TITLE:  Biospherics, Inc., B-285065, July 13, 2000
BNUMBER:  B-285065
DATE:  July 13, 2000
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Biospherics, Inc., B-285065, July 13, 2000

Decision

Matter of: Biospherics, Inc.

File: B-285065

Date: July 13, 2000

Eric J. Marcotte, Esq., Paul S. Ebert, Esq., and Adam B. Walker, Esq.,
Winston & Strawn, for the protester.

Gilbert J. Ginsburg, Esq., and Shlomo D. Katz, Esq., and Daniel B. Abrahams,
Esq., Epstein, Becker and Green, for Aspen Systems Corporation, an
interested party.

Charles Sides, Esq., and Thedlus L. Thompson, Esq., General Services
Administration, for the agency.

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

DIGEST

Protest that contracting agency conducted inadequate and prejudicially
unequal discussions as between the two offerors in the competitive range is
denied where the record shows that, with respect to the item at issue in the
protest, the two proposals did not contain comparable deficiencies requiring
comparable discussions, and the agency provided offerors an equal
opportunity to revise their proposals while properly tailoring their
discussions to each offer.

DECISION

Biospherics, Inc. protests the award of a contract to Aspen Systems
Corporation under request for proposals (RFP) No. TQD-RC-98-0002, issued by
the General Services Administration (GSA) to acquire the services necessary
to manage and operate GSA's Federal Information Center (FIC). Biospherics
primarily contends that GSA conducted inadequate and prejudicially unequal
discussions.

We deny the protest.

BACKGROUND

The FIC is a single point of contact for people with questions about federal
agencies, programs, and services. It currently responds to about 2 million
calls annually, with the most frequent public inquiries concerning workplace
issues, state government matters, immigration and naturalization, federal
taxes, federal employment, savings bonds, government publications,
housing-related concerns, Federal Communications Commission matters, and
disaster assistance. The FIC's information specialists answer inquiries
directly, refer callers to the correct offices, or research the inquiries to
provide suitable responses. FIC Web Site
.

GSA issued this solicitation on November 16, 1998, to acquire the services
necessary to continue managing and operating the FIC; Biospherics has
performed these services since 1989. In addition to answering inquiries
about federal government agencies, programs, services, and related issues,
the contractor will also be responsible for maintaining supporting databases
and web sites; conducting an agency liaison program and certain publicity
efforts; creating and delivering activity and progress reports; and various
other support activities. RFP sect. C.1.1.1. The "most critical element of the
entire program" was the maintenance and support of the FIC's internal-use
database. Post-Negotiation Memorandum at 17. Since the FIC's information
specialists use this database to obtain the information required to answer
public inquiries, the contractor must update, revise, and otherwise maintain
the currency and accuracy of database entries as new resource information
becomes available, currently-included information becomes outdated, or other
changes are needed in database content or entry. RFP sect. C.5.2.1.1.

The solicitation contemplated the award of an indefinite-delivery,
indefinite-quantity contract with a base period from the date of award
through September 30, 2000, and four 1-year option periods. RFP amend. 2, sect.
H.1; amend. 8, sect. B, at B-1; sect. L.3; sect. F.3. GSA planned to make award to the
offeror submitting the lowest-priced, technically acceptable proposal. The
agency was to first review unpriced technical proposals to determine which
were technically acceptable or could, after discussions, be made acceptable.
Section M.1.2 of the RFP set forth seven equally important technical
evaluation factors to be evaluated on a pass/fail basis; a proposal was
required to have a passing grade in all evaluation factors in order to be
technically acceptable. Proposals evaluated as technically acceptable were
then to be evaluated for price. RFP amend. 2, sect. M.1.1.

Offerors were required to provide pricing for a variety of services. While
the most significant effort involved processing inquiries from members of
the public, another service to be priced was the maintenance and support of
the internal-use database. Section B of the RFP included a separate sub-line
item for this service for the base period and for each option period.
Pursuant to RFP sect. M.1.3, the total evaluated price of each offeror's
proposal was to be the sum total of all categories of service for all
contract periods, the price of using the government's inter-city
telecommunications network, and an adjustment for small disadvantaged
business concerns.

