TITLE:  Fox Development Corporation, B-287118.2, August 3, 2001
BNUMBER:  B-287118.2
DATE:  August 3, 2001
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Fox Development Corporation, B-287118.2, August 3, 2001

Decision

Matter of: Fox Development Corporation

File: B-287118.2

Date: August 3, 2001

Patrick T. Fitzgerald, Esq., Meyer Capel, for the protester.

Lynn W. Flanagan, Esq., Department of Agriculture, for the agency.

Jacqueline Maeder, Esq., David A. Ashen, Esq., and John M. Melody, Esq.,
Office of the General Counsel, GAO, participated in the preparation of the
decision.

DIGEST

Agency properly rejected offer for lease of office space that offered space
on each of two floors (the ground and second floors), where solicitation
clearly required that all space be ground floor, contiguous space.

DECISION

Fox Development Corporation protests the rejection of its offer under
solicitation for offers (SFO) No. NRCS-3064-IL-00, issued by the National
Resources Conservation Service (NRCS), Department of Agriculture, for the
lease of office space in Champaign, Illinois.

We deny the protest.

As amended, the SFO (section 1.1, Amount and Type of Space) specified that
the agency required approximately 21,625 square feet (SF) of space and that
"[o]ffers must be for ground floor, contiguous space located in a quality
building . . . ." The SFO also provided that, with respect to space located
outside the city center neighborhood, the "[s]pace offered must be same
floor contiguous space." SFO sect. 1.3(b)(3).

Fox, the incumbent, submitted alternate best and final offers, including one
for newly-constructed space (the only offer in issue here). The
newly-constructed space, located in a two-story building in a university
research park, included a total of 24,625 SF, with 12,417 SF on the first
floor and 12,208 SF on the second floor. Agency Report (AR), Exh. 24, Fox
Proposal, at 1-2. The agency rejected Fox's offer on the basis that it did
not meet the requirements that the space be "ground floor, contiguous space"
and "same floor contiguous space." AR, Exh. 25, Analysis of Offers, at 1;
SFO sect.sect. 1.1(b), 1.3(b)(3). Upon learning of the award to another offeror, Fox
first filed an agency-level protest and then filed this protest with our
Office.

Fox acknowledges that the SFO can be interpreted to require that all the
space offered must be on the ground floor, but argues that it also
reasonably can be interpreted to mean that "the space offered must include
ground floor space." Protest at 4. Fox concludes that, because its offered
space is "vertically contiguous"--that is, on adjacent floors--and includes
ground floor space, it is in compliance with the SFO and should not have
been rejected. Id.

Evaluation and award in negotiated procurements must be in accordance with
the terms of the solicitation. Industrial Data Link Corp., B-248477.2, Sept.
14, 1992, 92-2 CPD para. 176 at 4. Where a protester and agency disagree over
the meaning of solicitation language, we will resolve the matter by reading
the solicitation as a whole and in a manner that gives effect to all its
provisions. Pro Constr., Inc., B-272458, Oct. 10, 1996, 96-2 CPD para. 141 at 3;
Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 4. To
be reasonable, and therefore valid, an interpretation must be consistent
with the solicitation when read as a whole and in a reasonable manner.
Lithos Restoration, Ltd., supra.

NRCS's determination to reject Fox's proposal was consistent with the only
reasonable reading of the SFO. The SFO contained explicit, mandatory design
specifications requiring that the space offered be "ground floor," "same
floor," and "contiguous." Nothing in the SFO indicated that the space could
be on more than one floor or that only some of the space was required to be
on the ground floor. Absent an express exception to the clear and
unequivocal requirement that all space be on the ground floor, it simply was
unreasonable for Fox to interpret the solicitation as allowing some of the
space to be on other than the ground floor. [1] It follows that the agency
properly rejected Fox's proposal for failing to comply with the SFO
requirements.

Fox alleges that the agency has adopted a rigid and unreasonable
interpretation of the technical solicitation requirements based on personal
bias against Fox. However, as we have found that the agency's interpretation
was the only reasonable one, and the record thus supports the agency's
determination that Fox's proposal was technically unacceptable, there is no
basis for a finding of bias. See Red Road Inc., B-283713.2, Mar. 14, 2001,
2001 CPD para. __ at 4.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. In any case, even if the solicitation were susceptible of two reasonable,
but conflicting, interpretations, this conflict would give rise to an
ambiguity. As Fox concedes that the SFO can be read to require all ground
floor contiguous space, any ambiguity would constitute a deficiency on the
face of the solicitation. Under our Bid Protest Regulations, such a
deficiency must be protested prior to the time set for receipt of initial
proposals. 4 C.F.R. sect. 21.2(a) (2001). Fox also alleges that the requirement
for "ground floor, contiguous space" is unreasonable and an overstatement of
the agency's needs. Protest at 7. This argument is untimely for the same
reason. 4 C.F.R. sect. 21.2(a).