B-103129, JUNE 14, 1951, 30 COMP. GEN. 509

B-103129: Jun 14, 1951

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PRIOR TO SUBMISSION OF A BID WHICH WAS ACCEPTED BY THE GOVERNMENT. NEGLIGENTLY FAILED TO FAMILIARIZE HIMSELF WITH THE SPECIFICATIONS AND WAS FOR THAT REASON UNABLE TO FURNISH SUITABLE MATERIAL OF THE GRADE REQUIRED MUST BEAR THE CONSEQUENCES OF HIS NEGLIGENCE AND IS NOT ENTITLED TO HAVE THE PURCHASE ORDER CANCELED WITHOUT FIRST BEING DECLARED IN DEFAULT UNDER THE CONTRACT. 1951: REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. THE GOVERNMENT PRINTING OFFICE WAS DIRECTING A DO-RATED ORDER TO THE CORPORATION FOR THE PRODUCTION OF 40. SHIPMENT OF WHICH WAS TO BE MADE JANUARY 2. THE CORPORATION WAS REQUESTED TO SUBMIT A QUOTATION FOR FURNISHING THE PAPER F.O.B. WAS ADVISED THAT UPON RECEIPT OF THE QUOTATION A FORMAL NUMBERED ORDER WOULD BE ISSUED THEREFOR.

B-103129, JUNE 14, 1951, 30 COMP. GEN. 509

BIDS - MISTAKES - NEGLIGENCE A CONTRACTOR WHO, PRIOR TO SUBMISSION OF A BID WHICH WAS ACCEPTED BY THE GOVERNMENT, NEGLIGENTLY FAILED TO FAMILIARIZE HIMSELF WITH THE SPECIFICATIONS AND WAS FOR THAT REASON UNABLE TO FURNISH SUITABLE MATERIAL OF THE GRADE REQUIRED MUST BEAR THE CONSEQUENCES OF HIS NEGLIGENCE AND IS NOT ENTITLED TO HAVE THE PURCHASE ORDER CANCELED WITHOUT FIRST BEING DECLARED IN DEFAULT UNDER THE CONTRACT.

COMPTROLLER GENERAL WARREN TO THE PUBLIC PRINTER, JUNE 14, 1951:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1951, REQUESTING A DECISION AS TO WHETHER PURCHASE ORDER NO. 109631, ISSUED ON DECEMBER 20, 1950, TO THE RIVERSIDE PAPER CORPORATION FOR THE MANUFACTURE OF 40,000 POUNDS OF CHEMICAL WOOD WHITE MIMEOGRAPH PAPER, FOR THE PRICE OF $6,500, MAY BE CANCELLED.

BY TELETYPE DATED DECEMBER 18, 1950, THE DIRECTOR OF PURCHASES, GOVERNMENT PRINTING OFFICE, ADVISED THE RIVERSIDE PAPER CORPORATION THAT, IN ACCORDANCE WITH REGULATION NO. 2, ISSUED BY THE NATIONAL PRODUCTION AUTHORITY ON OCTOBER 2, 1950, THE GOVERNMENT PRINTING OFFICE WAS DIRECTING A DO-RATED ORDER TO THE CORPORATION FOR THE PRODUCTION OF 40,000 POUNDS (APPROXIMATELY 270,300 SHEETS) OF CHEMICAL WOOD WHITE MIMEOGRAPH PAPER, MEETING CURRENT SPECIFICATIONS FOR LOT 104, SHIPMENT OF WHICH WAS TO BE MADE JANUARY 2, 1951. THE CORPORATION WAS REQUESTED TO SUBMIT A QUOTATION FOR FURNISHING THE PAPER F.O.B. GOVERNMENT PRINTING OFFICE WAREHOUSE OR WAREHOUSE SIDING, AND WAS ADVISED THAT UPON RECEIPT OF THE QUOTATION A FORMAL NUMBERED ORDER WOULD BE ISSUED THEREFOR. IN RESPONSE TO SAID TELETYPE, THE RIVERSIDE PAPER CORPORATION, ON DECEMBER 19, 1950, TELEGRAPHED THE DIRECTOR OF PURCHASES, GOVERNMENT PRINTING OFFICE, AS FOLLOWS:

RETEL PRICE REAM MARKED ON SKIDS $13.75 MILL CARLOAD FREIGHT ALLOWED SHIPMENT WEEK OF JANUARY 2. BY LETTER DATED DECEMBER 22, 1950, THE CORPORATION CONFIRMED ITS PROPOSAL, QUOTED ABOVE, AND IN ACCORDANCE THEREWITH THE PURCHASE ORDER INVOLVED WAS ISSUED AND THE CONTRACT WAS ASSIGNED NO. GP-6198A.

THE SPECIFICATIONS FOR LOT 104 PROVIDED, IN PERTINENT PART, AS FOLLOWS:

FOLDING ENDURANCE; AVERAGE, EACH DIRECTION, NOT LESS THAN ..........DOUBLE FOLDS ( SCHOOPER 20, M.I.T. 10).