GSA received five proposals by the March 23, 1999 extended closing date. The
Technical Evaluation Panel (TEP) concluded that all five were technically
unacceptable, but that those of Aspen and Biospherics were capable of being
made acceptable without a major rewrite. Initial TEP Report at 1-4. The
contracting officer noted the TEP's findings and found that the price
proposals of Aspen and Biospherics compared favorably with the independent
government cost estimate (IGCE). [1] The contracting officer established a
competitive range comprised of the proposals of Aspen and Biospherics. GSA
conducted technical discussions and received revised technical and price [2]
proposals on October 26. The TEP concluded that the revised technical
proposals were still technically unacceptable, and GSA conducted a second
round of discussions. Both offerors submitted revised technical proposals on
November 30. The TEP found both revised proposals to be technically
acceptable, and notified the contracting officer of this finding.

The contracting officer commenced a two-part price analysis of both
proposals. First, he compared each offeror's base period unit pricing to the
same information in the revised IGCE to identify any pricing that was
significantly higher or lower than the IGCE. Second, he evaluated each
offeror's proposed unit pricing from year to year to ensure that the pricing
was balanced over the potential life of the contract. Pricing identified as
significantly high or low, or as unbalanced, was to be raised with offerors
during discussions. Pre-Negotiation Memorandum at 3-5.

GSA flagged Aspen's base period unit pricing to maintain and support the
FIC's internal-use database as significantly lower than the IGCE, and
flagged as excessive the variance in price between Aspen's base period unit
pricing and its first option year pricing for this service. GSA did not flag
Biospherics' pricing for this service at all. [3] Id. On January 7, 2000,
GSA conducted price discussions with Aspen and Biospherics consistent with
its price analysis findings.

One week later, GSA issued amend. 0008, which adjusted quantities in the
base period to reflect the projected period of performance. Along with this
amendment, GSA closed discussions and asked both offerors to submit final
proposal revisions (FPR). GSA's analysis of the FPR prices showed that
several line item prices in both proposals were still significantly higher
or lower than the IGCE pricing. GSA was particularly concerned about Aspen's
proposed base period unit price to maintain and support the FIC's
internal-use database; that price remained significantly lower than both the
IGCE and Biospherics' pricing. Post-Negotiation Memorandum at 17. On March
1, the contracting officer decided to reopen discussions, and GSA developed
questions to determine if Aspen's proposal reflected "cost realism."

On March 2, both offerors were advised that discussions had been reopened.
Biospherics was told that there were no pricing issues to discuss with the
firm at that time. Aspen was told that there were pricing issues to discuss
with the firm; GSA's questions were attached and Aspen was scheduled for
face-to-face negotiations that afternoon. Based on these oral negotiations
and Aspen's written follow-up, in which it added staff to its proposal, GSA
ascertained the reasons for the price disparity and concluded that Aspen was
offering a different, but technically acceptable, solution to maintaining
the internal-use database. The TEP chairman stated that he considered
Aspen's explanation of the technical approach set forth in its FPR to be
reasonable, and found Aspen's plan to add staff to support the internal-use
database reasonable as well. He advised the contracting officer that Aspen
had provided an adequate response to any technical concerns that might have
existed regarding the FPR price to maintain the internal-use database.
Memorandum from TEP Chairman to Contracting Officer (Mar. 4, 2000).

On March 9, the contracting officer held a telephone conference with each
offeror to advise them of various line items that remained significantly
higher or lower than the IGCE. These conferences were followed by letters to
each offeror closing discussions and requesting FPRs. Both offerors
submitted FPRs on March 14. The TEP found Aspen's technical proposal
revisions technically acceptable, and the contracting officer noted that the
firm's price had increased primarily due to its addition of staff in
connection with the internal-use database. Post-Negotiation Memorandum at
18-19.

