TITLE: B-294358.8; B-294358.9; B-294358.10, University Research Company, LLC, April 6, 2006
BNUMBER: B-294358.8; B-294358.9; B-294358.10
DATE: April 6, 2006
************************************************************************************
B-294358.8; B-294358.9; B-294358.10, University Research Company, LLC, April 6, 2006

   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: University Research Company, LLC

   File: B-294358.8; B-294358.9; B-294358.10

   Date: April 6, 2006

   John S. Pachter, Esq., Jonathan D. Shaffer, Esq., Tamara F. Dunlap, Esq.,
   and David S. Stern, Esq., Smith Pachter McWhorter, and Joseph J. Petrillo,
   Esq., Petrillo & Powell, for the protester.

   John E. Jensen, Esq., Devon E. Hewitt, Esq., Daniel S. Herzfeld, Esq., and
   Orest J. Jowyk, Esq., Pillsbury Winthrop Shaw Pittman, for IQ Solutions,
   Inc., an intervenor.

   Mogy E. Omatete, Esq., Department of Health and Human Services, for the
   agency.

   Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protester's contention that agency performed an unreasonable technical
   evaluation when it elected not to revise previous evaluation scores as a
   result of corrective action limited to receiving revised proposals
   addressing only reproduction services is denied where the evaluation
   approach was consistent with the solicitation's evaluation scheme.

   2. Protester's challenge to agency's decision to make an upward adjustment
   to the protester's proposed costs is denied where the record shows that
   the adjustment was reasonably tailored to address a unique feature in the
   protester's cost proposal, and that if the adjustment had not been made,
   there was a risk that the predictive value of the cost evaluation would
   have been undermined.

   DECISION

   University Research Company, LLC (URC) protests a decision by the
   Substance Abuse and Mental Health Services Administration (SAMHSA),
   Department of Health and Human Services (HHS), to reselect IQ Solutions,
   Inc. for the award of a contract pursuant to request for proposals (RFP)
   No. 277-04-6091, issued for the operation of the SAMHSA Health Information
   Network. URC argues that the agency's remedial review of reproduction
   costs--undertaken in response to a decision from the Court of Federal
   Claims--and its decision to make no changes in the technical evaluation
   scores as a result of the revisions made to the proposals, were
   unreasonable.

   We deny the protest.

   BACKGROUND

   This is the third decision by our Office addressing this procurement. The
   agency remedial action reviewed here was undertaken after the Court of
   Federal Claims concluded that HHS acted arbitrarily by substituting a
   government estimate for the reproduction costs calculated by URC and IQ in
   their cost proposals; hence, the court held that the agency improperly
   normalized[1] those costs. University Research Co., LLC v. United States,
   65 Fed. Cl. 500, 513 (2005). Most of the other elements of the evaluation
   here have been reviewed in either our prior decisions, or the prior
   decision of the court, and were not part of the remedial action that is
   the subject of this protest. We set forth below a limited overview of this
   procurement.

   The RFP here was released on December 19, 2003, and sought offers for a
   contract that would realign SAMHSA's health information dissemination
   efforts, which were previously obtained under multiple contracts.
   University Research Co., LLC, B-294358 et al., Oct. 28, 2004, 2004 CPD
   para. 217 at 2 ("University Research I"). Specifically, this solicitation
   includes the operation of the National Clearinghouse for Alcohol and Drug
   Information, the National Mental Health Information Clearinghouse, and
   certain support services for the SAMHSA Office of the Administrator. A
   minor part of the dissemination efforts covered by this contract involves
   the reproduction of health information materials. See RFP attach. 1
   (Performance Work Statement).

   The RFP was set aside for small businesses, and anticipated the award of a
   cost-plus-award-fee contract for a base period of 1 year followed by four
   1-year options. RFP at 1, 56. Section M of the RFP advised that
   "[a]lthough technical factors are of paramount consideration in the award
   of the contract, past performance and cost/price are also important to the
   overall contract award decision." RFP at 70. The RFP also identified four
   technical evaluation criteria (totaling 100 points) and advised that past
   performance would be worth an additional 36 points. RFP at 70-73. The four
   technical evaluation criteria and the weight assigned to each were:
   (1) understanding the project, 15 points; (2) technical approach, 35
   points; (3) key personnel, 35 points; and (4) management plan and
   facilities, 15 points.

   By the February 6, 2004, initial closing date, HHS received proposals from
   six offerors. Shortly thereafter, the agency established a competitive
   range for award comprised of the proposals submitted by IQ, URC, and a
   third company. After discussions, receipt of revised proposals, and
   reevaluation, HHS concluded that IQ's proposal offered the best value to
   the government.

   URC filed a protest with our Office challenging that decision. During that
   protest, the selection official admitted during a hearing that her
   selection document misstated the award recommendation she had received
   from agency project officers, who are allowed under HHS procedures to make
   award recommendations along with those made by agency evaluators.
   University Research I, supra, at 6-7. As a result, we sustained URC's
   protest, and recommended that the agency make a new selection decision
   using a different selection official. Id. at 11.

