B-128087, JUN. 18, 1956

B-128087: Jun 18, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED MAY 29. WAS BASED. WERE SOLICITED FOR FURNISHING F.O.B. TO HAVE ONE COAT OF PRIMER COAT (GREEN). BOTTOM PANEL TO HAVE HEAVY MESH SCREENING WIRE OF WIREWAY NUMBER 50.'. BOTH THE ADMINISTRATIVE REPORT AND THE FACTS OF RECORD INDICATE THAT NO PRICE WAS QUOTED ON EITHER THE ABOVE NOTATION OR THE RETURNED "REQUEST FOR QUOTATION" FORM AND THAT. IT IS FURTHER REPORTED ADMINISTRATIVELY THAT IN THE REFERRED-TO TELEPHONE CONVERSATION. INCLUDING THE REQUIREMENT FOR WIREWAY NUMBER 50 " AND THAT THE CONTRACTOR THEN VERBALLY ADVISED THAT ITS PRICE ON EACH ITEM WAS $12 PER DOOR. ON THE BASIS OF THE FOREGOING QUOTATION THE ABOVE-CITED PURCHASE ORDER WAS ISSUED AND FORWARDED TO THE COMPANY ON FEBRUARY 7.

B-128087, JUN. 18, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED MAY 29, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS) RELATIVE TO AN ALLEGED ERROR IN A QUOTATION SUBMITTED BY THE STANDARD SHADE AND SCREEN CO. ON WHICH PURCHASE ORDER NO. OI 1217, DATED FEBRUARY 7, 1956, WAS BASED. YOU REQUEST A DECISION AS TO WHETHER THE RELIEF REQUESTED BY THE CONTRACTOR SHOULD BE GRANTED.

BY FORMAL REQUEST DATED DECEMBER 20, 1955, QUOTATIONS TO BE SUBMITTED PRIOR TO DECEMBER 28, 1955, WERE SOLICITED FOR FURNISHING F.O.B. NATICK, MASSACHUSETTS, WITHIN TWO WEEKS AFTER RECEIPT OF ORDER, FOUR (4) SCREEN DOORS, 3 FEET 0 INCHES BY 6 FEET 8 INCHES BY 1 1/8 INCHES, ITEM NO. 1, AND FOUR (4) SCREEN DOORS, 2 FEET 6 INCHES BY 6 FEET 8 INCHES BY 1 1/8 INCHES, ITEM NO. 2, IN ACCORDANCE WITH FURTHER SPECIFICATIONS, AS FOLLOWS:

"ABOVE ITEMS TO BE CONSTRUCTED OF SELECT GRADE SUGAR PINE, TO HAVE ONE COAT OF PRIMER COAT (GREEN), ALL STILES, TOP AND MIDDLE RAILS MUST BE 3 1/4 INCHES WIDE, BOTTOM RAIL 7 1/2 INCHES WIDE, SCREEN WIRE CLOTH TO BE RUSTPROOF COPPER OR BRONZE 1/16 INCHES MESH NUMBER 20 WIRE, BOTTOM PANEL TO HAVE HEAVY MESH SCREENING WIRE OF WIREWAY NUMBER 50.'

THE RECORD SHOWS THAT, IN RESPONSE THERETO, THE CONTRACTOR RETURNED THE "REQUEST FOR QUOTATION" FORM ACCOMPANIED BY A HANDWRITTEN NOTATION IN INK, INSCRIBED ON ONE OF ITS BLANK INVOICE FORMS, AND THE SAMPLE REFERRED TO THEREIN. THE NOTATION READ AS FOLLOWS:

"WE CAN SUPPLY SCREEN WIRE 14/16 MESH AS SAMPLE NUMBER 0113 (NO. NUMBER 20) WIREWAY NUMBER 50 OK LUMBER OK.'

