TITLE:  Input Solutions, Inc., B-294123, August 31, 2004
BNUMBER:  B-294123
DATE:  August 31, 2004
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   Decision

   Matter of:   Input Solutions, Inc.

   File:            B-294123

   Date:              August 31, 2004

   Joel S. Rubinstein, Esq. and Lawrence M. Prosen, Esq., Bell, Boyd & Lloyd,
for the protester.

   Todd Glass for Progressive Technology Federal Systems, Inc., an
intervenor.

   Emily Vartanian, Esq., Library of Congress, for the agency.

   Susan K. McAuliffe, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester*s contention that certain statements made by the contracting
officer in an e-mail message created a latent ambiguity in a
solicitation*s performance requirements is denied where protester*s
interpretation of the communication was unreasonable and, as a result, no
latent ambiguity was created.  Moreover, if we accepted the protester*s
interpretation of the communication, the ambiguity would be patent, not
latent, and its protest, at this juncture, would be untimely.

   DECISION

   Input Solutions, Inc. (ISI) protests the issuance of a delivery order to
Progressive Technology Federal Systems, Inc. (PTFS) under request for
quotations (RFQ) No.A LC04-Q-1984, issued by the Library of Congress for
scanning and conversion of microfilm document images to digitized images
in portable document format (PDF) files.  ISI, the incumbent contractor
for these services, contends that it was misled by certain statements made
by the contracting officer (CO) about the performance requirements.  ISI
contends that the challenged agency communication created a latent
ambiguity in the work requirements and that, as a result, the quotations
received were based on different understandings of the scope of work.

   We deny the protest.

   The RFQ, issued on April 28, 2004, provided limited general performance
specifications for scanning/conversion services, and sought quotes from
General Services Administration Federal Supply Schedule (FSS)
contractors.  The RFQ anticipated, for instance, scanning/conversion of up
to 111,875 standard image pages per 7 business days, with fewer images
expected for nonstandard, low quality film images.  RFQ at 2.  Vendors
were to determine their own performance methods and no technical
information was requested by the RFQ.  In addition to identifying their
FSS contracts for the services, vendors were to provide three prices for
evaluation:  a price per page for standard quality images; a *tier 1* low
quality film surcharge (to be added to its standard quality image page
price) for the conversion of poor quality images; and a *tier 2* low
quality film charge expressed as an hourly rate.  The RFQ provided for a
performance period of slightly more than 1 year and contemplated selection
of the lowest priced vendor.  Id.

   On May 5, ISI contacted the CO by e-mail asking for a *description of the
requirements to perform conversion to standard quality image [and tier 2
low quality image] deliverables,* noting that *[p]ricing is requested . .
. but no description is given.*  E-mail from ISI to CO, May 5, 2004.  The
CO responded that *[t]he nature of the work related to this RFQ is the
same that your company has been doing for the past few years.*  E-mail
from CO to ISI, May 5, 2004.  The CO, recognizing that ISI*s familiarity
with the images and prior conversion work should enable the firm to
understand the nature of the work solicited, stated in his ea**mail
message that *image deliverables should be based on how you previously
provided clear, readable images for the Library for the past few years,*
and that *[a]s the company that has been performing the work for the past
few years I expect you to have intimate knowledge about the nature of the
work, the quality of the material, and the true cost of performing the
service to our satisfaction.*  Id.

   Two quotations, ISI*s and PTFS*s, were received by the agency.  After
finding that both firms were experienced FSS contractors for the
scanning/conversion services, the agency selected PTFS on the basis of its
substantially lower price.  This protest followed.

   ISI contends that it understood the CO*s May 5 e-mail message to require
the company to base its quotation on its *prior experience with the
predecessor RFQ as opposed to the scope of work as described in the RFQ.* 
Protest at 6.  ISI also argues that PTFS*s substantially lower price
indicates that the awardee clearly intends to perform a different scope of
work--presumably, a scope of work less onerous than ISI has performed in
the past.  Thus, ISI contends that the CO*s e-mail message created a
latent ambiguity regarding the RFQ*s performance requirements that first
became apparent when ISI learned of the disparity in prices.[1]

   The agency and the intervenor characterize ISI*s protest as an untimely
challenge to alleged solicitation improprieties that were apparent prior
to the closing time for the receipt of quotations, which ISI was required
to raise before the closing time.  See Bid Protest Regulations, 4 C.F.R. S
21.2(a)(1) (2004).  The protester, however, argues that after it requested
clarification of the RFQ, and after the CO clarified the RFQ for ISI in a
way that ISI apparently believed superseded the terms of the RFQ, it
reasonably assumed all vendors would be provided the same information. 
Thus, ISI contends that the CO*s May 5 e-mail message created a latent
ambiguity in the agency*s performance requirements that could be protested
after the closing time.

