TITLE: B-297879.2, Metro Machine Corporation, May 3, 2006
BNUMBER: B-297879.2
DATE: May 3, 2006
**************************************************
B-297879.2, Metro Machine Corporation, May 3, 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: Metro Machine Corporation

   File: B-297879.2

   Date: May 3, 2006

   Michael R. Katchmark, Esq., Gary A. Bryant, Esq., Brett A. Spain, Esq.,
   and Michael C. Laurence, Esq., Willcox & Savage P.C., for the protester.

   Robert M. Tata, Esq., Carl D. Gray, Esq., and Kevin J. Cosgrove, Esq.,
   Hunton & Williams LLP, for Earl Industries, LLC, an intervenor.

   Rhonda L. Russ, Esq., Naval Sea Systems Command, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency's cost realism evaluation of awardee's proposal was unreasonable
   where the awardee proposed to perform the solicitation requirements under
   a teaming arrangement whereby its proposed team members would perform
   almost [deleted] of the production work under the contract, but the agency
   failed to consider the impact of the team members' higher rates in
   determining the awardee's probable cost of performance under the contract.

   DECISION

   Metro Machine Corporation protests the award of a contract to Earl
   Industries, LLC under request for proposals (RFP) No. N00024-05-R-4401,
   issued by the Department of the Navy, Naval Sea Systems Command (NAVSEA),
   for maintenance and modernization work on Dock Landing and Amphibious
   Transport Dock class ships (i.e., LSD and LPD class ships) homeported in
   Norfolk, Virginia. Metro alleges that the agency's cost evaluation of
   Earl's proposal was improper and that the source selection decision was
   flawed.[1]

   We sustain the protest.

   The RFP, issued on March 9, 2005, contemplated the award of a
   cost-plus-award-fee contract for execution planning and accomplishment of
   repair, maintenance, and alteration requirements of LSD 41/49 and LPD 4
   class ships. The RFP provided for the award of a base contract including
   execution planning for the first scheduled availability[2] for the USS
   Gunston Hall, as well as non-scheduled repair and alteration requirements
   between scheduled availabilities as ordered on various LSD and LPD class
   ships. [3] In addition, the RFP provided for 31 option items--the first
   option was for performance of the Gunston Hall availability, and the
   remaining options were for 15 additional scheduled availabilities and
   associated execution planning over a period of 7 years. RFP sect. B,
   Schedule of Supplies or Services and Prices.

   The RFP indicated that the agency would make award to the offeror whose
   proposal represented the best value to the government based on a
   consideration of two factors: technical and cost. Overall technical merit
   was considered more important than cost; however, the importance of cost
   would increase "as the differences in overall Technical merit among
   competing proposals decreas[ed]." RFP at 171. Under the technical
   category, the RFP listed three evaluation factors in descending order of
   importance: (1) management capability; (2) resource capabilities; and
   (3) past performance. RFP at 177-78. In evaluating proposals under the
   management capability and resource capabilities factors, the agency
   assigned adjectival ratings of outstanding, very good, satisfactory,
   marginal, and unsatisfactory. The adjectival scheme used to rate offerors'
   past performance differed slightly, with the agency assigning ratings of
   outstanding, good, satisfactory, neutral, marginal, or unsatisfactory.

   As it relates to the protest, under the management capability factor,
   offerors were required to "provide a systematic approach that demonstrates
   a comprehensive understanding and application of management techniques,
   methods and procedures required to efficiently execute the requirements of
   this solicitation." RFP at 172. In this regard, offerors were to describe
   corporate management and organizations, the formation, function and
   responsibilities of project teams, the proposed management organization
   and functions, including all teaming partners and/or significant
   subcontractors, a plan for managing subcontractors, and lines of
   communication and authority with the Navy as well as significant
   subcontractor key personnel. Offerors were also required to provide
   resumes for key personnel. RFP at 172-73.

   Under the past performance factor, the RFP identified the following four
   subfactors (of equal weight) for evaluation: (1) technical (quality of
   product); (2) schedule; (3) management; and (4) cost. With regard to the
   cost subfactor, the RFP stated that the Navy would evaluate "the expected
   risk that an Offeror will effectively forecast, manage and control cost
   based upon an Offeror's past performance of previously awarded contracts,
   relevant contracts, and the effectiveness of any implemented or proposed
   corrective actions." RFP at 178. The solicitation indicated that the Navy
   intended to evaluate past performance by reviewing "Contractor Performance
   Assessment Reporting System ratings (CPARS) and other existing past
   performance information on relevant contracts . . . " and that "[t]rends
   showing improving or deteriorating performance will also be considered."
   RFP at 173-74.

   With regard to the cost evaluation, the RFP advised offerors to submit
   proposed estimated cost data based on two notional work item packages (one
   for LSD class ships and a second for LDP class ships) included within
   section L of the solicitation. As clarified by the agency in response to
   questions from the offerors, the notional work packages included sample
   work items--not to be construed as actual work items under the contract.
   See Request for Clarification, Ref. No. EC027, Mar. 21, 2005. The LSD
   package consisted of 28 work items while the LPD package consisted of 9
   work items.

