B-124353, JUL. 5, 1955

B-124353, JUL. 5, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR WHICH BERG AND ASH TOOL SUPPLY COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. O.I. (S) 30-127-55-232 DATED JANUARY 18, 1955, WAS BASED.

BY INVITATION FOR BIDS NO. 30-127-S-55-15, DATED DECEMBER 8, 1954, THE SCHENECTADY GENERAL DEPOT REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF THE SURPLUS MATERIALS AND SUPPLIES DESCRIBED UNDER ITEMS 1 THROUGH 28 AND LOTS 29 THROUGH 82. THE FORMAT UNDER THE LOTS CONSISTED OF A SHORT DESCRIPTIVE HEADING, OPPOSITE THE LOT NUMBER, SHOWING THE UNIT FOR PRICING PURPOSES AS 1 LOT, AND A SPACE FOR THE BID PRICE. FOLLOWING SUCH GENERAL DESCRIPTIONS WERE SPECIFIC DESCRIPTIONS, INCLUDING THE APPROXIMATE QUANTITIES AND ESTIMATED COSTS, OF THE VARIOUS MATERIALS LISTED UNDER SUB- ITEM NUMBERS, AND FOLLOWING THE FINAL SUB-ITEM DESCRIPTION WAS THE STATEMENT ,TOTAL ESTIMATED COST OF LOT NO.' SHOWING THE LOT NUMBER DESCRIBED THEREIN ABOVE AND THE ESTIMATED COST. WITH ONE INTERVENING SPACE THE SUCCEEDING LOT NUMBER AND DESCRIPTION FOLLOWED. IN RESPONSE TO THE INVITATION, BERG AND ASH TOOL SUPPLY COMPANY SUBMITTED A BID IN WHICH IT QUOTED A PRICE FOR LOT NO. 42 ONLY. THE PRICE QUOTED ON THAT LOT WAS $1,242.65. THE ABSTRACT OF BIDS SHOWS THAT THE 15 OTHER BIDS RANGED FROM $636.56 TO $26.10. ALSO, IT SHOWS THAT THE 13 BIDS RECEIVED ON LOT 41 RANGED FROM $1,741.34 TO $20. AWARD FOR LOT NO. 42 WAS MADE ON THE BID OF BERG AND ASH TOOL SUPPLY COMPANY, ON JANUARY 18, 1955.

BY LETTER OF JANUARY 20, 1955, IN WHICH RECEIPT OF NOTICE OF THE AWARD WAS ACKNOWLEDGED, BERG AND ASH TOOL SUPPLY COMPANY ALLEGED ERROR IN ITS BID. STATING THAT IT HAD ASSUMED THAT THE BID PRICE SHOULD BE PLACED AFTER THE ESTIMATED COST OF THE LOT, THE COMPANY ASSERTED THAT IT HAD ERRONEOUSLY PLACED THE PRICE WHICH IT INTENDED TO QUOTE FOR LOT NO. 41 IN THE SPACE PROVIDED FOR THE BID PRICE FOR LOT NO. 42. IN THE SAID LETTER AND A LETTER OF MARCH 22, 1955, THE COMPANY INVITED ATTENTION TO THE FACT THAT ITS BID PRICE WAS APPROXIMATELY EQUAL TO THE ESTIMATED COST OF LOT NO. 42, WHEREAS IT WAS APPROXIMATELY 15 PERCENT OF THE ESTIMATED COST OF LOT NO. 41.

IN UNDATED FINDINGS OF FACT, THE CONTRACTING OFFICER REFERRED TO THE FACT THAT LOT NO. 42 COVERED CONSTRUCTION EQUIPMENT WHEREAS LOT NO. 41 COVERED MACHINE PARTS AND TOOLS, AND STATED THAT BERG AND ASH TOOL SUPPLY COMPANY ARE REGULARLY ENGAGED AS DEALERS IN TOOL ROOM EQUIPMENT AND DO NOT HANDLE CONSTRUCTION EQUIPMENT. ALSO, HE INDICATED THAT THE FORMAT OF THE INVITATION IN THIS CASE WAS REGARDED AS CONDUCIVE OF ERRORS SUCH AS ALLEGED IN THIS CASE, AND HAS THEREFORE BEEN CHANGED IN SUBSEQUENT INVITATIONS. HE STATED AS HIS CONCLUSION THAT THE CIRCUMSTANCES WERE SUCH THAT HE SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE COMPANY'S BID, PRIOR TO THE AWARD.

THE RECORD AS INDICATED ABOVE AND AS VIEWED BY THE CONTRACTING OFFICER,ESTABLISHES BEYOND REASONABLE DOUBT THAT BERG AND ASH TOOL SUPPLY COMPANY MADE AN ERROR IN ITS BID AS ALLEGED AND THAT THE COMPANY WAS NOT SOLELY RESPONSIBLE FOR THE ERROR. ACCORDINGLY, CONTRACT NO. O.I. (S) 30- 127-55-232 SHOULD BE CANCELLED WITHOUT LIABILITY TO BERG AND ASH TOOL SUPPLY COMPANY.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S FINDINGS OF FACT, ARE RETURNED.