TITLE:  ManTech Environmental Research Services Corporation, B-292602; B-292602.2, October 21, 2003
BNUMBER:  B-292602; B-292602.2
DATE:  October 21, 2003
**********************************************************************
ManTech Environmental Research Services Corporation, B-292602; B-292602.2,
October 21, 2003

   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:   ManTech Environmental Research Services Corporation
    
File:            B-292602; B-292602.2
    
Date:              October 21, 2003
    
Devon E. Hewitt, Esq., John E. Jensen, Esq., and Jennifer M. De Jesus,
Esq., Shaw Pittman, for the protester.
Richard L. Moorhouse, Esq., L. James D'Agostino, Esq., and Natalia W.
Geren, Esq., Reed Smith, for Shaw Environmental, Inc., an intervenor.
Thomas J. Doherty, Esq., Environmental Protection Agency, for the agency.
Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Where agency performed cost/technical tradeoff, selecting awardee's
higher-priced proposal on the basis of perceived technical superiority, as
reflected in point scores, protest challenging that cost/technical
tradeoff is sustained where agency's contemporaneous evaluation record
reflects evaluation errors which the agency acknowledges *might have*
resulted in improperly doubling the awardee's perceived technical point
margin. 
    
2.  Where evaluation record supporting cost/technical trade-off is
materially flawed,  and perceived technical superiority of awardee's
higher-priced proposal, as reflected by technical point scores, is
dramatically reduced by correction of procurement flaws, agency's
post-protest confirmation of its prior cost/technical tradeoff, conducted
*in the heat of an adversarial process,* does not provide credible support
for the agency's assertion that protester was not prejudiced by the
evaluation flaws. 
DECISION
    
ManTech Environmental Research Services Corporation protests the
Environmental  Protection Agency's (EPA) award of a contract to Shaw
Environmental, Inc. under request for proposals (RFP) No.
PR-CI-02-1291/0111 to provide on-site technical
support services for EPA's Office of Research and Development.  ManTech
protests that the agency's evaluation of technical proposals was flawed
and that the source selection decision relied on inaccurately recorded
evaluation data. 
    
We sustain the protest.
    
BACKGROUND

   The solicitation at issue here was published in October 2002, seeking
proposals to provide various technical services to the Ground Water and
Ecosystems Division of EPA's Office of Research and Development in Ada,
Oklahoma.[1]  The solicitation contemplated award of a
cost-plus-fixed-fee, level-of-effort contract for a 1-year base period and
four 1-year option periods, provided that technical quality would be more
important than cost/price, and established the following technical
evaluation factors,  listed in descending order of importance: 
demonstrated qualifications of assigned personnel, past performance,
demonstrated corporate experience, quality of proposed program management
plan, and appropriateness of the proposed quality management plan.[2] 
First Agency Report, Tab B, at 174-76. 
    
Initial proposals were submitted in March 2003 by five offerors, including
Shaw and ManTech; these proposals were thereafter evaluated.[3]  Based on
the agency's evaluation of these proposals, a competitive range was
established consisting of three proposals--those submitted by Shaw,
ManTech, and a third offeror.[4] 
Discussions were thereafter conducted with the competitive range offerors
and final proposal revisions (FPRs) were submitted on May 22.  The FPRs
were evaluated with the following results:
        

   +------------------------------------------------------------------------+
|                                   |Shaw              |Mantech          |
|-----------------------------------+------------------+-----------------|
|Personnel                          |                  |                 |
|(350 max. pts.)                    |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Past Performance                   |                  |                 |
|(250 max. pts.)                    |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Corporate Experience               |                  |                 |
|(150 max. pts.)                    |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Program Management Plan            |                  |                 |
|(150 max. pts.)                    |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Quality Management Plan            |                  |                 |
|(100 max. pts.)                    |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Total Technical Score              |                  |                 |
|(1000 max. pts.)                   |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Evaluated Cost/Price               |[deleted]         |[deleted]        |
+------------------------------------------------------------------------+

    
First Agency Report, Tab U, at 2.
    