Aspen's final proposed price was $16,150,874, lower than Biospherics' final
proposed price of $[DELETED] and lower than the IGCE of $17,791,666. Aspen
was awarded the contract as the lowest-priced, technically acceptable
offeror on March 21. Biospherics filed this protest after its debriefing.

ANALYSIS

The central issue in this protest is Biospherics' allegation that GSA
conducted inadequate and prejudicially unequal discussions with respect to
the pricing of the maintenance and support of the FIC's internal-use
database. Biospherics asserts that the offerors' pricing on this service
"mirrored" each other--Aspen's price was significantly lower than the IGCE
and, according to Biospherics, its price was significantly higher than the
IGCE. Biospherics complains that GSA told Aspen during discussions that its
price was significantly lower than the IGCE, but improperly failed to tell
Biospherics that its price was significantly higher than the IGCE. In a
related matter, Biospherics argues that GSA improperly reopened discussions
after receipt of FPRs to allow Aspen to raise its pricing for this service
and revise its technical proposal, thereby improperly favoring Aspen over
Biospherics.

The Federal Acquisition Regulation (FAR) requires that contracting officers
discuss with each offeror being considered for award "significant
weaknesses, deficiencies, and other aspects of its proposal . . . that
could, in the opinion of the contracting officer, be altered or explained to
enhance materially the proposal's potential for award." FAR sect. 15.306(d)(3).
The statutory and regulatory requirement for discussions with all
competitive range offerors (41 U.S.C. sect. 253b(d)(1)(A) (1994); FAR sect.
15.306(d)(1)) means that such discussions must be meaningful, equitable, and
not misleading. While discussions must give offerors an equal opportunity to
revise their proposals, the agency should tailor its discussions to each
offeror's proposal. FAR sect. 15.306(d)(1). The scope and extent of discussions
are a matter of contracting officer judgment. FAR sect. 15.306(d)(3); Tritech
Field Eng'g, Inc., B-255336.2, Apr. 13, 1994, 94-1 CPD para. 261 at 5. Although
an agency may inform an offeror during discussions that its price is
considered to be too high, FAR sect. 15.306(e)(3), the government has no
responsibility to do so where the offeror's price is not considered
excessive or unreasonable. Akal Sec., Inc., B-271385, B-271385.3, July 10,
1996,

96-2 CPD para. 77 at 3; Applied Remote Tech., Inc., B-250475, Jan. 22, 1993,

93-1 CPD para. 58 at 3.

A fundamental premise underlying Biospherics' allegation is its view that
its pricing to maintain and support the internal-use database was
"significantly higher" than the IGCE and should have been raised during
discussions. The record shows that GSA did not share this view.

In conducting his price analysis, the contracting officer first compared
each offeror's base period unit pricing with that of the IGCE to discern any
line items priced either "significantly higher" or "significantly lower"
than the IGCE. A price was deemed to be "significantly low" if it was 50
percent [4] or more below the IGCE pricing, and "significantly high" if it
was 200 percent or more above the IGCE pricing. Pricing that was
"significantly higher" or "significantly lower" than the IGCE was to be
raised during discussions. Next, the contracting officer compared each
offeror's unit pricing year-to-year to see if prices were balanced. If the
year-to-year variance was 10 percent or greater, such variance was to be
raised during discussions. Pre-Negotiation Memorandum at 3-4.

