B-143436, JUL. 22, 1960

B-143436, JUL. 22, 1960

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1960, SUBMITTING FOR OUR CONSIDERATION A REQUEST OF M. S. GINN AND COMPANY, WASHINGTON, D.C., THAT IT BE RELIEVED FROM ALL OBLIGATION UNDER CONTRACT NO. GS 00S-31743, DATED MAY 6, 1960, COVERING AN AWARD MADE TO THAT COMPANY ON ITEMS NOS. 29, 31 AND 32 OF INVITATION FOR BIDS NO. FN-1F-26108-A-3 25-60, ISSUED FEBRUARY 15, 1960, BY THE FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION.

BIDS WERE INVITED FOR THE FURNISHING OF 37 ITEMS OF OFFICE FURNITURE AND ACCESSORIES AS MIGHT BE ORDERED BY THE GOVERNMENT DURING THE PERIOD AUGUST 1, 1960, TO JULY 31, 1961. THE FIRST 32 ITEMS CALLED FOR FURNITURE OF UNITIZED STEEL CONSTRUCTION TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION NO. AA-F-00795A (GSA-FSS), DATED FEBRUARY 6, 1959, AND AMENDMENT 3 DATED DECEMBER 15, 1959. THE FIRST EIGHT ITEMS WERE DESCRIBED AS DESKS. THE NEXT TWENTY ITEMS WERE DESCRIBED AS TABLES, BOOKCASES AND CREDENZAS. ITEM NO. 29, ASSIGNED STOCK NO. 7110 687-8889, WAS DESCRIBED AS A "TOP, DESK, TYPE X; LINOLEUM; FOR USE OVER TWO 2-DRAWER SECURITY FILING CABINETS, 66 INCHES WIDE, 30 INCHES DEEP.' ITEM NO. 30, ASSIGNED STOCK NO. 7110-687- 8894, WAS SIMILARLY DESCRIBED EXCEPT FOR THE SUBSTITUTION OF THE WORD "PLASTIC" FOR THE WORD "LINOLEUM.' ITEM NO. 31, ASSIGNED STOCK NO. 7110- 687-8892, WAS DESCRIBED AS A "TOP, DESK, TYPE XI; LINOLEUM; FOR USE OVER ONE 2-DRAWER SECURITY FILING CABINET, 50 INCHES WIDE, 30 INCHES DEEP.' ITEM NO. 32, ASSIGNED STOCK NO. 7110-687-8927, WAS SIMILARLY DESCRIBED EXCEPT FOR THE REQUIRED USE OF PLASTIC INSTEAD OF LINOLEUM

PARAGRAPH 3.2.9 OF THE APPLICABLE SPECIFICATION FOR FURNITURE, OFFICE, STEEL, UNITIZED, CONTAINS A DESCRIPTION OF "TOPS" , FOR ALL FURNITURE UNITS, AND THERE WERE ATTACHED TO THE SPECIFICATION VARIOUS DRAWINGS, ONE OF WHICH (FIGURE 10) IS AN ILLUSTRATION OF THE TYPE X, TOP, DESK. HOWEVER, PARAGRAPHS 3.2.22 AND 3.2.23 OF THE SPECIFICATION REQUIRES THE CONSTRUCTION FOR THE TYPE X TOP, DESKS, OF TWO FRAMES WHICH WOULD SLIP OVER THE FILING CABINETS AND A CENTER DRAWER WHICH WOULD BE LOCATED IN THE KNEE SPACE BETWEEN THE FRAMES; AND THE CONSTRUCTION FOR THE TYPE XI TOP, DESKS, OF ONE FRAME, A LEG SUPPORT AND A CENTER DRAWER.

THE ABSTRACT OF THE BIDS RECEIVED IN RESPONSE TO THE GOVERNMENT'S INVITATION FOR BIDS DISCLOSED THAT THE BID PRICES OF M. S. GINN AND COMPANY ON ITEMS NOS. 29, 31 AND 32 WERE SUBSTANTIALLY LOWER THAN THOSE OF THE GLOBE-WERNICKE COMPANY, THE ONLY OTHER BIDDER ON SUCH ITEMS. THUS, IN CONNECTION WITH THE F.O.B. POINT OF ORIGIN QUOTATIONS, M. S. GINN AND COMPANY OFFERED DELIVERY AT PRICES OF $32.86, $25.09 AND $35.76 AS COMPARED WITH THE GLOBE-WERNICKE COMPANY'S QUOTED PRICES OF $37, $38 AND $42.

IN REQUESTING RELIEF IN THE MATTER, THE CONTRACTOR ALLEGED THAT MISTAKES HAD BEEN MADE IN THE BID AS THE RESULT OF ERRONEOUS ESTIMATES FURNISHED BY ITS SUPPLIER, CORRY-JAMESTOWN CORPORATION, CORRY, PENNSYLVANIA. IT WAS CONTENDED THAT THE ERRONEOUS ESTIMATES OCCURRED AS THE RESULT OF THE SUPPLIER'S RELIANCE UPON PARAGRAPH 3.2.9 OF THE APPLICABLE SPECIFICATION, WHICH RELATED ONLY TO DESK TOPS, AND THE FIGURE 10 ILLUSTRATION, NEITHER OF WHICH MENTIONS OR ILLUSTRATES DRAWERS OR LEG SUPPORTS. THE CONTRACTOR SUBMITTED ITS SUPPLIER'S ORIGINAL AND SUPPLEMENTAL WORK SHEETS, INDICATING THAT NO COST ALLOWANCES WERE MADE IN THE ORIGINAL COST ESTIMATES FOR LEG SUPPORTS OR CENTER DRAWERS, AND THAT THE COST OF PRODUCING THE FURNITURE INVOLVED WOULD EXCEED THE BID AND CONTRACT PRICES THEREFOR.

