B-133611, SEP. 27, 1957

B-133611, SEP. 27, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 27, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE INDEPENDENT TANK COMPANY, MARIANNA, FLORIDA, ALLEGES WAS MADE IN ITS BID ON WHICH CONTRACT NO. DA 09 -038-AIII-1009 IS BASED.

BY INVITATION NO. 09-038-57-174, THE PURCHASING AND CONTRACTING OFFICE, UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA, REQUESTED BIDS- -- TO BE OPENED APRIL 27, 1957--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CLEANING AND PAINTING OF THE INTERIOR AND EXTERIOR SURFACES OF THE MILLION GALLON WATER STANDPIPE AT FORT BENNING. PARAGRAPH TP-5 OF THE SPECIFICATIONS PROVIDED AS FOLLOWS:

"TP-5 EXTERIOR PAINTING: EXTERIOR SURFACES SHALL BE THOROUGHLY CLEANED WITH SCRAPERS OR WIRE BRUSHES SO AS TO EXPOSE THE BRIGHT METAL, WITH PARTICULAR ATTENTION GIVEN TO AREAS AROUND RIVETS AND JOINTS. IMMEDIATELY FOLLOWING THIS OPERATION, THE CLEANED AND DRIED SURFACES SHALL BE GIVEN A COAT OF RED-LEAD PAINT CONFORMING TO FED.SPEC. TT-P 86, TYPE 1. AS SOON AS THE PRIMER HAS DRIED THOROUGHLY, TWO COATS OF INTERNATIONAL ORANGE PAINT CONFORMING TO FED.SPEC. TT-P-59 AND WHITE PAINT CONFORMING TO FED.SPEC. TT-P-102, CLASS A, SHALL BE APPLIED IN THE PATTERN PRESCRIBED BY NATION STANDARD AGA-NS4.'

IN RESPONSE THE INDEPENDENT TANK COMPANY SUBMITTED A BID DATED APRIL 26, 1957, OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $4,845. THE TWO OTHER BIDS ON THE PROJECT SPECIFIED PRICES OF $8,300 AND $14,000 AND THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK WAS $5,200. THE BID OF THE COMPANY WAS ACCEPTED ON APRIL 29, 1957.

IN A REPORT DATED MAY 22, 1957, THE CONTRACTING OFFICER STATED THAT, AT A PRE-CONSTRUCTION CONFERENCE HELD ON MAY 13, 1957, A REPRESENTATIVE OF THE INDEPENDENT TANK COMPANY ALLEGED THAT ITS BID HAD NOT BEEN BASED UPON THE LITERAL INTERPRETATION OF THE PROVISIONS OF PARAGRAPH TP-5 OF THE SPECIFICATIONS WHICH WAS INSISTED UPON BY THE CONTRACTING OFFICER, IN REGARD TO THE EXTERIOR PAINTING OF THE STANDPIPE.

IN A CONFIRMING LETTER DATED MAY 14, 1957, THE COMPANY STATED:

"AFTER HAVING OUR PRE-CONFERENCE MEETING WE FIND THAT THERE HAS BEEN A MIS-INTERPRETATION OF TP-5 EXTERIOR PAINTING. OUR INTERPRETATION WHEN FIGURING THIS JOB AND BIDDING ON IT WAS AS FOLLOWS:

"TO SCRAPE AND WIRE BRUSH THE ENTIRE EXTERIOR REMOVING ANY LOOSE PAINT, RUST OR DIRT, AND CLEAN DOWN TO BRIGHT METAL AROUND RIVETS AND JOINTS WHICH IS PIN-POINTED IN TP-5.

"IN MY INSPECTION I FOUND THE PAINT TO BE BLISTERED AND CRACKED AROUND THE RIVETS AND JOINTS AS DESCRIBED IN THE SPECIFICATIONS. WE WOULD APPRECIATE IT VERY MUCH IF YOU WOULD RELIEVE US OF THE CONTRACT OR AMEND THE CONTRACT IN THE AMOUNT OF $2,300.00 TO COVER REMOVING ALL THE EXTERIOR PAINT AND APPLY A FULL PRIME COAT RED-LEAD WHICH WE HADN T INCLUDED IN OUR BASE BID.

"GENTLEMEN, I HAVE FIGURED THIS ADDITIONAL MONEY AS CLOSELY AS POSSIBLE. IT WOULD COST ME $5,000 TO PERFORM THE CONTRACT THE WAY IT STANDS NOW. IF IT CAN BE AMENDED WE WOULD CERTAINLY APPRECIATE IT.'

IN A LETTER DATED JUNE 6, 1957, THE COMPANY ADDED THE FOLLOWING STATEMENTS:

"IF THIS TANK HAS TO BE SCRAPED TO REMOVE ALL EXTERIOR PAINT IT WOULD TAKE AT LEAST THIRTY TO FORTY DAYS TO REMOVE THE PAINT BY SCRAPERS. WHERE THE PAINT IS BONDED TIGHT IF WOULD ALMOST BE IMPOSSIBLE. YOU CAN REMOVE AS MUCH PAINT IN ONE HOUR BY SANDBLASTING AS ONE MAN COULD DO IN TEN HOURS BY A HAND SCRAPER.

"WE HAVE HAD THESE SPECIFICATIONS EXAMINED BY TWO OTHER CONTRACTORS WITHOUT THEIR KNOWLEDGE OF WHAT HAD HAPPENED AND THEIR INTERPRETATION WAS THE SAME AS OURS, SO WE WOULD APPRECIATE ANY CONSIDERATION IN THIS MATTER WHICH COULD BE EXTENDED TO US.'

THE COMPANY SUBMITTED A COPY OF ITS WORKSHEET WHICH APPEARS TO SUPPORT ITS ALLEGATIONS AS TO THE BASIS OF ITS BID. IN ADDITION, THE RECORD SHOWS THAT THIRD ARMY HEADQUARTERS INTERPRETED THE SPECIFICATION REQUIREMENTS SUBSTANTIALLY IN ACCORDANCE WITH THE CONTRACTOR'S CONTENTIONS.

IN THE CIRCUMSTANCES, SINCE THE CONTRACTING OFFICER'S INTERPRETATION SEEMS TO BE OPEN TO REASONABLE DOUBT, IT DOES NOT APPEAR THAT THERE WAS AN EFFECTIVE MEETING OF THE MINDS OF THE PARTIES, AND SINCE IT IS REPORTED THAT NO WORK HAS BEEN PERFORMED BY THE COMPANY, CONTRACT NO. DA 09-038- AIII-1009 SHOULD BE CANCELED AND THE COMPANY RELIEVED OF ALL LIABILITY UNDER ITS BID.

THE CONTRACTING OFFICER'S STATEMENTS OF MAY 22 AND JUNE 19, 1957, A COPY OF THE COMPANY'S LETTER OF JUNE 6, 1957, AND ITS WORKSHEET, ARE BEING RETAINED. THE OTHER PAPERS ARE RETURNED.