B-134592, DEC. 18, 1957

B-134592: Dec 18, 1957

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TO THE SECRETARY OF COMMERCE: REFERENCE IS MADE TO LETTER OF DECEMBER 5. THE DATE SCHEDULED FOR THE OPENING OF THE BIDS WAS JULY 29. THE INVITATION APPRISED THE BIDDERS THAT THE MATERIALS WERE REQUIRED AT WAKE ISLAND ON SEPTEMBER 15. THE CONTRACTING OFFICER ADVISED THE BIDDER THAT HE WAS UNABLE TO COMPLY WITH THE LATTER'S REQUEST. IT IS STATED THAT THE URGENCY OF THE PROCUREMENT PRECLUDED SUBMISSION OF THE MATTER TO THE GENERAL ACCOUNTING OFFICE FOR DECISION PRIOR TO MAKING THE AWARD. IT IS EVIDENT THAT THE CONTRACTING OFFICER HAD CONSTRUCTIVE NOTICE OF THE MISTAKE HERE ALLEGED. IT ALSO APPEARS THE ERROR WAS ALLEGED AND EXPLAINED . SINCE AN AWARD TO THE LOW BIDDER WITH ACTUAL KNOWLEDGE OF AN ERROR IN ITS PROPOSAL WOULD NOT HAVE RESULTED IN A BINDING CONTRACT.

B-134592, DEC. 18, 1957

TO THE SECRETARY OF COMMERCE:

REFERENCE IS MADE TO LETTER OF DECEMBER 5, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF COMMERCE, REQUESTING A DECISION AS TO THE LIABILITY, IF ANY, OF THE MACWHYTE COMPANY, SAN FRANCISCO, CALIFORNIA,UNDER ITS BID ON ITEM NO. 12, SCHEDULE II, OF INVITATION NO. 6- 58-5, ISSUED JULY 16, 1957, BY THE CIVIL AERONAUTICS ADMINISTRATION, HONOLULU, T.H.

BY INVITATION NO. 6-58-5, THE CIVIL AERONAUTICS ADMINISTRATION AT HONOLULU SOLICITED BIDS ON CERTAIN ITEMS OF CREOSOTED POLES, POLE LINE HARDWARE, GUY GRIPS AND STRANDS AND COPPER WIRE, AS DESCRIBED UNDER SCHEDULES I THROUGH IV. THE DATE SCHEDULED FOR THE OPENING OF THE BIDS WAS JULY 29, 1957. THE INVITATION APPRISED THE BIDDERS THAT THE MATERIALS WERE REQUIRED AT WAKE ISLAND ON SEPTEMBER 15, 1957, WHICH NECESSITATED THEIR DELIVERY F.A.S. EITHER LOS ANGELES OR SAN FRANCISCO NOT LATER THAN AUGUST 20 AND 25, RESPECTIVELY, FOR SHIPMENT DIRECT VIA PACIFIC FAR EAST LINE VESSEL.

IT APPEARS THAT THE MACWHYTE COMPANY QUOTED A UNIT PRICE OF $0.123 PER FOOT ON ITEM NO. 12, SCHEDULE II, OR A TOTAL OF $123 ON THE 1,000 FEET OF 3/8 INCH STAINLESS STEEL WIRE ROPE REQUIRED TO BE FURNISHED THEREUNDER. AFTER OPENING THE BIDS ON JULY 29, 1957, AND WHILE PREPARING AN ABSTRACT OF THE BIDS RECEIVED, THE CONTRACTING OFFICER NOTICED THE WIDE DISPARITY BETWEEN THE MACWHYTE COMPANY'S UNIT PRICE BID OF $0.123 ON THIS ITEM, AND THE AMOUNTS OF THE OTHER BIDS RECEIVED, RANGING FROM $0.505 TO AS MUCH AS $0.69 PER FOOT.

ACCORDINGLY, BY MESSAGE DATED JULY 30, 1957, THE CONTRACTING OFFICER REQUESTED THE MACWHYTE COMPANY TO VERIFY ITS BID PRICE FOR STAINLESS STEEL WIRE, TO WHICH THE BIDDER ADVISED BY CABLE ON JULY 31 THAT IT DID NOT QUOTE ON ITEM 12, SCHEDULE II, AND REQUESTED THAT THE CONTRACTING OFFICER ENTER THE ITEM AS "UNABLE TO QUOTE.' BY MESSAGE DATED AUGUST 1, 1957, THE CONTRACTING OFFICER ADVISED THE BIDDER THAT HE WAS UNABLE TO COMPLY WITH THE LATTER'S REQUEST, AND IN A CONFIRMING LETTER OF THAT DATE REQUESTED THE COMPANY TO ADVISE WHETHER IT WOULD ACCEPT OR REJECT AN ORDER FOR THE ITEM SHOULD ONE BE TENDERED IT. IN ITS RESPONSE TO THIS REQUEST, THE COMPANY ADVISED THAT, THROUGH ERROR, IT HAD QUOTED ON REGULAR PREFORMED IMPROVED PLOW STEEL, WHICH ACCOUNTED FOR ITS EXTREMELY LOW BID PRICE ON THE ITEM OF STAINLESS STEEL WIRE ROPE, AND SINCE IT COULD NOT POSSIBLY MEET THE REQUIRED DELIVERY SCHEDULE, THE BIDDER SUGGESTED THAT THE CONTRACTING OFFICER AWARD THE ITEM TO THE NEXT HIGHEST RESPONSIVE BIDDER. UPON RECEIPT OF THIS ADVICE THE CONTRACTING OFFICER AWARDED THE ITEM TO THE WEEKS-HOWE EMERSON COMPANY WHICH QUOTED A UNIT PRICE OF $0.582 ON THE ITEM, AND OFFERED DELIVERY THEREOF WITHIN ONE WEEK. IT IS STATED THAT THE URGENCY OF THE PROCUREMENT PRECLUDED SUBMISSION OF THE MATTER TO THE GENERAL ACCOUNTING OFFICE FOR DECISION PRIOR TO MAKING THE AWARD.

IT IS EVIDENT THAT THE CONTRACTING OFFICER HAD CONSTRUCTIVE NOTICE OF THE MISTAKE HERE ALLEGED, SINCE HE OBSERVED THE WIDE DISPARITY BETWEEN THE LOW BID PRICE ON ITEM 12, SCHEDULE II, AND THE AMOUNTS QUOTED BY THE OTHER BIDDERS ON THIS ITEM. IT ALSO APPEARS THE ERROR WAS ALLEGED AND EXPLAINED --- APPARENTLY TO HIS SATISFACTION--- AT THE TIME HE AWARDED THE ITEM TO THE NEXT RESPONSIVE BIDDER.

IN VIEW THEREOF, AND SINCE AN AWARD TO THE LOW BIDDER WITH ACTUAL KNOWLEDGE OF AN ERROR IN ITS PROPOSAL WOULD NOT HAVE RESULTED IN A BINDING CONTRACT, YOU ARE ADVISED THAT THE SAID LOW BID MAY BE REGARDED AS HAVING BEEN PROPERLY WITHDRAWN WITHOUT LIABILITY TO THE MACWHYTE COMPANY.