SINCE THE PARTICULAR TYPES OF FURNITURE ARE NEW ITEMS, NO PURCHASES HAVE PREVIOUSLY BEEN MADE BY THE FEDERAL SUPPLY SERVICE WHICH COULD SERVE AS A BASIS FOR COMPARISON OF PURCHASE PRICES WITH THOSE OF THE TWO BIDDERS ON ITEMS NOS. 29, 31 AND 32 OF THE INSTANT INVITATION. THE VIEW IS EXPRESSED IN YOUR LETTER THAT THE SPECIFICATION WAS NOT AMBIGUOUS TO A SIGNIFICANT DEGREE BUT IT HAS BEEN POINTED OUT THAT AN EXAMINATION OF THE UNIT SHIPPING WEIGHTS AS STATED IN THE TWO BIDS ESTABLISHED BEYOND DOUBT THAT THE CONTRACTOR'S QUOTATIONS WERE BASED ON AN ERRONEOUS INTERPRETATION OF THE SPECIFICATION, SINCE NO DESK TOPS INCLUDING DRAWERS AND SUPPORTS COULD BE SHIPPED AT THE CONTRACTOR'S INDICATED WEIGHTS. THE CONTRACTOR'S BID LISTED A SHIPPING WEIGHT OF 74 POUNDS FOR ITEM NO. 29 AND A SHIPPING WEIGHT OF 53 POUNDS FOR UNITS COVERED BY ITEMS NOS. 31 AND 32. THE GLOBE- WERNICKE COMPANY'S STATED SHIPPING WEIGHTS FOR THE THREE ITEMS WERE 99, 105 AND 105 POUNDS, RESPECTIVELY.

THE CONTRACTOR ALLEGED THAT ITS PRICES ON OTHER ITEMS OF THE INVITATION WERE HIGHER THAN THE PRICES QUOTED BY ALL OTHER BIDDERS AND THAT IN SOME CASES ITS PRICES WERE IN EXCESS OF 40 PERCENT HIGHER THAN THOSE QUOTED BY ALL OTHER BIDDERS ON THE SAME ITEMS. THE CONTRACTING OFFICER HAS ADVISED US INFORMALLY THAT THE CONTRACTOR'S STATEMENTS IN THAT REGARD ARE CORRECT; ALSO, THAT BIDS RECEIVED ON FURNITURE REQUIREMENTS OF THE GOVERNMENT ARE HIGHLY COMPETITIVE AND HE WOULD NORMALLY HAVE REQUESTED A VERIFICATION OF THE PRICES BID BY THE CONTRACTOR ON ITEMS NOS. 29, 31 AND 32, BEFORE MAKING AWARD, ALTHOUGH ONLY TWO BIDDERS HAD QUOTED PRICES ON THOSE ITEMS OF THE INVITATION.

THE CONTRACTING OFFICER HAS SUGGESTED THAT THE SUBSTANTIAL DIFFERENCES BETWEEN THE PRICES QUOTED BY THE TWO BIDDERS, COUPLED WITH THE FACT THAT THERE WERE ALSO SUBSTANTIAL DIFFERENCES BETWEEN THE BIDDERS' STATED SHIPPING WEIGHTS, SHOULD HAVE BEEN SUFFICIENT TO HAVE PLACED HIM ON NOTICE OF PROBABLE MISTAKES IN THE CONTRACTOR'S BID.

GENERALLY, NO FAIR COMPARISON WITH OTHER BIDS CAN BE MADE WHERE ONLY TWO WIDELY VARIANT BIDS ARE RECEIVED ON AN ITEM, THERE BEING NO MORE ROOM FOR CONSIDERING THAT THE LOW BID WAS TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A PRICE TOO HIGH. SEE 20 COMP. GEN. 286. HOWEVER, IN THE PRESENT CASE, THERE WERE SUBSTANTIAL DIFFERENCES BETWEEN BOTH THE STATED BID PRICES ON THE PARTICULAR ITEMS AND BIDDERS' STATED SHIPPING WEIGHTS. FURTHER, ALTHOUGH THE REFERENCED SPECIFICATION MAY NOT HAVE BEEN AMBIGUOUS TO A SIGNIFICANT DEGREE, IT IS APPARENT THAT THE DESCRIPTIONS IN THE SCHEDULE OF THE INVITATION WERE INADEQUATE IN THAT THEY FAILED TO SHOW THAT EITHER CENTER DRAWERS OR SUPPORTS OF ANY KIND WERE TO BE FURNISHED WITH THE DESK TOPS.

IN THESE CIRCUMSTANCES, YOU ARE ADVISED THAT WE WOULD NOT BE REQUIRED TO OBJECT TO A CANCELLATION OF THE CONTRACT WITHOUT LIABILITY TO EITHER PARTY IN ACCORDANCE WITH THE CONTRACTOR'S REQUEST AND THE RECOMMENDATION OF THE CONTRACTING OFFICER.