   On December 22, 2004, a new selection official again selected IQ for
   award. In the areas of past performance and technical merit, the selection
   official made minor changes to the initial ratings that need not be set
   forth here. More significant adjustments, however, were made in the area
   of cost realism. With respect to IQ, the agency added the cost of two
   full-time speechwriters to the proposal; normalized four elements of other
   direct costs applicable to all offerors; and normalized the estimated
   savings to be recovered through user fees. Source Selection Determination,
   Dec. 22, 2004, at 7-9. In all, IQ's proposed costs were adjusted upward by
   approximately [deleted].[2] With respect to URC, the selection official's
   adjustments were limited to the second and third types of adjustments
   described above--i.e., normalized costs for the four elements of other
   direct costs and normalized estimated savings to be recovered through user
   fees. In all, URC's proposed costs were adjusted upward by approximately
   [deleted].[3]

   As before, the selection official set out a summary of the final technical
   and past performance scores of both offerors (as modified during the
   reevaluation), and the total proposed and evaluated costs. This summary is
   reflected below:

   +------------------------------------------------------------------------+
   |                      |    IQ Solutions    |            URC             |
   |----------------------+--------------------+----------------------------|
   |Final                 |                    |                            |
   |                      |    94.4 points     |        92.8 points         |
   |Technical Score       |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Final Past            |                    |                            |
   |                      |    33.12 points    |        32.33 points        |
   |Performance           |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Total                 |                    |                            |
   |                      |     [deleted]      |         [deleted]          |
   |Proposed Costs        |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Total                 |                    |                            |
   |                      |  $61.130 million   |      $67.274 million       |
   |Evaluated Costs       |                    |                            |
   +------------------------------------------------------------------------+

   Id. The selection official reasoned that since the technical and past
   performance scores were essentially equal, IQ's proposal, with its lower
   evaluated costs, offered the best value to the government. Id.

   After receiving notice of the agency's revised selection decision, and a
   subsequent debriefing, URC filed a second protest to our Office. URC's
   second protest challenged almost every facet of the revised evaluation.

   On April 20, 2005, our Office denied URC's second protest, but noted four
   separate errors in the agency's evaluation and cost realism review.
   University Research Co., LLC, B-294358.6, B-294358.7, Apr. 20, 2005, 2005
   CPD para. 83 at 27-29 ("University Research II"). However, none of these
   errors resulted in a reasonable possibility of prejudice to URC, id., as
   none of them led our Office to conclude that, but for the agency's
   actions, URC would have had a substantial chance of receiving the
   award.[4] McDonald Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at
   3; see Statistica, Inc. v. Christopher, 103 F.3d 1577, 1581 (Fed. Cir.
   1996). In this regard, the corrected final scores and evaluated costs
   (accounting for these errors) reflected in our second decision are as
   follows:

   +------------------------------------------------------------------------+
   |                      |    IQ Solutions    |            URC             |
   |----------------------+--------------------+----------------------------|
   |Final                 |                    |                            |
   |                      |    92.2 points     |        92.8 points         |
   |Technical Score       |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Final Past            |                    |                            |
   |                      |    32.16 points    |        33.12 points        |
   |Performance           |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Total                 |                    |                            |
   |                      |     [deleted]      |         [deleted]          |
   |Proposed Costs        |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Total                 |                    |                            |
   |                      |  $62.118 million   |      $67.198 million       |
   |Evaluated Costs       |                    |                            |
   +------------------------------------------------------------------------+

   University Research II, supra, at 27.

   Upon receipt of our second decision, URC filed a protest at the Court of
   Federal Claims, reiterating several of the challenges to the evaluation
   URC had raised here. In all respects but one, the court reached the same
   conclusions as our Office; however, in the one of the four areas of other
   direct costs that were normalized by the agency, i.e., reproduction costs,
   the court concluded that the agency's actions were arbitrary. University
   Research Co., LLC v. United States, supra ("University Research III"). In
   the court's view, URC's advantage over IQ in the area of reproduction
   costs "could have far exceeded [IQ's] overall edge of $6.1 million;" thus,
   the court enjoined the agency from proceeding with its award to IQ. Id. at
   513, 515.

   Faced with the court's decision, HHS elected to clarify its requirement
   for reproduction work, reopen discussions with URC and IQ, and seek
   revised cost information (and revised technical proposals, if needed)
   limited to the subject of reproduction services. AR, Tab 7. At first, URC
   opposed the corrective action, arguing that IQ might improperly adopt
   URC's approach to meeting the agency's reproduction needs, thereby
   eliminating URC's competitive advantage in this area. AR, Tab 8. After IQ
   represented to the parties that it would not adopt URC's approach, URC
   withdrew its objection and reported to the court that the parties had
   reached an agreement on corrective action. AR, Tab 9.