BOTH THE ADMINISTRATIVE REPORT AND THE FACTS OF RECORD INDICATE THAT NO PRICE WAS QUOTED ON EITHER THE ABOVE NOTATION OR THE RETURNED "REQUEST FOR QUOTATION" FORM AND THAT, THEREFORE, THE PURCHASING AGENT INQUIRED OF THE COMPANY BY TELEPHONE ON FEBRUARY 6, 1956, AS TO ITS PRICE FOR FURNISHING THE DOORS TO BE CONSTRUCTED BY USE OF THE SCREEN WIRE IT OFFERED AS A SUBSTITUTE FOR NO. 20 WIRE AND OTHERWISE IN ACCORDANCE WITH THE SPECIFICATIONS. IT IS FURTHER REPORTED ADMINISTRATIVELY THAT IN THE REFERRED-TO TELEPHONE CONVERSATION, THE PURCHASING AGENT "REVIEWED ALL THE CHARACTERISTICS DESIRED, INCLUDING THE REQUIREMENT FOR WIREWAY NUMBER 50 " AND THAT THE CONTRACTOR THEN VERBALLY ADVISED THAT ITS PRICE ON EACH ITEM WAS $12 PER DOOR, OR A TOTAL BID PRICE OF $96 FOR THE EIGHT DOORS (8) CALLED FOR UNDER THE TWO ITEMS. ON THE BASIS OF THE FOREGOING QUOTATION THE ABOVE-CITED PURCHASE ORDER WAS ISSUED AND FORWARDED TO THE COMPANY ON FEBRUARY 7, 1956.

THE RECORD SHOWS THAT ON FEBRUARY 10, 1956, THE CONTRACTOR ADVISED BY TELEPHONE THAT THE QUOTATION OF $12 PER DOOR DID NOT INCLUDE FURNISHING WIREWAY NUMBER 50 FOR THE BOTTOM PANEL AS THE SPECIFICATIONS IN THE PURCHASE ORDER REQUIRED. IN LETTER DATED FEBRUARY 14, 1956, AFTER FORMALLY ALLEGING THAT ITS QUOTATION OF NUMBER 12 PER DOOR WAS BASED ON USING ONLY SCREEN WIRE IN ACCORDANCE WITH SAMPLE FURNISHED, IT REQUESTED THAT THE PURCHASE ORDER BE CHANGED TO PROVIDE FOR A PRICE OF $18 PER DOOR, A TOTAL CONTRACT PRICE OF $144, FOR THE EIGHT DOORS. UPON BEING REQUESTED TO FURNISH EVIDENCE IN SUPPORT OF ITS CONTENTIONS, THE CONTRACTOR, BY LETTER DATED FEBRUARY 23, 1956, STATED THAT IN RESPONSE TO THE ORIGINAL REQUEST FOR A QUOTATION, IT HAD QUOTED A PRICE OF $12 PER DOOR ACCOMPANIED BY A NOTATION THAT NUMBER 20 WIRE COULD NOT BE SUPPLIED AND THAT IT HAD ENCLOSED A SAMPLE OF THE REGULAR WIRE IT PROPOSED TO USE AS A SUBSTITUTE FOR NUMBER 20 WIRE. IN THIS LETTER IT ALSO STATED THAT THERE WAS NO MENTION OF WIREWAY NUMBER 50 IN ANY OF THE INQUIRIES OR QUOTATIONS.

