B-127802, AUG. 2, 1956

B-127802, AUG. 2, 1956

TO THE HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED JUNE 4, 1956, WITH ENCLOSURES, FROM THE COMMISSIONER, FEDERAL SUPPLY SERVICE, FURNISHING THE REPORT REQUESTED BY OUR OFFICE RELATIVE TO AN ERROR THE FIRESTONE TIRE AND RUBBER COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. GS-OOS 2039 WAS AWARDED.

THE FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, WASHINGTON, D.C., BY INVITATION NO. FNW-4E-1595-R-1-31-56 REQUESTED BIDS--- TO BE OPENED FEBRUARY 14, 1956--- FOR FURNISHING TANKS, RUBBER-COATED NYLON FABRIC, SIZE 1, 1,500-GALLON CAPACITY, WATER STORAGE, COLLAPSIBLE, IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS AND DRAWINGS. IN RESPONSE THE FIRESTONE TIRE AND RUBBER COMPANY SUBMITTED A BID OFFERING TO FURNISH THE TANKS AT A PRICE OF $422.10 EACH. THE BID OF THE COMPANY, BEING THE ONLY BID RECEIVED ON THE BANKS, WAS ACCEPTED ON FEBRUARY 15, 1956.

BY LETTER DATED FEBRUARY 27, 1956, THE FIRESTONE TIRE AND RUBBER COMPANY ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT IT DID NOT UNDERSTAND THAT A GROUND CLOTH, IN ADDITION TO A TANK BOTTOM, WAS REQUIRED AND THAT IT FAILED TO INCLUDE THE COST OF THE GROUND CLOTH IN ITS BID PRICE FOR THE TANKS, AND THAT ITS ENGINEERS ASSUMED THAT "TANK BOTTOM" AND "GROUND CLOTH" WERE ONE AND THE SAME THING FOR THE REASON THAT ON THE DRAWING, ITEM 12 OF THE BILL OF MATERIALS IS REFERRED TO AS A "GROUND CLOTH" AND ITEM 12 OF THE PLAN VIEW IS CALLED "TANK BOTTOM.' THE COMPANY REQUESTED THAT THE CONTRACT UNIT PRICE OF THE TANKS BE INCREASED BY $20.06 TO COVER THE BARE COST OF THE GROUND CLOTH. BY LETTER DATED APRIL 2, 1956, THE FEDERAL SUPPLY SERVICE ADVISED THE COMPANY THAT IT WAS WITHOUT AUTHORITY TO GRANT THE RELIEF REQUESTED BUT THAT IT COULD ADDRESS ITS REQUEST FOR RELIEF TO THE COMPTROLLER GENERAL OF THE UNITED STATES.

IN A LETTER DATED MAY 1, 1956, ADDRESSED TO OUR OFFICE, THE COMPANY REQUESTED THAT THE CONTRACT UNIT PRICE OF THE TANKS BE INCREASED BY $21.31 TO COVER THE BARE COST OF THE GROUND CLOTH WHICH, IT ALLEGED, WAS OMITTED FROM ITS BID PRICE FOR THE TANKS. THE COMPANY INVITED OUR ATTENTION TO THE FACT THAT BY LETTER DATED MARCH 29, 1956, ADDRESSED TO THIS OFFICE, IT HAD PREVIOUSLY REQUESTED RELIEF UNDER MARINE CORPS CONTRACT NO. NOM-68586, COVERING THE FURNISHING OF A QUANTITY OF 3,000 GALLON CAPACITY COLLAPSIBLE WATER TANKS, AND STATED THAT THE SAME TYPE OF ERROR WAS MADE IN THAT CASE AS WAS MADE IN THE PRESENT CASE. THE COMPANY'S REQUEST FOR RELIEF UNDER THE MARINE CORPS CONTRACT IS NOW BEING CONSIDERED BY THIS OFFICE UNDER FILE REFERENCE NUMBER B-127586.

