B-129350, OCT. 12, 1956

B-129350, OCT. 12, 1956

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, REQUESTING A DECISION AS TO WHETHER SUPPLY CONTRACT NO. GS-00S-2935, WITH RUSSELL ERNEST BAUM, INC., PHILADELPHIA, PENNSYLVANIA, FOR FURNISHING CERTAIN OFFICE EQUIPMENT LISTED IN THE FEDERAL SUPPLY SCHEDULE FOR THE YEAR ENDING JUNE 30, 1957, MAY BE AMENDED AS RECOMMENDED BY THE BOARD OF REVIEW OF YOUR ADMINISTRATION.

THE FACTS AS FOUND BY THE BOARD OF REVIEW ARE THAT FOLLOWING RECEIPT OF AWARD OF THE CONTRACT THE CONTRACTOR ALLEGED THAT A MISTAKE HAD BEEN MADE IN THAT PRICE LIST ACCEPTED BY THE CONTRACTING OFFICER WAS THE PRICE LIST APPLICABLE TO CONTRACT GS-03S-17100 FOR THE PRECEDING YEAR CLOSING JUNE 30, 1956, AS INDICATED BY THE LEGEND PRINTED THEREON, WHEREAS A NEW AND DIFFERENT PRICE LIST HAD BEEN SPECIALLY PRINTED AND SUBMITTED WITH ITS BID FOR THE YEAR ENDING JUNE 30, 1957, WHICH DID NOT BEAR SUCH A LEGEND AS THE CONTRACT NUMBER TO BE ASSIGNED WAS NOT KNOWN. VARIOUS DISCREPANCIES BETWEEN THE TWO PRICE LISTS WERE CALLED TO THE ATTENTION OF THE CONTRACTING OFFICER WITH THE REQUEST THAT THE PROPER LIST BE SUBSTITUTED FOR THE ONE ACCEPTED. THIS REQUEST WAS DENIED BY THE CONTRACTING OFFICER ON THE GROUND THAT THE LIST ACCEPTED WAS THE LIST SUBMITTED; THAT IT WAS NOT UNUSUAL FOR CONTRACTORS TO RESUBMIT LISTS ON THIS SCHEDULE; THAT THEREFORE NO QUESTION EXISTED AT THE TIME THE AWARD WAS MADE AND, CONSEQUENTLY, THERE WAS NO AUTHORITY TO ALLOW THE SUBMISSION OF A NEW LIST. THE CONTRACTOR THEREAFTER FILED ITS APPEAL PURSUANT TO THE PROVISIONS OF THE STANDARD "DISPUTES" CLAUSE CONTAINED IN THE CONTRACT, WHICH WAS DULY HEARD AND CONSIDERED BY THE BOARD OF REVIEW.

AT THE HEARING ON THE APPEAL THE APPELLANT ADVANCED SEVERAL CONTENTIONS, THE PRIMARY ONE BEING THAT THE SAME PROCEDURE EMPLOYED BY IT FOR AT LEAST THE LAST NINE YEARS IN SUBMITTING BIDS ON THIS EQUIPMENT HAD BEEN FOLLOWED IN THIS INSTANCE AND THAT NO MISTAKE HAD BEEN MADE BY IT IN THE SUBMISSION OF THE PRICE LIST; THAT IS, THAT A SPECIALLY PRINTED PRICE LIST HAD BEEN SUBMITTED, AND NOT THE ONE ACCEPTED BY THE FEDERAL SUPPLY SERVICE. ON THE OTHER HAND, THE FEDERAL SUPPLY SERVICE CONTENDED THAT THE HANDLING OF BIDS AND ACCOMPANYING DOCUMENTS IN ITS OFFICE HAD BEEN SUCH AS TO PRECLUDE THE POSSIBILITY OF MISHANDLING OF THE PRICE LISTS ACCOMPANYING THE APPELLANT'S BID; THAT THE APPELLANT DID SEND IN THE PRICE LIST FOR THE PRIOR YEAR WHICH WAS NOT REGARDED AS UNUSUAL AS MANY BIDDERS UNDER THIS SAME SCHEDULE FOLLOWED THE SAME PRACTICE. FOLLOWING EXAMINATION AND CONSIDERATION OF THE EVIDENCE PRESENTED BY THE APPELLANT AND THE APPLICABLE FILES OF THE FEDERAL SUPPLY SERVICE, THE BOARD FOUND THAT THE APPELLANT INTENDED TO SUBMIT THE SPECIALLY PRINTED PRICE LIST WITH PRICES CORRESPONDING TO ITS COMMERCIAL PRICE LIST; THAT A MISTAKE HAD BEEN MADE IN THE HANDLING OF THE SPECIALLY PRINTED PRICE LIST; AND THAT THE WEIGHT OF THE EVIDENCE, WHICH WAS CONTRADICTORY AND NECESSARILY INCONCLUSIVE, FAVORED THE POSITION TAKEN BY THE FEDERAL SUPPLY SERVICE. THE BOARD CONCLUDED THAT THE MISTAKE WAS UNILATERAL IN CHARACTER AND THAT IT WAS ATTRIBUTABLE TO THE APPELLANT.