IT IS TO BE NOTED THAT THE FOREGOING STATEMENTS OF THE CONTRACTOR ARE SUBSTANTIALLY IN CONFLICT WITH THE PERTINENT DOCUMENTARY EVIDENCE OF RECORD, WHEREAS THE REPORT OF THE PURCHASING AGENT IS CONSISTENT THEREWITH. MOREOVER, IN THIS CONNECTION, IT HAS LONG BEEN THE RULE OF OUR OFFICE TO ACCEPT THE REPORT OF ADMINISTRATIVE OFFICERS IN MATTERS INVOLVING DISPUTED QUESTIONS OF FACT IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 3 COMP. GEN. 51, 54; 15 ID. 241, 242; 16 ID. 410, 414; AND 20 ID. 573, 578. IN VIEW THEREOF, AND SINCE THE ORIGINAL SPECIFICATIONS EXPRESSLY REQUIRED THE USE OF NUMBER 50 WIREWAY FOR THE BOTTOM PANEL AND THE CONTRACTOR'S ABOVE- QUOTED ORIGINAL MEMORANDUM SUBMITTED IN RESPONSE TO THE ORIGINAL REQUEST FOR A QUOTATION SPECIFICALLY INDICATES THE CLEAR INTENTION OF MEETING SUCH REQUIREMENT, THE CONCLUSION IS WARRANTED THAT, NOTWITHSTANDING ITS CONTENTION TO THE CONTRARY, THE CONTRACTOR, AT ALL TIMES, WAS ON NOTICE THAT WIREWAY NUMBER 50 WAS REQUIRED FOR THE BOTTOM PANELS AS SPECIFIED. THUS, THE RECORD, AS A WHOLE, TENDS TO CONFIRM THE PURCHASING AGENT'S FACTUAL REPORT PERTAINING TO THE NEGOTIATION BY TELEPHONE RATHER THAN TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.

ALTHOUGH, THE CONTRACTOR'S UNIT PRICE OF $12 ON EACH ITEM IS CONSIDERABLY LESS THAN THE QUOTATION OF $20 EACH ON ITEM NO. 1 AND $18 EACH ON ITEM NO. 2 WHICH WAS RECEIVED FROM THE ONLY OTHER SUPPLIER THAT RESPONDED TO THE ORIGINAL REQUEST FOR QUOTATIONS, APPARENTLY THE CONTRACTING OFFICER WAS NOT PLACED ON NOTICE THEREBY OF ANY ERROR OR MISUNDERSTANDING ON THE CONTRACTOR'S PART AND, IN VIEW OF THE FACTS REPORTED OF RECORD IN THIS CASE, THE DIFFERENCE IN THE TWO QUOTATIONS IS NOT GREAT ENOUGH TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD BE CHARGED WITH CONSTRUCTIVE NOTICE OF ANY ERROR IN THE PRICE QUOTED BY THE CONTRACTOR. ORDINARILY NO FAIR COMPARISON WITH OTHER BIDS CAN BE MADE WHERE ONLY TWO WIDELY VARIANT BIDS ARE RECEIVED. SEE 20 COMP. GEN. 286. FURTHERMORE, IN THE INSTANT CASE, THE CONTRACTOR PROPOSED TO FURNISH AN ALTERNATE TYPE SCREEN IN LIEU OF THE NUMBER 20 WIRE SPECIFIED, TO WHICH FACT THE VARIANCE BETWEEN THE AGGREGATE PRICE OF $96 FOR THE EIGHT DOORS, AS QUOTED BY THE CONTRACTOR, AND THE ONLY OTHER QUOTATION OF $152 RECEIVED THEREFOR MIGHT, IN SOME MEASURE, BE ATTRIBUTABLE.

ACCORDINGLY, THERE IS FOUND OF RECORD NO BASIS FOR RELEASING THE STANDARD SHADE AND SCREEN CO. FROM ITS OBLIGATION TO FURNISH THE DOORS STRICTLY IN ACCORDANCE WITH THE CONTRACT SPECIFICATION AT THE PRICE SPECIFIED THEREFOR IN THE PURCHASE ORDER.

THE PAPERS, WITH THE EXCEPTION OF THE COPY OF THE REPORT DATED APRIL 26, 1956, FROM THE OFFICE OF THE QUARTERMASTER GENERAL TO THE CHIEF, PURCHASES BRANCH AND A COPY OF THE REPORT AND RECOMMENDATION OF THE CONTRACTING OFFICER DATED MARCH 26, 1956, TO THE QUARTERMASTER GENERAL, WITH ATTACHMENTS, ARE RETURNED HEREWITH.