   Subsequently, on July 13, HHS issued an amendment to the solicitation with
   significant upward revisions to the amount of reproduction--essentially,
   photocopying--anticipated here. Specifically, the amendment advised that
   it was providing information "to replace the statement given in Task IV,
   Section C.1 of the Statement of Work as Bullet 11." RFP amend. 2, at 2.[5]
   The information provided in amendment 2 consisted of annual estimates for
   the base year, and for each of the 4 option years, of the amount of black
   and white pieces (described as single sheets) and color pieces that would
   need to be reproduced under the contract. The new estimates were:

                         Annual Reproduction Estimates

                         (stated in millions of pieces)

   +------------------------------------------------------------------------+
   |                 |   Black and White   |     Color     |     Total      |
   |-----------------+---------------------+---------------+----------------|
   |Base Year        |        22.2         |     14.8      |      37.0      |
   |-----------------+---------------------+---------------+----------------|
   |Option Year 1    |        25.6         |     17.0      |      42.6      |
   |-----------------+---------------------+---------------+----------------|
   |Option Year 2    |        28.9         |     19.6      |      48.5      |
   |-----------------+---------------------+---------------+----------------|
   |Option Year 3    |        33.3         |     22.5      |      55.8      |
   |-----------------+---------------------+---------------+----------------|
   |Option Year 4    |        38.3         |     25.9      |      64.2      |
   |-----------------+---------------------+---------------+----------------|
   |All Years        |        148.2        |     99.9      |     248.1      |
   +------------------------------------------------------------------------+

   RFP amend. 2, at 2. In addition, a request for clarifications letter was
   provided to both URC and IQ; this letter sought revised reproduction costs
   and any changes to each offeror's approach to providing reproductions. AR,
   Tabs 11-12.

   On July 26, responses were received from both URC and IQ. The responses
   were reviewed by a technical team, and by a cost analyst, who prepared
   discussion questions for both offerors. The technical reviewers concluded
   that the reproduction approaches of both offerors would meet the
   government's requirements, while the cost analyst raised matters to be
   addressed in each offeror's final proposal revisions (FPR). Contracting
   Officer's (CO) Statement at 2. On October 11, FPRs were received from both
   offerors. The FPRs were reviewed by the CO and the cost analyst, as the
   technical reviewers had identified no additional issues that needed to be
   addressed. Id. at 3. The total revised reproduction costs proposed by the
   offerors were very close: URC estimated its reproduction costs at
   [deleted], IQ estimated [deleted]. AR, Tab 41, at 8, 10.

   URC's revised proposal, including its FPR, introduced a pricing feature we
   will refer to as a "two-tiered, fixed-price cap." Specifically, URC
   offered to charge the agency a fixed price--applicable to both black and
   white and color impressions[6]--of [deleted] per impression, provided that
   the number of impressions in any given month did not exceed one-twelfth of
   the total annual estimate.[7] AR, Tab 31 (URC's FPR), at 9. In the event
   the number of impressions in any given month were to exceed one-twelfth of
   the total annual estimate, URC offered a higher combined price of
   [deleted] per impression; this higher price is applicable only to the
   number of required impressions in excess of the URC-imposed limit. Id. The
   lower-priced cap of [deleted] per impression is fixed for the life of the
   contract. Id. at 15. The higher-priced cap of [deleted] per impression is
   fixed for the base year, and escalates annually thereafter.[8] Id. at 9.

   In contrast, IQ's revised proposal, including its FPR, adopts a more
   traditional approach. IQ does not propose fixed-price caps, but instead
   calculates separate estimated unit costs for black and white impressions,
   and for color impressions, and does so for the base year, and each option
   year. AR, Tab 32, at 10. IQ's proposal also provides detailed supporting
   calculations showing how it estimated the proposed unit costs. For
   example, in the base year IQ estimates a unit cost of [deleted] for black
   and white impressions, and [deleted] for color impressions. Id.

   In attempting to evaluate the different cost approaches, the agency noted
   that URC's proposed costs were calculated entirely using the lower
   fixed-price cap amount, based upon an apparent assumption that HHS would
   use the risk of higher costs to smooth out fluctuations in the workload
   over the course of the year. See Protester's Comments, Feb. 13, 2006, at
   16-17. Given URC's approach, HHS asked for monthly information on
   photocopying from its incumbent contractor, which is also URC's proposed
   subcontractor for this work. The incumbent contractor provided the agency
   with historical data showing significant seasonal fluctuation in the
   agency's clearinghouse activity--the activity which generates the demand
   for photocopying. AR, Tab 33, at 1. Using this historical information, HHS
   concluded that the number of impressions would exceed the monthly limit
   set by URC in 5 of 12 months each year. As a result, the agency decided
   that URC's approach presented a high risk that costs would be higher than
   those reflected in the company's proposal, and recalculated URC's costs
   applying the higher fixed-price cap for 5 months of each year. AR, Tab 35.

   With respect to IQ's proposed photocopying costs, HHS reviewed the
   calculations provided in IQ's revised proposal, and decided that there was
   little risk of a cost overrun in the proposal. As a result, the agency
   made no adjustment to IQ's proposed photocopy costs. AR, Tab 39.

   On December 20, 2005, the selection official prepared a revised selection
   document, again selecting IQ for award. AR, Tab 41. In many respects, the
   most recent selection decision builds on the analysis and evaluation
   results previously reviewed and found reasonable by our Office, and by the
   court.

