B-141961, FEB. 26, 1960

B-141961: Feb 26, 1960

Additional Materials:

Contact:

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

 

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

TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 4. WHICH WAS ISSUED ON APRIL 13. TEN OTHER BIDS WERE RECEIVED FOR THE ITEM RANGING FROM $899.99 TO $88.88 AND THE ESTIMATED ACQUISITION COST WAS $4. UPON LEARNING THAT IT WAS THE HIGH BIDDER. REQUESTED THAT NO AWARD BE MADE FOR ITEM NO. 73 SINCE IT CONTENDED THAT THE SLINGS WERE NOT RIFLE SLINGS AS IT HAD BEEN LED TO BELIEVE BY THE DESCRIPTION FOR THIS ITEM IN THE INVITATION. UPON THE BASIS OF A SUBSEQUENT DETERMINATION THAT ITEM NO. 73 WAS NOT MISREPRESENTED. IN ANALYZING THE FACTS IN THIS CASE IT IS CLEAR THAT THE ONLY BASIS FORJUSTIFYING ANY DEVIATION FROM THE USUAL CONCLUSIONS OF THE COURTS AND OUR OFFICE THAT IN SALE CONTRACTS OF THIS KIND THE GOVERNMENT GENERALLY MAY NOT BE HELD LIABLE FOR HONEST DESCRIPTIVE ERRORS IN THE INVITATION IN VIEW OF THE EXPRESSED DISCLAIMER OF WARRANTY PROVISIONS WOULD BE THAT HERE THE GOVERNMENT CONTRACTING OFFICER WAS ON ACTUAL NOTICE PRIOR TO AWARD OF THE ALLEGED MISDESCRIPTION OF ITEM NO. 73 IN THE INVITATION.

B-141961, FEB. 26, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 4, 1960, WITH ENCLOSURES, FORWARDED IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY FOR LOGISTICS BY THE DEPUTY THE QUARTERMASTER GENERAL, REQUESTING OUR DECISION AS TO WHETHER THE REQUEST BY CENTRAL JOBBING COMPANY FOR CANCELLATION OF THE AWARD TO IT OF ITEM NO. 73 UNDER INVITATION NO. 11 070-S-59-25, MAY BE COMPLIED WITH IN VIEW OF THE DESCRIPTIVE MATTER SET FORTH IN THE INVITATION.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON APRIL 13, 1959, BY THE PROPERTY DISPOSAL BRANCH OF THE ROCK ISLAND ARSENAL, THE CENTRAL JOBBING COMPANY SUBMITTED A BID DATED APRIL 30, 1959, OFFERING TO PURCHASE ITEM NO. 73, COVERING ONE LOT OF UNUSED SLINGS, GUN, M1, ETC., FOR $1,982.92. TEN OTHER BIDS WERE RECEIVED FOR THE ITEM RANGING FROM $899.99 TO $88.88 AND THE ESTIMATED ACQUISITION COST WAS $4,266.24. UPON LEARNING THAT IT WAS THE HIGH BIDDER, THE CENTRAL JOBBING COMPANY, BY LETTER DATED MAY 11, 1959, TO THE PROPERTY DISPOSAL OFFICER, REQUESTED THAT NO AWARD BE MADE FOR ITEM NO. 73 SINCE IT CONTENDED THAT THE SLINGS WERE NOT RIFLE SLINGS AS IT HAD BEEN LED TO BELIEVE BY THE DESCRIPTION FOR THIS ITEM IN THE INVITATION. UPON THE BASIS OF A SUBSEQUENT DETERMINATION THAT ITEM NO. 73 WAS NOT MISREPRESENTED, THE CONTRACTING OFFICER MADE AN AWARD OF THE ITEM TO THE CENTRAL JOBBING COMPANY ON MAY 20, 1959, AND FORWARDED A NOTICE THEREOF TO THE COMPANY BY LETTER DATED MAY 25, 1959. THIS ACTION HAS RESULTED IN THE COMPANY'S REQUEST FOR RELIEF.

