B-139576, JUL. 23, 1959

B-139576: Jul 23, 1959

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TO THE ARROW OIL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MAY 8. BIDS WERE REQUESTED. BIDDERS WHO DESIRED TO SUBMIT PRICES SUBJECT TO ESCALATION WERE TO COMPLETE SECTION I OF THE SCHEDULE IN WHICH POSTED OR PUBLISHED PRICES. WERE TO BE SHOWN. SECTION II OF THE SCHEDULE LISTED THE SUPPLIES REQUIRED AND THE PRICES OFFERED FOR SUCH SUPPLIES WERE TO BE INSERTED OPPOSITE THE APPLICABLE ITEMS. THE PRICES SO OFFERED WERE TO BE CONSIDERED THE BASE PRICES. THE CONTRACTING OFFICER NOTED THAT THE PRICES BID BY YOU WERE OUT OF LINE WITH THE OTHER BIDS RECEIVED AND REQUESTED YOU TO CONFIRM WHETHER YOUR UNIT PRICES INCLUDED THE FEDERAL EXCISE TAX OF $0.03 PER GALLON. YOU WERE REQUESTED TO FURNISH WORK PAPERS AND EVIDENCE TO SUPPORT THE ALLEGED OMISSION OF FEDERAL TAX FROM YOUR PRICES.

B-139576, JUL. 23, 1959

TO THE ARROW OIL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1959, PROTESTING THE REJECTION OF YOUR BID ON INVITATION NO. IFB 59-111 ISSUED BY THE MILITARY PETROLEUM SUPPLY AGENCY ON JANUARY 22, 1959, FOR THE FURNISHING OF PETROLEUM PRODUCTS TO VARIOUS INSTALLATIONS DURING THE PERIOD FROM MAY 1, 1959, THROUGH OCTOBER 31, 1959.

UNDER THE INVITATION, BIDS WERE REQUESTED--- TO BE OPENED FEBRUARY 24, 1959--- FOR FURNISHING VARIOUS ITEMS OF PETROLEUM PRODUCTS, AND QUOTATIONS COULD BE SUBMITTED EITHER ON A FIRM BASIS FOR THE CONTRACT PERIOD OR AN ESCALATED BASIS. BIDDERS WHO DESIRED TO SUBMIT PRICES SUBJECT TO ESCALATION WERE TO COMPLETE SECTION I OF THE SCHEDULE IN WHICH POSTED OR PUBLISHED PRICES, EXCLUSIVE OF ALL TAXES, WERE TO BE SHOWN. SECTION II OF THE SCHEDULE LISTED THE SUPPLIES REQUIRED AND THE PRICES OFFERED FOR SUCH SUPPLIES WERE TO BE INSERTED OPPOSITE THE APPLICABLE ITEMS. THE PRICES SO OFFERED WERE TO BE CONSIDERED THE BASE PRICES. UPON THE OPENING OF BIDS, THE CONTRACTING OFFICER NOTED THAT THE PRICES BID BY YOU WERE OUT OF LINE WITH THE OTHER BIDS RECEIVED AND REQUESTED YOU TO CONFIRM WHETHER YOUR UNIT PRICES INCLUDED THE FEDERAL EXCISE TAX OF $0.03 PER GALLON. YOU REPLIED THAT YOUR PRICES DID NOT INCLUDE STATE OR FEDERAL TAXES. YOU WERE REQUESTED TO FURNISH WORK PAPERS AND EVIDENCE TO SUPPORT THE ALLEGED OMISSION OF FEDERAL TAX FROM YOUR PRICES. YOU PREPARED A STATEMENT SETTING FORTH YOUR INDICATED COSTS OF GASOLINE WHICH YOU SUBMITTED IN SUPPORT OF THE ERROR. YOU DID NOT FURNISH ANY WORKSHEETS OR OTHER EVIDENCE WHICH WOULD CLEARLY ESTABLISH THE AMOUNTS INTENDED TO BE BID FOR EACH ITEM NOR WAS THE INTENDED BID ASCERTAINABLE BY REFERENCE TO THE INVITATION AND BID ALONE. IN MAKING AWARD YOUR BID ON THE VARIOUS ITEMS WAS DISREGARDED.

REFERENCE TO PARAGRAPH 20 OF THE GENERAL PROVISIONS FOR PETROLEUM PRODUCTS MADE A PART OF THE CONTRACT INDICATES THAT EXCEPT AS MIGHT BE OTHERWISE PROVIDED IN THE CONTRACT, THE CONTRACT PRICE INCLUDED ALL FEDERAL, STATE AND LOCAL TAXES APPLICABLE TO THE CONTRACT ON THE TAX INCLUSIVE DATE. PARAGRAPH 21 OF THE SAME PROVISIONS ALSO PROVIDED THAT UNLESS OTHERWISE INDICATED IN THE SCHEDULE, ALL CONTRACT PRICES FOR MOTOR FUEL, ETC., INCLUDED THE FEDERAL EXCISE TAX OF $0.03 PER GALLON. THE PRICES SET OUT IN SECTION II OF THE SCHEDULE IN WHICH NO REFERENCE TO TAXES WAS MADE, WERE THEREFORE TO BE CONSIDERED AS TAX INCLUSIVE.

IT HAS BEEN HELD BY OUR OFFICE IN 36 COMP. GEN. 441 THAT WHERE A BIDDER FURNISHES EVIDENCE BEFORE AWARD WHICH REASONABLY ESTABLISHES THAT HE HAS OMITTED A MATERIAL ITEM OF COST FROM THE BID PRICE, THE GOVERNMENT IS JUSTIFIED IN DISREGARDING THE BID IN MAKING AWARD. ALSO, IT HAS BEEN HELD IN 31 COMP. GEN. 183, THAT IN ORDER TO AUTHORIZE A RECALCULATION OF A BID AND TO PERMIT ITS CORRECTION, THERE MUST BE FURTHER AND CONCLUSIVE PROOF OF THE AMOUNT OF THE INTENDED BID. THE ADMINISTRATIVE OFFICE HAS CONCLUDED IN THIS CASE THAT THERE HAS NOT BEEN SUBMITTED ANY CONCLUSIVE PROOF OF THE AMOUNT OF THE INTENDED BID ON EACH ITEM AND DID NOT PERMIT CORRECTION. THERE HAS NOT BEEN FURNISHED ANY EVIDENCE TO WARRANT OUR OFFICE IN DISAGREEING WITH THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE IN THIS CASE AND WE FIND NO BASIS FOR HOLDING THAT YOUR BID SHOULD HAVE BEEN CONSIDERED IN MAKING AWARD.