   In proposing their estimated costs, the RFP required offerors to use
   government estimated labor hours and material costs for performance of the
   notional work items. Offerors were permitted, however, to deviate from the
   government's estimates, provided their proposed deviations were supported
   by "clear and compelling evidence." RFP at 165. Specifically, the RFP
   stated as follows:

   Offerors are to use the Government-provided manhour and material estimates
   for each notional package and propose these amounts. An Offeror may
   provide evidence to support an adjustment to these amounts by proposing
   and supporting revised man-hour and/or material dollar amounts per
   individual work item. If an Offeror provides clear and compelling evidence
   that an adjustment is warranted, the Government will adjust that Offeror's
   man-hour and/or material dollar estimates for the individual work item(s)
   addressed, to the extent it is determined that the offered rationale
   supports such an adjustment. If support of an Offeror's proposed
   adjustment to an individual work item is less than clear and compelling,
   the Government estimate will be used to calculate an estimated cost to the
   Government for that work item.

   RFP at 165.

   According to the RFP, the government would perform a cost realism analysis
   of the offerors' cost proposals based on each offeror's proposed estimated
   costs for performing the notional work. In performing the cost realism
   analysis, the Navy would consider:

   the Offerors' proposed labor hours, labor rates, material costs, burden
   rates and other costs in light of information available to the Contracting
   Officer, including Government estimates for: (1) direct labor hours; (2)
   material costs; (3) direct labor costs; (4) overhead and G&A costs; and
   (5) any other costs which are likely to be incurred by the Offeror in
   performance of the requirements of the RFP.

   RFP at 168.

   Moreover, the RFP expressly provided that, if an offeror proposed to
   deviate from the government's labor hour and material estimates, the
   Navy's cost realism analysis would consider the evidence supporting the
   proposed adjustment in determining the offeror's projected cost to
   government. Specifically, the RFP stated as follows:

   The government will analyze and review the Offerors' cost estimates and
   supporting cost data, including comparison to the Government estimate for
   the notional work items in Section L. This analysis will be performed for
   work items defined in Section L, as well as on the Offeror's total
   proposal, including all options. Also, if the Offeror submits evidence to
   support an adjustment to the Government-provided estimates, the Government
   will review such evidence in deriving the cost realism for the Offeror's
   projected cost to the Government. As a result of this analysis, the
   Government may make adjustments to the Offeror's proposed costs to develop
   an estimate of the projected cost to the Government for each Offeror's
   proposed approach.

   Id.

   On the basis of this analysis, the RFP stated that "the [cost analysis
   panel] will develop a `projected cost to the Government' which represents,
   in the Government's judgment, the overall cost . . . which will result
   from the Offeror's actual performance of the contract requirements . . .
   ." Id.

   Offerors were also warned not to propose unrealistically low estimated
   costs. In this regard, the RFP stated as follows:

   Unrealistically low cost estimates . . . may be grounds for eliminating a
   proposal from competition either on the grounds that the Offeror does not
   understand the requirement or that he has made an improvident proposal.
   The burden of proof of cost credibility rests with the Offeror. If the
   Government determines an Offeror's estimates to be inexplicably low, that
   Offeror may be eliminated from the competition without further discussion.

   RFP at 162-63.

   Four offerors, BAE Systems Norfolk Ship Repair, Marine Hydraulics
   International, Inc. (MHI), Earl, and Metro submitted proposals by the
   April 18 closing date. In competing under the solicitation, [deleted] and
   Earl had entered into a "resource agreement"--in essence, a teaming
   agreement.[4] Metro was not party to the teaming agreement. As a general
   matter, the resource agreement provided for [deleted] and Earl to each
   independently submit a proposal for award, while drawing upon the
   capabilities of the team members to act as subcontractors for varying
   levels of effort depending upon which, if any, of the team members
   received award as the prime contractor. According to the terms of the
   resource agreement, [deleted] and Earl agreed to [deleted]. AR, Tab 8,
   Earl Cost Proposal, Encl. P, at 3, 4.

   Under the terms of the agreement, each team member will receive the
   following percentages of "production work":

   +------------------------------------------------------------------------+
   |                     Assignment of Production Work                      |
   |------------------------------------------------------------------------|
   |           Contractor           |         |[deleted]|[deleted]|[deleted]|
   |--------------------------------+---------+---------+---------+---------|
   |  Percentage of Work Assigned   |[deleted]|[deleted]|[deleted]|[deleted]|
   | Subcontractor (and retained by |---------+---------+---------+---------|
   |          Contractor)           |[deleted]|[deleted]|[deleted]|[deleted]|
   |                                |---------+---------+---------+---------|
   |                                |[deleted]|[deleted]|[deleted]|[deleted]|
   |                                |---------+---------+---------+---------|
   |                                |[deleted]|[deleted]|[deleted]|[deleted]|
   +------------------------------------------------------------------------+

   Id. at 4.

   Specific work items would be assigned, [deleted]. Id. at 5.