GSA's initial price analysis considered the offerors' October 26, 1999 price
proposals. Biospherics' base period unit price (a monthly price) to maintain
and support the internal-use database was $[DELETED], approximately 9
percent lower than the IGCE of $[DELETED]. Biospherics' year-to-year unit
price variance for this service never exceeded [DELETED] percent.
Pre-Negotiation Memorandum at 7-9. Since Biospherics' pricing for this
service was well within GSA's price analysis parameters, GSA did not include
it as a discussion item. That is, GSA did not believe that Biospherics'
pricing for this service was significantly high--on the contrary, the firm's
base period unit price was lower than the IGCE's base period unit price. [5]

In contrast, Aspen's base period unit price to provide this service was
$[DELETED], more than [DELETED] times lower than the IGCE of $[DELETED]. See
AR, exh. 67, Undated Price Analysis Worksheet. In addition, Aspen's first
option year unit price varied from its base period unit price by
approximately [DELETED] percent. Id. Since Aspen's pricing for this service
was well outside of GSA's price analysis parameters, GSA did include it as a
discussion item. That is, GSA did believe that Aspen's pricing for this
service was significantly low. GSA's price analysis of the initial FPRs
showed that Aspen's base period unit price had increased to $[DELETED],
still substantially lower than the IGCE. GSA's concern over this low price
caused it to reopen discussions.

Since GSA did not consider Biospherics' price for this service to be
excessive or unreasonable, it was not required to raise the issue during
discussions. Akal Sec., Inc., supra, at 3. In contrast, since GSA did
consider Aspen's price for this service to be excessive, it was appropriate
for the agency to raise the issue with Aspen during discussions. GSA
properly tailored its discussions to address its specific concerns with each
offeror's proposal. See CHP Int'l, Inc., B-266053.2, Apr. 29, 1996,

96-2 CPD para. 142 at 7.

Biospherics' assertion that its price was significantly higher than the IGCE
ignores GSA's use of unit pricing to conduct its price analysis and bases
its comparison, instead, on the overall price for providing this service
over the life of the contract. Depending upon which price proposal is used
to make the comparison, Biospherics' overall price to perform this service
is [DELETED] percent higher than the IGCE.

The FAR sets forth several price analysis techniques that may be used to
determine whether prices are reasonable and realistic, one of which is a
comparison of the prices received with an independent government estimate.
FAR sect. 15.404-1(b)(2)(v). While GSA's methodology did obscure the substantial
overall difference between Biospherics' price and the IGCE, we have no basis
to conclude that the agency's price analysis was unreasonable. The depth of
an agency's price analysis is a matter within the sound exercise of the
agency's discretion. The Cube Corp., B-277353, Oct. 2, 1997, 97-2 CPD para. 92
at 5. Even if GSA had compared the proposed overall prices of line items
with the IGCE, it still would not have deemed Biospherics' price to be
significantly high; under GSA's price analysis methodology, only prices 200
percent or higher than the IGCE would have been considered "significantly
high."

That being the case, Biospherics objects that GSA's price analysis
methodology was an improperly "mechanical" or "wooden" approach to making
the price comparison. In support of its position, the protester cites
several of our decisions, all of which concern cost-reimbursement contracts.

Where a cost-reimbursement contract is to be awarded, an offeror's estimated
costs of contract performance should not be considered controlling since the
estimates may not provide valid indications of the final actual costs which
the government is required to pay. See FAR sect. 15.305(a)(1). Consequently, the
contracting agency must perform a cost realism analysis to determine the
realism of an offeror's proposed costs and to determine what the costs are
likely to be under the offeror's technical approach, assuming reasonable
economy and efficiency. FAR sect. 15.404-1(d)(1), (2); Roy F. Weston, Inc.,
B-274945 et al., Jan. 15, 1997, 97-1 CPD para. 92 at 16. Since the conduct of a
cost realism analysis necessarily requires an individualized approach to
analyzing each proposal, including a review of each offeror's cost elements
and technical proposal, this Office has held that the "mechanical" or
"wooden" application of a government estimate, such as the use of a
percentage range into which a contractor's estimate must fall vis-ï¿½-vis that
estimate, is improper. See, e.g., The Jonathan Corp.; Metro Mach. Corp.,
B-251698.3, B-251698.4, May 17, 1993,

93-2 CPD para. 174 at 10-12, recon. denied, B-251698.6, Oct. 19, 1993, 93-2 CPD
para. 233.