A FURTHER CONTENTION PRESENTED BY THE APPELLANT BEFORE THE BOARD RELATED TO THE APPARENT CONFLICT BETWEEN THE ACCEPTED PRICE LIST AND THE INFORMATION FURNISHED IN RESPONSE TO A REQUIREMENT IN THE BID INVITATION FOR THE SUBMISSION OF REPLIES TO THE QUESTIONS LISTED IN PARAGRAPH 3, STATEMENT OF PRICE SCHEDULE, OF THE SPECIAL PROVISIONS OF THE SCHEDULE. THE APPELLANT URGED THAT THE CONTRACTING OFFICER SHOULD HAVE NOTICED THIS CONFLICT AND REQUESTED CLARIFICATION IN WHICH EVENT THE MISTAKE MADE COULD HAVE BEEN CORRECTED BEFORE AWARD.

PARAGRAPH 3 OF THE SPECIAL PROVISIONS PROVIDED, AS FOLLOWS:

"3. STATEMENT OF PRICE SCHEDULE.--- OFFEROR SHALL SUBMIT WITH HIS OFFER, AS A SEPARATE ATTACHMENT, THE FOLLOWING OR EQUIVALENT INFORMATION:

"/A) COPY OF COMMERCIAL PRICE LIST.

(B) DISCOUNT THEREFROM OFFERED THE GOVERNMENT.

(C) THE HIGHEST DISCOUNT ACCORDED TO HIS MOST FAVORED CUSTOMER OTHER

THAN THE GOVERNMENT.

(D) DISCOUNTS EXTENDED TO SELLERS SUCH AS DISTRIBUTORS, WHOLESALERS,

DEALERS, ETC.

"THE GOVERNMENT WILL KEEP ALL SUCH INFORMATION IN STRICT CONFIDENCE.'

IN RESPONSE TO QUESTION 3 (A) THE APPELLANT HAD INSERTED "/SEE ATTACHED).' THE ATTACHMENT CONSISTED OF A FACE SHEET AND A COPY OF THE APPELLANT'S COMMERCIAL PRICE LIST DATED NOVEMBER 1, 1955. THE FOLLOWING ANSWERS TO QUESTIONS 3 (B), (C) AND (D) WERE TYPED ON THE FACE SHEET:

"/B) .... 2 PERCENT - 30 DAYS AFTER DELIVERY FREIGHT PREPAID WITHIN

LIMITS OF CONTINENTAL UNITED STATES

"/C) .... NO SPECIAL DISCOUNTS TO ANYONE

"/D) .... NO DEALERS. WE ARE SOLE DISTRIBUTOR FOR FACTORY (LIBERTY

FOLDER CO., SIDNEY, OHIO) OWNED BY US ENTIRELY"