   To summarize the revised selection document, we start by noting that the
   selection official observed that the reproduction effort here was,
   proportionately, a small part of the effort envisioned by this contract.
   In this regard she estimated that the reproduction effort would account
   for approximately $4 to $5 million of the total estimated costs of $60 to
   $65 million. AR, Tab 41, at 4. She also explained that, in her view, there
   was nothing in the limited revisions here that should generate any change
   to the technical or past performance scores given these offerors.
   Specifically, she concluded that both firms would be able to fulfill the
   government's reproduction requirements with their approaches; she reached
   this conclusion based on input received from agency technical experts. As
   a result, she elected not to adjust the technical scores of either offeror
   based on their approaches to photocopying. Id.

   With no changes to the technical and past performance scores assigned to
   these proposals, the selection official concluded the proposals could be
   viewed as essentially equal. The relevant point scores are set forth
   below.

   +------------------------------------------------------------------------+
   |                      |    IQ Solutions    |            URC             |
   |----------------------+--------------------+----------------------------|
   |Final                 |                    |                            |
   |                      |    92.2 points     |        92.8 points         |
   |Technical Score       |                    |                            |
   |----------------------+--------------------+----------------------------|
   |Final Past            |                    |                            |
   |                      |    32.16 points    |        33.12 points        |
   |Performance           |                    |                            |
   +------------------------------------------------------------------------+

   Id. at 15.

   With respect to the evaluation of costs, our table below attempts to
   isolate the relative cost of, and cost realism adjustments to, the
   revisions made to these proposals after the corrective action taken in
   response to the court's decision. Thus, we: (1) show the total proposed
   costs of both offerors less their prior proposed costs of reproduction
   (including fee, etc.); (2) identify each offeror's revised proposed costs
   for reproduction; (3) provide the sum of numbers (1) and (2) above to show
   each offeror's revised total proposed costs; (4) show the total evaluated
   costs, including all cost realism adjustments other than those made to
   revised reproduction costs; (5) identify the cost realism adjustment made
   to each offeror's revised reproduction costs; and (6) provide the sum of
   numbers (4) and (5) above to show each offeror's total revised evaluated
   costs at the end of the agency's cost realism assessment.

   +------------------------------------------------------------------------+
   |                              |         URC         |        IQ         |
   |------------------------------+---------------------+-------------------|
   |(1) Total Proposed Costs      |      [deleted]      |     [deleted]     |
   |                              |                     |                   |
   |(less prior Proposed          | (AR, Tab 41, at 10) |(AR, Tab 41, at 8) |
   |Reproduction Costs)           |                     |                   |
   |------------------------------+---------------------+-------------------|
   |(2) Revised Proposed          |      [deleted]      |     [deleted]     |
   |                              |                     |                   |
   |Reproduction Costs            | (AR, Tab 41, at 10) |(AR, Tab 41, at 8) |
   |------------------------------+---------------------+-------------------|
   |(3) Total Revised Proposed    |      [deleted]      |     [deleted]     |
   |Costs                         |                     |                   |
   |                              | (AR, Tab 41, at 14) |(AR, Tab 41, at 14)|
   |------------------------------+---------------------+-------------------|
   |(4) Total Evaluated Costs     |   $67.635 million   |  $61.981 million  |
   |(with all realism adjustments |                     |                   |
   |other than                    | (AR, Tab 41, at 14) |(AR, Tab 41, at 14)|
   |                              |                     |                   |
   |for Reproduction Costs)       |(CO's Supp. State. at|                   |
   |                              |         11)         |                   |
   |------------------------------+---------------------+-------------------|
   |(5) Plus cost realism         |   $1.647 million    |      -- 0 --      |
   |adjustment for Reproduction   |                     |                   |
   |Costs                         | (AR, Tab 55, at 3)  |                   |
   |                              |                     |                   |
   |                              |  (Supp. AR, at 8)   |                   |
   |------------------------------+---------------------+-------------------|
   |(6) Total Revised Evaluated   |   $69.282 million   |  $61.981 million  |
   |Costs                         |                     |                   |
   |                              | (Supp. CO State. at |(Supp. CO State. at|
   |                              |         12)         |        12)        |
   +------------------------------------------------------------------------+

   Given the selection official's conclusion that the proposals here were
   essentially equal under the technical merit and past performance
   evaluation factors, and given that URC's evaluated costs were
   approximately $7.3 million higher than IQ's evaluated costs, the selection
   official again chose IQ for the award. Supp. CO Statement at 12.

   This protest followed.

   DISCUSSION

   In its most recent protest, URC argues that HHS acted unreasonably when it
   elected not to revise the technical evaluation scores in this competition
   as a result of the proposal changes made to meet the agency's revised
   reproduction needs. With respect to the cost realism review, URC attacks
   both the agency's upward adjustment to URC's proposed reproduction costs,
   and the agency's decision to make no upward adjustments to IQ's proposed
   costs.

   In the discussion that follows, we find that the agency reasonably
   concluded that while no changes were necessary in the technical scores for
   these proposals, an upward adjustment in URC's proposed costs was needed
   as a result of URC's unique approach to structuring its cost proposal.
   Given these conclusions, and the fact that URC's and IQ's proposals remain
   essentially equal under the technical and past performance evaluation
   factors, we need not address in detail URC's arguments regarding IQ's
   proposed costs, because, even if we agreed with URC on every front--and we
   do not--IQ would remain the offeror with the lowest evaluated costs.

