B-142356, APR. 18, 1960

B-142356: Apr 18, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED MARCH 21. THERE WAS INCORPORATED IN THE INVITATION A CLAUSE ENTITLED "WEIGHT AND CUBIC DISPLACEMENT OF PACKED EXTERIOR NTAINERS.'. IT WAS FOUND THAT THE ACTUAL GROSS WEIGHT AND CUBAGE WAS IN EXCESS OF THESE FIGURES AND. 677.75 WAS DEDUCTED FROM AMOUNTS OTHERWISE PROPERLY DUE THE CORPORATION TO COVER THE GOVERNMENT'S EXCESS TRANSPORTATION CHARGES. PRIMARILY THE POSITION OF THE NAPHTHALENE CORPORATION IS THAT SINCE IT RELIED ON INCORRECT INFORMATION FURNISHED BY GOVERNMENT EMPLOYEES. THE DEDUCTION IS IMPROPER. WHILE COPIES OF MIL-STD-129B WERE NOT FURNISHED WITH THE INVITATION. IT WAS EXPRESSLY STATED THAT THE STANDARD COULD BE EXAMINED AT THE NEW YORK ARMY CHEMICAL PROCUREMENT DISTRICT AND AT OTHER OFFICES LISTED.

B-142356, APR. 18, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MARCH 21, 1960, WITH ENCLOSURES, FORWARDED IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY FOR LOGISTICS, REQUESTING OUR DECISION REGARDING A CLAIM OF THE STANDARD NAPHTHALENE PRODUCTS CO., INC., FOR $2,677.75 UNDER CONTRACT NO. DA-30-070-CML-1036, DATED MAY 6, 1959.

