B-130864, MAR. 14, 1957

B-130864, MAR. 14, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 26, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH LAFFERTY AND COMPANY, INC., LEMOYNE, PENNSYLVANIA, ALLEGES IT MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT DATED SEPTEMBER 14, 1956, WAS AWARDED.

THE PURCHASING BRANCH, NEW CUMBERLAND GENERAL DEPOT, NEW CUMBERLAND, PENNSYLVANIA, BY INVITATION NO. QN-36-028-57-24, REQUESTED BIDS--- TO BE OPENED SEPTEMBER 12, 1956--- FOR FURNISHING THREE ITEMS OF LUMBER, SOFTWOOD, FIR, NO. 2 COMMON, ITEMS 1 TO 3, INCLUSIVE, AND ONE ITEM OF LUMBER, SOFTWOOD, ROOFERS, YELLOW PINE, NO. 2 COMMON, TONGUE AND GROOVE, ITEM 4. IN RESPONSE LAFFERTY AND COMPANY, INC., SUBMITTED A BID DATED SEPTEMBER 6, 1956, OFFERING TO FURNISH ITEMS 1, 2, 3, AND 4 AT PRICES OF $97, $102, $92, AND $93 PER THOUSAND BOARD FEET, RESPECTIVELY. THE THREE OTHER BIDS ON ITEMS 1 TO 3, INCLUSIVE, RANGED FROM $106 TO $144 PER THOUSAND BOARD FEET AND ON ITEM 4, THEY RANGED FROM $93 TO $123.50 PER THOUSAND BOARD FEET. THE BID OF LAFFERTY AND COMPANY, INC., WHICH WAS CONDITIONED ON THE AWARD OF ALL ITEMS TO THE CORPORATION, WAS ACCEPTED ON SEPTEMBER 14, 1956, AND PURCHASE ORDER NO. 586 WAS ISSUED REQUESTING DELIVERY OF THE LUMBER.

BY LETTER DATED SEPTEMBER 18, 1956, LAFFERTY AND COMPANY, INC., RETURNED THE PURCHASE ORDER AND ADVISED THAT DUE TO THE POOR LEGIBILITY OF THE BID FORM, IT READ THE SPECIFICATIONS FOR ITEMS 1, 2, AND 3 AS "SOFTWOOD NO. 2 COMMON" AND THAT IT DID NOT NOTICE THE WORD "FIR; " AND THAT ITS BID PRICES WERE BASED ON FURNISHING YELLOW PINE LUMBER AND THAT IT WAS UNABLE TO FURNISH FIR LUMBER AT THIS TIME.

THE RECORD INDICATES THAT ON SEPTEMBER 28, 1956, THE CONTRACTING OFFICER TELEPHONED LAFFERTY AND COMPANY, INC., FOR THE PURPOSE OF DISCUSSING THE CONTENTS OF ITS LETTER DATED SEPTEMBER 18, 1956; THAT WHEN MR. LAFFERTY WAS INFORMED THAT THERE WAS ONLY APPROXIMATELY $30 DIFFERENCE BETWEEN HIS CORPORATION'S AGGREGATE BID PRICE FOR ITEMS 1, 2, AND 3, AND THE AGGREGATE BID PRICE QUOTED THEREON BY J. C. SNAVELY AND SONS, INC., LANDISVILLE, PENNSYLVANIA, HE REPLIED THAT HE WOULD CONTACT THAT CORPORATION AND REQUEST THEM TO DELIVER THE FIR LUMBER TO THE DEPOT ON BEHALF OF HIS CORPORATION; AND THAT LATER IN THE SAME DAY, MR. LAFFERTY TELEPHONED THE CONTRACTING OFFICER AND ADVISED HER THAT HE HAD CONTACTED J. C. SNAVELY AND SONS, INC., AND LEARNED FROM THEM THAT IN READING THE SPECIFICATIONS FOR ITEMS 1, 2, AND 3, THEY HAD ALSO OVERLOOKED THE WORD "FIR" AND THAT CONSEQUENTLY THEIR BID PRICES WERE BASED ON FURNISHING YELLOW PINE LUMBER.

BY LETTER DATED OCTOBER 1, 1956, J. C. SNAVELY AND SONS, INC., THE SECOND LOW BIDDER, ADVISED THAT IT HAD ALSO BID ON YELLOW PINE LUMBER FOR ITEMS 1, 2, AND 3, AND THAT THE BID FORM WAS SO ILLEGIBLE THAT IT WAS NOT EVEN CERTAIN OF THE CORRECT BID NUMBER. IN THIS CONNECTION, IT IS NOTED THAT J. C. SNAVELY AND SONS, INC., ATTACHED A MEMORANDUM TO ITS BID, IN WHICH IT EXPRESSED DOUBT AS TO WHETHER 3,000 OR 5,000 WAS THE CORRECT QUANTITY FOR ITEM 4.

IN A LETTER DATED OCTOBER 1, 1956, LAFFERTY AND COMPANY, INC., REQUESTED THAT IT BE RELIEVED FROM ANY OBLIGATION UNDER THE CONTRACT. BY LETTER DATED JANUARY 8, 1957, THE CORPORATION SUBMITTED THE RETAINED OFFICE COPY OF THE INVITATION WHICH, IT STATED, WAS USED AS A WORKSHEET.

IT IS REPORTED THAT IT IS THE OPINION OF THE OFFICE OF THE QUARTERMASTER GENERAL THAT THE GOVERNMENT CONTRIBUTED TO THE MISTAKES MADE BY LAFFERTY AND COMPANY, INC., AND J. C. SNAVELY AND SONS, INC., IN DISTRIBUTING BID FORMS WHICH WERE SO ILLEGIBLE AS TO LEAVE THE BIDDERS IN DOUBT AS TO THE TYPE OF LUMBER DESIRED. OUR OFFICE IS OF THE SAME BELIEF.

WE ARE ACCORDINGLY OF THE OPINION THAT THE CONTRACT IS NOT LEGALLY ENFORCEABLE, AND THAT THE AWARD MADE TO LAFFERTY AND COMPANY, INC., ON SEPTEMBER 14, 1956, SHOULD BE CANCELLED AND THE CORPORATION RELIEVED OF ALL LIABILITY UNDER ITS BID, AS RECOMMENDED BY THE CONTRACTING OFFICER.

THE ABSTRACT OF BIDS, THE CONTRACTING OFFICER'S UNDATED REPORT AND A COPY OF THE BID OF LAFFERTY AND COMPANY, INC., ARE BEING RETAINED. THE OTHER PAPERS IN THE CASE ARE RETURNED.