In short, the agency's final evaluation record indicated that Shaw's
technical proposal was rated [deleted] points higher (approximately
[deleted] percent) than Mantech's.  Shaw's evaluated cost/price was also
[deleted] higher (approximately  [deleted] percent) than Mantech's. 
Based, in part, on consideration of the point scores displayed above,[5]
the source selection authority (SSA) concluded that Shaw's evaluated
technical superiority outweighed ManTech's cost/price advantage and
selected Shaw's proposal for award.  This protest followed. 
    
DISCUSSION
    
Mantech filed its initial protest on July 17, challenging various aspects
of the agency's proposal evaluation and arguing that the agency
erroneously selected Shaw's proposal--with its [deleted] million higher
cost/price*rather than ManTech's proposal.  The agency responded to
Mantech's protest by providing the required agency evaluation record to
our Office and to protester's counsel admitted to a protective order,
followed by a report dated August 27, in which the agency asserted that
*None of ManTech's various complaints are factually or legally sound.* 
First Agency Report at 12.
    
On August 28, based on its review of the agency's evaluation record and
agency report, Mantech filed a supplemental protest in which it identified
various apparent errors in the evaluation record--including simple
mathematical/transcription errors--that improperly increased Shaw's
technical score or improperly decreased Mantech's technical score.  Among
other things, Mantech identified specific portions of the evaluation
record affecting Shaw's ratings under the two most heavily weighted
evaluation factors*personnel and past performance.  As noted above, the
agency's initial source selection decision was based, in part, on Shaw's
proposal receiving higher point score ratings under each of these two
factors.   
    
By submission to our Office dated September 24, the agency responded to
Mantech's supplemental protest, again maintaining that Mantech's various
allegations were *without merit.*  Second Agency Report at 1.  However,
the agency conceded that ManTech's supplemental protest did, in fact
*identif[y] clerical errors that occurred in the compilation of data for
the evaluation of Shaw's past performance.*  Second Agency Report at 7. 
Specifically, the agency described the following:
    
The task of gathering data regarding the offerors' past performance was
assigned to a TEP coordinator . . . .  He gathered past performance
evaluations from the offerors' contract references and recorded the
information onto worksheets . . . .   The worksheets identifies six
separate aspects of past performance to be evaluated  . . .  and utilizes
six separate adjectival ratings -- Outstanding, Excellent, Good, Fair,
Poor and N/A [not applicable].  The [TEP coordinator] recorded the
references' evaluations . . . [and] then transcribed this data to a
summary matrix, recording a score of *5* for each *Outstanding* rating, a
score of *4* for each *Excellent* rating, etc. . . .   The rating provided
by two of Shaw's references . . .  for *Overall Performance* were
incorrectly recorded on the summary matrix as [deleted] rather than
[deleted]. . . .  The [TEP coordinator] then utilized these incorrect
scores to arrive at an average score for Shaw's overall performance. 
Second Agency Report at 8. 
    
The agency further acknowledged that: 
    
had the transcription error not occurred, Shaw's awarded score for past
performance might have been [deleted] points, instead of [deleted]
points. 
This would have reduced the gap between ManTech's score [deleted] and
Shaw's score [deleted] [from [deleted] points] to [deleted] points. 
Id. 
    
