TITLE: B-299721.4, The Mangi Environmental Group, Inc., January 24, 2008
BNUMBER: B-299721.4
DATE: January 24, 2008
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B-299721.4, The Mangi Environmental Group, Inc., January 24, 2008

   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: The Mangi Environmental Group, Inc.

   File: B-299721.4

   Date: January 24, 2008

   J. Patrick McMahon, Esq., and William T. Welch, Esq., Barton, Baker,
   McMahon & Tolle, LLP for the protester.

   Azine Farzami, Esq., Department of Agriculture, for the agency.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that evaluation of protester's proposal was flawed is denied where
   agency reasonably found proposal was confusing and contained numerous
   weaknesses and deficiencies.

   DECISION

   The Mangi Environmental Group, Inc. challenges the award of a contract to
   Geo Marine, Inc. (GMI) under request for proposals (RFP)
   No. AG3151-S-07-0001, issued by the Department of Agriculture (USDA), Farm
   Service Agency (FSA), for programmatic environmental assessments (PEA).
   Mangi asserts that the technical evaluation and source selection were
   flawed.

   We deny the protest.

   The RFP was issued in response to a lawsuit by the National Wildlife
   Federation (NWF) that resulted in a negotiated settlement with FSA and
   called for an additional National Environmental Policy Act (NEPA) analysis
   of the effects of managed haying and grazing on lands involved in the
   Conservation Reserve Program (CRP) in 20 states identified in the
   settlement agreement.^[1] The original environmental impact statement
   (EIS) on which the lawsuit was based was completed by Mangi. The RFP
   contemplated the award of a contract for 17 fixed-price and 2 reimbursable
   (travel and supplies) contract line items to supply all necessary labor,
   materials, and expertise to complete 20 individual PEAs. Proposals were to
   be evaluated under three equally-weighted factors--past performance,
   technical capability, and price--with the non-price factors combined of
   greater importance than price. Award was to be made on a "best value"
   basis.

   Four proposals, including Mangi's and GMI's, were received and evaluated.
   Mangi's, GMI's, and a third offeror's proposals were included in the
   competitive range (the fourth proposal was eliminated due to technical
   deficiencies). After requesting and evaluating final proposal revisions
   (FPR), the agency selected GMI's proposal as the best value and made award
   to that firm. Mangi protested the award and the agency took corrective
   action, reopening the competition and making a new source selection.^[2]

   The three offerors in the competitive range were given the opportunity to
   make oral presentations and to submit new FPRs under the reopened
   competition. The technical evaluation panel (TEP) reviewed the FPRs and
   reached the following consensus ratings:

   +------------------------------------------------------------------------+
   |                       |Mangi            |GMI            |Offeror 3     |
   |-----------------------+-----------------+---------------+--------------|
   |Technical Capability   |Incapable        |Very capable   |Capable       |
   |-----------------------+-----------------+---------------+--------------|
   |Past Performance       |Unsatisfactory   |Satisfactory   |Satisfactory  |
   |-----------------------+-----------------+---------------+--------------|
   |Overall Capability     |Incapable        |Very capable   |Capable       |
   |-----------------------+-----------------+---------------+--------------|
   |Price                  |$612,858         |$1,201,884     |$1,014,220    |
   +------------------------------------------------------------------------+

   Based on the TEP's evaluation, the contract specialist recommended GMI's
   proposal for award as the best value, noting, in part, its capability
   rating of very capable, GMI's experience on similar FSA projects, the
   absence of litigation in connection with GMI's over 800 projects, its
   clearly stated project management and project controls, the extremely
   qualified proposed personnel and industry experts, and the proven
   experience of the proposed subcontractors. Agency Report (AR), Tab 16,
   at 7. Award to Mangi was not recommended due to its incapable technical
   rating, and because its low price, together with its lack of technical
   understanding, was viewed as posing a performance risk. Id. at 6-7. The
   contracting officer, as source selection authority (SSA), adopted these
   recommendations and made award to GMI. After a debriefing, Mangi filed
   this protest.

