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Certification Requirement Prevents Otherwise Qualified Contractors from Bidding

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Imagine a situation where you are interested in a contract and believe your company is well suited to do the job. Unfortunately, the request for proposal (RFP) has specific certification requirements that limit competition and prevent you from winning the contract. Under what circumstances can you successfully challenge those certification requirements? 

The successful bid protest below provides insight into what the Government Accountability Office (GAO) looks at in a pre-award protest challenging certification requirements contained within an RFP.

Insight Technology Solutions, Inc. GAO Protest B-420543; B-420543.2
Decision issued May 27, 2022

THE SOLICITATION

In December 2021, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) issued an RFP for call center support services. The terms of the RFP required a level 3 or greater capability maturity model integration (CMMI) certification at the time of proposal submission, or a proposal would be labeled unacceptable and rejected.

THE Protest

Insight Technology Solutions, LLC (Insight) challenged this requirement. Following a failed protest with the soliciting agency, Insight filed a protest with the GAO arguing the level 3 or greater certification unduly restricted competition. Specifically, it unreasonably excluded otherwise qualified small businesses from having a fair shot at the contract. In its challenge, Insight made two arguments: 

First, Insight argued that ICE had no reasonable basis to require CMMI level 3 or greater certification. Insight objected to ICE’s analysis of the certification levels as “[v]ague and [u]nsupported.” It argued that the ICE report contains “no actual analysis” of the “necessity of CMMI level 3 in the context of the current work.” ICE counterargued that a CMMI level 3 or greater certification was necessary because the call center requirement was constantly evolving, requiring the contractor to recommend and participate in process improvements and system upgrades. Furthermore, ICE maintained a CMMI level 3 or greater certification results in higher quality identification and resolution of process issues compared to a CMMI level 1 or level 2.

Secondly, Insight contended that ICE’s requirement that a contractor possesses certifications at the time of proposal submission exceeded the agency’s actual needs. Additionally, Insight argued ICE did not demonstrate it needed the superior management processes a CMMI level 3 or greater certification allegedly ensures until such qualifications become relevant to the project.  However, ICE disputed Insights' claims stating that requiring offerors to possess CMMI level 3 or greater certification at the time of proposal submission was necessary because ICE had to verify compliance with this requirement and “[could not] risk not having the certifications at the time of the award.” Moreover, ICE argued that not verifying certifications at the time of proposal submission would put ICE “at the mercy of a certification process.”

THE OUTCOME

In response to Insight’s first argument, the GAO did not agree. Citing a previous case, the GAO ruled that a contracting agency has the discretion to determine its needs and the best method to accommodate them. Chromalloy San Diego Corp., B-416990.2, Jun. 3, 2019, 2019 CPD 188 at 5. The GAO stated Insight failed to meaningfully dispute ICE’s need for the higher certification. In contrast, ICE had adequately demonstrated that the certification was necessary to perform the work under the terms of the performance work statement. Based on Insight’s first argument, the GAO denied its protest.  

However, the GAO agreed with Insight’s second argument that a contractor should not be required to possess the certification before submitting a proposal. “An agency’s otherwise legitimate requirements regarding an offeror’s demonstrated ability to meet contract requirements may not generally be applied at a point in time prior to when such qualifications become relevant.” USA Jet Airlines, Inc.; Active Aero Group, Inc., B-404666, Apr. 1, 2011, 2011 CPD 91 at 5 (citing LBM Inc., B-286271, Dec. 1, 2000, 2000 CPD 194 at 4). The GAO found ICE had not shown the GAO any reason it needed to evaluate an offeror’s certification at any time other than immediately prior to issuing its award decision and therefore found the benefits of greater competition outweighed the risk of some uncertainty that bidders might not yet have a required certification. Consequently, the GAO sustained Insight’s protest.

The GAO recommended that ICE review its certification needs, amend the solicitation to allow offerors to provide CMMI level 3 or greater certification at the time of award, and reopen the solicitation to allow offerors to submit new or revised proposals. Additionally, the GAO recommended that Insight be reimbursed for the reasonable costs of filing and pursuing its protest, including attorneys’ fees.

THE TAKEAWAY

This decision emphasizes that an agency’s certification requirement is discretionary and will survive challenges if the agency has an explanation for it and clearly lays out the requirements. If a contractor protests these requirements, they must bring solid reasons to show why an agency abused its discretion. However, an agency cannot use its certification requirement to prevent otherwise qualified contractors from bidding. As a result, a contractor who is in the process of obtaining certifications or licenses but has not yet received them should still be allowed to bid.

If you believe your bid has been unfairly rejected due to assumed certification requirements, contact us at Whitcomb, Selinsky, PC, for a consultation.

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About the AuthorJosh Sather

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