B-137264, DEC 4, 1958

B-137264: Dec 4, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30. FOR THE TRANSFORMERS WAS REJECTED SINCE THE ARMY POST ENGINEER DETERMINED THAT THE TRANSFORMERS PROPOSED TO BE FURNISHED BY THAT CORPORATION DID NOT MUST THE REQUIREMENTS OF THE SPECIFICATIONS AND. YOUR BID WAS ACCEPTED BY THE ISSUANCE OF PURCHASE ORDER NO. AT OR ABOUT THIS TIME AN ADDITIONAL PURCHASE REQUEST WAS RECEIVED BY THE CONTRACTING OFFICE FROM THE ARMY POST ENGINEER FOR 7 ADDITIONAL TRANSFORMERS. BIDS WERE RECEIVED AND COMPARED ON JUNE 25. IT AGAIN WAS DETERMINED THAT THE LOW BID OF $308.57 EACH OF THE MANHATTAN LIGHTING EQUIPMENT COMPANY. FOR THESE TRANSFORMERS WAS NOT ACCEPTABLE SINCE THE EQUIPMENT PROPOSED TO BE FURNISHED ALSO DID NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS.

B-137264, DEC 4, 1958

PRECIS-UNAVAILABLE

WHITE PLAINS ELECTRICAL SUPPLY COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1958, WHEREIN YOU REQUEST CERTAIN RELIEF AS THE RESULT OF ACTION TAKEN BY THE FT. MCCLELLAN ARMY BASE IN ALABAMA IN CONNECTION WITH PURCHASE ORDERS NOS. PE- 5209-58 AND PE-5584-58 DATED JUNE 12, 1958, AND JUNE 28, 1958, RESPECTIVELY.

IN RESPONSE TO INVITATION FOR BIDS NO. 01-088-58-47, ISSUED ON MAY 10, 1958, BY THE PURCHASING AND CONTRACTING DIVISION, FT. MCCLELLAN, ALABAMA, YOU SUBMITTED A BID OFFERING TO FURNISH 10 DISTRIBUTION TRANSFORMERS OF THE TYPE SPECIFIED IN THE INVITATION AT $318.90 EACH, OR FOR A TOTAL PRICE OF $3,189. THE LOW BID OF $316.83 EACH, OF THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., FOR THE TRANSFORMERS WAS REJECTED SINCE THE ARMY POST ENGINEER DETERMINED THAT THE TRANSFORMERS PROPOSED TO BE FURNISHED BY THAT CORPORATION DID NOT MUST THE REQUIREMENTS OF THE SPECIFICATIONS AND, THEREFORE, YOUR BID WAS ACCEPTED BY THE ISSUANCE OF PURCHASE ORDER NO. PE- 5209-58, ON JUNE 12, 1958. AT OR ABOUT THIS TIME AN ADDITIONAL PURCHASE REQUEST WAS RECEIVED BY THE CONTRACTING OFFICE FROM THE ARMY POST ENGINEER FOR 7 ADDITIONAL TRANSFORMERS, PRESUMABLY OF THE SIMILAR, IF NOT IDENTICAL, TYPE PREVIOUSLY ADVERTISED. IN RESPONSE TO REQUESTS FROM THE CONTRACTING OFFICE FOR QUOTATIONS FOR THE 7 ADDITIONAL TRANSFORMERS, BIDS WERE RECEIVED AND COMPARED ON JUNE 25, 1958. AS IN THE FIRST PROCUREMENT, IT AGAIN WAS DETERMINED THAT THE LOW BID OF $308.57 EACH OF THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., FOR THESE TRANSFORMERS WAS NOT ACCEPTABLE SINCE THE EQUIPMENT PROPOSED TO BE FURNISHED ALSO DID NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. THEREFORE, THERE WAS ACCEPTED, BY THE ISSUANCE OF PURCHASE ORDER NO. PE-5584-58, THE NEXT LOW BID SUBMITTED BY YOU IN THE AMOUNT OF $324 EACH FOR THE 7 ADDITIONAL TRANSFORMERS, OR IN THE TOTAL AMOUNT OF $2,268. IN THE MEANTIME, THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., BY LETTER DATED JUNE 25, 1958, REQUESTED THAT THE CONTRACTING OFFICE OF THE FT. MCCLELLAN BASE COUNTERMAND ITS AWARD TO YOU BY PURCHASE ORDER NO. PE-5209-58 FOR THE 10 TRANSFORMERS AND MAKE AN AWARD TO IT ON THE BASIS OF THE LOW BID WHICH THE CORPORATION SUBMITTED. A REPLY WAS MADE TO THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., ADVISING OF THE TECHNICAL DEFICIENCY OF THE TRANSFORMERS WHICH IT PROPOSED TO FURNISH. THERE FOLLOWED AN EXCHANGE OF CONSIDERABLE CORRESPONDENCE BETWEEN THE CONTRACTING OFFICE AND MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., WHEREIN THE CORPORATION INSISTED THAT IT HAD SUBMITTED THE RESPONSIVE LOW BID NOT ONLY ON THE 10 TRANSFORMERS COVERED BY PURCHASE ORDER NO. PE-5209-58 BUT ALSO ON THE 7 TRANSFORMERS UNDER PURCHASE ORDER NO. PE-5584-58 AND THAT IT BE GRANTED THE AWARDS FOR THESE TWO PROCUREMENTS. ULTIMATELY, THE ANALYSIS OF THE BIDS SUBMITTED BY THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., WAS RECONSIDERED AND IT WAS CONCLUDED AT THAT TIME THAT AN ERROR HAD BEEN MADE IN APPRAISING THE BIDS OF THE CORPORATION, IN THAT THE TRANSFORMERS PROPOSED TO BE FURNISHED BY IT DID CONFORM TO THE REQUIREMENTS OF THE SPECIFICTIONS. IN VIEW OF THIS, A TELEGRAM DATED JULY 16, 1958, WAS DISPATCHED TO YOU CANCELING PURCHASE ORDERS NO. PE 5209-58 AND PE-5584-58 FOR THE REASON THAT YOU WERE NOT THE LOW BIDDER. A REAWARD ON THE PROPOSED PROCUREMENT HAS NOT BEEN EFFECTED DUE TO A LAPSE OF FUNDS. AS A RESULT OF THE FOREGOING ACTION YOU NOW REQUEST THAT THE FT. MCCLELLAN ARMY BASE BE REQUIRED TO ACCEPT, AND PAY FOR, THE 17 TRANSFORMERS ORDERED FROM YOU.

