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.