B-148412, MAY 9, 1962

B-148412, MAY 9, 1962

TO DECATUR FARMS:

WE HAVE YOUR LETTER OF APRIL 12, 1962, COMMENTING ON OUR DECISION OF AUGUST 9, 1962, AND REQUESTING A SECOND RECONSIDERATION OF OUR CLAIMS DIVISION'S SETTLEMENT DATED FEBRUARY 28, 1962, DISALLOWING YOUR CLAIM PURSUANT TO ITEM 156 OF CONTRACT NO. 62-14, AWARDED ON AUGUST 24, 1961, BY THE VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK.

YOU CONTEND THAT ALL THE POINTS IN YOUR LETTER OF MARCH 6 WERE NOT GIVEN FULL CONSIDERATION. YOU REPEAT YOUR ASSERTION THAT, IN THE ABSENCE OF AN INQUIRY, YOU COULD HAVE SHIPPED A LOWER GRADE PRODUCT THAN THE HOSPITAL DESIRED AND THEREBY DISCHARGED YOUR RESPONSIBILITY. IN REPEATING YOUR CONTENTION THAT YOUR BID WAS UNDER THE FEDERAL SUPPORT PRICE FOR BUTTER AND THEREFORE THE HOSPITAL SHOULD HAVE INQUIRED ABOUT IT, YOU ALSO VENTURE TO GUESS THAT THE AVERAGE PRICE OF OTHER BIDS RECEIVED, EXCLUDING YOURS, WAS SEVERAL CENTS HIGHER THAN YOUR BID.

WE HAVE CONSIDERED THE SEVERAL POINTS IN YOUR LETTER OF MARCH 6 AND IT IS OUR OPINION THAT ALL OF THOSE POINTS WHICH WERE PERTINENT TO YOUR CLAIM WERE DISCUSSED IN OUR DECISION OF APRIL 9, 1962. HOWEVER, SINCE YOU HAVE TAKEN THE TROUBLE TO RESUBMIT YOUR LETTER OF MARCH 6, WE WILL CONSIDER YOUR CONTENTIONS IN THE ORDER OF PRESENTATION.

YOUR FIRST POINT DISPUTES A STATEMENT IN OUR SETTLEMENT OF FEBRUARY 28, 1962, AND INDICATES THAT YOU MISREAD THE DATE OF SEPTEMBER 15 IN OUR STATEMENT REGARDING THE FIRST DATE THAT YOU INDICATED A MISINTERPRETATION OF THE CONTRACT. THE RECORD SHOWS THAT PURCHASE ORDER 708 WAS ISSUED ON AUGUST 25, 1961, FOR DELIVERIES ON SEPTEMBER 5, 12, 19 AND 26, BUT YOU RAISED NO QUESTION ABOUT THE SPECIFICATIONS UNTIL YOU WERE CONTACTED ON SEPTEMBER 5, 1961, REGARDING THE SHIPMENT DUE ON THAT DATE. YOUR ATTENTION IS INVITED TO THE FACT THAT OUR SETTLEMENT STATED THE DATE FROM THE RECORD AS SEPTEMBER 5, 1961, AND NOT SEPTEMBER 15.

YOUR SECOND POINT CONCEDES THAT IT WAS NECESSARY FOR YOU TO FAMILIARIZE YOURSELF WITH THE SPECIFICATIONS BUT EXCUSES YOUR FAILURE TO DO SO BY STATING THAT THE ITEM IS RELATIVELY NEW AND DOES NOT APPEAR IN ANY MANUAL. IT SHOULD NOT BE NECESSARY TO POINT OUT THAT THE INVITATION SPECIFIED THE DEVIATIONS FROM THE VA ITEM IN THE MANUAL IN SOME DETAIL TO INFORM BIDDERS THAT THE PRODUCT REQUIRED WAS NOT THE STANDARD ITEM. YOUR STATEMENT DOES NOT CONSTITUTE A BASIS FOR WAIVER OF THE REQUIREMENTS STATED IN THE SPECIFICATIONS.

YOUR THIRD POINT ALLEGES THAT YOU CONTACTED MR. J. MALLIN, DESCRIBED AS "THE FEDERAL STATE SUPERVISOR IN THIS AREA" WHO INDICATED THAT HE WOULD HAVE ACCEPTED CONVENTIONAL BUTTER CHIPLETS. MR. MELLIN'S AUTHORITY TO ACCEPT ARTICLES ON BEHALF OF THE BUFFALO VETERANS ADMINISTRATION HOSPITAL IS NOT A MATTER OF RECORD. MOREOVER, SINCE YOU DID NOT FURNISH CONVENTIONAL BUTTER CHIPLETS TO THE HOSPITAL, IT IS APPARENT THAT YOU LEARNED ELSEWHERE THAT THE CONVENTIONAL ITEMS WERE NOT ACCEPTABLE.

