A-92817, APRIL 5, 1938, 17 COMP. GEN. 814

A-92817: Apr 5, 1938

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CONTRACTS - SPECIFICATIONS - IMMATERIAL OMISSIONS - CONTRACTOR'S LIABILITY WHERE MATERIAL REQUIRED BY THE GOVERNMENT IS AVAILABLE IN ONLY TWO SIZES. BIDS APPARENTLY WERE NOT AFFECTED BY THE SIZE. THE BIDDER TO WHOM AWARD WAS MADE MAY NOT BE EXCUSED FROM PERFORMANCE BECAUSE THE ADVERTISED SPECIFICATIONS FAILED TO STATE A PARTICULAR SIZE. IF IT IS ASCERTAINED THAT THE PRICE IS THE SAME FOR BOTH SIZES. REFERENCE IS MADE TO YOUR LETTER OF MARCH 3. IN WHICH THE DECISION WAS RENDERED THAT THE SWEDISH IRON AND STEEL CORP. CONTRACTOR WAS INFORMED ON MARCH 4. CONTRACTOR INVITED ATTENTION TO AN OMISSION IN CONNECTION WITH THE ADVERTISEMENT AND THE ACCEPTANCE IN THAT NO SIZE WAS GIVEN ON THE ITEM OF 2.

A-92817, APRIL 5, 1938, 17 COMP. GEN. 814

CONTRACTS - SPECIFICATIONS - IMMATERIAL OMISSIONS - CONTRACTOR'S LIABILITY WHERE MATERIAL REQUIRED BY THE GOVERNMENT IS AVAILABLE IN ONLY TWO SIZES, AND BIDS APPARENTLY WERE NOT AFFECTED BY THE SIZE, THE BIDDER TO WHOM AWARD WAS MADE MAY NOT BE EXCUSED FROM PERFORMANCE BECAUSE THE ADVERTISED SPECIFICATIONS FAILED TO STATE A PARTICULAR SIZE, IF IT IS ASCERTAINED THAT THE PRICE IS THE SAME FOR BOTH SIZES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE QUARTERMASTER, WEST POINT, NEW YORK, APRIL 5, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 23, 1938, AS FOLLOWS:

1. REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1938, FILE A-92817, IN WHICH THE DECISION WAS RENDERED THAT THE SWEDISH IRON AND STEEL CORP. SHOULD BE INSTRUCTED TO FURNISH CERTAIN STEEL AS OFFERED IN THIS CORPORATION'S BID SUBMITTED IN CONNECTION WITH INVITATION FOR BIDS NO. MA 1052-38-74 AND ACCEPTED BY PURCHASE ORDER NO. 1052-38-2172. IN CONFORMITY WITH THAT DECISION, CONTRACTOR WAS INFORMED ON MARCH 4, 1938, TO PROCEED WITH THE FULFILLMENT OF ITS CONTRACT OR SUFFER ANY EXCESS COST OCCASIONED BY OPEN-MARKET PURCHASE AGAINST ITS ACCOUNT. ON MARCH 7, 1938, CONTRACTOR INVITED ATTENTION TO AN OMISSION IN CONNECTION WITH THE ADVERTISEMENT AND THE ACCEPTANCE IN THAT NO SIZE WAS GIVEN ON THE ITEM OF 2,000 LBS. OF HOLLOW DRILL STEEL, AND REQUESTED THAT BECAUSE OF THIS OMISSION THE MATTER BE REFERRED AGAIN TO THE ACTING COMPTROLLER GENERAL FOR FURTHER CONSIDERATION. UNDER DATE OF MARCH 18, 1938, CONTRACTOR REFUSED TO CONSIDER THE CONTRACT BINDING BECAUSE OF THE OMISSION IN SIZE.