   A Navy technical evaluation review panel (TERP) evaluated offerors'
   technical proposals, and a separate Navy cost analysis panel (CAP)
   concurrently began evaluating the offerors' cost proposals. In its initial
   evaluation of proposals, the TERP noted as a general matter that "[e]ach
   offeror has a demonstrated history of maintenance and repair of Amphibious
   warfare class ships" and that "[e]ach offeror was judged to have adequate
   resources, facilities and skills to accomplish the requirements of this
   solicitation." AR, Tab 17, Initial TERP Evaluation, at 2. As it relates to
   the protest, in its initial evaluation of Earl's technical proposal under
   the management capability factor, the TERP assigned Earl a rating of
   [deleted] and noted several major weaknesses, including the fact that
   while Earl proposed to [deleted] Earl failed to adequately explain how it
   would integrate its teaming partners into the management organization and
   functions, and failed to adequately explain the roles and responsibilities
   of the team members and what they were to provide in support of the work
   effort. AR, Tab 17, TERP Initial Evaluation of Earl, at 3.

   With regard to its initial evaluation of Earl's past performance, under
   the cost subfactor, the TERP had concerns with Earl's cost control on
   cost-type contracts, and initially rated Earl as [deleted] under this
   subfactor. This [deleted] rating was based in part on a past performance
   report contained in the contractor performance assessment report system
   (CPARS) regarding Earl's performance on a separate Navy contract in
   connection with the USS Iwo Jima (LHD 7); in this CPARS report, Earl was
   rated as "marginal" under cost control. The TERP rated Earl as [deleted]
   for overall past performance, however, since Earl received ratings of
   [deleted] under the three other past performance subfactors. AR, Tab 17,
   Initial TERP Evaluation of Earl, at 2-3.

   Following the initial evaluation of proposal evaluations, the Navy opened
   discussions with all offerors, and requested revised proposals. On
   August 4, the agency requested final proposal revisions, which were
   received on August 18. Based on Earl's responses to the Navy's questions
   in connection with the management capability factor, the TERP revised its
   rating from [deleted] to "very good" with low risk. AR, Tab 18, Encl. 3,
   at 4. The TERP also changed its rating under the past performance/cost
   subfactor from [deleted] to [deleted] based on a change in the CPARS
   report for Earl's performance under the USS Iwo Jima contract from
   "marginal" to "satisfactory" and because Earl had proposed specific
   corrective measures. AR, Tab 18, Encl. 3, at 10. Earl's overall rating
   under the past performance factor remained "good."

   In evaluating the offerors' cost proposals for realism, the Navy
   principally compared the offerors' proposed labor hours and material costs
   for performing the notional work items with the government estimates for
   these cost elements, and reviewed the offerors' proposed direct and
   indirect rates. AR, Tab 19, CAP Report, at 1. In comparing the offerors'
   proposed hours and material costs to the government estimates, the Navy
   denied virtually all proposed deviations from the government estimates. As
   a consequence, the Navy's determination of probable cost to the government
   was premised on each offeror using the same number of labor hours and
   incurring the same material costs in performing the notional work.
   Specifically, the Navy calculated each offeror's total cost based on the
   government estimate of 939,452 labor hours and material costs of
   $31,868,000.[5] In this regard, Earl's initial proposed cost, which was
   based on substantial deviations from the government estimates, was
   ultimately increased from [deleted] to $70,221,185.

   With the total labor hours and material costs essentially fixed for all
   offerors in connection with performing the notional work, the Navy's cost
   realism evaluation focused on the offerors' rate information, e.g., an
   offeror's direct composite weighted labor rate, general and
   administrative, and subcontractor rates. The Navy reviewed the offerors'
   proposed rates and made adjustments in order to establish what the agency
   believed to be its best estimate of the rates that the offeror would
   charge in performing the contract. Applying the adjusted rates to the
   total labor hours and material costs for the notional work items, the
   agency calculated each offeror's total cost to the government.

   In evaluating the cost proposals and rate information for Earl [deleted]
   the Navy considered the applicability of the resource agreement among
   these firms. Because the members of the teaming arrangement were
   competitors, they did not exchange rate information. Thus, while [deleted]
   cost proposals allocated notional work items to each of the team members,
   the Navy noted that [deleted] had only provided estimates of their team
   members' rates. Rather than calculating [deleted] total costs based on the
   estimated rates, the Navy instead calculated the rates based on
   information contained in the competing offerors' own proposals, as well as
   rate information it received from the Defense Contract Audit Agency
   (DCAA). AR, Tab 19, CAP Report, Encl. 1, at 15, 24; AR, Tab 19, CAP
   Report, Encl. 2, at 15, 19, 24. Thus, for example, in evaluating [deleted]
   cost proposal, which estimated a direct labor rate for [deleted], the Navy
   used the proposed direct labor rate information from [deleted] own
   proposal "since that is based on more accurate information." AR, Tab 19,
   CAP Report, Encl. 1, at 24.

   Unlike [deleted] Earl did not assign any of the notional work to be
   performed by [deleted] and, as a consequence, Earl did not include any
   estimated rates for [deleted]. During its discussions with Earl, the Navy
   questioned why Earl had prepared its proposal without identifying any
   costs for work to be performed by its team members under the resource
   agreement and specifically pointed to the portion of the resource
   agreement stating that [deleted]. AR, Tab 19, Encl. 3, Cost Evaluation of
   Earl's Proposal, at 7. Earl acknowledged the fact that its cost proposal
   did not reflect any costs for [deleted] and stated as follows:

   The strength of the Agreement is the core capabilities of the Agreement
   members. The Notional Work Item Packages included in the solicitation
   [deleted]. These core capabilities that, during the contract execution
   [deleted] . . . . In addition, during contract execution, the efficient
   use of Agreement members' labor resources will be utilized to achieve an
   effective trade balance.