   Mangi challenges the evaluation and award decision on numerous grounds,
   concluding that its proposal rating of incapable is not supported by the
   record. In Mangi's view, its proposal reasonably and adequately
   demonstrated the firm's experience and capability to perform the contract
   in all areas. We have considered all of Mangi's arguments and find that
   they provide no basis to object to the evaluation and award. We address
   Mangi's most significant arguments below.

   TECHNICAL EVALUATION

   The RFP advised offerors that, due to the size and complexity of the tasks
   to be performed, the agency envisioned the contractor serving as a prime,
   together with other consulting firms and subcontractors in each of the 20
   states, to fulfill the RFP requirements. RFP sect. 2. Proposals were
   required to show the offeror's experience in preparing environmental
   impact analyses and documentation, including environmental assessments
   (EA) and EISs, in accordance with NEPA; describe the analytic process the
   offeror would use to identify impacts that could arise from project
   components; describe how the firm would establish impact significance
   criteria and ratings for predicting potential impacts identified for each
   environmental resource area; and include a staffing plan demonstrating the
   offeror's ability to execute the work within the constraints of the
   schedule.

   In evaluating Mangi's proposal, the TEP found many weaknesses and
   deficiencies under the technical capability factor. For example, while the
   TEP found that Mangi had experience based on numerous projects, it found
   that none was clearly related to this procurement. AR, Tab 13, at 1. The
   TEP found that the proposal showed that Mangi had limited experience in
   implementing CRP programs, and did not demonstrate that the firm had the
   skill sets or experience in agricultural economics, range, and CRP
   enrollment that the agency considered essential for successful
   performance. AR, Tab 16, at 6. In this regard, one of the evaluators noted
   that the CRP is a voluntary program with agricultural economics as a
   critical element, yet the proposal did not demonstrate extensive knowledge
   or experience in this area. AR, Tab 13, at 6. Another evaluator, noting
   that the proposal identified projects in which the firm was "engaged,"
   questioned what projects were actually completed. Id. at 16. The TEP also
   found both that the analytical processes and methods as set forth in
   Mangi's proposal were confusing and ambiguous, and that the proposal did
   not relate how those processes and methods could help meet the objectives
   of this specific project. AR, Tabs 12, at 1 and 13, at 16. Further, the
   TEP found that the proposal did not provide a linkage between staff
   knowledge and experience and their relevance to completing the contract.
   AR, Tab 13, at 6, 16. As a further example, regarding management of
   proposed subcontractors, the TEP found that the proposal failed to clearly
   provide the connection between the proposed management process and the
   personnel who would be performing the work. In this regard, the TEP found
   that Mangi's organizational chart did not clearly explain roles and
   responsibilities, so that it was not clear who was responsible for what 
   functions, and for managing which personnel. AR, Tab 13, at 2, 17.

   Mangi's Approach

   Mangi asserts that, although it did not propose a solution like that
   envisioned in RFP sect. 2, its proposal addressed all RFP requirements. It
   notes, for example, that its proposal set forth Mangi's extensive
   experience, including the preparation of some 350 EAs and EISs, and
   explained its analytical process. This process included developing a
   description of the proposed action and alternatives; identifying connected
   and cumulative actions, potential types of effects, priorities, and
   allocations; determining data, study needs, scoping issues, and
   alternatives and public involvement; conducting its analyses in accordance
   with its analytic process, documenting the results, and providing an
   innovative concordance analysis to show the ways in which each EA differs
   from the other ones in structure, analysis, schedule, and conclusions.
   Mangi Supplemental Comments at 4-5. With regard to its proposed
   subcontractors, Mangi notes that it clearly proposed that it would be
   responsible for the EAs and that the subcontractors would serve as
   specialty consultants; this recognized that performance would be based
   mainly on existing knowledge, literature reviews, and other appropriate
   material. Id. at 5-6. Since Mangi itself, not its subcontractors, was to
   be responsible for producing the 20 EAs, Mangi asserts that it was
   improper for the agency to criticize its proposal for failing to provide
   evidence of adequate management oversight of its subcontractors with
   regard to production of the EAs.

   In considering a protest of an agency's proposal evaluation, our review is
   confined to determining whether the evaluation was reasonable and
   consistent with the terms of the solicitation and applicable statutes and
   regulations. United Def. LP, B-286925.3 et al., Apr. 9, 2001, 2001 CPD
   para. 75 at 10-11.

