B-141333, DEC. 10, 1959

B-141333: Dec 10, 1959

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER (R11.2 L4-1 L4/NP25). IT ITS BID BECAUSE IT FAILED TO TAKE EXCEPTION TO THE SPECIFICATION REQUIREMENTS WHICH IT IS UNABLE TO MEET. ARE INCORPORATED HEREIN BY THIS REFERENCE WITH THE SAME FORCE AND EFFECT AS IF SET FORTH HEREIN IN FULL STANDARD FORM 32 (OCT 1957 EDITION) ENTITLED "GENERAL PROVISIONS (SUPPLY CONTRACT). COPIES WILL BE PROVIDED UPON REQUEST.'. IT MAY BE POINTED OUT ALSO THAT UNDER THE CITED PROVISIONS BIDDERS WERE CAUTIONED. BY PARAGRAPH 8 (D) OF THE GENERAL PROVISIONS IT IS PROVIDED THAT. TWO OTHER UNQUALIFIED BIDS OF $1.325 AND $1.80 PER POUND WERE RECEIVED AND. WAS ACCEPTED AND AN AWARD ISSUED ON CONTRACT NO. AFTER THE AWARD WAS MAILED.

B-141333, DEC. 10, 1959

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER (R11.2 L4-1 L4/NP25), DATED NOVEMBER 24, 1959, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, CONCERNING THE REQUEST OF KAISER ALUMINUM AND CHEMICAL SALES, INC., OAKLAND, CALIFORNIA, THAT CONTRACT NO. N197-408/X) BE CANCELED BECAUSE OF AN ERROR, ALLEGED AFTER AWARD, IT ITS BID BECAUSE IT FAILED TO TAKE EXCEPTION TO THE SPECIFICATION REQUIREMENTS WHICH IT IS UNABLE TO MEET.

BY INVITATION NO. IFB-197-88-60, ISSUED SEPTEMBER 28, 1959, THE U.S. NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY, SOLICITED BIDS FOR FURNISHING 13,464 POUNDS OF

TABLE

"ALUMINUM EXTRUSIONS IN ACCORDANCE WITH U.S.

NAVAL ORDNANCE DRAWING L-00404. 2244 LIN.

FEET - LENGTHS MUST BE IN MULTIPLES OF 42 INCHES.

(STK. NO. GL9520-L00-6165 FOR NAVY USE ONLY)"

THE DRAWING SPECIFIED ALLOY, FEDERAL SPECIFICATION QQ-A-261-14S-T6, OR 2014-T6 AS AN ALTERNATE.

THE INVITATION PROVIDED THAT THE CONTRACT WOULD BE SUBJECT TO "GENERAL PROVISIONS INCORPORATED BY REFERENCE: THE FOLLOWING GENERAL PROVISIONS, EXCEPT AS EXPRESSLY MODIFIED ELSEWHERE IN THIS SCHEDULE, ARE INCORPORATED HEREIN BY THIS REFERENCE WITH THE SAME FORCE AND EFFECT AS IF SET FORTH HEREIN IN FULL STANDARD FORM 32 (OCT 1957 EDITION) ENTITLED "GENERAL PROVISIONS (SUPPLY CONTRACT)," AND SANDA FORM 111 (REV. 2-58) ENTITLED "ADDITIONAL GENERAL PROVISIONS (ADVERTISED AND NEGOTIATED FIXED-PRICE SUPPLY CONTRACTS).' COPIES WILL BE PROVIDED UPON REQUEST.' IT MAY BE POINTED OUT ALSO THAT UNDER THE CITED PROVISIONS BIDDERS WERE CAUTIONED, IN THE PREPARATION OF BIDS, TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULES, AND ALL INSTRUCTIONS, AND THAT FAILURE TO DO SO WOULD BE AT THE BIDDER'S RISK. ALSO, BY PARAGRAPH 8 (D) OF THE GENERAL PROVISIONS IT IS PROVIDED THAT---

"A WRITTEN AWARD MAILED (OR OTHERWISE FURNISHED) TO THE SUCCESSFUL BIDDER WITHIN THE TIME FOR ACCEPTANCE SPECIFIED IN THE BID SHALL BE DEEMED TO RESULT IN A BINDING CONTRACT WITHOUT FURTHER ACTION BY EITHER PARTY.'