   As discussed below, we disagree with ISI*s interpretation of the CO*s
e-mail message.  As a result, we disagree with ISI*s view that the CO*s
e-mail message created a latent ambiguity here.  In addition, even if we
agreed with ISI*s interpretation of the CO*s ea**mail message, it created,
at best, a patent ambiguity that ISI was required to protest prior to the
closing time for the receipt of quotations.

   With respect to ISI*s argument that the CO*s e-mail message provided
explicit direction to incorporate the terms of ISI*s earlier contract
here, our reading of the ea**mail communication, as a whole, is that it
indicates only that the CO thinks ISI should be familiar with the nature
of the work and, as the incumbent, should have sufficient information to
understand the type of work and submit a competitive quotation.  While, as
quoted above, the CO*s message stated that the *image deliverables should
be based on how you previously provided clear, readable images for the
Library,* there is nothing in this general language that imports
requirements from ISI*s predecessor contract into this solicitation. 
Since ISI*s interpretation of the CO*s e-mail is unreasonable, it provides
no support for ISI*s contention that the message created a latent
ambiguity about the work required under the RFQ.  See Ruska Instrument
Corp., B-235247, Aug 7, 1989, 89-2 CPD P 111 at 3. 

   Moreover, since ISI argues that the CO*s e-mail message changed the RFQ*s
general performance terms--and acknowledges that the RFQ was never
amended--the e-mail message, by the terms of ISI*s own argument, created,
at best, a patent ambiguity that had to be protested prior to the closing
time for the receipt of quotations.[2]  4A C.F.R. S 21.2(a)(1); see
Motorola, Inc., B-277862, Dec. 3, 1997, 97-2 CPD P 155 at 7.  In addition,
to the extent ISI contends that the RFQ gave vendors insufficient
information to compete on an equal basis, its challenge had to be filed
prior to the time for submission of quotes.  Contact Int*l Corp.,
B-246937, Dec. 20, 1991, 91-2 CPD PA 571 at 3, aff*d, B-246937.2, Feb. 5,
1992, 92-1 CPD PA 150.  Similarly, to the extent ISI contends that the
agency failed to issue a solicitation amendment to incorporate the CO*s
ea**mail message into the RFQ, this matter also had to be raised prior to
the closing time.   See Texnokpatikh, Ba**245835.2, Feb. 6, 1992, 92-1 CPD
P 153 at 3.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] ISI also contends that the procurement was conducted on an unequal
basis because it was not offered an opportunity to meet with agency
personnel, as PTFS was, to discuss the conversion work.  The agency
responds that, since both firms are experienced FSS contractors for these
services and, since ISI already had familiarity with the microfilm images
and converted PDF files at the Library of Congress, ISI did not need a
meeting, and did not request one.  The agency describes its meeting with
PTFS as brief, and limited to familiarizing PTFS with the Library*s
conversion needs through the review of image samples and converted files. 
We believe it was reasonable for the agency to conclude that ISI was
already familiar with the types of images and conversions applicable here,
and that ISI did not need such a meeting.  Our review of the record leads
us to conclude that the meeting held with PTFS during this procurement was
not prejudicial to ISI, because it did not create an unequal competition
among the vendors.  We also have no reason to believe that the Library
would have refused to meet with ISI had it requested a meeting.

   [2] In this regard, this protest is distinguishable from the cases cited
by the protester that involve procurement improprieties where a protester,
to its competitive disadvantage, was unaware of a material solicitation
clarification by the agency that was shared with its competitors but not
the protester.  See, e.g., Metcalf Const. Co., Inc. v. U.S., 53 Fed. Cl.
617 (2002).  Here, if the e-mail meant what ISI claims, the message was
patently inconsistent with the solicitation*s terms, and ISI knew that no
formal amendment had been issued to incorporate the clarified terms.