TITLE: B-309996; B-309996.4, Earl Industries, LLC, November 5, 2007
BNUMBER: B-309996; B-309996.4
DATE: November 5, 2007
************************************************************
B-309996; B-309996.4, Earl Industries, LLC, November 5, 2007

   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: Earl Industries, LLC

   File: B-309996; B-309996.4

   Date: November 5, 2007

   Robert M. Tata, Esq., and Carl D. Gray, Esq., Hunton & Williams, LLP, for
   the protester.

   Michael J. Gardner, Esq., Troutman Sanders, LLP, for the intervenor,

   Kelly M. Callahan, Esq., Department of the Navy, for the agency.

   Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.      Protest is sustained in a negotiated procurement for award on a
   "best value" basis where the source selection authority (SSA) did not
   reasonably assess the protester's evaluated superior technical merit in
   the SSA's cost/technical tradeoff assessment.

   2.      Protest is sustained in a negotiated procurement for the award of
   a cost-reimbursement contract, where the agency in its cost realism
   assessment accepted the awardee's work allocation in its cost proposal,
   but that allocation was inconsistent with the firm's allocation of work in
   its technical proposal.

   3.      Protest is sustained in a negotiated procurement for the award of
   a cost-reimbursement contract, where the agency in its cost realism
   assessment applied the protester's historic division-wide composite labor
   rate rather than the protester's proposed labor rate to perform the
   solicitation's notional work package and the agency did not consider the
   protester's explanation during discussions that the firm's division-wide
   rate included labor categories that the protester would not use in
   performing in accordance with its proposed technical approach to meeting
   the notional work package.

   DECISION

   Earl Industries, LLC protests the award of a contract to Marine
   Hydraulics, Inc./Tecnico Corporation, a Joint Venture (MTJV), under
   request for proposals (RFP) No. N00024-06-R-4409, issued by the Department
   of the Navy for execution, planning, maintenance, repair and alterations
   of FFG-7 class ships. Earl challenges the agency's cost and technical
   evaluations and source selection decision.

   We sustain the protest.

   The RFP provided for the award of a cost-plus-award-fee contract for
   execution, planning, maintenance, repair and alterations of Oliver Hazard
   Perry FFG-7 class frigates home-ported in and visiting Mayport, Florida.
   Offerors were informed that the contractor would be required to provide
   all "material, support (electrical, crane, rigging, etc.) and facilities"
   necessary to support 13 identified ships and any visiting FFG-7 class
   ships. See RFP, Statement of Work (SOW), at 43, 52-53. The SOW further
   informed offerors that "[r]epresentative items to be accomplished are
   detailed in the notional work package for the FFG 7 Class provided in
   [RFP] Section J."[1] Id. at 53.

   The RFP provided for award on a "best value" basis and identified the
   following evaluation factors: management capability, resource
   capabilities, past performance, and cost. Offerors were informed that the
   technical evaluation factors were more important than cost, and that the
   management capability factor was more important than the resource
   capabilities factor, which was more important than the past performance
   factor. RFP sect. M, at 178-80. With respect to the cost factor, the RFP
   provided that the agency would assess the realism of the offerors'
   proposed costs and develop a projected cost to the government for each
   proposal. In this regard, the RFP stated:

     The Government will analyze and review the Offeror's cost estimates and
     supporting cost data, including comparison to the Government estimate
     for the notional and definitized work items in Section L.

   Id. at 179.

   The RFP provided detailed proposal preparation instructions. With respect
   to the management capability factor, offerors were to, among other things,
   describe their management organization, "including all teaming partners
   and/or significant subcontractors (defined as those contractors providing
   effort consisting of five percent (5%) of total direct dollars, AND/OR ten
   percent (10%) of total man-hours."

   RFP sect. L, at 159. With respect to the resource capabilities factor, the
   RFP directed offerors to

     [d]escribe the total facility resources available to the organization.
     Clearly indicate which facility resources, production and
     administrative, are committed [to] the work effort, which facility
     resources are committed to other work efforts and any residual facility
     resources available. The Offeror must clearly demonstrate that it has
     access to facilities required to execute this contract. The Offeror must
     demonstrate how it will obtain required production and administrative
     facilities, as well as permits and certifications necessary to operate
     these facilities and perform the work by contract award for the period
     of performance of this contract.

   Id.

