B-122682, APR 12, 1955

B-122682, APR 12, 1955

PRECIS-UNAVAILABLE

EDMUND F. MANSURE, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 28, 1955, WITH ENCLOSURES, FROM THE COMMISSIONER, FEDERAL SUPPLY SERVICE, IN RESPONSE TO OUR LETTER DATED JANUARY 28, 1955, REQUESTING A REPORT CONCERNING AN ERROR ALLEGED BY REMINGTON RAND, INC., TO HAVE BEEN MADE IN QUOTING ON ITEM 54-M-180 OF ITS BID ON WHICH CONTRACT NO. GS-03S-13221 WAS AWARDED.

THE FEDERAL SUPPLY SERVICE, WASHINGTON, D.C., BY INVITATION DATED FEBRUARY 24, 1954, REQUESTED BIDS FOR FURNISHING, F.O.B. DESTINATIONS, OFFICE EQUIPMENT, CLASS 54, PART III, SECTION B, AS REQUIRED BY VARIOUS GOVERNMENT AGENCIES DURING THE PERIOD BEGINNING JULY 1, 1954, AND ENDING JUNE 30, 1955. IN THE INVITATION, UNDER PARAGRAPH 6 OF THE SPECIAL PROVISIONS, PROSPECTIVE BIDDERS WERE ADVISED THAT THE GOVERNMENT MIGHT MAKE "MULTIPLE AWARDS TO THOSE RESPONSIBLE BIDDERS WHOSE BIDS *** WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT ***." THE INVITATION SCHEDULE ASLO CONTAINED A PROVISION THAT -

"USE OF THE CONTRACTS ESTABLISHED AS A RESULT OF THIS INVITATION WILL BE MANDATORY UPON CERTAIN GOVERNMENT AGENCIES, AND AVAILABLE FOR USE ON AN OPTIONAL BASIS BY OTHER AGENCIES, ALL AS PROVIDED HEREIN."

IN RESPONSE TO THE INVITATION, REMINGTON RAND, INC., SUBMITTED A BID WHEREIN IT OFFERED TO DELIVER OFFICE EQUIPMENT TO ZONES 1, 2, 3, AND 4, AT THE PRICES SET FORTH OPPOSITE EACH ITEM. ALSO, THE CORPORATION SUBMITTED A BID WHEREIN IT QUOTED AN F.O.B. FACTORY PRICE FOR EACH ITEM. THE BID OFFERING TO DELIVER THE OFFICE EQUIPMENT DESCRIBED UNDER ITEM 54-M-180 TO ZONES 1, 2, 3, AND 4 WAS ACCEPTED ON JUNE 14, 1954. THE ONLY OTHER BID RECEIVED ON THIS ITEM WAS ALSO ACCEPTED, PURSUANT TO THE PROVISION FOR MULTIPLE AWARDS.

BY LETTER DATED NOVEMBER 4, 1954, REMINGTON RAND, INC., ADVISED THAT, IN QUOTING THE F.O.B. DESTINATION PRICES FOR THE NO. 308-5 TAPE TO-CARD CONVERTER AND FOR THE FUNCTION 8 TYPE 3111 SUMMARY PUNCH COVERED BY ITEM 54-M-180, IT HAD MADE SEVERAL TYPOGRAPHICAL ERRORS IN ITS BID; THAT THE TOTAL SHOWN FOR THE FUNCTION 8 TYPE 3111 SUMMARY PUNCH OF $1,362.55, PLUS EXCISE TAX OF $83.40 (REQUIRED BY THE INVITATION TO BE SHOWN SEPARATELY), WAS LISTED AS $723.15 INSTEAD OF $1,445.95 - THE CORRECT TOTAL - IN ZONE 2; AND THAT THE CORRECT PRICES (EXCISE TAX INCLUDED) FOR THE NO. 308-5 TAPE-TO-CARD CONVERTER REQUIRED FOR DELIVERY TO ZONES 1, 2, 3, AND 4 ARE $5,337.90, $5,385, $5,407.60, AND $5,472.50, RESPECTIVELY.

IN LETTERS DATED JANUARY 21 AND MARCH 22, 1955, ADDRESSED TO OUR OFFICE, THE CORPORATION REQUESTED THAT THE CONTRACT BE AMENDED TO REFLECT THE ALLEGED CORRECT PRICES FOR THE ITEMS IN QUESTION. IN ITS LETTER THE CORPORATION EXPLAINED THAT, IN THE PREPARATION OF THE PRICE LIST SUBMITTED WITH ITS BID, IT USED THE COMMERCIAL PRICE SHEET FOR THE REQUIRED EQUIPMENT AS A WORKSHEET. IT EXPLAINED FURTHER THAT A TWO PERCENT TRADE DISCOUNT WAS APPLIED TO THE F.O.B. FACTORY LIST PRICES SHOWN ON THAT SHEET; THAT THE NET AMOUNTS WERE WRITTEN IN PENCIL ON THAT SHEET; AND THAT, IN TRANSFERRING THE NET F.O.B. FACTORY PRICE OF THE NO. 308-5 TAPE- TO-CARD CONVERTER FROM THE WORKSHEET TO THE ROUGH DRAFT OF THE PRICE LIST SUBMITTED WITH ITS BID, IT INADVERTENTLY COPIED THE F.O.B. FACTORY PRICE OF A NO. 308-4 ALPHABETICAL SYNCHRO-MATIC PUNCH WITH VISIBLE AUTOMATIC FEED, WHICH ITEM WAS LISTED ON THE PRECEDING LINE.

IN OUR LETTER DATED MARCH 21, 1955, B-121926, TO THE CHAIRMAN, SELECT COMMITTEE ON SMALL BUSINESS, UNITED STATES SENATE, A COPY OF WHICH WAS FURNISHED TO YOU BY LETTER OF THE SAME DATE, THE LEGALITY OF CERTAIN CONTRACTS WHICH WERE BASED ON MULTIPLE AWARDS WAS DISCUSSED, AND THE CONCLUSION WAS STATED THAT, ON THE BASIS OF THE PRINCIPLES OUTLINED IN THAT LETTER, THE MULTIPLICITY OF AWARDS IS IN ITSELF WHOLLY INCONSISTENT WITH THE EXISTENCE OF ANY OBLIGATION OF THE GOVERNMENT TO ANY INDIVIDUAL CONTRACTOR, AND THAT SUCH CONTRACTS ARE ACCORDINGLY UNENFORCEABLE.

FOR THE SAME REASONS, IT APPEARS THAT REMINGTON RAND, INC., IS NOT OBLIGATED UNDER CONTRACT NO. GS-03S-13221 TO FURNISH THE OFFICE EQUIPMENT DESCRIBED UNDER ITEM 54-M-180 AT THE PRICES SPECIFIED IN ITS BID. THE CORPORATION IS THEREFORE BEING ADVISED THAT IT WILL NOT BE REQUIRED TO ACCEPT ORDERS AT THOSE PRICES.