It bears repeating that this RFP anticipated the award of a fixed-price
contract, not a cost-reimbursement contract. Realism is ordinarily not
considered in the evaluation of proposals for the award of a fixed-price
contract because the government's liability is fixed, and the risk of loss
is borne by the contractor. Human Resource Sys., Inc.; Health Staffers,
Inc., B-262254.3 et al., Dec. 21, 1995, 96-1 CPD para. 35 at 5. An agency may
provide for a price realism analysis in the solicitation of fixed-price
proposals in order to measure an offeror's understanding of the solicitation
requirements, but this RFP did not provide for a price realism analysis, did
not include price as a consideration in the technical evaluation, did not
require the submission of cost and pricing data, and did not provide for an
evaluation of the offeror's understanding. East/West Indus., Inc.,
B-278734.4, May 28, 1998,

98-1 CPD para. 143 at 5. Instead, GSA used a price analysis technique sanctioned
by the FAR in order to determine that the final agreed-to price for this
fixed-price contract was fair and reasonable. See FAR sect. 15.404-1(a).

GSA explains that the contracting officer established a range of numbers
from the IGCE that could be considered acceptable; any price outside that
range was far enough away from the IGCE to deserve discussion. GSA believed
it was reasonable for the range to extend less on the downside and more on
the upside. According to GSA, proposed prices below the IGCE would raise
concerns about the lack of a clear understanding of the requirements, but
the dynamics of competition would drive prices down to their lowest possible
point, which meant that proposed prices above the IGCE were of less concern.
Supplemental Agency Report (SAR) at 5. In the context of a price analysis,
we cannot conclude that GSA's use of a percentage range to conduct its price
analysis and determine items for discussions was improper.

Biospherics next alleges that the IGCE was arbitrary and not a proper basis
for comparison. While GSA has invited this allegation by failing to
substantiate its IGCE with documentation, [6] we cannot conclude that the
IGCE with respect to the internal-use database, the only line item at issue
here, is arbitrary. GSA states that the IGCE was derived from the prices
currently paid under Biospherics' existing contract for the same or similar
services, as well as numbers substantiated over the years through the
government's observation of the contractor's plant, equipment and labor mix
used to perform the various categories of service. SAR at 2. This statement
is confirmed by the comment in a preaward e-mail that indicates the
"Government's estimate was based on the incumbent's solution." TEP
Chairman's E-Mail to Contracting Officer (Mar. 1, 2000). Biospherics'
assertion that the IGCE is not the price being paid presently for this
service does not mean that the IGCE was not derived from the current prices.
Moreover, the fact that Biospherics' base period unit price was within
[DELETED] percent of IGCE, and its overall price was within [DELETED]
percent of the IGCE, buttresses our conclusion that the IGCE was not
arbitrary. Even if the government estimate were considered to be
unrealistic, the price of a current competitor may be an appropriate measure
of the current market price. See CardioMetrix, B-256407, May 27, 1994, 94-1
CPD para. 334 at 3.

We turn our attention to GSA's reopening of discussions. As discussed above,
the agency's review of the initial FPR pricing showed that several line
items in both proposals were still significantly outside the range
established by GSA's price analysis methodology. Of particular concern,
however, was Aspen's price to maintain and support the FIC's internal-use
database; the firm's base period unit price was still only [DELETED] percent
of the IGCE and [DELETED] percent of Biospherics' price. Post-Negotiation
Memorandum at 17. Since this service is the most critical element of the FIC
program, and since Aspen was the low-priced technically acceptable offeror
in line for award, the contracting officer decided to reopen discussions.

In the process of writing discussion questions for Aspen, the TEP Chairman
told the contracting officer that the answer to the question whether Aspen's
low price indicated a lack of understanding of the requirement lay in the
nature of Aspen's proposal, and not in the government estimate, which was
based upon the incumbent's solution. The TEP Chairman explained that Aspen's
approach was to [DELETED]. In contrast, the incumbent's approach [DELETED].
Both solutions were reasonable, but could lead to a very different
attribution of costs. TEP Chairman's E-Mail to Contracting Officer 1
(Mar. 1, 2000).