    

   With respect to the cost factor, the RFP instructed offerors to base their
   cost proposals upon the notional work item package, stating that "proposed
   estimated cost for the contract line items (CLINs) in Section C shall be
   based on the Notional Work Item package provided in Section J-1 of the
   Solicitation." Id. at 162 (emphasis in original). In this regard, offerors
   were cautioned that their cost proposal staffing estimates must correlate
   with their technical proposal staffing estimated under the resource
   capabilities factor. Id. The RFP also provided that offerors must "fully
   explain the estimating rationale on which [their] proposal[s are] based,
   including full supporting rationale for proposed prime and significant
   subcontractor[s]." Id. (emphasis in original).

   The Navy received proposals from four offerors, including Earl and MTJV,
   which were evaluated by the agency's technical evaluation review panel
   (TERP) and cost assessment panel (CAP). Discussions were conducted with
   the offerors, and revised proposals received. Earl's and MTJV's revised
   proposals were evaluated as follows:

   +------------------------------------------------------------------------+
   |                            |        Earl         |        MTJV         |
   |----------------------------+---------------------+---------------------|
   |Management Capability       |      [Deleted]      |    Satisfactory     |
   |----------------------------+---------------------+---------------------|
   |Resource Capabilities       |      [Deleted]      |    Satisfactory     |
   |----------------------------+---------------------+---------------------|
   |Past Performance            |      [Deleted]      |    Satisfactory     |
   |----------------------------+---------------------+---------------------|
   |Proposed Cost               |      [Deleted]      |     $56,494,108     |
   |----------------------------+---------------------+---------------------|
   |Projected Cost              |      [Deleted]      |     $59,171,174     |
   +------------------------------------------------------------------------+

   AR at 5.

   The protester's higher technical ratings reflected the TERP's judgment
   that Earl had "provided the strongest proposal to this solicitation in all
   areas because of their well thought out plan and their strong current and
   past performance, especially in the area of Resource Capabilities." AR,
   Tab 15, TERP Report, at 2. In particular, the TERP noted under the
   management capabilities factor that Earl had offered a team of master ship
   repair contractors comprised of the largest sector of the industrial base
   repairing ships at the Mayport Naval Station, and identified as a minor
   strength Earl's proposal to apply its management expertise as the prime
   contractor, which would "allow the full FFG7 program and management team
   to be dedicated 100% to the [contract]." Id., encl. 3, Earl Evaluation, at
   1. Under the resource capabilities factor, the TERP assessed as a major
   strength Earl's clear demonstration that the firm had significant
   facilities and staffing in Mayport to perform the contract; the TERP also
   assessed, as a minor strength under this factor, Earl's many skilled
   tradesmen with more than 25 years experience on FFG-7 class ships. Id. at
   2-3.

   The awardee's lower technical ratings reflected the TERP's judgment that
   although MTJV had adequately addressed during discussions the TERP's
   concerns with the firm's management and resource capabilities, the firm's
   proposal was merely satisfactory. In this regard, the TERP had found that
   MTJV's initial proposal was "weak in the local resource capabilities
   area," noting that

     [Marine Hydraulics] does not have shop resources in the Mayport area and
     Tecnico's and the various other subcontractors['] facilities proposed to
     be utilized to support the scope of this effort appear to be inadequate.
     The offeror has not identified sufficient local facilities and resources
     to execute concurrent availabilities or respond to surge requirements.

   Id. at 2; encl. 4, MTJV Evaluation, at 1-2. Following discussions, the
   TERP accepted MTJV's revised proposal promise to augment existing Mayport
   facilities and resources with "new local resources as required to support
   this contract." Id. at 3. In addition, the TERP noted that

     [t]he required average men per week to support [this contract] in
     Mayport will be supplemented with local subcontractors including
     Tecnico, Atlantic Marine, Earl Industries, North Florida Shipyards, QED
     Systems and Life Cycle Engineering. Work will be awarded based on "Best
     Value" to the customer.

   Id.

   The offerors' cost proposals were evaluated by the agency's CAP, which
   compared the firms' proposed staff-hours and material costs with those
   estimated by the RFP. Neither Earl nor MTJV proposed to deviate from the
   solicitation's staff-hour or material cost estimates. Thus, the CAP's
   realism evaluation focused on the offerors' proposed rates. The agency
   requested labor rate and indirect cost rate information from the Defense
   Contract Audit Agency (DCAA) for the firms and their significant
   subcontractors.