   AR, Tab 10, Earl's Response to Discussion Questions, Encl. 1, at 6-7.

   The final CAP report, prepared after receipt of Earl's response, takes
   note of the resource agreement's assignment of production work, and
   indicates a concern because Earl had not included labor hours or material
   costs for [deleted] in connection with the notional work or received any
   quotes from [deleted] for the individual work items. AR, Tab 21, Final CAP
   Report for Earl, at 1.

   Upon completion of the technical and cost evaluations, the TERP and CAP
   provided their evaluations to the agency's best value advisory council
   (BVAC). The following ratings resulted from these evaluations:

   +------------------------------------------------------------------------+
   |Offeror|   Mgmt   |  Resource  |   Past    |    Overall     |   Final   |
   |       |Capability|Capabilities|Performance|Technical Rating| Projected |
   |       |          |            |           |                |   Cost    |
   |-------+----------+------------+-----------+----------------+-----------|
   |Metro  |[deleted] |[deleted]   |[deleted]  |[deleted]       |[deleted]  |
   |-------+----------+------------+-----------+----------------+-----------|
   |A      |[deleted] |[deleted]   |[deleted]  |[deleted]       |[deleted]  |
   |-------+----------+------------+-----------+----------------+-----------|
   |Earl   |Very good |Very good   |Good       |Very Good       |$70,221,185|
   |-------+----------+------------+-----------+----------------+-----------|
   |B      |[deleted] |[deleted]   |[deleted]  |[deleted]       |[deleted]  |
   +------------------------------------------------------------------------+

   AR at 8.

   Considering the technical merits and evaluated cost of each proposal, the
   BVAC completed a cost/technical trade-off among the various offers and
   presented its findings to the agency's source selection authority (SSA).
   In recommending the selection of Earl's proposal as the best value to the
   government, the BVAC noted Earl's teaming partners to be a strength of its
   proposal and concluded that because Metro only had a "slight technical
   advantage" over Earl, the evaluated costs of the offerors were "very
   important." AR, Tab 22, BVAC Report to SSA, at 7. After reviewing "all
   source selection documentation relevant to this acquisition" and
   concurring with the CAP's conclusion that Earl's proposal would result in
   the lowest cost to the government, the SSA determined that Earl's proposal
   represented the best value to the government. AR, Tab 24, Source Selection
   Decision. Upon learning of the agency's decision, and after receiving a
   debriefing, Metro filed its protest with our Office.

   Metro alleges that the Navy's cost realism evaluation of Earl's cost
   proposal was improper and that the best value determination was flawed.
   According to Metro, in evaluating the proposals for cost realism, the Navy
   mechanically applied the government estimates for labor hours and material
   costs--normalizing these cost elements--without accounting for each
   offeror's technical approach. Metro argues that, had the Navy properly
   accounted for Earl's technical approach, it would have increased Earl's
   evaluated cost since the government estimates were developed based on work
   done in [deleted] and [deleted] ship yards, contractors which, according
   to Metro, are technically superior and more efficient than Earl. Metro
   also challenges the cost realism evaluation on the ground that the Navy
   unreasonably failed to increase Earl's cost of performance to account for
   [deleted] labor rates, which were higher than Earl's rates. In challenging
   the Navy's best-value determination, Metro argues that the SSA was not
   informed of relevant information concerning the evaluation of Earl's
   technical and cost proposals.

   Cost Realism Evaluation

   When an agency evaluates proposals for the award of a cost-reimbursement
   contract, an offeror's proposed estimated cost of contract performance is
   not considered controlling since, regardless of the costs proposed by an
   offeror, the government is bound to pay the contractor its actual and
   allowable costs. Hanford Envtl. Health Found., B-292858.2, B-292858.5,
   Apr. 7, 2004, 2004 CPD para. 164 at 9; PADCO, Inc.--Costs, B-289096.3, May
   3, 2002, 2002 CPD para. 135 at 5; see Federal Acquisition Regulation (FAR)
   sect. 16.301. As a result, a cost realism analysis is required to
   determine the extent to which an offeror's proposed costs represent the
   offeror's likely costs in performing the contract under the offeror's
   technical approach, assuming reasonable economy and efficiency. FAR
   sections 15.305(a)(1), 15.404-1(d)(1), (2); The Futures Group Int'l,
   B-281274.2, Mar. 3, 1999, 2000 CPD para. 147 at 3. A cost realism analysis
   involves independently reviewing and evaluating specific elements of each
   offeror's cost estimate to determine whether the estimated proposed cost
   elements are realistic for the work to be performed, reflect a clear
   understanding of the requirements, and are consistent with the unique
   methods of performance and materials described in the offeror's proposal.
   FAR sect. 15.404-1(d)(1); Advanced Communications Sys., Inc., B-283650 et
   al., Dec. 16, 1999, 2000 CPD para. 3 at 5. Based on the results of the
   cost realism analysis, an offeror's proposed costs should be adjusted when
   appropriate. FAR sect. 15.404-1(d)(2)(ii).