IN RESPONSE TO INVITATION NO. CML-30-070-59-106, ISSUED ON MARCH 25, 1959, BY THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK, THE NAPHTHALENE CORPORATION SUBMITTED A BID DATED APRIL 3, 1959, OFFERING TO FURNISH 251,600 POUNDS OF NAPHTHALENE, TECHNICAL, TYPE II, ETC., PACKED FOR OVERSEAS SHIPMENT, AT $0.1332 A POUND, OR FOR A TOTAL PRICE OF $33,513.12. THERE WAS INCORPORATED IN THE INVITATION A CLAUSE ENTITLED "WEIGHT AND CUBIC DISPLACEMENT OF PACKED EXTERIOR NTAINERS.' THE CLAUSE REQUIRED BIDDERS TO SHOW, IN THE SPACES PROVIDED, THE GROSS WEIGHT AND CUBIC DISPLACEMENT OF THE INDIVIDUAL PACKED EXTERIOR CONTAINERS FOR BID EVALUATION PURPOSES. IN ADDITION, THE CLAUSE PROVIDED FOR CONTRACTOR RESPONSIBILITY IN THE EVENT OF AN INCREASE IN THE GOVERNMENT TRANSPORTATION COSTS BY REASON OF AN INCREASE IN THE ACTUAL GROSS WEIGHT AND/OR CUBIC DISPLACEMENT OF THE SAID CONTAINERS OVER THE WEIGHT AND DISPLACEMENT SHOWN IN THE LOW BID FORM. IT PROVIDED FURTHER THAT IN DETERMINING CONTRACTOR LIABILITY THE CUBAGE WOULD BE CALCULATED IN ACCORDANCE WITH PARAGRAPH 2.2.8 OF MIL-STD-129B WITH CHANGE NOTICE 2, DATED SEPTEMBER 2, 1958. THE NAPHTHALENE CORPORATION ALLEGES THAT IN COMPUTING THIS PART OF ITS BID, NOT HAVING BEFORE IT A COPY OF MIL-STD- 129B, IT INFORMALLY CONTACTED TWO EMPLOYEES OF THE NEW YORK ARMY CHEMICAL PROCUREMENT DISTRICT AND, ON THE BASIS OF CERTAIN INFORMATION ALLEGEDLY RECEIVED FROM THEM, SET FORTH IN ITS BID A GROSS WEIGHT OF 214 1/2 POUNDS PER DRUM AND A CUBAGE PER DRUM, TO THE NEAREST TENTH OF A CUBIC FOOT, OF 6.3. SUBSEQUENTLY, IT WAS FOUND THAT THE ACTUAL GROSS WEIGHT AND CUBAGE WAS IN EXCESS OF THESE FIGURES AND, THEREFORE, IN ACCORDANCE WITH THE TERMS OF THE FOREGOING WEIGHT AND CUBIC DISPLACEMENT CLAUSE, THE AMOUNT OF $2,677.75 WAS DEDUCTED FROM AMOUNTS OTHERWISE PROPERLY DUE THE CORPORATION TO COVER THE GOVERNMENT'S EXCESS TRANSPORTATION CHARGES. PRIMARILY THE POSITION OF THE NAPHTHALENE CORPORATION IS THAT SINCE IT RELIED ON INCORRECT INFORMATION FURNISHED BY GOVERNMENT EMPLOYEES, THE DEDUCTION IS IMPROPER.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE RESPONSIBILITY FOR THE PREPARATION OF A BID TO CONFORM TO THE SPECIFICATIONS IN ALL PHASES RESTS WITH THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IN THE INSTANT CASE, THE INVITATION FOR BIDS, AS WELL AS MIL-STD-129B, ETC., APPEAR TO BE CLEAR AND UNEQUIVOCAL BOTH AS TO THE MANNER OF COMPUTING THE GROSS WEIGHT AND CUBIC DISPLACEMENT OF THE CONTAINER AND REGARDING CONTRACTOR LIABILITY. MOREOVER, WHILE COPIES OF MIL-STD-129B WERE NOT FURNISHED WITH THE INVITATION, IT WAS EXPRESSLY STATED THAT THE STANDARD COULD BE EXAMINED AT THE NEW YORK ARMY CHEMICAL PROCUREMENT DISTRICT AND AT OTHER OFFICES LISTED. THE STANDARD WAS ALSO AVAILABLE BY PURCHASE FROM THE GOVERNMENT PRINTING OFFICE. UNDER SUCH CIRCUMSTANCES, IT IS CLEAR THAT THE ERROR WHICH WAS MADE IN THE BID OF THE NAPHTHALENE CORPORATION AS TO THE GROSS WEIGHT AND CUBIC DISPLACEMENT WAS BASICLY DUE TO ITS FAILURE TO EXAMINE MIL-STD-129B PRIOR TO COMPUTING THE BID. IF THE CORPORATION FAILED TO FAMILIARIZE ITSELF WITH THIS PART OF THE SPECIFICATIONS AND ELECTED TO RELY UPON ORAL INFORMATION ALLEGEDLY RECEIVED FROM CERTAIN EMPLOYEES OF THE CHEMICAL PROCUREMENT DISTRICT, IT MUST BE CONCLUDED THAT IT ASSUMED SOLE RESPONSIBILITY FOR ANY AND ALL RISKS OF VARIANCE THAT MIGHT HAVE EXISTED AND MUST BEAR THE CONSEQUENCES WHICH RESULTED FROM SUCH NEGLIGENCE. AS STATED IN THE CASE OF GRYMES V. SANDERS, ET AL., 93 U.S. 55,"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE, WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE.'

BUT, EVEN IF THE RECORD SHOWED CONCLUSIVELY THAT THE INFORMATION ALLEGEDLY RECEIVED BY THE NAPHTHALENE CORPORATION FROM THE GOVERNMENT EMPLOYEES WAS ERRONEOUS, SUCH CONDITION, WITHOUT MORE, WOULD NOT SUBJECT THE GOVERNMENT TO LIABILITY IN THE MATTER. IT IS REPORTED THAT THE GOVERNMENT EMPLOYEES WHO ALLEGEDLY FURNISHED THE ERRONEOUS INFORMATION WERE NEITHER THE CONTRACTING OFFICER NOR AUTHORIZED REPRESENTATIVES FOR THE SUBJECT PROCUREMENT. MOREOVER, THE FURNISHING OF ERRONEOUS INFORMATION OF THIS NATURE WOULD APPEAR TO AMOUNT TO A VERBAL MODIFICATION OF THE UNAMBIGUOUS LANGUAGE OF THAT PART OF THE SPECIFICATION. UNDER THESE CIRCUMSTANCES, THERE CAN BE LITTLE DOUBT THAT THE GOVERNMENT EMPLOYEES EXCEEDED THEIR AUTHORITY AND, AS A RESULT, THEIR ACTS ARE VOID AND DO NOT BIND OR STOP THE GOVERNMENT. SEE 37 COMP. GEN. 550, AND THE COURT CASES CITED THEREIN.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS FOR ALLOWING ANY PART OF THE $2,677.75 CLAIMED.