   With respect to Earl's proposed costs, the CAP noted that Earl's proposed
   composite direct labor rate, which was based upon the notional work
   package, was lower than the firm's historical division-wide composite rate
   and did not account for temporary Florida labor that would be required.
   The Navy decided to apply Earl's significantly higher
   Florida-division-wide composite labor rate instead of its proposed rate
   based on the notional work package. Earl's proposed costs were upwardly
   adjusted by $[Deleted], most of which ($[Deleted]) was attributable to the
   application of this higher composite rate. See AR, Tab 17, Best Value
   Advisory Council (BVAC) Report, at 6.

   With respect to MTJV's proposed costs, the CAP accepted the corporate-wide
   composite labor rates proposed by the joint venturers, Marine Hydraulic
   and Tecnico, but increased MTJV's proposed material costs and general &
   administrative rate based upon DCAA's recommendations. MTJV's proposed
   costs were upwardly adjusted by $2,677,066, most of which ($2.64 million)
   was attributable to applying fee and escalation to MTJV's proposed
   material costs. See AR, Tab 16, CAP Report, encl. 4, MTJV Cost Evaluation,
   at 31-32.

   The TERP's and CAP's respective technical and cost assessments were
   provided to the agency's BVAC. The BVAC accepted the TERP's adjectival
   technical ratings of the proposals, but concluded that Earl had only a
   "slight advantage in technical merit" over MTJV's proposal, which the BVAC
   stated was "based upon the difference in the number of predominantly minor
   strengths offered" by Earl. AR, Tab 17, BVAC Report, at 8. The BVAC noted
   that all of the offerors, including MTJV and Earl, "met the requirements
   of the solicitation with no weaknesses." Id. Identifying MTJV's nearly
   $[Deleted] cost advantage, the BVAC determined that

     award to [MTJV] with its technically satisfactory evaluation and
     substantially lower price represents the best value to the Government.
     Therefore, the BVAC recommends award to [MTJV].

   Id.

   The BVAC's findings and recommendation were reported to the source
   selection authority (SSA), who also received oral briefings from the TERP
   and CAP chairs regarding their respective findings. The SSA noted that the
   BVAC had found that Earl's "slight technical advantage" was attributable
   to "several predominantly minor strengths" in Earl's proposal that were
   not found in MTJV's proposal. In this regard, the SSA stated that the
   BVAC's report documented "that all of the offerors met the requirements of
   the solicitation." The SSA selected MTJV's proposal as reflecting the best
   value to the agency because "the slight technical advantage inherent in
   [Earl's proposal]" did not warrant the payment of a [Deleted]-percent
   premium associated with Earl's higher evaluated cost. AR, Tab 18, Source
   Selection Decision, at 1. Award was made to MTJV, and this protest
   followed.

   Earl first complains that the Navy did not reasonably assess the relative
   technical merit of its and MTJV's proposals. In this regard, Earl argues
   that the SSA's conclusion in his selection decision that Earl's proposal
   reflected only a "slight technical advantage" over MTJV's proposal was not
   consistent with the TERP's evaluation and the solicitation evaluation
   criteria.

   In reviewing protests of alleged improper evaluations and source selection
   decisions, it is not our role to reevaluate proposals. Rather, we will
   examine the record to determine whether the agency's judgment was
   reasonable and in accord with the stated evaluation criteria and
   applicable procurement laws and regulations. See Abt Assocs., Inc.,
   B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. Such judgments are by
   their nature often subjective; nevertheless, the exercise of these
   judgments in the evaluation of proposals must be reasonable and must bear
   a rational relationship to the announced criteria upon which competing
   offers are to be selected. Hydraudyne Sys. and Eng'g B.V., B-241236;
   B-241236.2, Jan. 30, 1991, 91-1 CPD para. 88 at 4.

   Here, the RFP provided for a comparative assessment of the offerors'
   management capability, resource capabilities, and past performance. See
   RFP sect. M, at 178. With respect to the resource capabilities factor,
   offerors were instructed to identify resources committed to the work
   effort. See RFP sect. L, at 159.

