United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

DOCUMENT FOR PUBLIC RELEASE 

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: SMARTnet, Inc. 

File: B-400651.2 

Date: January 27, 2009 

Thomas David, Esq., David, Brody & Dondershine, LLP, for the protester. 

Captain Robert T. Wu, Department of the Army, for the agency. 

Christina Sklarew, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest against solicitation requirement that telecommunications equipment be 

certified by the Joint Interoperability Test Command at the time of submission of 

quotations is sustained where the record does not establish that the requirement for 

such certification at the time of quotation submission is necessary to meet the 

agency’s needs. 

DECISION 

SMARTnet, Inc., of Frederick, Maryland, protests the terms of request for quotations 

(RFQ) No. RFQ286120, issued by the Department of the Army, Medical Research 

Acquisition Activity, for communications equipment for the agency’s Defense 

Medical Logistics Center (DMLC) at Fort Detrick, Maryland. Specifically, SMARTnet 

objects to the requirement that the equipment be Joint Interoperability Test 

Command (JITC) certified and that vendors satisfy this requirement at the time of 

quotation submission.1

 

 

1

 JITC is part of the Department of Defense’s (DOD) Defense Information Systems 

Agency (DISA) and provides testing and certification of information technology 

systems/equipment. See www.disa.mil/services/index.html?panel=9#A_Services. 

JITC certification is intended to ensure that a system meets the joint interoperability 

requirements of its users, such that the system can effectively exchange all required 

information with all pertinent systems. See Agency Report (AR), Tab 11, Joint 

Interoperability Certification, DEFENSE AT&L (Acquisition, Technology, and 

Logistics) Magazine, Mar./Apr. 2006, at 1. 
We sustain the protest. 

The RFQ provides for the award of a contract for the acquisition, installation, 

configuration, testing, and turn-over of communications equipment for the DMLC, a 

new facility that is being constructed and will be occupied by different groups of 

medical logisticians from the Army, Air Force, and Navy.2

 Vendors were informed 

that this includes all equipment required to establish a link between data and 

telephone networks outside the facility and the data and telephone cabling (provided 

by the vendor) inside the facility. RFQ, Performance Work Statement (PWS), at 1. 

The RFQ, which was issued on the General Services Administration e-Buy website, 

includes the following three attachments: the PWS, “DMLC Network Equipment 

Functional Requirements,” and “Evaluation Factors for Award.” 

Included with the PWS are two appendices, one of which is Appendix B, entitled 

“Network Equipment Functional Requirements.”3 Appendix B, like RFQ attachment 

“DMLC Network Equipment Functional Requirements,” describes the requirements 

for the communications equipment. Both this appendix and the RFQ attachment 

reference the JITC-certification process. Specifically, Appendix B informs vendors 

that “[e]quipment procured for this PWS must be Joint Interoperability Test 

Command (JITC) certified.” Appendix B at 3. The RFQ attachment states that “all 

equipment considered for deployment under this PWS must be Joint Interoperability 

Test Command (JITC) certifiable and approved by the US Army Information Systems 

Engineering Command, Technology Integration Center (TIC), Fort Huachuca, AZ.” 

DMLC Network Functional Requirements Attachment at 3. The RFQ was amended 

six times. The third amendment made a number of changes to the solicitation, 

including that “the fun[c]tional requirements pages are hereby deleted.” RFQ 

amend. 3. 

The Army received quotations from SMARTnet and three other vendors. SMARTnet 

quoted its “[deleted]” equipment, which SMARTnet described as being “capable of 

becoming JITC certifiable (per RFQ Attachment B--Network Functional 

 

2

 Although the solicitation identified itself as an “RFQ,” the term “proposal,” as 

opposed to “quotation,” appears repeatedly throughout both the solicitation and the 

agency's procurement record, and the solicitation expressly provides for the award 

of a contract. For the sake of consistency, our decision adopts the terminology 

associated with an RFQ. 