IT APPEARS TO BE UNCONTROVERTED THAT THE PRICES SET OUT IN THE APPELLANT'S COMMERCIAL PRICE LIST WERE FROM 8 TO 13 PERCENT HIGHER THAN THE PRICES IN THE ACCEPTED PRICE LIST, AND THAT THE APPELLANT INTENDED TO OFFER THE GOVERNMENT--- AS INDICATED BY ITS ANSWER TO QUESTION 3 (B), QUOTED ABOVE--- A DISCOUNT FROM ITS COMMERCIAL PRICE LIST OF 2 PERCENT - 30 DAYS AFTER DELIVERY FREIGHT PREPAID WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, AS COMPARED WITH A DISCOUNT OF 3 PERCENT - 20 DAYS STATED ON THE ACCEPTED PRICE LIST. THE APPELLANT ARGUED THAT HAD IT INTENDED TO OFFER THE GOVERNMENT A REDUCTION IN THE FORM OF A SPECIAL TRADE DISCOUNT OF FROM 8 TO 13 PERCENT IT WAS ONLY REASONABLE TO ASSUME THAT SUCH INTENTION WOULD HAVE BEEN INDICATED IN ITS RESPONSE TO QUESTION 3 (B). THERE WAS NO DIFFERENCE BETWEEN THE PRICES LISTED IN THE APPELLANT'S COMMERCIAL PRICE LIST AND THE PRICES LISTED IN THE PRICE LIST WHICH THE APPELLANT REPRESENTED WAS SPECIALLY PRINTED AND SUBMITTED FOR THE INVITATION, AND THE DISCOUNT TERMS INDICATED FOR THESE TWO LISTS WERE IDENTICAL.

IT ALSO APPEARS TO BE CONCLUDED THAT THE OBVIOUS DISCREPANCIES BETWEEN THE DATA ON THE ATTACHMENT FURNISHED BY THE APPELLANT AND THE ACCEPTED PRICE LIST WERE KNOWN TO THE FEDERAL SUPPLY SERVICE PRIOR TO AWARD, AS EVIDENCED BY A PENCILED NOTATION--- "NOT CORRECT. SEE GOV-T PRICES 3 PERCENT 30 DAYS PLUS SUBSTANTIAL PRICE REDUCTION"--- WHICH HAD BEEN PLACED ON THE ATTACHMENT. THE BOARD WAS OF THE OPINION THAT THE DISCREPANCIES WERE OF SUCH SUBSTANTIAL CHARACTER THAT THE CONTRACTING OFFICER SHOULD HAVE REQUESTED A CLARIFICATION; THAT HAD HE DONE SO THE MISTAKE IN THE SUBMISSION OF THE PRICE LIST WOULD HAVE BEEN DISCOVERED AND A CORRECTION UNDOUBTEDLY COULD HAVE BEEN EFFECTED PRIOR TO AWARD OF THE CONTRACT. VIEW THEREOF, IT WAS THE BOARD'S RECOMMENDATION, WHICH YOU HAVE APPROVED,"THAT CONSIDERATION SHOULD BE GIVEN TO AMENDING THE CONTRACT, INSOFAR AS IS STILL EXECUTORY, TO PROVIDE FOR THE SUBSTITUTION OF THE INTENDED PRICE LIST FOR THAT ACCEPTED BY THE FEDERAL SUPPLY SERVICE.' THE BOARD RECOGNIZED, HOWEVER, THAT UNDER THE ESTABLISHED PROCEDURE APPLICABLE TO SUCH CASES THE MATTER SHOULD BE SUBMITTED WITH APPROPRIATE RECOMMENDATIONS TO THE COMPTROLLER GENERAL FOR CONSIDERATION.

THE BOARD'S FINDINGS OF FACT PRESENT A PLAIN CASE OF MISTAKE IN BID ALLEGED AFTER AWARD. SINCE WE AGREE THAT THE CONTRACTING OFFICER WAS ON NOTICE OF FACTS CLEARLY INDICATING THE PROBABILITY OF SOME MISTAKE, WE AGREE WITH THE BOARD'S CONCLUSION THAT THE AWARD WAS ERRONEOUSLY MADE. FURTHER APPEARING THAT THE INTENDED BID--- AS SET OUT IN THE NEWLY PRINTED SCHEDULE--- IS FULLY ESTABLISHED, WE MAKE NO OBJECTION TO RETROACTIVE AMENDMENT OF THE CONTRACT TO INCORPORATE THE INTENDED PRICE SCHEDULE.