   The TERP found that Earl provided "the strongest proposal to this
   solicitation in all areas because of their well thought out plan and their
   strong current and past performance, especially in the area of Resource
   Capabilities." AR, Tab 15, TERP Report, at 2. With respect to Earl's
   proposed resource capabilities, the TERP noted as a major proposal
   strength under the resource capabilities factor that

     Team Earl's proposal clearly demonstrates that they have the facilities
     and manning to execute the requirements of the FFG7 . . . contract. Team
     Earl's available resources are unmatched in the Southeast region. Three
     team members--Earl Industries and Atlantic Marine have significant
     facilities located on Mayport Naval Station. They previously provided
     significant industrial base support for the Navy in Mayport for many
     years. Combined, they have almost six acres of land and approximately
     120,000 square feet of fully certified facilities dedicated to the Navy.
     These facilities have completed the overwhelming majority of maintenance
     on over twenty surface ships and an aircraft carrier at Mayport Naval
     Station. Team Earl has more than adequate resources and manning to
     conduct multiple FFG7 availabilities concurrently.

   Id., encl. 3, Earl Evaluation, at 2.

   MTJV's final revised proposal, on the other hand, was found by the TERP to
   be only satisfactory under the management capability, resource
   capabilities, and past performance factors. AR, Tab 15, TERP Report, at 3.
   As noted above, with respect to the awardee's resource capabilities, the
   TERP assessed MTJV's initial proposal as being "weak" because the firm had
   not identified adequate resources to perform the contract, and assigned a
   "marginal" rating to MTJV's proposal under this factor. In discussions,
   MTJV admitted that the "overwhelming majority" of MTJV's current resources
   were located in Norfolk, Virginia, and not in Mayport, Florida. MTJV
   promised to augment its existing Mayport facilities and resources with
   "new local resources as required" and to solicit all local "master ship
   repair agreement" and "agreement for boat repair" contractors (such as
   Earl, Atlantic Marine, and QED) to execute various tasks.[2] See AR, Tab
   3, MTJV Discussions Reponses, at 11; Tab 15, TERP Report, encl. 4, MTJV
   Evaluation, at 3. In addition, MTJV promised to provide the Navy with
   MTJV's "Shipyard in a Box," which reflected shipyard resources that MTJV
   stated could be shipped to Mayport, as required.[3] Id. at 12. With little
   explanation, the TERP changed MTJV's rating for the resource capabilities
   factor from marginal to satisfactory based upon these promises.

   As noted above, the TERP concluded that Earl had provided a superior
   proposal to that of MTJV, particularly in the area of resource
   capabilities, under which the TERP documented a major strength. The BVAC
   and SSA concluded, however, that Earl's higher technical ratings were
   attributable to "several predominantly minor strengths" and that Earl's
   technical advantage was "slight."

   Although source selection officials may reasonably disagree with the
   ratings and recommendations of evaluators, they are nonetheless bound by
   the fundamental requirement that their independent judgments be
   reasonable, consistent with the stated evaluation scheme and adequately
   documented. DynCorp Int'l LLC, B-289863, B-289863.2, May 13, 2002, 2002
   CPD para. 83 at 4. Here, the SSA's conclusion with respect to Earl's
   technical advantage is unsupported by any meaningful explanation in either
   the contemporaneous record or in response to the protest. That is, we have
   been provided with no explanation supporting the BVAC's and SSA's judgment
   that Earl's proposal of significant resources in Mayport (which the TERP
   termed "unmatched in the Southeast region"), as compared to MTJV's promise
   to obtain resources as necessary, represented only a slight technical
   advantage, where the RFP provided for a comparative evaluation of the
   offerors' respective resource capabilities. In this regard, there is no
   explanation for the SSA's and BVAC's conclusion that Earl's superior
   technical ratings were attributable to minor strengths. Based upon this
   record, we do not find that the SSA reasonably assessed, in accordance
   with the solicitation's evaluation criteria, the relative technical merit
   associated with Earl's and MTJV's proposals in his decision to select
   MTJV's proposal on the basis of its lower evaluated costs. Earl's protest
   is sustained on this basis.

   Earl also challenges the Navy's cost realism evaluation of its and MTJV's
   cost proposals. 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
   Commc'n 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.