During the face-to-face negotiations set up to discuss these questions, GSA
asked Aspen to explain why its price was so low. The contemporaneous meeting
notes show that Aspen explained that it had [DELETED]. Among other things,
the approach allowed Aspen's [DELETED]. GSA indicated that its concern was
focused on the [DELETED]; Aspen said it would look at [DELETED]. GSA advised
Aspen that it was not asking the firm to change its price but to support its
price. GSA's Notes of Negotiations with Aspen (Mar. 2, 2000). In written
confirmation of its answers to GSA's questions, Aspen reiterated its oral
responses and said it had added [DELETED]. Letter from Aspen Regarding
Discussion Questions (Mar. 3, 2000).

The TEP Chairman analyzed Aspen's oral and written responses to the
discussion questions and concluded that the difference between Aspen's
proposal and GSA's price model was based on Aspen's different approach. The
primary reduction in cost had nothing to do with the [DELETED], but, rather,
the [DELETED]. The TEP Chairman concluded that both Aspen's approach and the
existing approach complied with the RFP's requirements. He found the firm's
initial approach and its new approach--with additional staff--technically
acceptable. Memorandum from TEP Chairman to Contracting Officer (Mar. 4,
2000).

On March 9, the contracting officer advised each offeror by telephone of the
line items in their proposals that remained significantly outside of the
IGCE range established by GSA. Post-Negotiations Memorandum at 17. These
conferences were followed by letters to each offeror closing discussions and
requesting FPRs. Biospherics was told that its proposal was technically
acceptable and was cautioned that any changes to the technical proposal
might render it unacceptable. Aspen was told that its proposal was
technically acceptable but that if the information it provided during the
March 2 discussions caused changes to its technical proposal, the firm
should provide these changes as replacement pages. Aspen was also cautioned
that changes in its technical proposal might render it unacceptable. Letter
from GSA to Competitive Range Offerors (Mar. 9, 2000). On March 14, Aspen
submitted a revised price proposal and replacement pages for its technical
proposal consistent with its written responses to the discussion questions.
Biospherics submitted a revised price proposal.

Biospherics complains that GSA's actions here, "in a sense," present a form
of "leveling" that is expressly prohibited by the FAR because it favors one
offeror over another. Protester's Comments at 20.

Solicitations issued after January 1, 1998, such as the one here, are
governed by the FAR, as amended by Federal Acquisition Circular (FAC) No.
97-02. The FAR part 15 rewrite included in this version of the regulation
revised the provisions that apply when an agency is contracting using
negotiated procedures, including those provisions governing exchanges with
offerors after the receipt of proposals, as set forth in FAR sect. 15.306. The
prior version of the FAR contained provisions that could be read to limit
the extent to which agencies could conduct ongoing discussions with an
offeror. For example, agencies were prohibited from engaging in technical
leveling (helping an offeror to bring its proposal up to the level of other
proposals through successive rounds of discussions, such as by pointing out
weaknesses resulting from the offeror's lack of diligence, competence, or
inventiveness in preparing the proposal). See FAR sect. 15.610(d) (June 1997);
Professional Servs. Group, Inc., B-274289.2, Dec. 19, 1996, 97-1 CPD para. 54 at
5. Agencies were also cautioned against reopening discussions after receipt
of best and final offers unless it was clear that the information already
available was inadequate to reasonably justify contractor selection and
award. FAR sect. 15.611(c) (June 1997). These restrictions were eliminated by
the FAR part 15 rewrite. Dynacs Eng'g Co., Inc.,

B-284234 et al., Mar. 17, 2000, 2000 CPD para. __, at 4.

We assume Biospherics is aware that the concept of technical leveling is no
longer part of the regulatory framework governing federal procurements and
is referring solely to the FAR's prohibition against favoring one offeror
over another, found at FAR sect. 15.306(e)(1). Our review of the record leads us
to conclude that GSA did not improperly favor Aspen over Biospherics in this
procurement.