   This aspect of the evaluation was unobjectionable. While the agency was
   well aware that Mangi itself had extensive NEPA experience, as noted, the
   agency was concerned with the number of completed projects and its
   proposed subcontractors' apparent lack of NEPA experience. Further, while
   the agency recognized that the proposal stated that Mangi would perform
   the bulk of the work, it found that this was not so clear from a complete
   reading of the proposal. For example, immediately after stating that Mangi
   and its personnel would play a "major role in the centralized planning,
   conduct and documentation of the EAs," Mangi's proposal stated that its
   "[s]ubcontractors and their personnel familiar with each state will
   substantially assist with the state-by-state scoping, planning, data
   gathering and analysis within the systematic [Mangi] approach." Mangi
   Proposal at 23. This language led the agency to question whether Mangi
   might rely heavily on its proposed subcontractors, which was problematic
   because it appeared that they lacked NEPA experience. Here, as with the
   other areas of its proposal evaluated as weak or deficient, while Mangi
   may have attempted to cover the requirements of the RFP, the agency found
   that its proposal failed to do so in a clear and understandable manner. We
   think the agency's conclusion was reasonable, and that it reasonably
   downgraded Mangi's proposal on this basis. ^[3] See HDL Research Lab,
   Inc., B-294959, Dec. 21, 2004, 2005 CPD para. 8 at 5 (an offeror is
   responsible for affirmatively demonstrating the merits of its proposal and
   risks rejection of its proposal if it fails to do so).

   Mangi's Litigation Record

   Mangi also challenges the agency's downgrading of its proposal based on
   the firm's litigation record. In this regard, the TEP noted that the
   current procurement stemmed from litigation brought by NWF over an EIS
   prepared by Mangi, and that another Mangi project (for the Rural
   Development Agency (RDA)) was currently under litigation. AR, Tab 13.
   Mangi asserts that the evaluation was improper because the agency
   allegedly ignored the firm's explanation that the NWF litigation was
   essentially not its responsibility, and because it was unaware that the
   agency would consider the RDA litigation without providing the firm an
   opportunity to respond.^[4]

   These assertions are without merit. With regard to the NWF litigation,
   since the RFP specifically provided for offerors to describe and list any
   environmental documents they had prepared that subsequently were the
   subject of litigation, and to indicate the outcome of the litigation (RFP
   at 37), the agency's consideration of these matters formed a legitimate
   and, thus, unobjectionable part of the technical capability evaluation.
   While Mangi disagrees with the agency's view on the firm's responsibility
   for the litigation, it had the opportunity to present its position and did
   so in its original and supplemental proposals. In this regard, an agency's
   past performance evaluation may be based on a reasonable perception of
   inadequate prior performance, regardless of whether the contractor
   disputes the agency's interpretation of the underlying facts. Ready
   Transp., Inc., B-285283.3, B-285283.4, May 8, 2001, 2001 CPD para. 90 at
   5. The fact that Mangi disagrees with the agency's judgment is not
   sufficient to establish that the evaluation was unreasonable. Birdwell
   Bros. Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD para. 129
   at 5.

   With regard to the RDA litigation, to the extent Mangi was unaware that
   one of its RDA projects involved litigation, the RFP specifically stated
   that offerors would be provided an opportunity to address unfavorable past
   performance information if the information were the determining factor
   preventing a proposal from being placed in the competitive range. RFP at
   38. Since Mangi's proposal was included in the competitive range, under
   the terms of the RFP, the agency was not required to bring the RDA matter
   to the firm's attention.[5]

   In our view, the agency reasonably evaluated Mangi's proposal as
   technically incapable with unsatisfactory past performance.

   SELECTION DECISION

   Noting that GMI's revised price was higher than the price in its original
   proposal (which was initially selected for award), and that its own price
   was substantially lower, Mangi questions the award decision. Specifically,
   Mangi maintains that it was unreasonable for the agency to make award to
   GMI at an additional price premium (over its original price) rather than
   make award to Mangi at its significantly lower price.