   Here, Earl argues that the Navy's realism evaluation of MTJV's cost
   proposal was unreasonable because, although the Navy accepted MTJV's
   allocation in its revised cost proposal of [Deleted] percent of the
   production hours to Tecnico, see AR, Tab 8, MTJV Revised Cost Proposal, at
   Supporting Data Breakdown #1, Cost Summary of All CLINs, MTJV, in its
   revised technical proposal, stated tha t it would allocate [Deleted]
   percent of Tecnico's productive hours to "Miscellaneous Specialty
   Contractors & other [master ship repair contractors] Earl Ind., [Atlantic
   Marine], QED, etc."[4] See AR, Tab 3, MTJV Revised Technical Proposal, at
   22. This was unreasonable, Earl argues, because Tecnico's evaluated
   productive direct labor rate was significantly lower than that of Earl and
   its subcontractors, Atlantic Marine and QED. Earl contends that if the
   Navy had assessed MTJV's proposal to allocate [Deleted] percent of
   Tecnico's productive hours to other contractors this would require an
   upward adjustment in MTJV's evaluated costs in the agency's cost
   evaluation. Earl "conservatively" estimates that MTJV's proposed costs
   would be increased by at least $[Deleted] to account for Earl's and its
   subcontractor's higher rates and for the use of their facilities. See Earl
   Comments, exh. C, Declaration of Cost Consultant, at 3.

   The Navy admits that MTJV proposed to have [Deleted] percent of the
   anticipated contract work performed by "miscellaneous specialty
   contractors," but argues that a cost realism adjustment was not necessary
   because Tecnico's evaluated labor rates were reasonably assumed to be
   representative of the prevailing Mayport area labor rates.[5] See Navy's
   Response to Earl's Comments at 2-3. In this regard, the Navy contends that
   it treated Earl equally, because Earl also stated in its technical
   proposal that [Deleted] percent of its future work would be performed by
   undefined "surge/specialty contractors," and the Navy also did not adjust
   Earl's proposed costs to account for this. The Navy also argues that, in
   any event, Earl has not demonstrated that it was prejudiced because,
   according to the agency, the Navy's source selection decision would not
   change even accepting Earl's argument that MTJV's proposed costs should be
   upwardly adjusted by $[Deleted]. See Navy's Response to Earl's Comments
   at 6 n.6.

   An agency may not reasonably award a cost-reimbursement contract to an
   offeror whose cost proposal evidenced a different technical approach than
   that presented in the technical proposal, without resolving the
   inconsistency. See TRW, Inc., B-254045.2, Jan. 10, 1994, 94-1 CPD para. 18
   at 8-9. Here, the agency failed to resolve the inconsistency presented in
   MTJV's cost and technical proposals.

   In any case, we find no reasonable basis in the record for the Navy's
   "assumption" that Tecnico's rates were "representative of prevailing
   Mayport area labor rates." As noted by the protester, Tecnico's burdened
   labor rate of $[Deleted] was significantly lower than all but one of the
   other offerors' and their subcontractors' burdened labor rates. In fact,
   we calculate the average burdened labor rate for offerors and their
   subcontractors to be $[Deleted].[6] More specifically, Tecnico's burdened
   labor rate was significantly lower than the rates proposed by Earl
   ($[Deleted]), Atlantic Marine ($[Deleted]), and QED ($[Deleted]), which
   were the firms specifically identified by MTJV for possible performance of
   [Deleted] percent of the contract work. Although the Navy provided the
   declaration of the CAP chairperson, who generally states that he found
   that Tecnico's rate was comparable to rates of other contractors working
   in the Mayport area, see Navy's Response to Earl's Comments, attach. D,
   Declaration of CAP Chair, at 2, this declaration does not explain with any
   specificity how he determined this, nor does the Navy otherwise address or
   rebut the protester's arguments concerning Tecnico's lower rate compared
   to the offerors' rates in this competition. We also note that allowing
   MTJV to propose subcontracting a significant amount of the contract to
   unnamed subcontractors appears to also be inconsistent with the RFP's
   requirements to identify and provide cost proposals for significant
   subcontractors, which the RFP defined, in part, to be contractors that
   were providing effort consisting of 5 percent of total direct dollars. See
   RFP sect. L, at 154, 159.

