B-104472, JUL 16, 1951

B-104472, JUL 16, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

THERE HAS BEEN RECEIVED A LETTER DATED JULY 3, 1951, WITH ENCLOSURES, FROM WILLIAM A. DAVIS, FIRST LIEUTENANT, USAF, CONTRACTING OFFICER, ELLINGTON AIR FORCE BASE, HOUSTON, TEXAS, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY PURITY BAKERIES CORPORATION, TAYSTEE DIVISION, HOUSTON, TEXAS, TO HAVE BEEN MADE IN QUOTING ON ITEM 1 OF ITS BID.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. SEE 26 COMP. GEN. 993, AND 28 ID. 401. HOWEVER, SINCE A DECISION APPEARS NECESSARY, THE DECISION IS BEING ADDRESSED TO YOU.

THE PROCUREMENT OFFICE, ELLINGTON AIR FORCE BASE, HOUSTON, TEXAS, BY INVITATION NO. 41-435-51-66, REQUESTED BIDS - TO BE OPENED JUNE 4, 1951 - FOR FURNISHING ESTIMATED QUANTITIES OF WHITE, WHOLE WHEAT, RYE AND RAISIN BREAD, ITEMS 1 TO 4, INCLUSIVE, DURING THE PERIOD FROM JULY 1, 1951, TO DECEMBER 31, 1951, INCLUSIVE, UNLESS SOONER TERMINATED UNDER THE PROVISIONS OF THE CONTRACT. ITEM 1 REQUIRES SLICED FRESH WHITE BREAD IN 1 1/2-POUND LOAVES. THE UNIT SPECIFIED IN THE INVITATION FOR ALL ITEMS IS "LB." IN RESPONSE TO THE INVITATION, PURITY BAKERIES CORPORATION, TAYSTEE DIVISION, SUBMITTED AN UNDATED BID WHEREIN IT OFFERED TO FURNISH, TOGETHER WITH ITEM 2, THE WHITE BREAD UNDER ITEM 1 AT A PRICE OF $0.175 PER POUND.

IN A REPORT DATED JULY 3, 1951, FROM THE CONTRACTING OFFICER, IT WAS STATED -

"AT 1:30 P.M. C.S.T., 4 JUNE 1951, INVITATION FOR BID (41-435) 51-66 WAS PUBLICLY OPENED RESULTING IN BIDS FROM THE FOLLOWING FIRMS:

(1) SCHOTTS BAKERY, HOUSTON, TEXAS, SMALL BUSINESS

(2) BAIRDS BAKERY, HOUSTON, TEXAS, LARGE BUSINESS

(3) TAYSTEE BAKERY, HOUSTON, TEXAS, LARGE BUSINESS

(4) FEHR BAKERY, HOUSTON, TEXAS, SMALL BUSINESS

"REPRESENTATIVES FROM BIDDERS (1) AND (4) WERE PRESENT FOR THE OPENING.

BIDDERS (1), (2) AND (4) SUBMITTED EQUAL BIDS ON ITEM 1 AND, AS BIDDER (2) WAS "LARGE" BUSINESS, TENTATIVE AWARD WAS MADE TO BIDDER (4) BY DRAWING OF LOTS IN THE PRESENCE OF REPRESENTATIVES OF BIDDERS (1) AND (4) ON 7 JUNE 1951. (ABSTRACT OF BIDS IS INCLUDED AS INCLOSURE 2)

"ON 11 JUNE 1951 BIDDER (3) CONTACTED THE CONTRACTING OFFICER AND STATED THAT HIS FIRM'S BID WAS BASED UPON A PER LOAF (1 1/2LB) PRICE INSTEAD OF A PER POUND (1 LB) PRICE AS REQUESTED IN THE INVITATION AND THAT BY CONVERTING THE BID AS SUBMITTED TO THE PROPER UNIT SPECIFIED IN THE INVITATION HIS BID WOULD BE LOW. ($0.1167)

"BIDDER (3) SUBMITTED THIS CLAIM IN WRITING ON 12 JUNE 1951. (COPY OF BIDDER'S LETTER IS INCLUDED AS INCLOSURE 3)

"CONTRACTING OFFICER HAD MADE TENTATIVE AWARD BEFORE RECEIVING THE CLAIM OF MISTAKE AND IN ACCORDANCE WITH PARAGRAPH 2-405.2 (B) ASP REGULATION, RECOMMENDS REJECTION OF BIDDERS CLAIM."

IN LETTERS DATED JUNE 12 AND JULY 2, 1951, PURITY BAKERIES CORPORATION, TAYSTEE DIVISION, REITERATED ITS ALLEGATION OF ERROR WITH RESPECT TO ITEM 1 AND REQUESTED THAT THE UNIT PRICE OF SAID ITEM BE CORRECTED TO READ $0.1167 PER POUND.

THE REFERRED-TO "TENTATIVE AWARD" HAS NOT BEEN EXPLAINED, HOWEVER, IT MAY BE THAT IT WAS CONSIDERED THAT AN AWARD IS TENTATIVE PRIOR TO SUCH TIME AS IT IS APPROVED AS REQUIRED BY PARAGRAPH 23 OF THE GENERAL PROVISIONS OF THE INVITATION WHICH SPECIFIES THAT IF THE CONTRACT EXCEEDS $10,000 - WHICH IS THE CASE HERE - THE CONTRACT SHALL BE SUBJECT TO THE WRITTEN APPROVAL OF THE UNDER SECRETARY OF THE AIR FORCE, OR SUCH INDIVIDUAL AS SAID UNDER SECRETARY MAY DESIGNATE, AND SHALL NOT BE BINDING UNTIL SO APPROVED. ASSUMING THAT THE BID OF THE FEHR BAKERY WAS ACCEPTED UNCONDITIONALLY AS TO ITEM 1 - EVEN THOUGH NOT YET APPROVED AS REQUIRED UNDER SAID PARAGRAPH 23 - IT APPEARS THAT AT THE TIME OF SUCH ACCEPTANCE THE CONTRACTING OFFICER WAS NOT ON NOTICE THAT THE PRICE BID BY THE PURITY BAKERIES CORPORATION WAS FOR ONE AND ONE-HALF POUNDS OF BREAD RATHER THAN FOR ONE POUND OF BREAD ON WHICH UNIT BIDS WERE INVITED. ALTHOUGH IT MAY BE THAT THE PURITY BAKERIES CORPORATION MADE AN ERROR IN ITS BID ON ITEM 1, NO ALLEGATION WITH RESPECT THERETO WAS MADE UNTIL AFTER AN AWARD OF SAID ITEM HAD BEEN MADE IN GOOD FAITH TO THE FEHR BAKERY.

ACCORDINGLY, UNDER THE CIRCUMSTANCES, THERE APPEARS NO PROPER BASIS UPON WHICH THIS OFFICE WOULD BE WARRANTED IN DISTURBING THE AWARD MADE TO THE FEHR BAKERY.

A COPY OF THE LETTER OF JULY 3, 1951, FROM THE CONTRACTING OFFICER AND THE PAPERS IN THE CASE ARE TRANSMITTED HEREWITH.