As discussed above, the record does not support Biospherics' premise that
the offerors' proposals "mirrored" each other with respect to the price to
maintain the internal-use database, and thus should have received comparable
discussions. Cf. Chemonics Int'l, Inc., B-282555, July 23, 1999, 99-2 CPD para.
61 at 8. As a result, the fact that GSA raised the issue with Aspen but not
with Biospherics is evidence not of improper favoritism, but of the agency's
appropriate tailoring of discussions to the particular areas of concern in
each proposal.

By the time initial FPRs were requested, GSA had already concluded that both
firms' technical proposals were technically acceptable. Prior to this time,
GSA had only told Aspen that its price for the internal-use database was
significantly lower than the IGCE--it never asked the firm why its price was
so low. [7] It was not until after analysis of the initial FPR pricing, and
the realization that Aspen had not raised its price to a level well within
the IGCE range, that GSA had a basis for concern about this issue. As the
contemporaneous evidence makes clear, GSA thought that the low price might
be reasonable based upon Aspen's different technical approach, but it was
not entirely certain. In an abundance of caution, the contracting officer
reopened discussions to clarify the issue and obtained answers that
satisfied his concerns. In our view, the contracting officer acted within
his discretion in reopening discussions to verify Aspen's understanding of
the most critical aspect of the program.

Biospherics complains that GSA's request for Aspen's second FPR led Aspen to
revise its technical proposal, while the request for Biospherics' second FPR
discouraged the protester from revising its technical proposal. This
complaint is based upon the presence in Biospherics' letter of the phrase,
"You are cautioned that any changes to your technical proposal may render it
unacceptable . . ." However, this phrase, a standard cautionary statement
made in such requests, is also present in Aspen's letter. The fact that
Aspen's letter also advised the firm to provide replacement pages for its
technical proposal if the information provided during discussions made
technical changes does not mean GSA was favoring Aspen, but merely reflects
the nature of the discussions held with Aspen after the reopening. [8]

Biospherics also asserts that GSA's discussions improperly guided Aspen into
providing additional staffing to make its proposal technically acceptable.
However, the record is clear that GSA did not tell Aspen, explicitly or
implicitly, to add more staff to its technical proposal, and that Aspen's
technical proposal was considered to be acceptable either with or without
the additional staff.

Turning to the remainder of Biospherics' allegations, the firm contends that
GSA inadequately evaluated the offerors' compliance with the Service
Contract Act (SCA) [9] wage determinations applicable to their proposals and
failed to ensure that all parties were competing on an equal basis in this
regard.

GSA advised offerors prior to the initial closing date that it did not
intend to verify whether offerors bid pursuant to applicable wage
determinations. RFP amend. 003, Question and Answer No. Q.2.43. GSA properly
explained that an offeror proposing prices based on wages lower than those
in the applicable wage determination did so at its own risk. Id. In this
regard, on a fixed-price contract, where the awardee is required to pay the
actual SCA wages and benefits out of whatever price it offers and where the
proposal contains no indication that the company will not meet its statutory
obligations, labor rates or benefits that are less than the SCA-required
rates or benefits may constitute a below-cost offer but one which is legally
unobjectionable. See Milcom Sys. Corp., B-255448.2, May 3, 1994, 94-1 CPD para.
339 at 9-10.

Aspen did not take exception to the SCA requirements, but specifically
confirmed that it had used the appropriate wage determination in developing
its price proposal. Letter from Aspen to GSA (Feb. 10, 2000). As a result,
Biospherics' contention that GSA should have used some method to ensure that
other offerors who complied with the SCA's requirements are not prejudiced,
citing our decision in SSDS, Inc., B-247596.2, Aug. 7, 1992, 92-2 CPD para. 90,
is inapplicable. [10] As for the protester's complaint, based upon its
experience as the incumbent, that [DELETED], we merely note that Aspen has
taken a new approach to providing this service.