   With respect to the Navy's contention that Earl similarly proposed to
   perform [Deleted] percent of the contract with subcontractors other than
   those it proposed in its cost proposal, we fail to see how, even if this
   were true, this demonstrates that the agency's cost realism evaluation was
   reasonable. In any event, as noted above, MTJV stated in its technical
   proposal that it would allocate [Deleted] percent of its productive hours
   assigned to Tecnico at that firm's low labor rate to other "miscellaneous
   specialty contractors," which all appear to have higher labor rates than
   Tecnico's. Earl, on the other hand, stated in its technical proposal that
   [Deleted] percent of the contract work would be performed by its
   identified team of subcontractors (whose labor rates were considered in
   the agency's cost realism analysis), and that Earl would "accomplish the
   remaining work with the assistance of our Surge/Specialty Subcontractors"
   (all of which were also specifically identified in Earl's proposal). See
   AR, Tab 5, Earl Technical Proposal, at 25-26. There is no evidence in the
   record, nor has the agency provided any argument, that indicates that any
   of the surge/specialty subcontractors identified by Earl in its proposal
   have higher rates than Earl. In any event, unlike MTJV's unequivocal
   statement that work allotted to Tecnico would be performed by others, Earl
   stated it would perform [Deleted] percent of the contract work, albeit
   with the assistance of the identified surge/specialty subcontractors.[7]

   We also do not agree with the Navy that Earl has failed to demonstrate
   that it was prejudiced by the Navy's unreasonable cost realism evaluation.
   Because the RFP provided for a cost/technical tradeoff basis for award,
   the protester, to demonstrate prejudice, is not required to show, as the
   Navy apparently believes, that the protester's evaluated cost would be
   lower than that of MTJV; rather, Earl need only show a reasonable
   possibility that, but for the agency's actions, it would have had a
   substantial chance of receiving the award. See Magellan Health Servs.,
   B-298912, Jan. 5, 2007, 2007 CPD para. 81 at 17. Here, given our decision
   above that the Navy did not reasonably consider the firm's relative
   technical merit in its source selection, we find a reasonable possibility
   that a reasonable cost realism assessment of MTJV's proposal could result
   in a different award decision. In this regard, we note that in making our
   decision we afforded little weight to the Navy's post-protest argument
   that MTJV's proposal would be selected for award even if its evaluated
   costs were increased by $[Deleted]. See Boeing Sikorsky Aircraft Support,
   B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15.

   In short, we find that the Navy failed to reasonably assess the realism of
   MTJV's proposed costs, as required by the RFP, and that Earl was
   prejudiced by this failure. Earl's protest is also sustained on this
   basis.

   Earl also protests that the Navy unreasonably ignored Earl's proposed
   labor rate based upon performing the RFP's notional work package and
   applied the firm's higher, historical Florida-division-wide rate. In this
   regard, Earl complains that its division-wide labor rate includes "trades
   and skilled manpower" that are not required under its technical approach
   to perform the notional work package. See Earl's Comments at 12-13. The
   Navy responds that the CAP determined that the work under the contract
   would be broader than the items contained in the notional work package and
   therefore "the most appropriate rate to accurately predict the actual cost
   of performance would be Earl's Florida Division yard-wide rate."[8] AR at
   7. There is no evidence in the record that the Navy meaningfully
   considered Earl's explanations during discussions that the firm's
   division-wide rate included labor categories that the protester would not
   use in performing in accordance with its proposed technical approach. In
   the absence of such consideration, what the Navy did was nothing more than
   a verification of the firm's historical rate, and not an adequate cost
   realism analysis assessing the firm's probable cost of performing the
   contract in accordance with its proposed technical approach.

   In any event, as noted above, because the agency did not know the exact
   work to be performed, the Navy provided the notional work package to
   represent the work items typically performed. See AR at 3 n.1. Earl relied
   upon the notional work package to calculate its composite labor rate to
   perform the contract work, as would be expected given the solicitation's
   instructions that offerors base their estimated costs upon the notional
   work package. In assessing the realism of each offeror's proposed costs,
   the agency was required to determine the extent to which the offeror's
   proposed costs represent the offeror's likely costs in performing the
   contract under that offeror's technical approach, assuming reasonable
   economy and efficiency. See FAR sections 15.305(a)(1), 15.404-1(d)(1),
   (2); The Futures Group Int'l, supra, at 3. Assuming that the notional work
   package reflects the likely work to be performed under the contract, the
   agency should have assessed Earl's approach (including its labor mix) to
   performing the notional work package. If the agency believes that the
   notional work package does not reflect the likely work to be performed
   under the contract, we think the agency should consider amending the RFP
   to inform offerors of the work the agency believes would be required.