SURFACE AND FINISH: SHALL WITHSTAND A DENNISON NO. 11A WAX TEST ON BOTH SIDES OF THE SHEET AND BE FREE FROM LINT, FUZZ, AND LOOSE PARTICLES WHICH WILL PICK OR LIFT UNDER NORMAL CONDITIONS IN USE. THE PAPER MUST BE SUITABLE FOR MULTILITH, MIMEOGRAPH AND LIQUID PROCESS DUPLICATING.

IT APPEARS THAT THE RIVERSIDE PAPER CORPORATION, ON JANUARY 10, 1951, SHIPPED TO THE GOVERNMENT PRINTING OFFICE 40,034 POUNDS OF CHEMICAL WOOD WHITE MIMEOGRAPH PAPER AND THAT, ON FEBRUARY 2, 1951, THE PAPER WAS SAMPLED AND TESTED BY THE TECHNICAL DIRECTOR, GOVERNMENT PRINTING OFFICE, WHO, BY MEMORANDUM DATED FEBRUARY 20, 1951, ADVISED THE PUBLIC PRINTER AND THE BOARD OF INSPECTION THAT THE PAPER FAILED TO COMPLY WITH THE SPECIFICATIONS IN THE FOLLOWING PARTICULARS: (1) IT WAS FOUND TO PICK BADLY; (2) IT WAS LOW IN FOLDING ENDURANCE IN THE ACROSS MACHINE DIRECTION, THE TESTS SHOWING "A FOLD OF 5 AND 4 DOUBLE FOLDS," WHEREAS THE SPECIFICATIONS CALLED FOR 20 DOUBLE FOLDS; AND (3) ITS MIMEOGRAPHING QUALITY WAS NOT SATISFACTORY. THEREUPON, THE CONTRACTOR WAS NOTIFIED THAT THE PAPER WAS CONSIDERED UNSUITABLE FOR USE IN THE GOVERNMENT PRINTING OFFICE AND WAS REQUESTED TO FURNISH SHIPPING INSTRUCTIONS FOR THE REMOVAL THEREOF. YOU STATE, HOWEVER, THAT ONE SKID OF THE PAPER WAS USED BUT THAT THE BALANCE OF 38,245 POUNDS HAS BEEN RETURNED TO THE CONTRACTOR. IN A LETTER DATED MARCH 28, 1951, THE CONTRACTOR STATED THAT IT COULD NOT FURNISH SUITABLE PAPER OF THE GRADE REQUIRED AND, THEREFORE, REQUESTED THAT THE ORDER BE CANCELLED. YOU STATE THAT IT IS BELIEVED THAT THE CONTRACTOR IS UNFAMILIAR WITH YOUR LOT SPECIFICATIONS SINCE IT IS NOT ONE OF YOUR USUAL SUPPLIERS.

THE EXCHANGE OF THE TELEGRAMS, REFERRED TO ABOVE, THE ISSUANCE OF THE PURCHASE ORDER PURSUANT THERETO, AND THE ACCEPTANCE OF THE ORDER BY THE CONTRACTOR RESULTED IN A BINDING CONTRACT WHICH THE GOVERNMENT IS ENTITLED TO HAVE PERFORMED IN STRICT ACCORDANCE WITH ITS TERMS--- INCLUDING THE SPECIFICATIONS WHICH FORMED A PART THEREOF--- AND THE RIGHTS THUS VESTING IN THE GOVERNMENT CANNOT BE WAIVED, GIVEN AWAY OR SURRENDERED BY AN OFFICIAL OF THE GOVERNMENT. SIMPSON V. UNITED STATES, 172 U.S. 372; UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607.

WITH RESPECT TO YOUR SUGGESTION THAT THE RIVERSIDE PAPER CORPORATION IS UNFAMILIAR WITH YOUR LOT SPECIFICATIONS, SINCE IT IS NOT ONE OF YOUR USUAL SUPPLIERS, IT MAY BE POINTED OUT THAT IN THE TELETYPE DATED DECEMBER 18, 1950, IT WAS PLAINLY STATED THAT THE PAPER MUST COMPLY WITH SPECIFICATIONS FOR LOT 104 AND THAT, IN ITS LETTER OF DECEMBER 22, 1950, CONFIRMING ITS TELEGRAPHIC QUOTATION, THE CONTRACTOR STATED THAT THE PAPER WOULD MEET "CURRENT SPECIFICATIONS FOR LOT 104.' HENCE, IF THE CONTRACTOR FAILED TO FAMILIARIZE ITSELF WITH THE SPECIFICATIONS, PRIOR TO THE SUBMISSION OF ITS PROPOSAL, SUCH FAILURE WAS CLEARLY THE RESULT OF ITS OWN NEGLIGENCE AND IT MUST BEAR THE CONSEQUENCES THEREOF. 17 COMP. GEN. 823.

ACCORDINGLY, ON THE PRESENT RECORD, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS FOR THE CANCELLATION OF THE PURCHASE ORDER INVOLVED WITHOUT FIRST DECLARING THE CONTRACTOR IN DEFAULT UNDER THE CONTRACT.

THE PAPERS TRANSMITTED WITH YOUR LETTER ARE RETURNED HEREWITH AS REQUESTED.