THE FIRESTONE TIRE AND RUBBER COMPANY CONTENDS THAT CORPS OF ENGINEERS DRAWING D-9648-1 (GENERAL ASSEMBLY FOR 1,500-GALLON CAPACITY COLLAPSIBLE WATER TANKS) IS MISLEADING IN THAT UNDER BILL OF MATERIALS, ITEM 12 IS LISTED AS GROUND CLOTH, WHEREAS ITEM 12 ON THE PLAN VIEW IS REFERRED TO AS TANK BOTTOM, THUS LEADING THE COMPANY TO BELIEVE THAT BOTH ITEMS WERE ONE AND THE SAME. NO ANSWER TO THIS CONTENTION WAS MADE BY THE FEDERAL SUPPLY SERVICE IN ITS LETTER OF JUNE 4, 1956. HOWEVER, SINCE THE SAME CONTENTION WAS MADE BY THE COMPANY WITH REGARD TO CORPS OF ENGINEERS DRAWING D-10708- 1 (GENERAL ASSEMBLY FOR 1,500-GALLON CAPACITY COLLAPSIBLE WATER TANKS), WHICH IS A PART OF THE SPECIFICATIONS FOR MARINE CORPS CONTRACT NO. NOM- 68586, AND SINCE ITEM 12 ON THAT DRAWING IS LISTED IN THE SAME MANNER AS ITEM 12 WAS LISTED ON CORPS OF ENGINEERS DRAWING D-9648-1 (THE DRAWING IN QUESTION IN THE PRESENT CASE), REFERENCE TO THE REPORT OF THE QUARTERMASTER GENERAL OF THE MARINE CORPS IN THAT CASE WILL BE MADE HERE. IN HIS REPORT OF JULY 23, 1956, THE QUARTERMASTER GENERAL OF THE MARINE CORPS STATED:

"FIRESTONE CONTENDS THAT WHEN THEIR ENGINEERS AND COST ACCOUNTANTS WERE PREPARING THE COSTS ON WHICH A BID COULD BE BASED THEY DID NOT REALIZE THAT A GROUND CLOTH IN ADDITION TO A TANK BOTTOM WAS REQUIRED, WHICH RESULTED IN THE COST OF THE GROUND CLOTH NOT BEING INCLUDED IN THE UNIT PRICE OF $503.85. IT IS FURTHER CONTENDED THAT DRAWING NO. D 10708-1 (GENERAL ASSEMBLY) IS MISLEADING IN THAT UNDER THE BILL OF MATERIALS, ITEM 12 IS LISTED AS GROUND CLOTH, WHEREAS ITEM 12 ON THE PLAN VIEW IS REFERRED TO AS TANK BOTTOM, LEADING THEM TO BELIEVE BOTH ITEMS WERE ONE AND THE SAME.

"EXAMINATION OF DRAWING NO. D 10708-1 WILL REVEAL THAT IT POSSIBLY IS MISLEADING IN THIS RESPECT. ONLY AFTER A DETAILED STUDY OF THE COMPLETE SET OF DRAWINGS (ENCLOSURE (6) ( AND THE PURCHASE DESCRIPTION (ATTACHED TO CONTRACT (ENCLOSURE (5) ( DOES IT CLEARLY APPEAR THAT THE GROUND CLOTH AND TANK BOTTOM ARE NOT ONE AND THE SAME.'

HENCE, WE ARE OF THE OPINION THAT THE MANNER IN WHICH THE SPECIFICATIONS IN THE PRESENT CASE WERE DRAWN UP WAS TO TO SOME DEGREE MISLEADING AND SUBJECT TO POSSIBLE MISINTERPRETATION. IN THE CIRCUMSTANCES, THE COMPANY SHOULD NOT BE REQUIRED TO FURNISH THE TANKS AT THE PRICE QUOTED IN ITS BID.

ACCORDINGLY, CONTRACT NO. GS-OOS-2039 MAY BE AMENDED TO PROVIDE FOR A UNIT PRICE OF $442.35, AND PAYMENT FOR THE TANKS IS AUTHORIZED TO BE MADE ON THAT BASIS.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT TO BE ATTACHED TO THE CONTRACT.