B-128774, AUG. 28, 1956

B-128774: Aug 28, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JULY 27. ITEM NO. 2 WAS DESCRIBED IN THE INVITATION AS FOLLOWS: TABLE UNIT OF QUANTITY MEASURE CABLE. THE FOLLOWING REELS HAVE BEEN IDENTIFIED AS NOS. 11693. OTHER BIDS RECEIVED ON THE ITEM WERE IN THE AMOUNTS OF $0.012. THE BID OF NORMANDY ELECTRIC WIRE COMPANY WAS ACCEPTED AS THE HIGHEST BID ON ITEM NO. 2 AND BECAME THE BASIS OF THE CONTRACT REFERRED TO. THE FILE SHOWS THAT THE WIRE INTENDED TO BE SOLD AS ITEM NO. 2 WAS DELIVERED TO NORMANDY ELECTRIC WIRE COMPANY. THAT THE WIRE WAS IN FACT NO. 10 WIRE. "SOLD "AS IS" F.O.B. CAUTION: INSPECT THE PROPERTY" THERE IS NO INDICATION OR CONTENTION THAT THE CONTRACTOR INSPECTED THE PROPERTY BEFORE SUBMITTING ITS BID.

B-128774, AUG. 28, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 27, 1956, FROM THE ASSISTANT SECRETARY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE REQUEST OF NORMANDY ELECTRIC WIRE COMPANY, BROOKLYN, NEW YORK, FOR A PARTIAL REFUND OF THE AMOUNT PAID BY IT FOR ITEM NO. 2 UNDER CONTRACT NO. DA-066-55-91S, DATED MAY 27, 1955, OR, IN THE ALTERNATIVE, FOR RESCISSION OF THE CONTRACT AND REFUND OF THE PRICE PAID PLUS FREIGHT COSTS INCURRED BY THE CONTRACTOR.

UNDER DATE OF APRIL 12, 1955, WATERTOWN ARSENAL, WATERTOWN, MASSACHUSETTS, ISSUED INVITATION FOR BIDS NO. 19-066-S-55-38 FOR THE SALE OF SURPLUS PROPERTY, BIDS TO BE OPENED MAY 3, 1955. ITEM NO. 2 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

TABLE

UNIT OF

QUANTITY MEASURE

CABLE, G.E. CO. SINGLE, COND. NO. 2 VARNISHED 19,609 FT.

CAMBRIC, LEAD COVERED, 600 VOLTS. 17 WOODEN

REELS, THE FOLLOWING REELS HAVE BEEN IDENTIFIED

AS NOS. 11693, 68816, 13970, 68825, 68819,

69921, 68823, 68817, 68821, 68815, 69916,

69923, 69920, 68820, NO. 10-SOLID 3/64 VC - 3/64

LEAD EST. WEIGHT 12,000 LBS., H5-8 18860 EST.

UNIT COST ?23 FT. LOC. N.E. AREA.

IN RESPONSE TO THE INVITATION, NORMANDY ELECTRIC WIRE COMPANY SUBMITTED A BID OF $0.10373 PER FOOT ON ITEM NO. 2. OTHER BIDS RECEIVED ON THE ITEM WERE IN THE AMOUNTS OF $0.012, $0.0121, $0.0171, $0.025, $0.04124 AND $0.08563. THEREFORE, ON MAY 27, 1955, THE BID OF NORMANDY ELECTRIC WIRE COMPANY WAS ACCEPTED AS THE HIGHEST BID ON ITEM NO. 2 AND BECAME THE BASIS OF THE CONTRACT REFERRED TO. THE FILE SHOWS THAT THE WIRE INTENDED TO BE SOLD AS ITEM NO. 2 WAS DELIVERED TO NORMANDY ELECTRIC WIRE COMPANY, WHICH HAD MADE PAYMENT FOR THE ITEM IN THE AMOUNT OF $2,034.04 COMPUTED AT ITS BID PRICE OF $0.10373 PER FOOT FOR 19,609 FEET, AND THAT THE WIRE WAS IN FACT NO. 10 WIRE.