IN RESPONSE TO THE INVITATION, KAISER ALUMINUM AND CHEMICAL SALES, INC., SUBMITTED AN UNQUALIFIED BID OF $1.133 PER POUND FOR THE ALUMINUM TO BE FURNISHED UNDER THE INVITATION. TWO OTHER UNQUALIFIED BIDS OF $1.325 AND $1.80 PER POUND WERE RECEIVED AND, ALSO, TWO BIDS AT UNIT PRICES OF $1.25 TO $2.048 PER POUND, PLUS AN ADDITIONAL AMOUNT, RESPECTIVELY, FOR "TOOLING" AND ,DIE CHARGE.' THE UNQUALIFIED BID OF KAISER ALUMINUM AND CHEMICAL SALES, INC., BEING THE LOWEST, WAS ACCEPTED AND AN AWARD ISSUED ON CONTRACT NO. N197-408/X) UNDER DATE OF NOVEMBER 2, 1959. AFTER THE AWARD WAS MAILED, THE CONTRACTING OFFICER RECEIVED A TELEGRAM DATED NOVEMBER 4, 1959, FROM THE CONTRACTOR, WHICH STATED THAT ITS QUOTATION WAS VALID ONLY FOR "ALLOY 6061-T6; " THAT IT WAS UNABLE TO ACCEPT AN AWARD FOR ANY OTHER ALLOYS, AND THAT THIS QUALIFICATION WAS INADVERTENTLY OMITTED FROM ITS BID. THE COMPANY REQUESTED THAT THE WIRE BE MADE A PART OF ITS BID. IN A LATER TELEGRAM RECEIVED BY THE CONTRACTING OFFICER ON NOVEMBER 12, 1959, THE CONTRACTOR REQUESTED THAT ITS QUOTATION BE WITHDRAWN, STATING THAT IT WAS UNABLE TO PRODUCE ALLOY 2014-T6 EXTRUSIONS OF THE CLASS CALLED FOR IN THE BID INVITATION AND THAT THE CONTRACT WAS BEING RETURNED UNDER SEPARATE COVER. BY LETTER DATED NOVEMBER 11, 1959, THE CONTRACT AND THE CONTRACTING OFFICER'S LETTER DATED NOVEMBER 2, 1959, NOTIFYING THE CONTRACTOR OF THE AWARD, WERE RETURNED. IN THAT LETTER KAISER ALUMINUM CONFIRMED ITS STATEMENT IN PREVIOUS TELEGRAMS THAT IT WAS UNABLE TO FURNISH THE MATERIAL IN "ALLOY 2014," AND EXPLAINED THAT ITS ORIGINAL BID SHOULD HAVE STIPULATED THAT IT WAS QUOTING ONLY ON "ALLOY 6061 T6," BUT THAT INFORMATION WAS INADVERTENTLY OMITTED FROM ITS BID. THE CONTRACTOR STATED THAT IT MUST, THEREFORE, WITHDRAW FROM THE CONTRACT.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IN SUBMITTING ITS BID, KAISER ALUMINUM AND CHEMICAL SALES, INC., DID NOT INDICATE THEREON ANY CHANGES FROM THE BID SPECIFICATIONS OR OTHERWISE QUALIFY ITS BID. THEREFORE, SUCH ERROR, IF ANY, THAT MAY HAVE BEEN MADE IN THE COMPANY'S BID, WAS UNILATERAL AND NOT MUTUAL AND DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. THE COMPANY'S BID WAS CLEAR ON ITS FACE, AND THE CONTRACTING OFFICER HAS STATED THAT AT THE TIME OF EVALUATING BIDS THERE WAS NO REASON FOR HIM TO SUSPECT THAT KAISER ALUMINUM COULD NOT MANUFACTURE AND FURNISH THE MATERIAL IN ACCORDANCE WITH DRAWING L-00404 SET OUT IN THE INVITATION. THE DEVIATION IN THE MATERIAL INTENDED TO BE FURNISHED BY KAISER ALUMINUM UNDER ITS BID FROM THE ADVERTISED SPECIFICATIONS, WHICH WERE CLEAR AND UNAMBIGUOUS AS TO WHAT WAS REQUIRED, DID NOT BECOME KNOWN TO THE PURCHASING OFFICER UNTIL AFTER AWARD OF THE PURCHASE CONTRACT, WHEN HE WAS ADVISED THEREOF BY THE CONTRACTOR.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE ACCEPTANCE OF THE BID OF KAISER ALUMINUM AND CHEMICAL SALES, INC., WITHOUT NOTICE THAT IT INTENDED TO FURNISH A DIFFERENT MATERIAL THAN CALLED FOR IN THE ADVERTISED SPECIFICATIONS, WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR GRANTING ANY RELIEF TO KAISER ALUMINUM AND CHEMICAL SALES, INC., UNDER CONTRACT NO. N197 408/X).