   Our review of an agency's price/technical tradeoff decision is limited to
   a determination of whether it was reasonable and consistent with the
   evaluation criteria enunciated by the solicitation. Construction Tech.
   Labs., Inc., B-281836, Apr. 12, 1999, 99-1 CPD para. 71 at 11. An agency
   properly may select a higher-priced, higher-rated offer where doing so is
   consistent with the evaluation criteria, and the agency reasonably
   determines that the superiority of the higher-priced offer outweighs the
   price difference. National Toxicology Labs., Inc., B-281074.2, Jan. 11,
   1999, 99-1 CPD para.5 at 7.

   Here, as discussed above, the agency rated Mangi's proposal as incapable
   under the technical factor and unsatisfactory under the past performance
   factor. The source selection statement noted that an incapable rating
   indicated that the offeror's submittal failed to meet most of the
   requirements; its responses were considered irrelevant, incomplete, and/or
   unclear; deficiencies were considered major or extensive requiring major
   revisions; and there was no reasonable likelihood of success. AR, Tab 16,
   at 7. In contrast, GMI's proposal was evaluated as very capable, which
   indicated that it met the stated requirements with no omissions, and was
   deemed comprehensive, clear and relevant, with little or no risk that the
   offeror would fail to meet the RFP's requirements. Id. The source
   selection statement specifically noted GMI's 4 years of FSA experience,
   with outstanding past performance on projects similar in complexity and
   scope, lack of litigation in over 800 projects, clearly stated project
   management and controls, and its extremely qualified personnel and
   industry experts. Id. Further, the SSA approved the contract specialist's
   determination that Mangi's substantially lower price, viewed together with
   its proposal's incapable technical rating, posed a performance risk. [6]
   Based on the evaluation record provided by the TEP and the specialist's
   award recommendation, which outlined the technical and price differences
   among the three proposals, the SSA concluded that GMI's proposal
   represented the best value. We find no basis to object to the agency's
   conclusion.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] According to the RFP, the CRP is the largest voluntary conservation
   program operated by the federal government and has implemented
   conservation practices on over 36 million acres of private land. RFP
   sect. 1.

   [2] We dismissed the initial protest as academic (B-299721, May 9, 2007).
   When Mangi sought reconsideration based on the proposed corrective action,
   the agency took additional corrective action and we dismissed the
   reconsideration request as academic (B-299721.2, May 25, 2007). Although
   Mangi continued to assert that the corrective action was inadequate, we
   denied its subsequent protest, finding the agency's approach reasonable.
   The Mangi Envtl. Group, Inc., B-299721.3, Aug. 2, 2007, 2007 CPD
   para. 144.

   [3] In contrast, we note that the agency found that GMI's proposal
   described a simple process with clear and concise methods and clearly set
   forth GMI's and its subcontractors' roles and responsibilities. AR, Tab
   11, at 4, 11, 14. In evaluating GMI's proposal, the TEP noted that GMI
   offered "extremely qualified personnel and industry experts specializing
   in agricultural economics" and "clearly defined roles/responsibilities of
   prime and all subs"; and that "project management and project controls
   [were] clearly stated." AR Tab 10.

   [4] According to Mangi's original and revised proposals, the NWF
   litigation was based on the failure of the EIS to focus on haying and
   grazing. Mangi Proposal at 17; Revised Proposal at 8. According to Mangi,
   it was at the agency's direction that Mangi did not address these issues
   in preparing the EIS. Id.

   [5] We reach the same conclusion with regard to Mangi's related argument
   challenging the agency's consideration of its alleged record of cost
   control issues on previous work for FSA. To the extent Mangi was unaware
   of the agency's issues with its cost controls, since the firm's proposal
   was included in the competitive range, according to the plain terms of the
   RFP, the agency was not required to bring the matter to Mangi's attention.

   [6] While Mangi asserts that the agency improperly found its low price to
   be risky--based on the agency's alleged misunderstanding of the firm's
   lean overall corporate structure and innovative and more efficient
   approach--since, as discussed above, we have found that the agency
   reasonably evaluated Mangi's technical proposal as incapable, we have no
   basis to question the agency's related assessment of performance risk
   based on its low price.