B-128931, AUG. 24, 1956

B-128931, AUG. 24, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 9, 1956, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) SUBMITTING FOR CONSIDERATION AND DECISION A REQUEST FOR RELIEF BY O BRIEN PRODUCTS, INC., 550 W. 23D STREET, NEW YORK 11, NEW YORK, FROM THE TERMS OF CONTRACT O.I. 5359 WITH RESPECT TO ITEM 24, ON THE GROUNDS OF AN ALLEGED MISTAKE IN BID.

THE RECORD SHOWS THAT BY INVITATION NO. 12-036-S-56-84, DATED MAY 23, 1956, THE PROPERTY DISPOSAL OFFICER, JEFFERSONVILLE QUARTERMASTER DEPOT, JEFFERSONVILLE, INDIANA, OFFERED FOR SALE VARIOUS ITEMS OF SURPLUS GOVERNMENT PROPERTY, THE BIDS TO BE OPENED JUNE 12, 1956. UNDER DATE OF JUNE 11, 1956, O-BRIEN PRODUCTS, INC., SUBMITTED BIDS ON SEVERAL ITEMS INCLUDING ITEMS 23 AND 24, DESCRIBED IN THE INVITATION AND BID UPON BY THE BIDDER AS FOLLOWS: TABLE "ITEM DESCRIPTION AND LOCATION UNIT OF PRICE BID TOTAL

NO. OF PROPERTY QUANTITY MEASURE PER UNIT PRICE BID ---------------------

23. CASE, SLEEPING BAG,

APPROX. 98 1/2 INCHES

BY 36 INCHES (UNUSED)

PROC. COST $5.90

EA., TOTAL PROC.

COST $10,989.20

(PACKED) APPROX. WT.

2560 POUNDS 3388 EA. .683 $2,314.00

24. DO DO DO

(USED) PACKED, TOTAL

PROC. COST

$33,435.30 4145 LBS. .433 1,794.79"

THE BID WAS ACCOMPANIED BY A BID DEPOSIT OF $5,605. UNDER DATE OF JUNE 21, 1956, AWARD WAS MADE TO O-BRIEN FOR 3378 UNITS OF ITEM 23 AND ALL OF ITEM 24 AT A TOTAL PRICE OF $4,101.96.

THE PROPERTY DISPOSAL OFFICER REPORTS THAT ON JUNE 26, 1956, A REPRESENTATIVE OF O-BRIEN INFORMED HIM THAT A MISTAKE HAD BEEN MADE ON ITEM 24 OF ITS BID. THE BIDDER'S REPRESENTATIVE EXPLAINED THAT THROUGH AN INADVERTENCE THE BID ON THAT ITEM WAS MADE ON THE SAME UNIT OF MEASURE AS THE BID ON ITEM 23, NAMELY "EA.' WHEREAS THE SLEEPING BAG CASES UNDER ITEM 24 WERE ACTUALLY OFFERED FOR SALE ON A "LBS.' UNIT OF MEASURE BASIS. THE BIDDER ATTRIBUTED THE ERROR TO THE FACT THAT THE DESCRIPTION OF BOTH ITEMS IN THE INVITATION ARE THE SAME EXCEPT THAT ITEM 23 IS DESCRIBED AS "UNUSED," WHERE ITEM 24 IS DESCRIBED AS "USED.' IN THE BIDDER'S LETTER OF JUNE 27, 1956, CONFIRMING THE ABOVE TELEPHONE CALL OF JUNE 26, IT IS STATED THAT SINCE THE BAGS AVERAGE 2 1/3 LBS. EACH, IT IS OBVIOUS THAT THE BID ON ITEM 24 OF ?433 PER POUND INSTEAD OF PER PIECE WOULD MAKE THE PRICE OF USED BAGS IN EXCESS OF $1 EACH AS COMPARED WITH ITS BID OF $0.683 EACH FOR UNUSED BAGS.

THE CONTRACTING OFFICER REPORTS THAT THE BIDDER'S STATEMENT AS TO THE WEIGHT OF THE BAGS HAS BEEN VERIFIED. HE STATES THAT FIVE BAGS PICKED AT RANDOM WEIGHED A TOTAL OF 11 3/4 POUNDS OR AN AVERAGE OF 2.34 POUNDS PER BAG. ALSO, HE POINTS OUT THAT THE ABSTRACT OF BIDS DISCLOSES THE NEXT HIGHEST BID ON ITEM 24 AS $0.2058 PER POUND AND THE LOWEST AS $0.0826 PER POUND. HE EXPRESSES THE VIEW THAT THE DESCRIPTION OF ITEM 24 MAY HAVE BEEN MISLEADING ON ACCOUNT OF THE USE OF "DO" BENEATH ITEM 23, THUS INDICATING THAT THE TWO ITEMS WERE IDENTICAL AND FURNISHING A BASIS FOR THE BIDDER'S QUOTING ON THE SAME UNIT AND OVERLOOKING THE DIFFERENT UNIT CALLED FOR. THE CONTRACTING OFFICER CONCLUDED THAT SINCE O-BRIEN'S BID ON ITS FACE WAS OUT OF LINE WITH THE OTHER BIDS RECEIVED IT SHOULD HAVE BEEN VERIFIED BEFORE AWARD, AND HE RECOMMENDS THAT THE PURCHASER BE RELEASED INSOFAR AS CONCERNS ITEM 24.

WE ARE SATISIFED FROM THE RECORD SUBMITTED THAT THE CONTRACTOR MADE AN ERROR IN SUBMITTING ITS BID ON ITEM 24, ON THE SAME UNIT OF MEASURE AS ITEM 23. THE QUESTION THUS IS PRESENTED, WHETHER THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE AT THE TIME OF HIS ACCEPTANCE OF THE BID OF SUCH FACTS AS WOULD PREVENT THAT ACT FROM CONSUMMATING A BINDING CONTRACT. CONSIDERING THE FACT THAT THE UNIT PRICE BID ON ITEM 24 FOR USED BAGS WAS MORE THAN TWICE THE NEXT HIGHEST BID, COUPLED WITH THE FACT THAT THE UNIT PRICE ON A POUND BASIS FOR THAT ITEM WOULD, AS POINTED OUT BY THE PURCHASER, EXCEED THE UNIT PRICE BID FOR UNUSED BAGS, WE CONCLUDE THAT ACCEPTANCE OF THE BID WITHOUT VERIFICATION OR INQUIRY WAS NOT JUSTIFIED. ACCORDINGLY, THE AWARD AS TO ITEM 24 SHOULD BE CANCELLED.

THE PAPERS TRANSMITTED WITH THE LETTER OF AUGUST 9, 1956, WITH THE EXCEPTION OF THE STATEMENT ..END :