TITLE:  	East Slope Conservation Services, B-282661.2, July 9, 1999
BNUMBER:  B-282661.2
DATE:  July 9, 1999
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East Slope Conservation Services, B-282661.2, July 9, 1999

Decision

Matter of: East Slope Conservation Services

File: B-282661.2

Date: July 9, 1999

Chris Hindoien for the protester.

Triscilla P. Taylor, Esq., and Justin P. Patterson, Esq., Department of the
Interior, for the agency.

Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that solicitation language misled protester to price its offer on
the basis that the agency required acceptance of credit card payment, and
that the solicitation called for experience under agency contracts to be
more highly rated than experience obtained outside the agency is denied
where each allegation is based on protester's misreading of the
solicitation.

DECISION

East Slope Conservation Services protests the award of a contract to Helena
Weed Control under a commercial item solicitation, No. C50-99-2975, issued
as a total small business set-aside by the Bureau of Indian Affairs (BIA),
Department of the Interior, for noxious weed control services on the
Blackfeet Indian Reservation in Montana. East Slope alleges that, had the
solicitation not required offerors to accept payment by Master Card, East
Slope would have submitted the lowest offer. East Slope also alleges that
its successful past performance with BIA should have been evaluated as
superior to the awardee's past performance with another agency.

We deny the protest.

The solicitation was issued on April 14, 1999 with an April 30 closing date.
Section E.3, entitled "EVALUATION-COMMERCIAL ITEMS," provided that an award
would be made to the responsible offeror whose offer conforming to the
solicitation will be most advantageous to the government, price and other
factors considered. That section further set forth the evaluation factors,
stating that: "[t]echnical and past performance, when combined, are
significantly less important than cost or price."

The solicitation incorporated by reference the clause set forth at Federal
Acquisition Regulation (FAR) sect. 52.212-1, which provides in part that offers
must show past performance information including "recent and relevant
contracts for the same or similar items" and "references (including contract
numbers, points of contact with telephone numbers and other relevant
information)." The cover page of the solicitation contained the following
statement: "Indicate on bid if you accept Master Card." Solicitation at A-1.

Seven offers were received. The two lowest offers were submitted by Helena
Weed Control ($36,037.50) and the protester ($38,362.50). On May 3, the
agency contacted the Bureau of Land Management (BLM) for a recommendation
concerning Helena Weed Control's past performance. BLM gave the firm
positive recommendations with respect to its past performance and technical
capabilities under a contract with that agency.

BIA awarded the contract to Helena Weed Control on May 4 based on its low
price and favorable technical and past performance references. East Slope
filed an agency-level protest on May 5, which was denied on May 10, then
filed this protest with our Office on May 12.

East Slope first alleges that the solicitation language on the cover page of
the solicitation, quoted above, required bidders to accept payment by Master
Card and argues that, if the solicitation had permitted otherwise, East
Slope would have reduced its price by its bank fees of 7 percent, and its
bid would then have been the lowest submitted. This position is based on a
reading of the IFB which is clearly unreasonable. The plain words, "Indicate
on bid if you accept Master Card," constitute a request for information. In
this respect, nothing in the solicitation requires an offeror to accept
payment by Master Card, expresses a preference for payment by that means or
indicates that prices will be differentially evaluated depending upon what
form of payment a bidder will accept. To the extent that East Slope is
alleging that the language should have been clearer, the allegation is
untimely under our Bid Protest Regulations since protests based on alleged
defects which are apparent on the face of a solicitation must be filed prior
to the closing date. 4 C.F.R. sect. 21.2(a)(1) (1999). In any event, in order
for an ambiguity--patent or latent-- to exist, the language leading to the
alleged ambiguity must be shown to have two or more reasonable meanings.
DeLancey Printing, B-277698, Nov. 12, 1997, 97-2 CPD para. 139 at 3. Here, the
language is reasonably susceptible only to the meaning that it is a request
for information, not that it is a requirement.

Next, East Slope alleges that its past performance should have been treated
as superior to the awardee's because it has successfully performed the
precise type of BIA contract while Helena Weed Control merely has experience
with contracts in a different Department of the Interior bureau. Again, the
protester has misread the solicitation. The language of the incorporated FAR
clause, quoted above, does not limit the past performance information to be
considered to experience with BIA and nothing else in the solicitation
required offerors to have experience with the contracting agency or
otherwise specified that such experience would entitle an offeror to a
superior rating. If East Slope believes that the solicitation should have
required or given preference to specific experience with BIA, as explained
above this also constitutes an untimely protest of an alleged apparent
solicitation defect.

The protest is denied.

Comptroller General

of the United States