   Technical Evaluation

   URC argues that the agency erred in not making changes to the technical
   evaluation scores previously assigned during this procurement as a result
   of the changes URC and IQ made in their proposals for providing
   reproduction services. In fact, URC argues that as many as 65 out of 100
   possible evaluation points could have been affected by the revised
   photocopying costs (and approaches) solicited here. URC Comments, Feb. 13,
   2006, at 5.

   Our standard in reviewing a protester's challenges to an agency's
   evaluation of proposals is to examine the record to determine whether the
   agency's judgment was reasonable and consistent with stated evaluation
   criteria, and with applicable statutes and regulations. ESCO, Inc.,
   B-225565, Apr. 29., 1987, 87-1 CPD para. 450 at 7.

   As a preliminary matter, we think it is useful to reiterate the reason
   for, and the nature of, the revisions made to these proposals. In its
   review, the Court of Federal Claims concluded that IQ was apparently
   confused about the reproduction requirements of this contract when it
   submitted its final cost proposal during the previous stage of this
   competition. University Research Co. III, supra, at 513. As a result, the
   court concluded that it was arbitrary for the agency to normalize the
   costs of reproduction services, rather than seek clarifications from IQ.
   Id. To implement the court's findings, identical letters were issued to
   URC and IQ revising the agency's reproduction requirements and seeking
   clarifications limited to responding to the additional reproduction
   information provided. AR, Tabs 11, 12. As instructed, the responses of
   both offerors were very limited; while the materials submitted appear
   extensive, they amount generally to identifying the equipment to be used,
   explaining how the agency's reproduction requirements will be met,
   calculating a revised cost to the agency, and providing detailed backup
   support materials such as lease and service agreements. Id., Tabs 31, 32.

   When the selection official here received the revised reproduction
   proposals from URC and IQ, she asked HHS employees with subject matter
   expertise on reproduction (the reviewers worked in the agency's print
   shop) to review the equipment identified, and determine whether the
   proposed approaches would be adequate to meet the government's
   requirements; they concluded that the approaches of both companies would
   meet the government's needs. CO's Statement, at 2. Separate cost analysts
   identified other issues for the selection official, which led to
   discussions before the call for FRPs limited to the reproduction issue.

   With respect to URC's contention that these submissions should have
   triggered revisions in the point scores of these offerors, we note first
   that there was little in this RFP's evaluation scheme directly related to
   reproduction services, given the nature of four factors--understanding the
   project, technical approach, key personnel, and management plan and
   facilities--and the narrative explanation provided for each of them. RFP
   at 71-72. For example, the first of the factors that URC contends should
   have been reassessed was the "understanding the project" evaluation
   factor. The narrative explanation of this factor begins:

   The offeror demonstrates understanding of the scope and complexity of the
   public health and knowledge dissemination challenges posed by severe
   mental illnesses as viewed primarily from the perspective of consumers and
   their families, policymakers, and mental health care providers.

   RFP at 71. We find little in the language quoted above, and little in any
   of the other four paragraphs of narrative associated with this evaluation
   factor, that would cause us to conclude that the agency acted improperly
   in not reassessing proposals under this factor. In short, this factor was
   assessing the offeror's understanding of a host of services associated
   with operating these public health clearinghouses, only a small part of
   which involves the operation of photocopy machines.[9]

   We think the protester's best argument for a technical reassessment can be
   found under the fourth evaluation factor, "management plan and
   facilities." The most relevant portion of the narrative explanation
   associated with this factor states:

   The offeror should provide a plan to implement and maintain all facilities
   and equipment necessary to conduct the tasks outlined in the SOW
   [Statement of Work]. The offeror should demonstrate resource capacity and
   capabilities to ensure successful operation and completion of the SOW
   tasks, including adequate physical space, facilities, necessary office
   equipment, computer hardware, computer software, and any other equipment
   (such as audio/visual and delivery vehicles) necessary to perform the
   project. The offeror should have an adequate plan for self-assessment,
   evaluation, and continuous improvement.

   RFP at 73. Even here, however, we see nothing that requires revising the
   offerors' scores under this evaluation factor as a result of these more
   detailed proposals to provide reproduction services. For example, while we
   agree that reproduction equipment appears to fall within the scope of the
   term "necessary office equipment" in the evaluation factor quoted above,
   reproduction equipment is but one of many types of office equipment used
   to perform these services. Moreover, "necessary office equipment" is but
   one element of several that are assessed under this factor, which in total
   was worth only 15 points. Thus, in our view, even if changes were made
   here as a result of identified reproduction equipment--and we have seen
   nothing in these pleadings to suggest what those changes might be--any
   changes would appear to be de minimis at best.

   Our inquiry does not stop with section M, however. We also note that
   little of the solicitation's description of the services required here is
   devoted to the subject of making reproductions. The RFP's performance work
   statement describes a broad range of services and briefly mentions that
   there will be a certain amount of reproduction effort required under this
   contract. Specifically, the RFP's 33-page detailed description of services
   devotes a total of 2 1/2 lines to describing reproduction services. RFP
   attach. 1 (Performance Work Statement), at 29.[10] Moreover, the entire
   mention of reproduction services found in the RFP's section L (wherein the
   agency provides instructions to offerors about information that must be
   included in their proposals) is set forth below:

   Corporate Capabilities, Facilities and Equipment

   (1)  The Offeror should demonstrate that adequate facilities, space and
   equipment (personal computers, laptop computers, modems, work processing,
   xerographic, facsimile) are available for the accomplishment of project
   goals and objectives.