   The protest is sustained.[9]

   We recommend that the Navy consider whether the RFP should be amended to
   reflect the work the agency believes would likely be performed under the
   contract, and if the RFP is amended, to obtain revised technical and cost
   proposals from the offerors. In the event that the agency does not amend
   the RFP, we recommend that, consistent with this decision, the Navy
   perform a new cost realism evaluation, reopen discussions, if necessary,
   and make a new source selection decision that reasonably considers the
   evaluated technical differences in the firms' proposals. If a firm other
   than MTJV is selected for award, the agency should terminate MTJV's
   contract and make award to that other firm. We also recommend that the
   agency reimburse the protester for its reasonable costs of filing and
   pursuing the protests. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1)
   (2007). The protester's certified claim for costs, detailing time expended
   and costs incurred, must be submitted directly to the agency within
   60 days of receiving this decision. 4 C.F.R. sect. 21.8(f)(1).

   Gary L. Kepplinger
   General Counsel

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

   [1] The Navy states that the notional work package, which consists "of a
   representative sample of work items typically performed," was used
   "[b]ecause the exact work to be accomplished" was not known. Agency Report
   (AR) at 3-4 n.1.

   [2] Atlantic Marine and QED, two local contractors, were proposed by Earl
   as significant subcontractors. Earl states that neither Earl nor Atlantic
   Marine and QED consented to MTJV's representation that they would perform
   work as subcontractors to MTJV. See Earl's Comments at 18.

   [3] MTJV informed the Navy that the "Shipyard in a Box" provided resources
   that were available to this contract on an average of 50 to 90 percent of
   the time. See AR, Tab 3, MTJV Discussions Response, at 12. As noted by the
   protester, the costs of transporting the Shipyard in a Box resources to
   Florida were apparently not included in MTJV's cost proposal, although
   those costs would appear to be considerable.

   [4] In response to the Navy's question concerning the size of the on-site
   MTJV production management and execution staff, MTJV also stated that
   "[a]pproximately [Deleted]% of the workload for this contract will be
   executed by other local [master ship repair agreement] and [agreement for
   boat repair] holders that we will solicit to perform work on a competitive
   basis, as the work is identified and scheduled." AR, Tab 3, MTJV Revised
   Technical Proposal, at 1.

   [5] The Navy also suggests that OPNAV Note 4700, which was incorporated in
   the RFP, allows offerors to allocate staffing differently between their
   technical and cost proposals; the agency, however, has failed to direct to
   us any part of this document, nor have we found any part, that allows an
   offeror to propose one allocation of work in its technical proposal but to
   estimate costs in its cost proposal based upon a different allocation of
   work. In this regard, the RFP required offerors to ensure that their
   proposed staffing estimates in their technical and cost proposals
   correlated. RFP sect. L, at 162.

   [6] The record did not provide a burdened labor rate for one
   subcontractor, and we therefore did not include this subcontractor in our
   calculation. Also, the record provided only an unburdened labor rate for
   another subcontractor, which we applied in calculating an average burdened
   labor rate, although we recognize that doing so artificially decreased the
   average burdened rate that we calculated.

   [7] To the extent that the Navy believes that this may be a problem, this
   is a matter that should have been raised with Earl during discussions. See
   TRW, Inc., supra, at 11.

   [8] The Navy, citing our decision in Metro Mach. Corp., B-297879.2, May 3,
   2006, 2006 CPD para. 80, argues that the agency was required to look
   beyond Earl's proposed composite labor rate for the notional work package
   because that rate may not reflect the actual rate that would be applied in
   contract performance. In Metro Mach., we found that the agency could not
   accept, as a part of its realism evaluation, an offeror's promise in its
   cost proposal to perform all the contract work where that offeror stated
   in its technical proposal that it would subcontract a portion of that work
   to other firms. Id. at 12-15. Unlike in Metro Mach., Earl's cost proposal
   is consistent with its technical approach to performing the notional work
   package. In this regard, the Navy has provided no evidence that the
   notional work package does not reflect the contract work that the agency
   expects to be performed.

   [9] Earl raised a number of other protests allegations concerning the
   Navy's evaluation of MTJV's technical proposal and past performance. We do
   not find a sufficient basis in the record to conclude that the agency's
   evaluation was unreasonable in these respects. However, given our
   recommendation below, the Navy may wish to revisit these allegations.