B-136554, JUL. 14, 1958

B-136554: Jul 14, 1958

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TWO BIDS WERE RECEIVED THEREUNDER. THE QUOTED BID PRICE OF $3.65 PER UNIT WAS CORRECT. THE LOW BIDDER WAS AWARDED THE CONTRACT THROUGH THE ISSUANCE OF PURCHASE ORDER NO. 1557-4560. AS APPARENTLY WAS CONTEMPLATED BY THE INVITATION. CONCERNING WHICH IT WAS NOT AUTHORIZED TO QUOTE. THEY WERE PURCHASED FROM THE MANUFACTURER. WAS INCOMPLETE. SINCE THERE WAS NO SPECIFIC DESIGNATION IN THE INVITATION AS TO WHICH ASSEMBLY ACTUALLY WAS REQUIRED AND SINCE IT APPEARS THAT THE COST OF THE AIRCRAFT ASSEMBLY TYPE DESIRED BY THE GOVERNMENT WAS CONSIDERABLY MORE THAN THE COST OF THE COMMERCIAL TYPE. THERE IS NO LEGAL BASIS FOR HOLDING THE CONTRACTOR LIABLE FOR ITS FAILURE TO FURNISH THE MORE EXPENSIVE TYPE OF BRACKETS.

B-136554, JUL. 14, 1958

TO THE SECRETARY OF COMMERCE:

BY LETTER DATED FEBRUARY 24, 1958, THE CHIEF, AUDIT DIVISION, BUDGET AND FINANCE OFFICE, CIVIL AERONAUTICS ADMINISTRATION, REFERRED HERE FOR OUR CONSIDERATION THE MATTER OF THE REPORTED DEFAULT OF THE FIRE APPLIANCE AND SUPPLY COMPANY UNDER PURCHASE ORDER NO. 1557-4560, DATED JUNE 12, 1957, AND REQUESTED A DECISION AS TO THE LIABILITY, IF ANY, OF THE SAID COMPANY FOR EXCESS COSTS INCIDENT TO REPURCHASE OF THE DEFAULTED ITEMS FROM ANOTHER SOURCE.

BY INVITATION NO. 15-57-326, THE PROCUREMENT AND SERVICE BRANCH, CIVIL AERONAUTICS ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA, REQUESTED BIDS ON 44 FIRE EXTINGUISHER BRACKETS DESCRIBED AS "5TA, WALTER KIDDE 925435, OR EQUAL.' TWO BIDS WERE RECEIVED THEREUNDER, ONE FOR $3.65 EACH, OR A TOTAL OF $160.60, SUBMITTED BY THE FIRE APPLIANCE AND SUPPLY COMPANY, AND THE OTHER FOR $21 EACH, TOTALING $924, PRESENTED BY THE MANUFACTURER, WALTER KIDDE-PACIFIC.

THE CONTRACTING OFFICER, SUSPECTING ERROR IN THE LOW BID, REQUESTED CONFIRMATION THEREOF BY TELEPHONE, AND BY LETTER DATED JUNE 7, 1957, THE FIRE APPLIANCE AND SUPPLY COMPANY ADVISED THAT, ACCORDING TO ITS TULSA, OKLAHOMA SUPPLIER, THE QUOTED BID PRICE OF $3.65 PER UNIT WAS CORRECT. THEREAFTER, ON JUNE 12, 1957, THE LOW BIDDER WAS AWARDED THE CONTRACT THROUGH THE ISSUANCE OF PURCHASE ORDER NO. 1557-4560.

BY LETTER DATED SEPTEMBER 3, 1957, THE CONTRACTOR'S SUPPLIER ADVISED THE CONTRACTOR THAT IT INADVERTENTLY HAD QUOTED ON A PART NO. 925435 BRACKET DESIGNED FOR A 5TA COMMERCIAL OR INDUSTRIAL TYPE OF EXTINGUISHER, INSTEAD OF A COMPLETE AIRCRAFT ASSEMBLY, AS APPARENTLY WAS CONTEMPLATED BY THE INVITATION, CONCERNING WHICH IT WAS NOT AUTHORIZED TO QUOTE, AND ACCORDINGLY, REQUESTED THAT ITS ORIGINAL QUOTATION TO THE CONTRACTOR BE WITHDRAWN.

UPON THE CONTRACTOR'S FAILURE TO DELIVER THE ITEMS, THEY WERE PURCHASED FROM THE MANUFACTURER, WALTER KIDDE-PACIFIC, AT $23.75 EACH, OR AT AN EXCESS COST TO THE GOVERNMENT OF $884.40.

THE CONTRACTOR HAS REQUESTED THAT IT BE RELIEVED OF THESE EXCESS COSTS UPON THE GROUND OF MUTUAL MISUNDERSTANDING AS TO THE TRUE IDENTITY OF THE PRODUCT ORIGINALLY ADVERTISED, OR MUTUAL MISTAKE OF FACT. THE RECORD ESTABLISHES THAT THE DESCRIPTION OF THE ITEM, AS GIVEN IN THE INVITATION BY THE GOVERNMENT, WAS INCOMPLETE, SINCE THIS PARTICULAR ASSEMBLY CAN BE MANUFACTURED FOR EITHER A COMMERCIAL OR AIRCRAFT TYPE OF FIRE EXTINGUISHER. SINCE THERE WAS NO SPECIFIC DESIGNATION IN THE INVITATION AS TO WHICH ASSEMBLY ACTUALLY WAS REQUIRED AND SINCE IT APPEARS THAT THE COST OF THE AIRCRAFT ASSEMBLY TYPE DESIRED BY THE GOVERNMENT WAS CONSIDERABLY MORE THAN THE COST OF THE COMMERCIAL TYPE, THERE IS NO LEGAL BASIS FOR HOLDING THE CONTRACTOR LIABLE FOR ITS FAILURE TO FURNISH THE MORE EXPENSIVE TYPE OF BRACKETS.

ACCORDINGLY, THE REPORTED INDEBTEDNESS OF THE FIRE APPLIANCE AND SUPPLY COMPANY UNDER THE PURCHASE ORDER CITED SHOULD BE CANCELLED.