2. BECAUSE OF THIS POSSIBLY EXTENUATING CIRCUMSTANCE, ALL PAPERS ARE BEING REFERRED TO YOUR OFFICE AGAIN. IN CONSIDERING THIS MATTER, IT IS FELT THAT A NUMBER OF FACTS SHOULD BE BROUGHT TO YOUR ATTENTION. WHILE IT IS TRUE THAT THE SIZE OF THE HOLLOW DRILL STEEL REQUIRED WAS OMITTED IN THE INVITATION FOR BIDS, AND THIS CIRCUMSTANCE NOT NOTED AT THE TIME THE ACCEPTANCE WAS MAILED, IT WILL BE OBSERVED THAT THE PROTESTING CONTRACTOR NEVERTHELESS OFFERED A BID ON THE STEEL AND RAISED NO QUESTION PRIOR TO THE OPENING OF BIDS BECAUSE OF THE OMISSION OF SIZE. IF SIZE WERE A CONTROLLING FACTOR IN DETERMINING THE SELLING PRICE, HOW COULD THIS BIDDER SUBMIT BID WITHOUT KNOWING THE SIZE REQUIRED? AS A MATTER OF FACT, AN EXAMINATION OF THE ABSTRACT OF BIDS WILL DISCLOSE THAT FOUR BIDS WERE RECEIVED ON THE ITEM IN QUESTION, AND THAT IN ONLY ONE INSTANCE DID A BIDDER LIMIT HIS LIABILITY TO FURNISH A DEFINITE SIZE OF STEEL. IN THIS CASE, BIDDER OFFERED A PRICE FOR HOLLOW DRILL STEEL IN EITHER 7/8 INCH OR 1 INCH SIZE. THE FACT THAT THREE BIDDERS OUT OF FOUR OFFERED PRICES WITHOUT KNOWING OR INQUIRING AS TO THE SIZE REQUIRED, WOULD SEEM PRIMA FACIE EVIDENCE THAT THE SIZE WAS AN IMMATERIAL CONSIDERATION, AND THAT REGARDLESS OF THE SIZE REQUIRED OR FURNISHED THE BID PRICE WOULD PREVAIL. FURTHER LIGHT IS SHED ON THIS MATTER BY CONSULTING THE ATLANTIC SEABOARD EDITION OF THE STOCK BOOK, ISSUED BY THE CRUCIBLE STEEL CO. OF AMERICA, A COPY OF WHICH ACCOMPANIES. ON PAGE 70 OF THIS STOCK BOOK WILL BE FOUND THE VARIETY OF STEEL IN DISPUTE--- HOLLOW DRILL STEEL. UNDER THE HEADING "HEXAGON," WHICH WAS THE SHAPE SPECIFIED IN INVITATION FOR BIDS, WILL BE FOUND ONLY TWO SIZES AVAILABLE--- 7/8 INCH AND 1 INCH. THIS FACT WOULD SEEM TO ADDUCE THAT HEXAGON HOLLOW DRILL STEEL IS A COMMERCIAL PRODUCT IN ONLY TWO SIZES. THE BID OF THE CRUCIBLE STEEL CO. IN OFFERING EITHER 7/8 INCH OR 1 INCH HEXAGON HOLLOW DRILL STEEL AT THE SAME PRICE WOULD FURTHER EVIDENCE THE BELIEF THAT THE OMISSION OF THE SIZE IN THIS INSTANCE WAS IMMATERIAL AND IRRELEVANT, AND THAT THE SWEDISH IRON AND STEEL CORP. IS GRASPING AT A TECHNICALITY TO AVOID ITS LEGAL AND BINDING OBLIGATIONS.

3. IT IS REQUESTED THE ADDITIONAL DATA SUBMITTED HEREWITH BE GIVEN CONSIDERATION BY YOUR OFFICE, AND THE OPINION RENDERED AS TO WHETHER, IN THE CIRCUMSTANCES, THE SWEDISH IRON AND STEEL CORP. CAN BE COMPELLED TO SUPPLY 1 INCH HEXAGON HOLLOW DRILL STEEL IN CONFORMITY WITH SPECIFICATIONS.

4. FOR YOUR INFORMATION, THE SWEDISH IRON AND STEEL CORP. HAS SINCE DELIVERED ALL ITEMS ON ORDER NO. 1052-38-2172 EXCEPT ITEM 1, THE ITEM NOW IN DISPUTE.

WHILE THE NEEDS OF THE GOVERNMENT SHOULD IN ALL CASES BE ADEQUATELY DESCRIBED IN THE INVITATION UPON WHICH BIDS ARE TO BE BASED, IN VIEW OF THE FACTS SET FORTH IN YOUR LETTER, QUOTED ABOVE, IT WOULD APPEAR THAT THE FAILURE TO STATE THE SIZE OF THE STEEL REQUIRED IN THIS CASE WAS IMMATERIAL. IF, AS APPEARS FROM YOUR LETTER, HOLLOW DRILL STEEL IS AVAILABLE ONLY IN 7/8-INCH AND 1-INCH SIZES, AND IT IS ASCERTAINED THAT THE PRICE IS THE SAME FOR BOTH SIZES, THE SWEDISH IRON AND STEEL CORPORATION SHOULD BE REQUIRED TO FURNISH 1-INCH HEXAGON HOLLOW DRILL STEEL AT THE PRICE STATED UNDER ITEM 3 OF ITS ACCEPTED BID.

YOUR QUESTION IS ANSWERED ACCORDINGLY.