B-143123, JUN. 28, 1960

B-143123: Jun 28, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JUNE 3. WAS AWARDED ITEMS NOS. 2. 4 AND 13 UNDER CONTRACT O.I. 1264 WHILE ITEM NO. 3 WAS AWARDED TO ANOTHER BIDDER AT A PRICE OF $0.05945 A POUND. THE CONTRACTOR ADVISED THAT THE METAL SCRAP DELIVERED AS ITEM NO. 4 WAS THAT WHICH PREVIOUSLY HAD BEEN SHOWN TO IT AS ITEM NO. 3. THAT THE LOTS COVERED BY ITEMS NOS. 3 AND 4 WERE NOT MARKED AND THAT THE CUSTODIAN HAS ADMITTED THE SAID LOTS MIGHT HAVE BEEN SHOWN TO THE CONTRACTOR IN THE REVERSE ORDER. SINCE ITEMS NOS. 3 AND 4 WERE NOT MADE READILY IDENTIFIABLE TO PROSPECTIVE PURCHASERS BY THE PROPERTY DISPOSAL OFFICE. WHO APPEARS TO HAVE MADE EVERY EFFORT TO INSPECT OR OTHERWISE FAMILIARIZE ITSELF WITH THE PROPERTY BEING OFFERED FOR SALE PRIOR TO SUBMITTING A BID.

B-143123, JUN. 28, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 3, 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 THERE MAY BE GRANTED THE RELIEF SOUGHT BY FEENSTRA N.V. UNDER SALES CONTRACT C.I. 1264, DATED OCTOBER 28, 1959.

IN RESPONSE TO INVITATION NO. DA-EUC-91-563-S-60-18, ISSUED ON SEPTEMBER 15, 1959, BY THE KAISERSLAUTERN PROPERTY DISPOSAL OFFICE, KAISERSLAUTERN/ESELAFUARTH, GERMANY, FEENSTRA N.V. SUBMITTED A BID DATED OCTOBER 15, 1959, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 3, COVERING AN ESTIMATED 24,420 POUNDS OF FERROUS AND NONFERROUS METAL SCRAP AT $0.0362 A POUND AND ITEM NO. 4, COVERING AN ESTIMATED 57,684 POUNDS OF FERROUS AND NONFERROUS METAL SCRAP--- DERIVED FROM A DIFFERENT MATERIEL SOURCE THAN THAT COVERED BY ITEM NO. 3--- AT $0.0782 A POUND. IT APPEARS THAT FEENSTRA N.V. WAS AWARDED ITEMS NOS. 2, 4 AND 13 UNDER CONTRACT O.I. 1264 WHILE ITEM NO. 3 WAS AWARDED TO ANOTHER BIDDER AT A PRICE OF $0.05945 A POUND. FEENSTRA N.V. MADE PAYMENT FOR THE PROPERTY BUT UPON RECEIPT OF DELIVERY, THE CONTRACTOR ADVISED THAT THE METAL SCRAP DELIVERED AS ITEM NO. 4 WAS THAT WHICH PREVIOUSLY HAD BEEN SHOWN TO IT AS ITEM NO. 3, ON WHICH A BID OF ONLY $0.0362 A POUND HAD BEEN SUBMITTED. AS A RESULT OF THE IDENTIFICATION ERROR BETWEEN THE TWO ITEMS, THE CONTRACTOR NOW SEEKS RELIEF IN THE FORM OF AN ADJUSTMENT IN THE CONTRACT PRICE TO COVER THE DAMAGES INCURRED.

THE QUARTERMASTER GENERAL ADVISES THAT THE DISPOSAL DEPOT CUSTODIAN HAS VERIFIED THE STATEMENT OF FEENSTRA N.V. THAT THE LOTS COVERED BY ITEMS NOS. 3 AND 4 WERE NOT MARKED AND THAT THE CUSTODIAN HAS ADMITTED THE SAID LOTS MIGHT HAVE BEEN SHOWN TO THE CONTRACTOR IN THE REVERSE ORDER, AS CONTENDED BY IT. THEREFORE, SINCE ITEMS NOS. 3 AND 4 WERE NOT MADE READILY IDENTIFIABLE TO PROSPECTIVE PURCHASERS BY THE PROPERTY DISPOSAL OFFICE, IT BECOMES OBVIOUS THAT FEENSTRA N.V., WHO APPEARS TO HAVE MADE EVERY EFFORT TO INSPECT OR OTHERWISE FAMILIARIZE ITSELF WITH THE PROPERTY BEING OFFERED FOR SALE PRIOR TO SUBMITTING A BID, BECAME COMPLETELY DEPENDENT UPON WHAT IT WAS SHOWN OR TOLD BY THE GOVERNMENT DISPOSAL OFFICERS. HENCE, IT APPEARS HIGHLY PROBABLE THAT FEENSTRA N.V. WAS MISINFORMED AS TO THE IDENTITY OF ITEMS NOS. 3 AND 4, AND THE BID PATTERN, AS REFLECTED BY A COMPARISON OF THE CONTRACTOR'S BID FOR THESE ITEMS WITH ALL OTHER BIDS RECEIVED THEREFOR, LEAVES LITTLE, IF ANY, DOUBT THAT THE BID WAS BASED ON THE GOVERNMENT'S ERRONEOUS IDENTIFICATION OF THE ITEMS, AS ALLEGED.

ACCORDINGLY, OUR OFFICE WILL HAVE NO OBJECTION TO AN ADJUSTMENT OF THE AMOUNT PAID BY FEENSTRA N.V. UNDER CONTRACT O.I. 1264 TO REFLECT SUCH A TOTAL PRICE FOR ITEM NO. 4 AS PROPERLY WILL BE REPRESENTED BY THE INTENDED BID OF $0.0362 A POUND FOR THE NUMBER OF POUNDS OF SCRAP METAL ACTUALLY DELIVERED UNDER THAT ITEM.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING ADJUSTMENT OF THE MATTER.

THE PAPERS, WITH THE EXCEPTION OF THE REPORT OF THE QUARTERMASTER GENERAL, ARE RETURNED HEREWITH.