   RFP at 65 (sect. L.2.B.a.(4)(g)(1)).

   In short, we see nothing about the evaluation scheme here, or about the
   proposals submitted by IQ and URC, that would have required HHS to
   recalculate the previous evaluation scores in response to these limited
   revised proposals.

   Evaluation of URC's Proposed Costs

   We turn next to the only adjustment the agency actually made in this
   limited reopened competition--the upward adjustment that was made to URC's
   proposed costs. As indicated above, URC proposed an approach that has been
   termed a "two-tiered, fixed-price cap," stated as a price per impression,
   depending on the number of impressions required during any given month.
   Specifically, if the number of impressions in any given month did not
   exceed one-twelfth of the total annual estimate, URC provided one, much
   lower, consolidated price of [deleted] per impression. If the number of
   impressions exceeded one-twelfth of the total annual estimate in any given
   month, URC's consolidated price rose to [deleted] per impression for the
   base year, and escalated further each year thereafter.

   When faced with this unusual price arrangement in a cost-reimbursement
   environment, and when it noticed that URC's estimated costs for
   reproduction were calculated entirely using the lower price per
   impression, HHS decided to obtain historical information about monthly
   variations in the number of impressions. HHS then used this information to
   attempt to determine the most likely cost of performance by URC, and made
   an upward adjustment to URC's costs to account for the months of the year
   when reproduction services might exceed one-twelfth of the annual total
   estimate. In URC's view, this action was unreasonable.

   When an agency evaluates proposals for the award of a cost-reimbursement
   contract, an offeror's proposed estimated costs of performance are not
   dispositive, since, regardless of the costs proposed, the government is
   required to pay the contractor its actual and allowable costs. University
   Research II, supra, at 22; Jacobs COGEMA, LLC, B-290125.2, B-290125.3,
   Dec. 18, 2002, 2003 CPD para. 16 at 26; CWIS, LLC, B-287521, July 2, 2001,
   2001 CPD para. 119 at 3. Accordingly, a cost realism analysis must be
   performed when a cost-reimbursement contract is contemplated in order to
   determine the probable cost of performance for each offeror. Federal
   Acquisition Regulation sect. 15.404-1(d)(2).

   We find unpersuasive URC's contention that HHS acted improperly in
   attempting to calculate the likely impact of a cost approach that URC, not
   HHS, introduced to this procurement. As an initial matter, we note that
   the RFP here does not include any language that supports URC's apparent
   premise that the required number of impressions in any given month would
   be equal to one-twelfth of the annual total estimate.[11] Moreover, as a
   matter of common sense it stands to reason that when an agency estimates
   its reproduction needs on an annual basis, some months might involve more
   than one-twelfth of that total and some months might involve less.

   As a general rule, the use of approaches such as cost ceilings, caps, or
   even fixed rates like those here, in a cost-reimbursement environment, can
   shift the responsibility for cost overruns from the government to the
   contractor, and can provide a powerful tool for controlling costs to the
   government--provided there is no reason to question the effectiveness of
   the approach. Halifax Tech. Servs., Inc., B-246236.6 et al., Jan. 24,
   1994, 94-1 CPD para. 30 at 6; Vitro Corp., B-247734.3, Sept. 24, 1992,
   92-2 CPD para. 202 at 7. When, however, contractor-imposed conditions on
   cost-control devices risk undermining the predictive value of an agency's
   cost evaluation, the agency must take steps to ascertain the effect of
   such conditions. Comarco, Inc., B-258204.6, Oct. 26, 1995, 96-1 CPD
   para. 12 at 7. Here, we think the knowledge that, in the past, the
   reproduction workload fluctuated from one month to the next, required the
   agency to evaluate the impact of these fluctuations on URC's proposed
   costs. See id.

   URC defends its pricing approach, and criticizes the agency's adjustment,
   by arguing that it was unreasonable for the agency not to use URC's
   pricing mechanism as an incentive to send more of the reproduction work to
   the Government Printing Office, in order to "smooth out" any fluctuations
   in the reproduction workload. In our view, URC's pricing approach,
   apparently intended to manipulate the government's management of its
   workload, raised cost issues the agency needed to consider if it was not
   planning to make changes in how it managed its workload, which the agency
   was neither inclined, nor required, to do. Thus, we find that the agency
   acted reasonably in attempting to evaluate the effect of this approach on
   the likely cost of contract performance.[12]

   Evaluation of IQ's Proposed Costs

   URC also argues that HHS should have made several upward adjustments to
   IQ's proposed costs. Given the results of our review of the technical
   evaluation, and of the adjustment to URC's proposed costs, URC must
   overcome a difference of $7.3 million in evaluated costs between
   essentially equal proposals in order to show that its proposal, rather
   than IQ's, offered the best value to the government. As set forth below,
   we find that URC cannot make the showing it must to prevail here.