THE SPACE FOR "DESCRIPTION AND LOCATION OF PROPERTY" IN THE INVITATION CONTAINS THE FOLLOWING:

"SALE OF SERVICEABLE SURPLUS PROPERTY AS DESCRIBED ON CONTINUATION SHEETS.

"SOLD "AS IS" F.O.B. CONVEYANCE

MATERIAL LOCATED AT N.E. AREA WATERTOWN ARSENAL, WATERTOWN, MASS.

CAUTION: INSPECT THE PROPERTY"

THERE IS NO INDICATION OR CONTENTION THAT THE CONTRACTOR INSPECTED THE PROPERTY BEFORE SUBMITTING ITS BID. HOWEVER, BY LETTER DATED JUNE 16, 1955, IT STATED THAT NO. 19 WIRE HAD BEEN DELIVERED TO IT INSTEAD OF NO. 2 WIRE ON WHICH ITS BID WAS BASED. IT REQUESTS A REFUND OF $1,582.31, COMPUTED AT A PRICE OF $0.023 PER FOOT (THE ALLEGED SCRAP VALUE) INSTEAD OF THE BID PRICE OF $0.10373 PER FOOT; OR, IN THE ALTERNATIVE, RESCISSION OF THE CONTRACT.

PARAGRAPH 1 AND 2 OF GENERAL SALE TERMS AND CONDITIONS INCLUDED IN THE INVITATION PROVIDE:

"INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

IN AN UNDATED STATEMENT SIGNED BY THE CONTRACTING OFFICER IT IS STATED:

"THE PROPERTY TURN-IN DATA INDICATES THAT THIS CABLE, ADVERTISED IN THE CONTRACT AS ITEM 2, WAS IN FACT DESCRIBED AS "SINGLE CONDUIT, NUMBER 10.' THE INCLUSION OF BOTH "NO. 2" AND "NO. 10" AS PART OF THE DESCRIPTION CREATED A CONTRADICTION AND APPARENTLY WAS CAUSED BY A CLERICAL ERROR IN PREPARING THE INVITATION FOR BIDS.'

CONSEQUENTLY, IT MAY BE HELD THAT THE ERRONEOUS DESCRIPTION DID NOT FURNISH "THE BEST AVAILABLE INFORMATION" AS STATED IN THE INVITATION. CONSIDERING THIS FACT, THE AMBIGUITY OF THE DESCRIPTION, AND THE CONSIDERABLE DIFFERENCE BETWEEN THE TWO HIGHEST BIDS AND THE OTHER FIVE, WE CONCLUDE THAT A REFUND PROPERLY MAY BE MADE TO THE CONTRACTOR.

AS TO THE PROPER AMOUNT FOR REFUNDING, THE SUCCESSOR CONTRACTING OFFICER IN HIS STATEMENT OF JANUARY 20, 1956, RECOMMENDS THAT AN ADJUSTMENT BE MADE ON THE BASIS OF THE DIFFERENCE BETWEEN THE BID OF NORMANDY ELECTRIC WIRE COMPANY ($0.10373 PER FOOT) AND THE THIRD-HIGH BID ($0.04124 PER FOOT), SINCE THE THIRD-HIGH BIDDER IS SAID TO HAVE INSPECTED THE PROPERTY, WHEREAS THE TWO HIGH BIDDERS APPARENTLY MADE NO INSPECTION. IN THE CIRCUMSTANCES, THE PROPOSED BASIS FOR ADJUSTMENT IS REGARDED AS REASONABLE AND PROPER AND WE OFFER NO OBJECTION TO SUCH ADJUSTMENT. A REFERENCE TO THIS DECISION SHOULD ACCOMPANY THE VOUCHER ON WHICH THE ADJUSTMENT IS MADE.

THE PAPERS TRANSMITTED WITH THE LETTER OF JULY 27, 1956, ARE RETURNED HEREWITH.