Finally, the agency stated: 
    
In light of the scoring errors affecting the evaluation of past
performance, the Source Selection Official re-examined her source
selection decision [while the protest was ongoing].  She has again
concluded that Shaw's proposal is the most advantageous to the
Government. 
Id.  
In short, while defending against ManTech's protest, the agency maintains
that the SSA reconsidered the evaluation record, including the data
summarized below (with the corrections in bold and the initial ratings
immediately above in brackets), and concluded that the prior source
selection decision was appropriate.[6]
    

   +------------------------------------------------------------------------+
|                                   |Shaw              |Mantech          |
|-----------------------------------+------------------+-----------------|
|Personnel                          |                  |                 |
|(350 pts.)                         |[deleted][7]      |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Past Performance                   |                  |                 |
|(250 pts.)                         |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Corporate Experience               |                  |                 |
|(150 pts.)                         |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Program Management Plan            |                  |                 |
|(150 pts.)                         |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Quality Management Plan            |                  |                 |
|(100 pts.)                         |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Total Technical Score              |                  |                 |
|(1000 pts.)                        |[deleted]         |[deleted]        |
|-----------------------------------+------------------+-----------------|
|Evaluated Cost/Price               |[deleted]         |[deleted]        |
+------------------------------------------------------------------------+

    
Based on the SSA's reconsideration of the evaluation record (while
simultaneously defending against ManTech's protest), the agency maintains
that ManTech was not prejudiced by the agency's evaluation errors.  We are
not persuaded.   
    
In addition to the evaluation errors discussed above--correction of which
would decrease the margin of Shaw's total point score superiority from
[deleted] to [deleted]--ManTech's supplemental protest identifies other
apparent errors, including another apparent transcription error relating
to Shaw's rating under the most heavily weighted evaluation factor,
personnel.  Specifically, ManTech points out that the final evaluation
record incorporates an evaluator's rating of [deleted] for Shaw's proposed
analytical chemist/manager,[8] but the contemporaneous evaluator
worksheets reflect a score of either [deleted] or [deleted]. First Agency
Report, Tab U, at 5; First Agency Report, Tab I, at 6; First Agency
Report, Tab J, at D-60.  Accordingly, ManTech maintains that Shaw's
evaluated advantage with regard to proposed personnel was improperly
inflated due to transcription errors in much the same way the agency
acknowledges occurred with regard to Shaw's past performance rating.   
    
In response to Shaw's supplemental protest, the agency maintains that the
evaluator changed his rating of Shaw's proposed analytical chemist/manager
from a [deleted] to a [deleted].  Letter from EPA to GAO (September 26,
2003).  However, this assertion is not supported by the contemporaneous
record.  Specifically, the record shows that the evaluator initially
evaluated Shaw's proposed analytical chemist/manager as a [deleted], then
increased the rating to a [deleted].  First Agency Report, Tab J, at
D-60.  Nowhere in the evaluator's own contemporaneous evaluation record is
there documentation suggesting a rating of [deleted].  That is, nothing in
the contemporaneous evaluation record refutes ManTech's assertion that
this is another example of a transcription error favoring Shaw, similar to
the error with regard to past performance.
    
As discussed above, it is clear that, even considering only the past
performance evaluation errors, which the agency acknowledges, the initial
cost/technical tradeoff, on which the source selection decision was based,
reflected consideration of a technical point score superiority for Shaw
that was more than double the margin that existed following correction of
the agency errors.  Correction of these errors, alone, eliminates Shaw's
evaluated advantage under the second most important evaluation
factor--past performance--which, in part, formed the basis for the
agency's conclusion that Shaw's technical superiority outweighed ManTech's
[deleted] cost advantage.  Further, as discussed above, the
contemporaneous evaluation record regarding the most important evaluation
factor--personnel--suggests that Shaw's slightly higher point score under
that factor may have been, similarly, inaccurately recorded.  In short, it
appears that the evaluation record supporting Shaw's evaluated technical
superiority, including the total point score ratings on which the initial
source selection decision appears to significantly rely, was materially
flawed.   
    