   The evaluation of competing cost proposals requires the exercise of
   informed judgment by the contracting agency. We review an agency's
   judgment in this area only to see that the agency's cost realism
   evaluation was reasonably based and not arbitrary. Jacobs COGEMA, LLC,
   B-290125.2, B-290125.3, Dec. 18, 2002, 2003 CPD para. 16 at 26. An
   agency's cost realism analysis need not achieve scientific certainty;
   rather, the methodology employed must be reasonably adequate and provide
   some measure of confidence that the agency's conclusions about the most
   probable costs under an offeror's proposal are reasonable and realistic in
   view of other cost information reasonably available to the agency as of
   the time of its evaluation. See Metro Mach. Corp., B-295744, B-295744.2,
   Apr. 21, 2005, 2005 CPD para. 112 at 10-11.

   Application of Government Estimated Labor Hours and Material Costs

   Metro challenges the Navy's cost realism analysis on the ground that the
   Navy simply assumed all offerors could perform the notional work items at
   the government- estimated labor hours and material costs without
   considering whether those estimates were consistent with each offeror's
   technical approach or how the offeror's technical capability affected
   these cost elements in determining the offeror's total evaluated cost.[6]
   According to Metro, this mechanical application of the government
   estimates was inconsistent with the requirements of FAR sect. 15.404-1(d),
   which states in part that a cost realism analysis is the process of
   evaluating whether an offeror's cost elements "are consistent with the
   unique methods of performance and materials described in the offeror's
   technical proposal," as well as the terms of the RFP, which indicated that
   the Navy would consider "other costs which are likely to be incurred by
   the Offeror in performance of the requirements of the RFP." According to
   Metro, had the Navy appropriately accounted for Earl's technical
   capabilities, it would have upwardly adjusted Earl's proposed cost since
   the government estimates were based on performance by contractors with
   superior staffing, facilities, and greater efficiency than Earl's.

   While an agency can utilize a reasonably derived estimate of labor hours
   based on the government's experience as an objective standard to measure
   realism of proposed costs, an agency may not mechanically apply its own
   estimates for labor hours or costs--effectively normalizing cost elements
   of an offeror's proposal to government estimates--without considering the
   offeror's unique technical approach.[7] See, e.g., Information Ventures,
   Inc., B-297276.2 et al., Mar. 1, 2006, 2006 CPD para. ___ at ___
   (sustaining protest where agency normalized offerors' proposed labor hours
   to government estimated levels under its cost realism analysis without
   considering offerors' technical approach); Honeywell Tech. Solutions,
   Inc.; Wyle Labs, Inc., B-292354, B-292388, Sept. 2, 2003, 2005 CPD para.
   107 at 12 (sustaining challenge to agency's cost realism evaluation where
   the agency mechanically adjusted offerors' staffing levels to government
   estimates); The Jonathan Corp.; Metro Mach. Corp., B-251698.3, B-251698.4,
   May 17, 1993, 93-2 CPD para. 174 at 10-11 (sustaining protest where
   agency's cost realism evaluation failed to consider each offeror's
   individualized technical approach and instead mechanically adjusted
   proposed labor hours and material costs to government estimates).

   Unlike in the cases cited above, however, the RFP in this case expressly
   required offerors to base their cost proposals on the government-estimated
   labor hours and material costs for accomplishing the notional work and
   provided that any deviations from the estimates would only be accepted if
   supported by clear and compelling evidence. Thus, offerors were on notice
   that the government intended to use the government provided estimates in
   calculating each offeror's cost to the government for the notional work
   items. RFP at 165 ("Offerors are to use the Government-provided manhour
   and material estimates for each notional package and propose those amounts
   . . . . If support of an Offeror's proposed adjustment to an individual
   work item is less than clear and compelling, the Government estimate will
   be used to calculate an estimated cost to the Government for that work
   item."). In explaining its decision to effectively normalize the labor
   hour and material costs, the Navy stated as follows:

   Here, NAVSEA preferred to focus its cost analysis on offerors' direct and
   indirect rates, as well as any proposed significant subcontractor rates.
   These are elements that can vary considerably among offerors. On the other
   hand, NAVSEA expected less variance among the offerors with regard to the
   manhours and material costs required to perform the work and had recent
   data from availabilities performed to support its estimates. Accordingly,
   the RFP made clear NAVSEA's intent to apply the Government estimates of
   manhours and material costs to each offeror, unless clear and compelling
   evidence, on a work item level, was provided to support proposed
   deviation(s).

   AR at 12.

   Given the RFP's language advising offerors that the Navy would calculate
   offerors' costs using the government's estimates for these cost elements,
   it was reasonable for the Navy to calculate all offerors' probable cost of
   performance, including Earl's, based on the government's labor hour and
   material cost estimates for the notional work items. Cygnus Corp.,
   B-275957, B-275957.2, Apr. 23, 1997, 97-1 CPD para. 202 at 11. To the
   extent Metro now seeks to challenge the propriety of the solicitation's
   cost evaluation scheme on the ground that it unfairly created an
   artificial parity among offerors despite differing efficiencies, that
   challenge is untimely since it concerns an alleged impropriety apparent
   from the face of the solicitation, which Metro did not raised prior to the
   closing time for submission of proposals. 4 C.F.R. sect. 21.2(a)(1)
   (2005).