Finally, in its initial protest, Biospherics argued, without detail, that
Aspen had inadequately staffed the project or had submitted a proposal that
will not meet the solicitation's minimum technical requirements. In response
to the first issue, GSA's report explained that Aspen had taken a different
approach with different staffing requirements from that of Biospherics, and
that Aspen's approach had been determined technically acceptable. GSA's
report correctly asserted that the agency could not respond to the second
issue in the absence of any supporting detail. AR at 17-20.

In its comments on the agency report, Biospherics argued that GSA improperly
found Aspen's proposal technically acceptable, again suggesting, with no
detail, that Aspen proposed inadequate staffing. Despite having access to
the entire agency report, which included various iterations of Aspen's
proposal and the evaluation documents, Biospherics did not support this
allegation with anything specific except the fact that there was a
significant deviation between the IGCE and Aspen's price for this service.
It was not until its response to the agency's supplemental report that
Biospherics fleshed out this argument with details. We find the issues
raised in this latter response to be untimely. Under our Bid Protest
Regulations, protests based on other than solicitation improprieties must be
filed within 10 days of when the protester knew or should have known their
bases. 4 C.F.R. sect. 21.2(a)(2) (2000). The regulations do not contemplate the
piecemeal presentation or development of protest issues; where a protester
raises a broad ground of protest in its initial submission but fails to
provide details within its knowledge until later, so that a further response
from the agency would be needed to adequately review the matter, these later
issues will not be considered. Litton Sys., Inc., Data Sys. Div., B-262099,
Oct. 11, 1995, 95-2 CPD para. 215 at 2; Management Sys. Applications, Inc.,
B-259628,

B-259628.2, Apr. 13, 1995, 95-1 CPD para. 216.

The protest is denied.

Comptroller General
of the United States

Notes

1. The procurement record makes numerous references to "cost" despite the
fact that the RFP anticipated the award of a fixed-price contract. For the
sake of clarity, this decision will generally replace the term "cost" with
the term "price."

2. Revised price proposals were submitted, in part, due to the issuance of
amendment 0007 to the RFP, which replaced section B of the solicitation with
a new pricing schedule reflecting quantity changes. GSA revised its IGCE to
reflect these quantity changes. Pre-Negotiation Memorandum at 3.

3. Both offers were flagged for various other pricing issues not relevant to
this protest.

4. According to GSA, the Pre-Negotiation Memorandum misstated the
"significantly lower" standard as 100 percent or more below the IGCE. Agency
Report (AR) at 8 n.1.

5. Biospherics' unit pricing for this service [DELETED]. The firm's overall
price for this service changed slightly from proposal to proposal due to
amended changes in quantity.

6. In response to Biospherics' request that GSA provide documentation of the
IGCE, GSA stated that it did not possess any such documentation. GSA's
Response to Protester's Request for Additional Documents (May 11, 2000).

7. The TEP evaluated the offerors' unpriced technical proposals.

8. In a related matter, GSA's letter to Aspen reopening discussions stated
that it had advised the firm in prior discussions that its price for this
service was significantly lower than the IGCE; the letter referred not to
the evaluated October 26, 1999 price but to the firm's initial, higher,
March 23, 1999 price. Biospherics contends that this statement improperly
guided Aspen to the price level it should propose. However, GSA's contention
that it mistakenly referred to the initial proposal is supported by the
record. Moreover, Biospherics was not prejudiced by this mistake because
even Aspen's highest price was always lower than Biospherics'.

9. This RFP was subject to the Service Contract Act of 1965, 41 U.S.C. sect.sect.
351-58 (1994) (SCA), which establishes the minimum wage rates and fringe
benefits to be paid to service employees based on those prevailing in the
locality. RFP sect. I.8.

10. In that decision, we held that where there is an indication in an offer
that the offeror does not intend to be bound by the terms of the SCA, there
must be some method to ensure that other offerors who have complied are not
prejudiced. SSDS, Inc., supra, at 5.