We are further concerned with the objectivity of the agency's post-protest
activities, since those activities were performed by personnel who were
simultaneously involved in defending against ManTech's protest.  Our
Office has previously addressed similar situations, concluding that, when
agencies re-evaluate proposals while defending against pending protests,
and purport to rely on information or analysis that was not previously
considered, the weight accorded such post-protest activities is properly
limited because such activities *constitute reevaluations and
redeterminations prepared in the heat of an adversarial process,* and may
not represent *fair and considered* judgments.  See Dismas Charities,
Inc., B-292091, June 25, 2003, 2003 CPD P:125; Boeing Sikorsky Aircraft
Support, B-277263.2, B‑277263.3, Sept. 29, 1997, 97-2 CPD P: 91.  We
reach that  conclusion here and, therefore, discount the agency's
post-protest analysis and representations.    Based on our consideration
of the record as a whole, we conclude that the current record does not
adequately support the agency's conclusion that Shaw's proposal, evaluated
at $[deleted] more than ManTech's proposal, represents the best value to
the government, nor does it adequately support the agency's post-protest
position that ManTech was not prejudiced by the agency's material
evaluation flaws.  Accordingly, the protest is sustained. 
    
RECOMMENDATION
    
We recommend that the agency reevaluate the competitive range proposals in
a manner consistent with the terms of the RFP and applicable law and
regulation and, based on that evaluation, make a new source selection
decision.  In light of the agency's prior reliance on the same personnel
to simultaneous defend against the protest and perform a post-protest
confirmation of the initial source selection decision, the agency may wish
to conduct the new evaluation and source selection decision using
personnel other than those that participated in the initial source
selection.  In any event, if an offeror other than Shaw is selected for
award, none of the option periods in Shaw's contract should be exercised;
rather, a contract should be awarded to the successful offeror.  We also
recommend that the agency reimburse the protester its reasonable costs of
filing and pursuing the protest, including attorneys' fees. 4 C.F.R. S:
21.8(d)(1) (2003). The protester should file its
claims for costs, detailing the time expended and costs incurred, with the
contracting agency within 60 days of receiving this decision. 4 C.F.R. S:
21.8(f)(1).   
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1]  The agency states that this segment of EPA is responsible for
*conduct[ing] highly technical laboratory and field research that supports
the development of strategies and technologies to protect and restore the
quality of our nation's ground and surface waters.*  Agency Report, Aug.
27, 2003, (hereinafter *First Agency Report*) at 1.  The services to be
provided under this solicitation include scientific modeling, ecological
sampling, and analytical support services.  
[2] The solicitation also identified various subfactors under the primary
technical evaluation factors. 
[3] Technical proposals were evaluated by assigning raw point scores from
1 to 5 for each technical factor and subfactor.  The raw scores were then
converted to weighted scores by multiplying the maximum possible score for
each factor/subfactor by 100 percent if a *5* was awarded; by 80 percent
if a *4* was awarded; by 60 percent if a *3* was awarded, and so forth.
[4] The third offeror's proposal is not relevant to the protest issues
and, accordingly, is not further discussed.
[5] The first sentence of the source selection decision's *Analysis*
section stated:  *Shaw provided the highest rated technical proposal,
receiving [deleted] out of a possible 1000 total points.*  Agency Report,
Tab W, Source Selection Decision, at 3.  Similarly, in the first sentence
of the *Analysis* section relating to ManTech's proposal stated:  ManTech
received [deleted] out of a possible 1,000 total technical evaluation
points, demonstrating an overall adequate proposal.*  Id. at 8.  Further,
the SSA's decision states that *[t]his determination is  made by comparing
the proposals . . . and quantifying the differences.*  Id. at 2.    
[6] Because Mantech filed an agency-level protest prior to filing a
protest with our Office, the agency was not required to suspend contract
performance during our review of Mantech's protest.  Accordingly, Shaw was
already performing the contract at the time the SSA performed her
re-evaluation activities.
[7] As discussed below, the record indicates that this point score may
have also been improperly recorded.
[8] The solicitation identified five key personnel positions, assigning
differing maximum point values to each position.  The position of
Analytical Chemist/Manager was weighted at 50 points, the second most
heavily weighted key personnel position.  Agency Report, Tab B, at 174.