THE FOURTH POINT IN YOUR LETTER OF MARCH 6 IS GENERAL ALLEGATION THAT YOUR BID PRICE WAS BELOW THE MARKET PRICE AND EVEN THE FEDERAL SUPPORT PRICE AND THEREFORE THE HOSPITAL SHOULD HAVE VERIFIED YOUR BID. YOU ALSO STATE YOUR BELIEF THAT THE GOVERNMENT SHOULD PROTECT THE INTEREST OF A CONTRACTOR AS WELL AS ITS OWN INTEREST. THERE IS NOTHING IN YOUR GENERAL ALLEGATION TO INDICATE THAT THE CONTRACTING OFFICER SHOULD HAVE HAD CONSTRUCTIVE NOTICE OF AN ERROR IN YOUR BID. IN FACT, THE ERROR WAS NOT IN YOUR BID BUT RATHER IN YOUR INTERPRETATION OF THE SPECIFICATIONS. HAD THE CONTRACTING OFFICER INQUIRED IF YOU INTENDED TO BID ?7189 PER POUND, YOUR ANSWER COULD ONLY HAVE BEEN THAT YOU DID INTEND THAT PRICE. YOUR BELIEF THAT THE GOVERNMENT, AS A CONTRACTOR, SHOULD PROTECT THE RIGHTS OF SUPPLIERS WAS ADEQUATELY REBUTTED IN THE CITATION TO SALIGMAN V. UNITED STATION, 56 F.SUPP. 505, 507, WHEREIN THE COURT POINTED OUT THAT THE GOVERNMENT HAS NO OBLIGATION TO PROTECT BIDDERS FROM THE CONSEQUENCES OF THEIR OWN ERRORS.

IN YOUR FIFTH POINT YOU STATE THAT YOU DID NOT CLAIM ADDITIONAL COMPENSATION BECAUSE OF THE DIFFICULTY OF PERFORMANCE OF THE CONTRACT. THERE IS NO QUESTION BUT THAT YOU ARE CLAIMING COMPENSATION ABOVE THE AMOUNT SPECIFIED AND IT IS OBVIOUS THAT THE DIFFICULTY WAS THAT YOU HAD NOT INTENDED TO FURNISH A PRODUCT MEETING THE SPECIFICATIONS.

THE SIXTH POINT IN YOUR LETTER IS YOUR SUGGESTION THAT THE ORIGINAL DESCRIPTION WAS INADEQUATE SINCE A MORE COMPREHENSIVE DESCRIPTION WAS STATED IN SUBSEQUENT PROCUREMENTS. WHETHER A DESCRIPTION IN AN INVITATION IS ADEQUATE DEPENDS, NOT ON OTHER RELATED PROCUREMENTS, BUT UPON THE SPECIFICATIONS IN THE INVITATION IN QUESTION. IT IS OUR OPINION, AS STATED IN THE SETTLEMENT OF FEBRUARY 28, 1962, AND REPEATED IN OUR DECISION OF APRIL 9, 1962, THAT THE INVITATION ADEQUATELY DESCRIBED THE NEEDS OF THE GOVERNMENT FOR BUTTER PATS ON INDIVIDUAL BUTTER CHIPS.

ON THE SECOND PAGE OF YOUR LETTER OF MARCH 6 YOU REPEATED YOUR OPINION THAT THE GOVERNMENT MUST PROTECT THE INTERESTS OF A SUPPLIER AS WELL AS ITS OWN, WHICH YOU ORIGINALLY STATED IN YOUR FOURTH POINT. YOUR SEVENTH POINT ASKED ADVICE ON WHAT FURTHER ACTION OR APPEAL YOU MIGHT PURSUE IF YOUR CLAIM IS NOT ALLOWED. WE RESPONDED AT LENGTH TO THIS REQUEST IN THE FINAL PARAGRAPH OF OUR DECISION OF APRIL 9, 1962.

YOUR LETTER OF APRIL 12, 1962, REQUESTING RECONSIDERATION OF OUR DECISION, PRESENTS NOTHING PERTINENT TO THE QUESTION THAT HAS NOT BEEN CONSIDERED AND REJECTED PREVIOUSLY. YOU EMPHASIZE YOUR BELIEF THAT YOU COULD HAVE DISCHARGED YOUR CONTRACTUAL RESPONSIBILITIES BY SHIPPING CONVENTIONAL BUTTER PATS. NEEDLESS TO SAY, WE CANNOT AGREE WITH THIS CONCLUSION. THE FACT REMAINS THAT CONVENTIONAL PATS DID NOT MEET THE CONTRACT'S REQUIREMENTS AND YOU DID NOT SHIP THEM WHEN YOU LEARNED OF THIS. YOU REPEAT YOUR CONTENTION THAT THE DESCRIPTION WAS INADEQUATE WITHOUT ANY SUBSTANTIAL BASIS FOR YOUR BELIEF THAT BUTTER PATS ON INDIVIDUAL BUTTER CHIPS WERE NOT REQUIRED, EVEN THOUGH THE INVITATION SPECIFICALLY STATED "ON INDIVIDUAL BUTTER CHIPS.'

YOUR GUESS THAT THE AVERAGE PRICE OF ALL BIDS RECEIVED UNDER THE INVITATION, EXCLUDING YOURS, WAS SEVERAL CENTS ABOVE YOUR BID IS A STATEMENT THAT COULD BE MADE ABOUT THE LOW BID IN ANY ADVERTISED PROCUREMENT. ANY TIME A LOW BID IS EXCLUDED AND AN AVERAGE IS COMPUTED FROM A GROUP OF BIDS, ALL OF WHICH ARE HIGHER, THE AVERAGE OF THE HIGHER BIDS MUST, OF NECESSITY, BE HIGHER THAN THE LOW BID. THE RELEVANCE OF THIS CONTENTION TO YOUR CLAIM IS NOT APPARENT.

THE CONTENTIONS IN YOUR LETTER OF MARCH 6, 1962, AND YOUR REPETITION OF THEM IN YOUR LETTER OF APRIL 12, 1962, AFFORD NO BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM IN THIS MATTER. WE MUST AGAIN SUSTAIN THE DISALLOWANCE OF YOUR CLAIM AS CONTAINED IN OUR SETTLEMENT OF FEBRUARY 28, 1962.