3

 Appendix A, “Quality Assurance Surveillance Plan for DMLC Communications 

Equipment,” also included with the PWS, provides contract quality assurance 

requirements. Among other things, vendors were informed that the contractor 

would be required to provide the “DISA JITC Approval Letter/Memo” to show 

compliance with the requirement for JITC certification. See Appendix A at 3. 

Page 2 B-400651.2 
Requirements).” SMARTnet stated in its quotation that, although it did not “currently 

have JITC certification,” its quoted equipment was on the Army TIC approved 

products list and was certified to work with a different system. SMARTnet 

Quotation at 1. In this regard, SMARTnet also stated that it was “looking to partner 

with [DMLC] to be our sponsor for JITC testing to get this testing accomplished.”4

 

Id. 

The quotations were evaluated by the agency’s source selection evaluation board. 

SMARTnet was requested to clarify whether it was offering to furnish equipment 

with a current JITC certification, or whether it was in the process of being JITC 

approved (and if so, when its equipment had been submitted to JITC for 

certification).5

 SMARTnet responded that its equipment “will comply,” and that it 

was “[deleted] intent to have all products on the [approved products list] and we 

will work closely with JITC to accomplish this process . . . .” Contracting Officer’s 

Statement at 4. SMARTnet subsequently informed the agency that the firm was also 

in the process of obtaining another type of certification, which SMARTnet 

characterized as being more stringent than the JITC certification. 

Award was made to World Wide Technology, Inc., and SMARTnet protested to our 

Office, arguing that the agency had not conducted meaningful discussions with 

SMARTnet and that the agency had applied an unstated evaluation factor. Prior to 

submitting its report in response to the protest, the Army took corrective action, 

stating that it would clarify the agency’s requirements, conduct discussions with 

vendors whose quotations were found to be within the competitive range, obtain and 

evaluate revised quotations, and make a new selection decision. In particular, the 

Army stated that it would 

clarify that The Functional Requirements Attachment to the RFQ (which contained 

the requirement that equipment provided must be JITC certifiable) was deleted in 

Modification 3. We will clarify that the Government’s requirement, as expressed in 

the PWS and its Attachment B [sic], is for equipment that complies with all 

applicable DOD Directives and Instructions and is JITC certified at time of proposal 

submittal. 

 

4

The first step in the JITC certification process is for the “acquiring or sponsoring 

activity [to] submit telecommunications switches to DISA (JITC) for [joint 

interoperability certification]. The DISA (JITC) shall test the switch, with acquiring 

or sponsoring activity, sponsorship and involvement.” DOD Instruction (DODI) 

8100.3, Jan. 16, 2004, at 18. 

5

 The Army did not consider these exchanges with vendors to be discussions. 

Page 3 B-400651.2 
AR, Tab 8, Contracting Officer’s Corrective Action Statement, Oct. 20, 2008, at 1.6

 

Because the corrective action rendered SMARTnet’s protest academic, we dismissed 

it. SMARTnet. Inc., B-400651, Oct. 29, 2008. 

On October 31, SMARTnet filed this protest, arguing that the solicitation “as 

constructively revised” by the agency’s corrective action unduly restricts 

competition and that JITC certification is unnecessary for the type of equipment 

being procured here (that is, data networking as opposed to voice networking 

equipment). Protest at 1, 3. In addition, the protester challenged the time at which 

the certification was now being required, stating that “it is truly impossible for any 

vendor to obtain the requested certification of their proposed network equipment at 

the time proposals are submitted or even by the time an award is made.”7 Id. at 4. 

SMARTnet also protests, as unduly restrictive, the requirement in Appendix B that 

“any proposed solution of this solicitation . . . work seamlessly with the existing 

Cisco based infrastructure and management strategy,” arguing that this favors 

vendors providing Cisco-based products. Id. at 3. 

The Army argues that SMARTnet’s protest is untimely. Specifically, the agency 

asserts that the solicitation has always required that the equipment be JITC certified 

and that the equipment work seamlessly with the existing Cisco-based infrastructure. 

