B-126997, FEB. 29, 1956

B-126997: Feb 29, 1956

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TO HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED FEBRUARY 14. DA 35-026-ENG-26435 WAS BASED. THE LOWEST RECEIVED WAS ACCEPTED AS TO SEVERAL ITEMS INCLUDING ITEMS NOS. 1. LENGTHS OR LONGER WAS INADVERTENTLY OVERLOOKED AND CONSEQUENTLY THE BID PRICE QUOTED WAS BASED ON FURNISHING RANDOM LENGTH LUMBER. 2 AND 3 SHOWS THAT THE TOTAL OF THREE BIDS WERE AS FOLLOWS: CHART BID NO. WAS INFORMED THAT SAID BIDDER ALSO FAILED TO NOTICE THE REQUIREMENT THAT THE LUMBER BE IN LENGTHS OF 16 FT. LONGER AND THAT ITS BID LIKEWISE WAS BASED ON FURNISHING RANDOM LENGTH LUMBER. THAT WAS PURCHASED AUG. 25TH. SINCE THAT TIME DRY BOARDS AND DIMENSION IN THIS AREA HAVE REMAINED PRETTY MUCH UNCHANGED.

B-126997, FEB. 29, 1956

TO HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 14, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS) RELATIVE TO AN ALLEGED ERROR INA BID DATED NOVEMBER 21, 1955, SUBMITTED BY KENNEDY JOHNSEN LUMBER SALES ON WHICH CONTRACT NO. DA 35-026-ENG-26435 WAS BASED. YOU REQUEST A DECISION AS TO WHETHER THE RELIEF SOUGHT BY THE CONTRACTOR MAY BE GRANTED.

IN RESPONSE TO INVITATION NO. ENG-35-026-56-69, KENNEDY-JOHNSEN LUMBER SALES SUBMITTED A BID ON SEVERAL ITEMS INCLUDING ITS BID OF $80.49 PER MFBM, LESS 1 PERCENT 20 DAYS, ON ITEMS 1, 2 AND 3 WHICH COVERED 6,000 1 IN. BY 4 IN., 15,000 1 IN. BY 10 IN., AND 40,000 1 IN. BY 12 IN., RESPECTIVELY, IN LENGTHS OF 16 FT. AND LONGER, AN AGGREGATE OF 61,000 FBM. ITS BID, THE LOWEST RECEIVED WAS ACCEPTED AS TO SEVERAL ITEMS INCLUDING ITEMS NOS. 1, 2 AND 3 ON NOVEMBER 23, 1955. BY TELEPHONED ADVICE ON NOVEMBER 25, 1955, AND BY CONFIRMING LETTER OF THE SAME DATE, THE KENNEDY-JOHNSEN LUMBER SALES ALLEGED THAT IT HAD MADE AN ERROR IN ITS BID IN THAT THE REQUIREMENT THAT THE LUMBER BE IN 16 FT. LENGTHS OR LONGER WAS INADVERTENTLY OVERLOOKED AND CONSEQUENTLY THE BID PRICE QUOTED WAS BASED ON FURNISHING RANDOM LENGTH LUMBER, 6 FT. AND LONGER, AVERAGE 12 FT.

THE SUMMARY OF THE BIDS RECEIVED ON ITEMS 1, 2 AND 3 SHOWS THAT THE TOTAL OF THREE BIDS WERE AS FOLLOWS:

CHART

BID NO. NET DELIVERED PRICE

44 (THE CONTRACTOR) $79.69

40 82.67

7 95.50

IN ITS LETTER CONFIRMING TELEPHONE CONVERSATION OF NOVEMBER 25, 1955, THE CONTRACTOR STATES THAT HE INFORMALLY CHECKED WITH THE SECOND LOW BIDDER ON NOVEMBER 25, 1955, AND WAS INFORMED THAT SAID BIDDER ALSO FAILED TO NOTICE THE REQUIREMENT THAT THE LUMBER BE IN LENGTHS OF 16 FT. AND LONGER AND THAT ITS BID LIKEWISE WAS BASED ON FURNISHING RANDOM LENGTH LUMBER. ALSO THE CONTRACTOR'S LETTER OF NOVEMBER 25, 1955, CONTAINS THE FOLLOWING PERTINENT STATEMENT:

"ACCORDING TO OUR RECORDS, THE LAST LOT OF BOARDS 16 FT. AND LGR. YOUR OFFICE PURCHASED WE QUOTED AND SECURED ON CONTRACT 25725. WE GOT THIS AT $93.49 FOB CAR AND/OR TRUCKS, DESTINATION AND IT CARRIED THE EXACT SAME SPECIFICATION FOR GRADE, LENGTH, ETC., AND FOR EXACTLY THE SAME INSTALLATION. THAT WAS PURCHASED AUG. 25TH, AND SINCE THAT TIME DRY BOARDS AND DIMENSION IN THIS AREA HAVE REMAINED PRETTY MUCH UNCHANGED. OTHER WORDS, WE WERE APPROX. $15.00 PER M CHEAPER THIS TIME FOR THE SAME ITEM, AND THAT BEARS OUT OUR CONTENTION THIS WAS AN OBVIOUS MISTAKE.'

WHILE THESE STATEMENTS ARE UNSUPPORTED BY ANY OTHER EVIDENCE FROM THE CONTRACTOR, THEY SHOULD BE GIVEN CONSIDERABLE WEIGHT IN VIEW OF A STATEMENT IN THE CONTRACTING OFFICER'S FINDINGS OF FACT DATED DECEMBER 7, 1955, WHICH IS AS FOLLOWS:

"SINCE THE BID SUBMITTED BY BIDDER NO. 40 AND NO. 44 COMPARE FAVORABLY WITH THE PRICE FOR STANDARD RANDOM LENGTH BOARDS OF THE SAME GRADE AND THE PRICE QUOTED BY BIDDER NO. 7 IS CONSIDERED A REASONABLE PRICE FOR BOARDS 16 FT. AND LONGER, THERE APPEARS TO BE LITTLE DOUBT THAT THE BIDDER SUBMITTED A QUOTATION IN ERROR.'

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

ACCORDINGLY, THE CONTRACTOR SHOULD BE RELEASED FROM ANY OBLIGATION RESULTING FROM THE ACCEPTANCE OF ITS BID ON THE ITEMS IN QUESTION.