BNUMBER:  B-270125
DATE:  January 18, 1996
TITLE:  Southern Maryland Restoration, Inc.

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Matter of:Southern Maryland Restoration, Inc.

File:     B-270125

Date:   January 18, 1996           

Andres Santos for the protester.
Douglas L. Patin, Esq., Spriggs & Hollingsworth, for Barefoot & 
Company, Inc., an interested party.
J.J. Cox, Esq., and Madeline Shay, Esq., Department of the Army, for 
the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Post-award protest by apparent low bidder whose bid was rejected and 
who verified bid price by asserting that the solicitation did not 
require removal of lead-based paint from wooden windows to be repaired 
or replaced is denied since protester's interpretation would not give 
effect to the solicitation's requirement, when read as a whole, for 
the removal of lead-based paint from these wooden windows. 

DECISION

Southern Maryland Restoration, Inc. (SMR) protests the award of a 
contract to Barefoot & Company, Inc. under invitation for bids (IFB) 
No. DACA31-95-B-0047, issued by the Army Corps of Engineers, Baltimore 
District, for window and pointing requirements at Fort Belvoir, 
Virginia.  The protester contends that the Army improperly rejected 
its apparent low bid.

We deny the protest.

The IFB anticipated award of a fixed-price requirements contract for 
these services, to be performed over 1 base year with up to 2 option 
years.  The bid schedule advised prospective bidders that the 
contractor was to provide all plant, labor, materials, and equipment 
necessary to perform the work in accordance with contract 
specifications, and that unit prices were to encompass all elements of 
performance to be accomplished under each line item.  

Contract line item No. (CLIN) 0001, "Repair of Window Unit," required 
the contractor to repair 1,267 window units over the 3-year contract 
period.  The description under this CLIN stated that "[r]epair of wood 
window shall be in accordance with referenced [construction 
specification] sections and include but shall not be limited to:  . . 
. paint removal . . . ."  One of the construction specification 
sections referenced under this CLIN was entitled "Lead-Based Paint 
(LBP) Abatement and Disposal."  This section listed general lead-based 
paint abatement and disposal requirements, such as submittals, quality 
assurance, safety and health regulatory requirements, and equipment 
and materials, as well as requirements related to the actual execution 
of the work.[1]

Bid opening was on May 3, 1995.  SMR submitted the low bid of 
$997,939, which was approximately 55 percent below Barefoot's next low 
bid of $2,236,720,[2] and 70 percent below the government estimate of 
$3,307,391.  By letter of May 9, the Army asked SMR to review and 
verify its bid in light of these disparities.  SMR verified its bid 
the next day, stating that its unit prices were "in compliance with 
[its] interpretation of the plain language of the specifications."  

The Army was concerned that SMR may not have understood the 
requirements and met with the firm on June 9 to explore this 
possibility.  The Army specifically asked SMR's representatives what 
it meant when it stated that it had complied with its interpretation 
of the specifications.  SMR asserted that its bid had not included any 
amount for removal of lead-based paint because it believed that the 
specifications did not state that the windows contained lead-based 
paint.  The Army disagreed with this interpretation, and advised the 
bidder that it could claim a mistake in bid.  
By letter dated June 16, SMR again verified its bid without claiming a 
mistake, and reasserted its view that the solicitation did not require 
bidders to include the costs for lead abatement for all of the windows 
in the schedule.  SMR pointed to one paragraph within the lead-based 
paint section of the construction specification which stated that "[a] 
space by space inspection shall be conducted with the contracting 
officer.  A written inventory shall be prepared that identifies the 
LBP containing surfaces."  SMR queried why this inventory would be 
necessary if all windows are known to require lead-based paint 
abatement procedures.

The contracting officer asked the District's legal counsel to review 
the IFB and provide advice concerning the presence of any ambiguities.  
Legal counsel advised that the Army could reject SMR's bid under 
Federal Acquisition Regulation (FAR) 
 sec.  14.406-3(g)(5)(ii)[3] because the firm had misinterpreted the 
solicitation's requirements regarding lead-based paint abatement.  
However, she stated that the IFB contained other ambiguities 
associated with this section of the construction specification, and 
recommended that the solicitation be canceled.  The contracting 
officer did so on June 29.

Barefoot subsequently filed a protest in this Office, arguing that the 
Army did not have a compelling reason to cancel the solicitation in 
accordance with FAR  sec.  14.404-1(a)(1).  Barefoot asserted that the Army 
erroneously determined that the IFB contained ambiguous specifications 
or that, to the extent the specifications were ambiguous, they did not 
materially affect the pricing.