In this regard, the Army argues that RFQ amendment 3 was intended to delete the 

“DMLC Network Equipment Functional Requirements” attachment, which provided 

that the vendor’s equipment must be JITC “certifiable,” because this requirement 

“conflicted” with the Appendix B requirement that the vendor provide JITC 

“certified” equipment. Moreover, the Army argues that the RFQ, as issued, required 

the JITC certification at the time of quotation submission. Agency’s Dismissal 

Request, Nov. 13, 2008. 

SMARTnet disagrees that the RFQ, as originally issued, contained a requirement for 

JITC certification or that such certification was required at the time of quotation 

submission. In this regard, SMARTnet contends, as it argued in its prior protest, that 

RFQ amendment 3 deleted only Appendix B, which required vendors to furnish 

 

6

 The day after the Army informed our Office and the protester of the intended 

corrective action, the agency’s contract specialist informed SMARTnet by email that 

RFP amendment 3 “removed the requirement that equipment proposed be JITC 

certifiable” and informed SMARTnet that equipment proposed must be JITC certified 

at time of award. AR, Tab 9, Army Email to SMARTnet, Oct. 21, 2008. This email 

was “rescinded” the next day. AR, Tab 9, Army Email to SMARTnet, Oct. 22, 2008. 

7

 SMARTnet is in the process of obtaining JITC certification for its equipment, which 

SMARTnet states it expects to receive in late spring of 2009. Comments at 2. 

Page 4 B-400651.2 
JITC-certified (as opposed to JITC-certifiable) equipment.8

 Protester’s Response to 

Dismissal Request, Nov. 19, 2008. 

We agree with the Army that SMARTnet’s challenge to the requirements that vendors 

furnish JITC-certified equipment and that the equipment work seamlessly with an 

existing Cisco-based infrastructure is untimely. Although RFQ amendment 3 did not 

clearly identify which functional requirements pages were being deleted from the 

solicitation, we agree with the Army that the solicitation amendment could not have 

removed all of the functional requirements pages, given that Appendix B and the 

“DMLC Network Equipment Functional Requirements” attachment (which, as noted 

above, contain nearly identical language) provide critical information necessary for 

the preparation of quotations and performance of the contract. Both of these 

documents reference the requirements for JITC certification and integration with 

Cisco-based equipment. 

Moreover, with respect to the JTIC certification requirement, other parts of the RFQ 

informed vendors that they would be required to provide the agency with the “DISA 

JITC Approval Letter/Memo” to show compliance with the requirement for JITC 

certification. See Appendix A at 3. Also, vendors were required to provide, with 

their quotations, proof of compliance with DODI 8100.3 and DOD Directive 4630.05. 

See PWS at 5. The Instruction provides for JITC testing and certification and states 

that it is DOD’s policy that telecommunications switches leased, procured, or 

operated by DOD components, and connected, or planned for connection, to the 

Defense System Network shall be joint interoperability certified by JITC.9

 See DODI 

8100.3, Jan. 16, 2004, at 3, 17. The Directive provides that “[j]oint interoperability 

certification testing [for information technology (IT) and national security systems 

(NSS)] shall be as comprehensive as possible, while still being cost effective, and 

shall be completed prior to fielding a new IT and NSS capability or upgrading to 

existing IT and NSS.” DOD Directive 4630.05, May 5, 2004, at 4. Finally, RFQ 

amendment 6 provided vendors with the following question and answer from the 

 

8

 In response to the agency’s dismissal request in the prior protest, SMARTnet argued 

that solicitation amendment 3 deleted only Appendix B, and not the RFQ’s “DMLC 

Network Equipment Functional Requirements” attachment. In this regard, 

SMARTnet noted that the attachment provides requirements information that is 

critical for the preparation of quotations, and that a subsequent solicitation 

amendment (RFQ amend. 6) provided information discussing the “DMLC functional 

requirements set forth in the DMLC Network Equipment Functional Requirements 

document,” demonstrating its continued presence in the solicitation. Protester’s 

Response to Dismissal Request, B-400651, Oct. 14, 2008, at 4-5. 