   Cost of Resource Agreement

   In challenging the Navy's cost realism evaluation of Earl's proposal,
   Metro argues that the Navy failed to account for costs resulting from
   Earl's resource agreement, which required Earl to subcontract [deleted]
   percent of the production work to [deleted] which had higher direct labor
   rates than Earl.[8] According to Metro, had the Navy accounted for these
   costs by applying the expected subcontract percentages for performing the
   work items under the notional packages, Earl's total cost of performance
   would have been adjusted upward by nearly [deleted].[9]

   As noted above, in evaluating Earl's costs, the Navy raised the question
   of why Earl had not included any costs in its proposal associated with
   work to be performed by its resource team members, [deleted] and Earl
   responded [deleted].[10] While the final CAP report noted this missing
   information as a concern, the Navy made no effort to capture the cost
   associated with Earl's resource agreement, which the Navy considered to be
   a strength in reaching its best-value determination. This cost element,
   however, is clearly significant, given that the Navy effectively
   normalized all cost elements other than the variable rates between
   offerors. Specifically, as noted above, the Navy applied
   government-estimated labor hours and material costs for the notional work
   items to all the offerors, thus reducing the total cost calculation to a
   comparison of the offerors' estimated direct and indirect rates in
   performing the contract. In fact, in defending its normalization analysis,
   as discussed above, the Navy itself asserted that its realism analysis
   focused on offerors' rates, including proposed major subcontractor rates,
   because the offerors' rates are the primary cost variables.

   The goal of a cost realism evaluation is to determine, for each offeror, a
   projected cost to the government in connection with an offeror's actual
   performance under the contract. It involves evaluating whether an
   offeror's costs are consistent "with the unique method of performance and
   materials described in the offeror's technical proposal," in order to
   determine the "probable cost of performance," which "should reflect the
   Government's best estimate of the cost of any contract that is most likely
   to result from the offeror's proposal." FAR sect. 15.404-1(d)(2).
   Consistent with this concept, the RFP provided that the Navy would
   consider "any other costs which are likely to be incurred by the Offeror
   in performance of the requirements of the RFP." RFP at 168.

   Given the Navy's emphasis on offerors' rates in its cost realism
   evaluation, it was imperative for the Navy to consider [deleted] rates in
   determining Earl's cost of performance since, as a result of the resource
   agreement, these firms would be performing [deleted] percent of the
   production work in the event Earl received award.[11] Thus, their rates
   were a material element of Earl's actual performance. As the protester
   aptly notes, the resource agreement, an evaluated strength in Earl's
   proposal, came at a cost--the cost associated with having [deleted]
   perform [deleted] percent of the production work. Because the Navy made no
   effort to capture this cost, the Navy effectively ignored an actual cost
   of Earl's proposal in performing the requirements of the RFP, rendering
   the total calculated evaluated cost of Earl's proposal unrealistic and
   therefore unreasonable.[12]

   The Navy maintains that adjusting Earl's costs to account for [deleted]
   rates would have been inconsistent with the terms of the RFP, which
   required offerors to submit their cost proposals based on the notional
   work items.[13] Any adjustment, the Navy argues, would be inconsistent
   with Earl's approach in preparing its cost proposal based on the notional
   work, and thus arbitrary. The Navy's argument, however, ignores the
   purpose of the cost realism analysis. We recognize that accounting for the
   cost of [deleted] performance would require the Navy to factor into Earl's
   total projected cost, a cost that cannot be traced to a specific cost
   element in connection with Earl's approach to the notional work packages,
   given Earl's representation that [deleted]. We further recognize that by
   the terms of the RFP, there was nothing inherently wrong with Earl's plan
   [deleted] and that the solicitation did not include any assurances or
   identify any percentages regarding the extent to which the notional work
   reflected the actual total contract work.[14] Nonetheless, when faced with
   notional work in excess of $70 million, and the disconnect between Earl's
   resource agreement, which required Earl to allocate [deleted] percent of
   the production work to [deleted], and Earl's cost proposal, [deleted], it
   was unreasonable for the agency to take no action to resolve it.

   The Navy was required by the terms of the RFP and the FAR, as noted above,
   to perform a cost realism analysis to estimate Earl's cost of actual
   performance. In estimating this actual cost, the notional work packages
   served as a tool to reach an intelligent result. If used intelligently,
   sample tasks can provide a reasonable basis to assess the relative cost of
   the competing proposals, but only to the extent they are representative of
   the contract work. See, e.g., S. J. Thomas, Inc., B-283192, Oct. 20, 1999,
   99-2 CPD para. 73 at 5. Here, the Navy estimated Earl's cost of
   performance solely for the notional work--ignoring another significant
   cost in connection with Earl's actual performance, which was clearly
   evident from Earl's proposal. Thus, to the extent the notional work
   packages failed to accurately reflect Earl's true costs, the Navy was not
   excused from its duty to account for an obvious and significant cost
   element associated with the actual cost of performance by Earl.