The Army submitted its report on August 10, asking our Office to deny 
the protest based upon its view that the IFB contained the ambiguities 
identified by its legal counsel.  In the meantime, the Army reissued 
the requirement under IFB
No. DACA31-95-B-0136, with the lead-based paint specifications 
slightly revised.  On August 28, Barefoot filed its comments in this 
matter, in which it disputed the ambiguities alleged to exist, and 
maintained that even if these ambiguities did exist, they were not 
material.  On September 7, this Office asked the Army to respond to 
Barefoot's specific comments.  The Army notified us on September 14 
that it had reviewed the file in light of Barefoot's comments and 
determined that, based upon a reading of the solicitation as a whole, 
the apparent ambiguities would not have prejudiced any bidders.  The 
Army stated that it intended to reinstate the original IFB, reject 
SMR's bid, cancel the replacement IFB, and award the contract to 
Barefoot.  Barefoot subsequently withdrew its protest, and the Army 
carried out its proposed corrective action.

SMR contends that its interpretation of the solicitation as not 
requiring the contractor to include a price for lead-based paint 
removal is correct, and that it should have received the award as the 
low bidder.

Where, as here, a dispute exists as to the meaning of a solicitation 
provision, our Office will resolve the matter by reading the 
solicitation as a whole and in a manner that gives effect to all of 
its provisions.  Martin Contracting, B-241229.2, Feb. 6, 1991, 91-1 
CPD  para.  121.  Applying this standard here, we find that SMR's 
interpretation is not a reasonable one and that the contracting 
officer's rejection of the bid was proper.

As noted above, the bid schedule's descriptions for CLIN Nos. 0001 and 
0002 require paint removal and reference the lead-based paint 
abatement and disposal section of the construction specification.  In 
addition, paragraph 3.7 of the general statement of work for this 
solicitation specifically states that "[t]he removal of lead paint is 
in the scope of work of this project."  When these provisions are read 
together, it is clear that performance of these CLINs requires the 
removal of lead-based paint from the specified 1,326 window units.      

The passage upon which SMR's interpretation relies is found in the 
part of the lead-based paint abatement and disposal specification 
which describes the submittals required of the contractor.  Among 
other things,

     "[a] space-by-space inspection shall be conducted with the 
     contracting officer.  A written inventory shall be prepared that 
     identifies the LBP containing surfaces.  The Government's LBP 
     Management Plan will be the basis of the inventory.  Areas and 
     materials identified as containing LBP shall be treated unless 
     the Contractor provides analytical evidence stating that the 
     materials are not contaminated with LBP. . . ."

Pointing to this passage, SMR argues that the scope of the work under 
CLIN No. 0001

     "excludes  lead-based paint removal procedures as described
     under [the lead-based paint abatement and disposal specification]
     since the amount of this removal, if any, will be determined by 
the contracting officer and contractor by survey and testing.  The 
unit
     price . . . is restricted to those items that are identifiable 
from the
     window details provided in the specifications . . . ."

Since this interpretation plainly "reads out" of the solicitation the 
CLIN's reference to the lead-based paint abatement and disposal 
specification and the general statement of work's instruction 
concerning lead-based paint, it does not give full effect to the 
Army's obvious intent and is thus unreasonable.  Moreover, when the 
solicitation is read as a whole, the passage relied upon by SMR is 
fully consistent with the provisions the firm would have us ignore.  
The inventory is necessary to identify the "surfaces," "areas," and 
materials" containing lead-based paint, and the lead-based paint 
management plan, referenced in this passage, requires the contractor 
to identify the components containing lead-based paint and abatement 
methods for such components.  The "Repair to Existing Wood Windows" 
specifications, also referenced in the CLIN description, list these 
components as interior stops, upper sashes, transoms, jambs, sills, 
and trim.  Thus, the solicitation anticipates that different 
components within a given window unit may or may not contain 
lead-based paint, and asks the contractor to conduct an inventory 
prior to performance in order to identify these components.  Such 
identification is necessary for the agency to properly complete the 
certification of final cleaning and visual inspection required under 
the lead-based paint abatement and removal specification.

Accordingly, since SMR made it very clear that it did not bid on the 
basis of removing and disposing of lead-based paint, its bid was 
properly rejected pursuant to FAR  sec.  14.406-3(g)(5).  Martin 
Contracting, supra; Kumar Mechanical Inc., B-240433, Nov. 13, 1990, 
90-2 CPD  para.  391.

To the extent that SMR contends that the Army should have specifically 
identified the surfaces containing lead-based paint prior to bid 
opening, or that the specifications were otherwise defective, the 
protest is untimely.  A protest of apparent solicitation improprieties 
must be filed prior to the time established for bid opening.  Bid 
Protest Regulations,  sec.  21.2(a)(1), 60 Fed. Reg. 40,737, 40,740 (1995) 
(to be codified at 4 C.F.R.  sec.  21.2(a)(1) (1996)).     

The protest is denied.

Comptroller General
of the United States

1. CLIN No. 0002, "Replacement of Window Unit," also required paint 
removal and referenced the lead-based paint abatement and disposal 
section of the construction specification.

2. The remaining three bids were in the amounts of $2,608,933, 
$2,933,185, and $3,538,737.

3. This section, now found at FAR  sec.  14.407-3(g)(5), provides for the 
rejection of an obviously erroneous bid if the price is far out of 
line with the amounts of other bids received or if it would be unfair 
to the bidder or the other competitors.