9

 Although SMARTnet contends that DODI 8100.3 is not applicable to the 

requirement here, SMARTnet did not timely challenge the RFQ requirement that 

vendors show compliance with this instruction. 

Page 5 B-400651.2 
pre-proposal conference site visit: “Q: Must all switches be JITC approved? A: Yes.” 

RFP amendment 6 at 1; Contracting Officer’s Statement at 3. 

The record shows that SMARTnet recognized that JITC certification was required for 

its equipment. As noted above, before its prior protest and in response to the Army’s 

request for clarification concerning whether SMARTnet’s equipment was JITC 

certified or was being certified, SMARTnet informed the agency that its equipment 

“will comply,” and that it was its “intent to have all products on the [approved 

products list] and [that it would] work closely with JITC to accomplish this process.” 

See Contracting Officer’s Statement at 4. In its prior protest, SMARTnet did not 

contend that JITC certification was not required or was unnecessary. See Protester’s 

Response to Dismissal Request, B-400651, Oct. 14, 2008, at 5. 

We conclude from this record that SMARTnet knew, or should have known, from the 

RFQ as originally issued, the basis of its argument that the requirement for 

equipment that was JITC certified and for equipment that would integrate seamlessly 

with the existing Cisco-based equipment was unduly restrictive of competition.10 

Accordingly, to be timely, these objections to the solicitation should have been 

protested before the closing date for submission of quotations, and not after 

SMARTnet was informed that another vendor had received award. 4 C.F.R. 

§ 21.2(a)(1) (2008). These protest grounds are dismissed. 

We find timely, however, SMARTnet’s protest of the requirement that vendors’ 

proposed equipment be JITC certified at the time of quotation submission. Although, 

as noted above, the RFQ informed vendors that the agency sought JITC-certified 

equipment, the solicitation did not state when that certification was required. This is 

so whether we give weight to Appendix B, which states that vendors must provide 

JITC-certified equipment but does not state when the certification must be obtained, 

or to the “DMLC Network Equipment Functional Requirements” attachment, which 

requires vendors to provide “certifiable” equipment. In this regard, we disagree with 

 

10 At best, SMARTnet’s arguments concerning whether the RFQ required vendors to 

provide equipment that was JITC certified indicate that the solicitation was patently 

ambiguous. Where a solicitation contains a patent ambiguity, an offeror has an 

affirmative obligation to seek clarification prior to the first due date for responding 

to the solicitation following introduction of the ambiguity into the solicitation. See 

4 C.F.R. § 21.2(a)(1); Dix Corp., B-293964, July 13, 2004, 2004 CPD ¶ 143 at 3. Where 

a patent ambiguity is not challenged prior to such submissions, we will dismiss as 

untimely any subsequent protest assertion that is based on an alternative 

interpretation. Kellogg Brown & Root, Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 

CPD ¶ 96 at 8; Bank of Am., B-287608, B-287608.2, July 26, 2001, 2001 CPD ¶ 137 

at 10. Our rule that protests of patent ambiguities must be filed prior to responsive 

submissions is intended to facilitate clarification of legitimate questions prior to 

preparation of submissions. 

Page 6 B-400651.2 
the Army that the solicitation requirement that vendors provide “[p]roof of 

compliance” with DODI 8100.3 and DOD Directive 4630.05 at the time of quotation 

submission clearly established that vendors’ proposed equipment must be 

JITC-certified at that time; in particular, the Directive specifically provides that 

verification of interoperability should be completed prior to fielding.11 Vendors 

could reasonably understand the requirement to show compliance with the 

Instruction and Directive in their quotations to mean that vendors were to 

demonstrate in their quotations their ability to satisfy the JITC-certification 

interoperability requirement at time of fielding the

and 

ir equipment. 

We find from our review of the record that SMARTnet learned this basis of its 

protest--challenging the requirement that proposed equipment be JITC certified at 

the time of quotation submission--from the Army’s corrective action in response to 

the firm’s prior protest. The time for obtaining the JITC certification was not clearly 

specified in the RFQ initially. In fact, some solicitation language indicated that the 

certification was required only prior to fielding of the equipment. Because the 

requirement for certification at the time of quotation submission was subsequently 

incorporated into the solicitation by the agency’s corrective action, SMARTnet’s 

protest of this requirement, to be timely, was required to be protested by next 

closing time for receipt of quotations. 4 C.F.R. § 21.2(a)(1). SMARTnet’s protest to 

our Office satisfies this timeliness requirement. 

