TITLE:  The Mangi Environmental Group, Inc., B-294597, November 29, 2004
BNUMBER:  B-294597
DATE:  November 29, 2004
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   Decision

   Matter of:   The Mangi Environmental Group, Inc.

   File:            B-294597

   Date:              November 29, 2004

   James I. Mangi for the protester.

   Samar A. Shams, Esq., Department of Agriculture, for the agency.

   Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency properly rejected protester's quotation for environmental
assessment where solicitation required a fixed price for completion of the
tasks specified, but protester submitted its quotation on a fixeda**price,
level-of-effort basis, permitting it to accept a lower degree of risk than
required by the solicitation and accepted by the other vendors.

   DECISION

   The Mangi Environmental Group, Inc. protests the rejection of its
quotation, and the subsequent issuance of a purchase order to The Shipley
Group, under request for quotations (RFQ) No. FSA-R-33-04DC, issued by the
Department of Agriculture, Farm Service Agency (FSA), for a programmatic
environmental assessment (PEA) for the Confederate Tribes and Bands of the
Yakama Nation Conservation Reserve Enhancement Program.  Mangi argues that
the agency improperly rejected its quotation.

   We deny the protest.

   The RFQ, posted on the General Services Administration's (GSA) E-Buy
website on August 12, 2004, included a statement of work (SOW) that listed
six tasks/deliverables, including:  (1) develop and submit a management
plan,

   (2) conduct scoping, (3) acquire data, analyze impacts and prepare
preliminary draft PEA, (4) consult with FSA and Yakama Nation, (5) consult
further, obtain and respond to public comments, refine draft PEA, and (6)
prepare and submit final PEA.  RFQ at 3.  On August 13, the agency posted
an amendment specifying that vendors were to submit pricing proposals that
provide "a firm fixed price for completing all tasks listed in the [SOW] .
. . ."  RFQ Modification 1, at 1.

   FSA received four quotes, including Mangi's and Shipley's, by the August
16 closing date.  Mangi's quote of $19,647 was low, but Mangi quoted on a
fixed-price,

   level-of-effort basis.  Shipley submitted a fixed-price quote of $26,884. 
Because Mangi's fixed price was based on a level-of-effort, the agency
determined that it was unacceptable.  On August 17, the agency issued a
purchase order to Shipley as the vendor submitting the low-priced,
acceptable quotation. 

   Mangi maintains that its fixed-price, level-of-effort quote is acceptable
because Federal Acquisition Regulation (FAR) S 16.207 designates a
level-of-effort contract form as a type of fixed-price contract.

   It is fundamental that an agency may not solicit quotes on one basis and
then make award on a materially different basis when other vendors would
be prejudiced by such an award.  Cellular One, B-250854, Feb. 23, 1993,
93-1 CPD P 169 at 4.  In this same vein, where a vendor's quote contains
an irregularity that would provide a benefit to that vendor not extended
to all vendors by the RFQ, and which is prejudicial to other vendors, the
quote is unacceptable.  See Valix Fed. Partnership I, B-250686, Feb. 1,
1993, 93-1 CPD P 84 at 4.

   While Mangi is correct that a fixed-price, level-of-effort contract is a
form of fixeda**price contract, the RFQ did not provide for award on a
level-of-effort basis, and Mangi's quoting on this basis provided it a
benefit not available to vendors that quoted fixed prices.[1]  As noted,
the RFQ specified six tasks/deliverables that the contractor would be
required to complete for the quoted fixed price, without regard for the
level of effort that ultimately proved necessary to complete them. 
Mangi's quote did not provide a price for completing the contract tasks,
as called for, but instead priced a level of effort (undefined in the
quotation), which would be the extent of Mangi's contractual obligation,
whether or not it proved sufficient to complete the contract tasks.  In
effect, Mangi's quote was based on the agency's accepting the risk that
Mangi's level of effort would not be sufficient to complete the contract
tasks, while Shipley's and the other vendors' quotes were based on the
contractor's accepting that risk, as contemplated by the RFQ.  This lower
degree of accepted risk provided Mangi with an advantage over other
vendors; the other vendors therefore were prejudiced.  Accordingly, the
agency properly rejected Mangi's quotation as unacceptable.

   Citing the alleged absence of detailed specifications and FAR S 16.207-2,
which provides that a fixed-price, level-of-effort contract is suitable
for an investigation or study in a specific research and development
effort, Mangi argues that a levela**ofa**effort contract should have been
used for the environmental assessment required here.  Our Bid Protest
Regulations provide that protests of alleged deficiencies apparent on the
face of a solicitation must be filed no later than the closing time for
receipt of proposals, or quotations.  4 C.F.R. S 21.2(a)(1) (2004).  Since
it was, or should have been, clear to Mangi that the RFQ was not
requesting fixed prices on a level-of-effort basis, if Mangi believed
prices should have been solicited on that basis, it was required to
protest on this basis prior to the closing time.  Since this argument was
not raised until after that time, it is untimely and will not be
considered.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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   [1] Under a fixed-price contract, the price is not subject to any
adjustments on the basis of the contract's cost experience in performing
the required work.  Under this contracting method, maximum risk and full
responsibility for all costs and resulting profit and loss associated with
performing the required work rest with the contractor.  See FAR SS
16.202-1, 16.202-2.  In contrast, under a fixed-price, levela**ofa**effort
contract, the government pays a fixed price for, and the contractor is
obligated to provide, only a specified level of effort, identified and
agreed upon in advance, over a specified time.  See FAR S 16.207-3.