   In its comments filed after receipt of the agency report (and after review
   of IQ's cost proposal by a URC cost expert admitted to the protective
   order here), URC calculated a total of $6.1 million in upward adjustments
   ($4.386 million associated with reproductions, and $1.703 million
   associated with warehouse space) it argued should be made to IQ's cost
   proposal. Protester's Comments, Feb. 13, 2006, at 12. Even if we assume
   that URC is right in both areas, its evaluated costs would still exceed
   those of IQ by approximately $1.2 million. Since the proposals here are
   essentially equal, we see no reason to conclude that the agency would
   select URC for award, even if IQ's proposed costs were increased as URC
   contends.

   In its supplemental comments--filed after receipt of detailed and
   convincing rebuttal arguments from HHS and IQ in answer to certain of
   URC's contentions about IQ's proposed costs--URC proffered several new
   adjustments to IQ's proposed reproduction costs, not previously argued.
   Specifically, URC's cost expert revised his previous assumptions regarding
   the average size of reproduction orders that HHS would place with its
   contractor, as opposed to placing those orders with the Government
   Printing Office (GPO). (By using lower-sized average orders, URC's expert
   spreads the fixed cost of each reproduction run over fewer impressions,
   thereby increasing the amount of the adjustments to IQ's costs.) In
   explanation, he states, "I have revised this analysis based on the
   recognition, in the [IQ] original technical proposal, of limitations
   resulting from regulations of the [GPO]." Protester's Supp. Comments, Mar.
   7, 2006, attach. 1 at 2. Thus, URC posits alternate adjustments to IQ's
   costs based on whether one assumes an average order size for reproductions
   of 5,000 impressions (generating a total adjustment of $6.9 million), or
   2,500 impressions (generating a total adjustment of $9.7 million). Id. at
   3.

   In our view, these revised calculations are, in essence, new arguments
   untimely raised. Our Bid Protest Regulations require protesters to raise
   issues within 10 days of the time a protester knows, or should have known,
   of the basis for its protest. 4 C.F.R. sect. 21.2(a)(2) (2005). In
   addition, neither our regulations, nor the statutory deadlines under which
   we operate, permit the piecemeal presentation of protest arguments. See
   QualMed, Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD para. 94 at 13. The
   agency report here was provided to the protester, and presumably to its
   expert, on February 2, 2006, and the protester filed its comments 10
   working days later. These supplemental arguments, raised more than 1 month
   after receipt of the agency report, follow filings by the agency and IQ
   that effectively rebut certain arguments found in URC's comments--for
   example, URC's contention that IQ did not propose sufficient labor to
   provide the reproduction services required here.[13] Moreover, the
   unwarranted piecemeal nature of these arguments is highlighted by the cost
   expert's admission, quoted above, that the most recent calculations are
   based on reviewing anew IQ's initial proposal, which was first provided to
   URC in August 2004 as part of our initial review of this procurement.

   Since we conclude that URC has raised these supplemental contentions in an
   untimely fashion, and since the late presentation of these contentions has
   deprived the agency and IQ of a meaningful opportunity to rebut them, we
   will not consider URC's revised calculations in detail. Even accepting,
   however, URC's untimely contentions regarding the adjustments associated
   with an average order size of 5,000 impressions, IQ would still be the
   offeror with the lowest evaluated costs (given that these adjustments of
   $6.9 million are less than the $7.3 million difference in proposed costs).
   Furthermore, given the effective rebuttal of URC's argument regarding IQ's
   labor capacity, the same observation likely would apply with respect to
   URC's contentions regarding the adjustments associated with an average
   order size of 2,500 impressions. The materials prepared by URC's cost
   expert, however, simply do not permit the ready isolation of the amount of
   the argued adjustment associated with labor capacity to allow for its use
   in rebuttal.[14] Thus, we conclude that URC's arguments in its
   supplemental comments are not only untimely, but do not show that those
   adjustments were appropriate, or even that it was prejudiced by the
   agency's decision not to make them.

   In short, based on the record here, URC cannot overcome the difference in
   evaluated costs to establish that it was prejudiced by any of the errors
   it contends were made. Wyle Labs., Inc., B-288892, B-288892.2, Dec. 19,
   2001, 2002 CPD para. 12 at 17-18.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] Our Office has recognized that when an agency performs a cost realism
   analysis, it may be appropriate to normalize certain costs in order to
   achieve a greater degree of cost realism; generally, the purpose of
   normalizing is to segregate cost factors which are "company unique" from
   those that are generally applicable to all offerors and therefore subject
   to normalization. SGT, Inc., B-281773, B-281773.4, Apr. 1, 1999, 99-1 CPD
   para. 77 at 8.

   [2] Source Selection Determination, Dec. 22, 2004, at 14 (showing IQ's
   proposed costs as [deleted], and its evaluated costs as $61.130 million).

   [3] Source Selection Determination, Dec. 22, 2004, at 14 (showing URC's
   proposed costs as [deleted], and its evaluated costs as $67.274 million).