THE PROVISIONS OF THE PROCUREMENT LAW APPLICABLE TO THE TRANSACTIONS WITH WHICH WE ARE HERE CONCERNED MAY BE FOUND IN 10 U.S.C. 2305(B) AND REQUIRE, IN PERTINENT PART, THAT:

"AWARDS SHALL BE MADE *** TO THE RESPONSIBLE BIDDER WHOSE CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. ***"

THE FACTS AS REPORTED BY THE DEPARTMENT OF THE ARMY SHOW THAT THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., DID SUBMIT THE LOWEST BIDS RECEIVED ON BOTH INVITATIONS; THAT THE CORPORATION IS A RESPONSIBLE BIDDER; AND THAT THE TRANSFORMERS IT PROPOSED TO FURNISH DID CONFORM TO ALL OF THE REQUIREMENTS OF THE SPECIFICATIONS. THAT BEING THE CASE, IT IS OBVIOUS THAT THE CONTRACTING OFFICER'S REJECTION OF THE BID OF THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC. - THROUGH THE ERRONEOUS ORIGINAL DETERMINATION THAT THE BID WAS NOT RESPONSIVE - AND THE AWARD OF THE CONTRACT TO YOU AS THE NEXT LOWEST RESPONSIBLE BIDDER WAS CONTRARY TO THE STATUTE AND, THEREFORE, WAS WITHOUT LEGAL EFFECT TO CREATE A CONTRACT. THE PRINCIPLE IS WELL ESTABLISHED THAT ACTS OF CONTRACTING OFFICERS IN EXCESS OF AUTHORITY CONFERRED UPON THEM BY STATUTE OR REGULATIONS ARE VOID AND DO NOT BIND OR ESTOP THE GOVERNMENT. SEE 37 COMP. GEN. 550 AND THE NUMEROUS AUTHORITIES CITED AT PP. 553, 554.

WHILE YOU SEEK RELIEF IN THE FORM OF A MANDATE THAT THE FT. MCCLELLAN ARMY BASE BE REQUIRED TO ACCEPT AND PAY FOR THE 17 A DETAILED OR ITEMIZED CLAIM, IT MAY BE POINTED OUT THAT WE HAVE CONSISTENTLY DENIED REIMBURSEMENT OF COSTS INCURRED BY BIDDERS IN RELIANCE ON AN ILLEGAL AWARD WHERE THERE IS NOT SHOWING THAT THE UNITED STATES HAS RECEIVED ANY DIRECT BENEFIT FROM SUCH EXPENDITURES. PERSONS DEALING WITH AGENTS OF THE UNITED STATES ARE PRESUMED TO KNOW THE EXTENT OF THE AGENT'S AUTHORITY AND EXPENSES INCURRED BY A BIDDER BASED ON AN ILLEGAL AWARD ARE INCURRED AT HIS OWN RISK. SEC 37 COMP. GEN. 51; 20 ID. 890, 894; AND 17 ID. 312.

MOREOVER, IT ALSO MAY BE POINTED OUT HERE THAT, EVEN IF THE AWARD TO YOU IN THIS CASE COULD BE REGARDED AS CREATING A VALID CONTRACT UNTIL IT WAS CANCELED, THUS GIVING RISE TO A CLAIM FOR DAMAGES BASED ON A BREACH OF CONTRACT, YOUR CLAIM WOULD APPEAR TO BE ONE OF A CLASS WHICH THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE GENERALLY DECLINED TO SETTLE - NOT, IT HAS BEEN SAID, BECAUSE OF LACK OF JURISDICTION BUT BECAUSE THE NATURE OF THE CLAIM IS SUCH THAT IT IS GENERALLY IMPRACTICABLE TO REACH AN ACCURATE DETERMINATION AS TO THE MERITS AND THE QUESTION OF DAMAGES WITHOUT THE TAKING OF TESTIMONY, CROSS EXAMINATIONS OF WITNESSES, AND THE WEIGHING OF CONFLICTING EVIDENCE, WHICH OUR OFFICE IS NOT ORGANIZED TO DO. 19 COMP. GEN. 409; 4 COMP. GEN. 404. IN SUCH CASES, IT HAS BEEN OUR POLICY TO DISALLOW THE CLAIM AND LEAVE IT FOR DETERMINATION BY A PROPER COURT IF THE CLAIMANT CHOOSES TO INITIATE SUCH ACTION.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR AUTHORIZING A RENUNCIATION OF THE CANCELLATION OF PURCHASE ORDERS NOS. PE-5209-58 PE-5584-58 BY THE DEPARTMENT OF THE ARMY OR FOR THE REIMBURSEMENT TO YOU OF ANY EXPENSES IN REGARD TO THE SUBJECT TRANSACTIONS.

Sep 27, 2016

Sep 22, 2016

Sep 21, 2016

Sep 20, 2016

Looking for more? Browse all our products here