IN ANALYZING THE FACTS IN THIS CASE IT IS CLEAR THAT THE ONLY BASIS FORJUSTIFYING ANY DEVIATION FROM THE USUAL CONCLUSIONS OF THE COURTS AND OUR OFFICE THAT IN SALE CONTRACTS OF THIS KIND THE GOVERNMENT GENERALLY MAY NOT BE HELD LIABLE FOR HONEST DESCRIPTIVE ERRORS IN THE INVITATION IN VIEW OF THE EXPRESSED DISCLAIMER OF WARRANTY PROVISIONS WOULD BE THAT HERE THE GOVERNMENT CONTRACTING OFFICER WAS ON ACTUAL NOTICE PRIOR TO AWARD OF THE ALLEGED MISDESCRIPTION OF ITEM NO. 73 IN THE INVITATION. IN THIS CONNECTION, THE RECORD SHOWS THAT AFTER THE CENTRAL JOBBING COMPANY REQUESTED THAT IT BE PERMITTED TO WITHDRAW ITS BID ON THIS ITEM BECAUSE THE SLINGS WERE NOT RIFLE SLINGS AS IT ALLEGED IT HAD BEEN LED TO BELIEVE FROM THE DESCRIPTION, THE CONTRACTING OFFICER REFERRED THE MATTER TO THE LOCAL PROPERTY DISPOSAL REVIEW BOARD. THE BOARD DETERMINED THAT THE PROPERTY COVERED BY ITEM NO. 73 WAS NOT MISREPRESENTED AND THAT THE DESCRIPTION WAS BASED ON THE BEST INFORMATION AVAILABLE. IT WAS ONLY AFTER SUCH DETERMINATION BY THE BOARD AND APPARENTLY AFTER THE CONTRACTING OFFICER WAS CONVINCED THAT THE CENTRAL JOBBING COMPANY HAD NOT BEEN MISLED BY THE DESCRIPTION THAT HE AWARDED ITEM NO. 73 TO IT. HENCE, SINCE WE FIND NO FACTS TO SHOW THAT THE BID WAS NOT ACCEPTED IN GOOD FAITH, IT REASONABLY MUST BE CONCLUDED THAT THE CONTRACTING OFFICER NOT ONLY PROPERLY ACCEPTED THE BID BUT OWED TO THE GOVERNMENT THE DUTY TO DO SO. FURTHERMORE, THE SLINGS WERE OFFERED FOR SALE "AS IS" WITHOUT WARRANTY OR GUARANTY AS TO QUALITY, CHARACTER, CONDITION, ETC., AND ALL PROSPECTIVE BIDDERS WERE EXPRESSLY URGED IN THE INVITATION TO INSPECT THE SLINGS PRIOR TO SUBMITTING A BID SINCE "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' VIEW THEREOF, THE REQUEST OF THE CENTRAL JOBBING COMPANY FOR WITHDRAWAL OF ITS BID WAS PROPERLY DENIED BY THE CONTRACTING OFFICER AND WE FIND NO LEGAL BASIS FOR AUTHORIZING A CANCELLATION OF THE AWARD OF ITEM NO. 73 AS REQUESTED BY THE COMPANY. SEE 27 COMP. GEN. 436.

ALSO, IT MIGHT BE STATED THAT THE FURNISHING OF SAMPLES TO A BIDDER AFTER BIDS ARE OPENED, AS WAS DONE IN THIS CASE, WOULD APPEAR TO SERVE NO USEFUL PURPOSE AND GENERALLY SHOULD BE CONSIDERED INADVISABLE. MOREOVER, WHILE WE WILL NOT QUESTION FURTHER THE MATTER OF RELEASING THE CENTRAL JOBBING COMPANY FROM ITS BID ON ITEM NO. 74, THE PROPRIETY OF SUCH ACTION APPEARS HIGHLY DOUBTFUL IF, AS INDICATED, IT WAS BASED SOLELY ON THE FACT THAT SOME OF THE SLINGS WERE IN A USED CONDITION ALTHOUGH THEY WERE DESCRIBED IN THE INVITATION AS UNUSED.

THE PAPERS, WITH THE EXCEPTION OF THE REPORT OF THE QUARTERMASTER GENERAL, ORDNANCE MEMORANDUM DATED OCTOBER 22, 1959, AND THE STATEMENT OF THE CONTRACTING OFFICER, ARE RETURNED HEREWITH.