   Best Value Decision

   Metro challenges the agency's best value decision, arguing that the SSA's
   determination was not an informed judgment because the SSA was denied
   material information concerning the evaluation of Earl's proposal. Insofar
   as the cost evaluation was flawed as described above, we agree with
   Metro's contention that the best value determination likewise was flawed.
   We reject, however, Metro's allegation that the SSA was improperly denied
   information with regard to the technical evaluation. Metro contends that
   the BVAC had voiced concerns about Earl's plan to subcontract a
   significant percentage of work to its teaming partners and specialty
   subcontractors, yet this concern was never conveyed to the SSA. Metro's
   protest relies on e-mail messages and a draft presentation for the SSA
   which the BVAC circulated among its members, stating that "[Earl's] single
   most important detractor is its plan to subcontract more than [deleted] of
   work to its teaming partners and specialty subcontractors." Protester's
   Comments, exh. D, at Navy E-mail 0363. In addition, with regard to Earl's
   past performance, Metro challenges the BVAC's failure to include "bar
   charts" of CPARS ratings in its final presentation to the SSA, which Metro
   asserts had been included in a draft presentation showing Metro with an
   18 percent advantage when compared with Earl.

   Regarding the first issue, the agency explains that the statement relied
   upon by Metro was derived from similar language in the TERP report
   regarding Earl's lack of documentation regarding its teaming approach--a
   concern ultimately resolved through discussions--and that it was raised in
   a pre-decisional context solely for the purpose of beginning discussions
   among members of the BVAC. Agency's Response to Protester's Comments at 16
   and Encl. 5, Decl. of BVAC Chairman. Ultimately, the BVAC concluded, as
   did the TERP, that Earl's subcontracting plan was not a weakness, and it
   therefore did not include the comment in its final report or presentation
   to the SSA. With regard to the "bar charts," while the agency states that
   they were not presented to the SSA, the record reflects that the SSA was
   provided with a report from the TERP as well as a final BVAC report and
   presentation, which included a detailed discussion of the basis of the
   offerors' adjectival past performance ratings. Because the comment and
   charts relied upon by Metro were drafts and thus created in a
   pre-decisional context, and because Metro does not challenge the
   substantive aspects of the agency's final conclusions, Metro's arguments
   in this regard are without merit.

   Recommendation

   We sustain the protest on the basis that the agency's cost realism
   evaluation of Earl's proposal was improper because it failed to reasonably
   capture the cost of Earl's teaming arrangement with [deleted]. We
   recommend that the Navy hold discussions in order to more accurately gauge
   the impact of the teaming agreement on offerors' actual costs and
   reevaluate proposals to properly reflect this cost,[15] or, to the extent
   the Navy believes it is necessary to alter the notional work packages in
   order to more accurately capture the costs associated with the offerors'
   proposals, we recommend that the Navy amend the solicitation and seek
   revised proposals and conduct a new evaluation. Under either approach, the
   Navy should make a new source selection decision. If, after the new
   evaluation, the agency determines that another firm's proposal represents
   the best value to the government, the agency should terminate Earl's
   contract and make a new award.[16] We further recommend that the agency
   reimburse the protester the reasonable costs of pursuing its protest,
   including reasonable attorneys' fees. The protester's certified claim for
   costs,  detailing the time expended and the costs incurred on this
   protest, must be submitted to the agency within 60 days of receiving this
   decision. 4 C.F.R. sect. 21.8(f)(1).

   The protest is sustained.

   Anthony H. Gamboa

   General Counsel

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

   [1] Metro withdrew its allegation that the Navy's award decision failed to
   properly account for industrial mobilization considerations. See
   Protester's Comments at 46.

   [2] The agency explains that the availability work involves "relatively
   short, labor-intensive Chief of Naval Operations (CNO) maintenance, repair
   and modernization periods, generally scheduled at specific times
   throughout a ship's operating cycle." Agency Report (AR) at 3 n.3.

   [3] The solicitation indicated that the following LSD 41/49 and LPD 4
   Class ships would be homeported in Norfolk, VA during all or part of the
   contract: (1) USS Whidbey Island; (2) USS Gunston Hall; (3) USS Fort
   McHenry; (4) USS Ashland; (5) USS Carter Hall; (6) USS Oak Hill; (7) USS
   Nashville; and (8) USS Ponce. RFP at 48.

   [4] [deleted] were parties to the resource agreement.

   [5] There were two exceptions to the Navy's across-the-board use of the
   government estimates. The Navy granted one of the offerors other than Earl
   a deviation and evaluated that offeror's proposal based on a total of
   [deleted] labor hours for performing the notional work. AR, Tab 19, CAP
   Report, Encl. 2, at 32. In addition, the Navy granted Earl a deviation for
   its material costs, resulting in a final evaluated cost to the government
   for material of [deleted]. AR, Tab 19, CAP Report, Encl. 3, at 43.