With respect to the merits of SMARTnet’s challenge that requiring JITC certification 

at the time of quotation submission is unduly restrictive of competition, procuring 

agencies are required to specify their needs in a manner designed to permit full and 

open competition, and may include restrictive requirements only to the extent they 

are necessary to satisfy the agencies’ legitimate needs (or as otherwise authorized by 

law). 10 U.S.C. § 2305(a)(1)(A)(i), (B)(ii) (2006); CHE Consulting, Inc., B-297534.4, 

May 17, 2006, 2006 CPD ¶ 84 at 2. Where a protester challenges a specification as 

unduly restrictive, the agency must establish that the requirement is reasonably 

necessary to meet its needs; we will examine the adequacy of the agency’s position 

to ensure that it is rational and can withstand logical scrutiny. Container Prods. 

Corp., B-280603.2, Nov. 4, 1998, 98-2 CPD ¶ 106 at 3. 

Here, SMARTnet contends that the agency does not need to have proof of 

certification before the time of installation, and that requiring JITC certification at 

the time of quotation submission essentially restricts the procurement to those firms 

that had this certification at the time the solicitation was issued. This is so, 

SMARTnet argues, because the JITC-certification process is only performed at two 

 

11 The Army provided an article from Defense AT&L (Acquisition, Technology, and 

Logistics) Magazine to explain the JITC certification requirement. This article 

indicates that certification is required before the system is “fielded.” See AR, Tab 11, 

Joint Interoperability Certification, DEFENSE AT&L Magazine, Mar./Apr. 2006, at 1. 

Page 7 B-400651.2 
Page 8 B-400651.2 

sites in the United States and is time-consuming. Protest at 4. In this regard, 

SMARTnet states that its equipment “is currently in the process of achieving final 

JITC certification which is being sponsored by the Department of the Army and is 

scheduled to be achieved later this Spring in time for the apparent equipment 

installation.” Comments at 2. 

In response, the agency variously argues that its requirement is for “an immediate 

networking solution,” that the tenants of DMLC should not be made to wait for 

vendors to obtain the necessary certification, and that the agency should not bear 

the risk that it would have to conduct another procurement if SMARTnet’s 

equipment failed to become certified in time to satisfy the project’s needs. Legal 

Memorandum at 10. 

 

We do not find that the Army’s concerns here, which all relate to the agency’s need 

to have JITC-certified equipment at the time of equipment installation, support the 

solicitation’s requirement for JITC certification at the time of quotation submission. 

An agency’s otherwise legitimate requirements regarding an offeror’s demonstrated 

ability to meet contract requirements may not be required prior to when such 

qualifications become relevant. See LBM Inc., B-286271, Dec. 1, 2000, 2000 CPD 

¶ 194 at 4. The Army has simply not explained why the apparent purpose behind the 

certification requirement--to ensure that a system be certified prior to the time it 

must be fielded--requires that evidence of certification be provided as early in the 

process as the time at which quotations are submitted. In short, the Army has not 

shown its requirement that vendors’ proposed equipment be JITC certified at the 

time of submission of quotations is reasonable. 

The protest is sustained. 

We recommend that the Army amend the RFQ to represent its actual needs 

concerning when JITC certification is required. We also recommend that SMARTnet 

be reimbursed the costs of filing and pursuing its protest, including reasonable 

attorneys’ fees, with regard to the protest issue we sustained. 4 C.F.R. § 21.8(d)(1). 

SMARTnet should submit its claim for costs, detailing and certifying the time 

expended and costs incurred, with the Army within 60 days after receipt of this 

decision. 4 C.F.R. § 21.8(f)(1). 

Gary L. Kepplinger 

General Counsel