   [4] For the record, and because HHS largely incorporates our earlier
   findings into its current analysis, the specific errors noted in our
   second decision were that: (1) IQ's technical score should be lowered from
   94.4 to 92.2 to give proper effect to the selection official's decision to
   eliminate the impact of the significantly lower scores given URC by one
   evaluator (rather than remove the lowest score given each offeror, as the
   selection official initially elected); (2) IQ's past performance score
   should be lowered from 33.12 to 32.16, and URC's score lowered from 33.23
   to 33.12, to correct averaging errors in the agency's past performance
   review; (3) IQ's evaluated costs should be adjusted upwards by [deleted],
   to capture the cost of [deleted] additional square feet of warehouse space
   not accounted for in that company's proposal; and (4) URC's evaluated
   costs should be lowered by [deleted], to reflect the application of URC's
   lower G&A rate, rather than its subcontractor's higher rate, to an
   otherwise appropriate adjustment to URC's other direct costs. Id.

   [5] The original provision in the RFP stated: "Reproduce (black and
   white--60 percent and color--40 percent) approximately 1.6 million pieces
   (single sheets) each month during the first year of operation, with a
   15-20 percent increase for each year thereafter." RFP attach. 1
   (Performance Work Statement), at 29. Upon deletion of this provision,
   there was no guidance in the solicitation regarding monthly amounts of
   copying.

   [6] During discussions, and in response to questions raised by URC, HHS
   changed the terminology to describe the amount of photocopying required by
   the solicitation from "pieces" to "impressions." AR, Tab 24 (RFP amend. 4,
   at 1). The distinction captured by this change is not at issue in this
   protest, and will not be discussed here; however, we will use the term
   "impressions" from this point forward.

   [7] URC refers to its pricing approach as a "cap," AR, Tab 31, at 9,
   although in actuality URC's approach is more like a conditional fixed
   price, as we see no indication in this record that URC will ever bill the
   agency less than [deleted] per impression. Nonetheless, for ease of
   reference, we will use the nomenclature adopted by URC and the agency, and
   refer to this device as a fixed-price cap.

   [8] G&A and fee are also added to these "caps," the agency is not billed
   at these amounts. See AR, Tab 31, at 17-18.

   [9] We reach a similar conclusion with respect to the RFP's technical
   approach evaluation factor.

   [10] This reference was deleted in its entirety by amendment 2 to the RFP,
   wherein HHS revised its reproduction requirements as part of its
   implementation of the corrective action taken after the court decision.
   RFP amend. 2, at 2.

   [11] We note that the language in the initial version of the RFP that URC
   points to for support of its contention that the solicitation anticipated
   fixed monthly amounts of reproduction needs was deleted by amendment 2 of
   the RFP. Given the deletion of the RFP language using monthly estimates,
   we do not understand why protester's counsel continues to rely upon it.
   Compare Protester's Comments, Feb. 13, 2006, at 6 n.1, 14, and 15 with RFP
   amend. 2 (July 13, 2005), at 2. In addition, we think URC was uniquely
   placed among the offerors to understand the risk of its approach; URC's
   proposed subcontractor for the reproduction work is the incumbent
   providing these services. It was the incumbent that provided the agency
   the historical monthly data HHS used in its cost realism analysis.

   [12] Though only peripherally related to the cost realism review, we note
   that URC argues that HHS conducted a disparate evaluation when it used
   monthly historical data not provided in the RFP to assess URC's proposed
   costs, but did not use the same data to assess the capacity of the two
   offerors in the technical evaluation. Again, we disagree. There is no
   evidence in this record that the agency intended to assess labor capacity,
   or the capacity of the proposed reproduction equipment, with an eye
   towards possible variations in the monthly reproduction workload over the
   5-year period of this contract. Rather, the agency looked to whether the
   labor and equipment proposed were sufficient to meet the agency's
   requirements assuming an approximately steady annual amount of
   reproduction over the life of the contract, and reasonably concluded that
   they were. Under the circumstances here, where a unique proposed pricing
   approach, unforeseen and unrequested by the agency, reasonably triggered
   an attempt to consider the cost implications of that cost proposal, we see
   no reason the agency had to export that tailored cost analysis approach to
   its technical evaluation.

   [13] Specifically, URC argued in its comments that IQ proposed only one
   shift of labor, and that in the option years, the quantity of reproduction
   services could not be accomplished on IQ's machines in the course of a
   single 8-hour shift per workday. HHS pointed out that IQ had, in fact,
   proposed [deleted] employees to perform these services, and was silent in
   its proposal on the subject of shifts. Given that the reproduction
   services were located in a warehouse that was available to the agency 24
   hours per day, the agency and IQ pointed out that the company retained the
   management discretion to use the proposed employees in [deleted] shifts,
   if needed, to meet the agency's reproduction needs. Supp. CO's Statement
   at 5. In addition, HHS and IQ pointed out the restrictive nature of many
   of the assumptions employed by URC's cost expert to make the argument that
   the reproduction work would require more than one shift of labor on IQ's
   reproduction equipment. We have reviewed these assumptions and think they
   undercut the credibility of URC's arguments; they do not establish that
   the agency acted unreasonably in accepting IQ's proposed costs.

   [14] IQ also noted the difficulty in isolating the costs associated with
   different adjustments in the materials prepared by URC's cost expert. IQ's
   Supp. Comments, Mar. 7, 2006, at 10.