
not address the effective date of the appraisal.
Optimal also argues that, even if its CMMI appraisal failed to satisfy the
above noted RFP requirement, the RFP did not inform offerors that failure
to satisfy this requirement could result in rejection of the proposal.
However, the RFP "Basis for Award" provision, RFP sect. M.1, provided that
"[t]he Government will evaluate the Contrator[']s ability to demonstrate
their compliance with the RFP instructions in Section L," and the section
L proposal preparation instructions (which required the submission of a
recently dated CMMI appraisal) cautioned offerors that failure to show
compliance with the instructions could be grounds for exclusion of the
proposal from further consideration. See RFP sect. L.8. In any event, a
proposal, which as here fails to conform to a material RFP term and
condition, should be considered unacceptable and may not form the basis
for an award. See Wiltrex Inc., B-297234.2, B-297234.3, Dec. 27, 2005,
2006 CPD para. 13 at 4.
The protest is denied.[4]
Gary L. Kepplinger
General Counsel
------------------------
[1] "Middleware" is computer software that connects software components or
applications.
[2] In this regard, as noted above, the contractor will be required to
substantiate its CMMI rating "on an annual basis." RFP sect. H.4.f.
[3] To the extent that Optimal challenges the reasonableness of the RFP
requirement for a recently dated CMMI appraisal, its protest is untimely,
inasmuch as challenges to alleged apparent solicitation improprieties must
be filed by the time set for the receipt of proposals. See 4 C.F.R. sect.
21.2(a)(1) (2007).
[4] In its September 17 supplemental comments, Optimal argues that the IRS
should have conducted discussions with Optimal with respect to the firm's
CMMI appraisal. This objection is untimely, inasmuch as it was first
raised more than 10 calendar days after the date that Optimal learned that
its proposal had been rejected. See 4 C.F.R. sect. 21.2(a)(2). In any
event, Optimal does not allege that it could provide a CMMI appraisal
dated within 12 months prior to the closing date for receipt of proposals.