   [6] Metro also argues that in evaluating Earl's proposal for cost realism,
   the Navy failed to account for its concerns regarding Earl's cost control
   as evaluated under the past performance factor, as well as the fact that
   Earl proposed extensive deviations from the government estimates, which
   were uniformly denied by the agency. According to Metro, these factors
   should have led the Navy to conclude that Earl would not be capable of
   performing the notional work at the government estimated levels. However,
   as discussed below, we conclude that the Navy reasonably applied the
   government estimates to Earl's proposal. To the extent Metro is arguing
   that Earl's initial proposal was unrealistically low and should have been
   rejected, the Navy notes that Earl's final proposal revision did not
   substantially deviate from the government estimates, and that the Navy did
   not believe rejection of Earl's proposal was warranted. There is nothing
   to suggest that this judgment was unreasonable.

   [7] Normalization that involves the adjustment of offers to the same
   standard or baseline is permissible where there is no logical basis for a
   difference in approach or where there is insufficient information provided
   with the proposals, leading to the establishment of common "should have
   bid" estimates by the agency. See The Research Found. of State Univ. of
   New York, B-274269, Dec. 2, 1996, 96-2 CPD para. 207 at 5. An agency's
   normalization of costs is improper, however, where varying costs between
   competing proposals result from different technical approaches that are
   permitted by the RFP. See Dynalectron Corp.; Lockheed Elec. Co., Inc.,
   B-181738, Jan. 15, 1975, 75-1 CPD para. 17 at 18-21.

   [8] The record reflects that the rates the Navy calculated for [deleted]
   as subcontractors, which the Navy utilized in calculating [deleted] total
   costs of performance, were higher than the prime production rate
   calculated for Earl. AR, Tab 23, BVAC Presentation to SSA, at 56, 58, 62.

   [9] Metro also contends that the Navy improperly calculated each of the
   team member's subcontractor rates. According to Metro, the Navy failed to
   account for the reduction in each firm's business base associated with the
   team member performing as a subcontractor under the contract, rather than
   as a prime contractor. Accounting for this error results in an additional
   increase of [deleted] (as calculated by Metro) to Earl's total calculated
   cost of performance.

   [10] While Metro contends that Earl sought to "game" the evaluation by not
   including [deleted] in its cost proposal, there is nothing in the record
   to support such a conclusion. Given that the members of the resource
   agreement did not exchange their pricing information, Earl may not have
   known that its rates were lower than those of [deleted].

   [11] As noted above, unlike Earl, [deleted] had in fact allocated notional
   work to each of the resource agreement team members in their cost
   proposals, albeit at percentages somewhat different from the percentages
   allocated under the resource agreement. [Deleted] proposed [deleted]
   percent of the work, while the resource agreement allocated [deleted]
   percent of production work to [deleted]. [Deleted] also proposed Earl to
   perform approximately [deleted] percent of the work, while the resource
   agreement allocated [deleted] percent of the work to Earl. AR, Tab 19, CAP
   Report, Encl., 1 attach. B. Similarly, [deleted had proposed [deleted] for
   approximately [deleted] percent of the production work, while the resource
   agreement allocated [deleted] percent to [deleted]. [Deleted] cost
   proposal also included approximately [deleted] percent of the work for
   Earl, while the resource agreement allocated [deleted] percent of the
   production work to Earl. AR, Tab 19, CAP Report, Encl. 2, attach. B.

   [12] Unlike Metro's challenge to the Navy's decision to equalize all
   offerors with respect to two cost variables--labor hours and material
   costs--a determination which was apparent from the express terms of the
   RFP, Metro could not have appreciated the inability of the notional work
   items to reasonably capture Earl's true cost of performance until Earl
   submitted its proposal based on the teaming arrangement with [deleted] and
   the Navy reviewed Earl's proposal in connection with the notional work
   items. Thus, to the extent one could view the solicitation as defective
   because the chosen notional work items therein were incapable of
   accurately reflecting Earl's actual cost of performance, that would
   constitute a latent defect--not one apparent from the face of the
   solicitation.

   [13] While the notional packages here contained 37 work items, the Navy
   explains that the average number of work items performed during a typical
   availability is more than 100. Agency's Response to Protester's Comments
   at 9. Moreover, the Navy indicates that while it seeks to include a
   representative sampling, "the notional work packages in this case will
   constitute only a relatively minor portion of the work anticipated" and
   therefore "may not provide every offeror with the opportunity to capture
   all aspects of its technical approach, i.e., . . . to allocate this
   relatively minor portion of the total availability in accordance with a
   proposed `teaming arrangement.'" Id.

   [14] The total estimated value of the contract is not clear from the
   record. See AR, Tab 25, Agency Business Clearance Memorandum, at 2
   (indicating that the 7-year estimated value of the contract was in excess
   of $430 million); AR, Tab 25, Small Business Coordination Record
   (indicating that the total estimated contract value, including options,
   was $239,584,590).

   [15] Because the teaming agreement involved [deleted] as well, it may be
   appropriate for the Navy to also reconsider the cost effect of the teaming
   agreement with respect to these firms.

   [16] During the course of the protest, the Navy notified our Office and
   the protester that it had decided to proceed with performance of the
   contract awarded to Earl on the basis that continued performance was
   justified by "urgent and compelling circumstances" which significantly
   affect the interest of the United States. Letter from Contracting Officer
   to GAO (Jan. 27, 2006). Given that the contract requires performance with
   respect to numerous scheduled availabilities over a 7-year period, we
   believe that our recommendation can be implemented and meaningful relief
   attained notwithstanding continued performance by the Navy.