B-145806, JUN. 12, 1961

B-145806: Jun 12, 1961

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO A LETTER DATED MAY 5. TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. GS-00S-22885-ICA IS BASED. OSRAM WAS AWARDED ITEM 19 FOR A TOTAL AMOUNT OF $948.75 BY CONTRACT NO. THE CONTRACT WAS AMENDED BY AMENDMENT NO. 1 CHANGING THE DELIVERY TERMS FROM F.O.B. IT IS REPORTED THAT BY CABLEGRAM DATED MAY 12. ADVISED THE CONTRACTING OFFICE THAT IT HAD RECEIVED THE MERCURY LAMPS FROM OSRAM BUT THAT THE BALLAST AND CAPACITORS FOR EACH DIFFERENT TYPE OF LAMP WERE NOT INCLUDED IN THE SHIPMENT. OSRAM ADVISED THAT IT DOES NOT MANUFACTURE BALLAST NOR CAPACITORS AND THAT THEREFORE THE CORPORATION WAS NOT IN A POSITION TO SUBMIT ITS QUOTATION ON THE BALLAST OR CAPACITORS WHEN IT BID ON THE MERCURY LAMPS.

B-145806, JUN. 12, 1961

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED MAY 5, 1961, WITH ENCLOSURES,FROM THE ACTING ADMINISTRATOR, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY OSRAM G.M.B.H., MUNCHEN 2, WINDENMACHERSTR. 6, GERMANY, TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. GS-00S-22885-ICA IS BASED.

THE FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, WASHINGTON, D.C., BY INVITATION NO. FN-4L-18187-N-5-25-59, REQUESTED BIDS FOR FURNISHING SCIENTIFIC AND PROFESSIONAL INSTRUMENTS, APPARATUS AND SUPPLIES. ITEM 19 COVERED THE FURNISHING OF 75 EACH, 250 WATT MERCURY LAMPS AND 75 EACH, 400 WATT MERCURY LAMPS, OSRAM COLOR IMPROVED MERCURY LAMP (HQL) OR EQUAL. THE PURCHASE DESCRIPTION OF ITEM 19 CONTAINED THE FOLLOWING: "TO INCLUDE SUITABLE BALLAST AND CAPACITOR FOR EACH DIFFERENT TYPE OF LAMP LISTED.' IN RESPONSE OSRAM SUBMITTED A BID OFFERING TO FURNISH UNDER ITEM 19, THE 250 WATT MERCURY LAMPS AT A PRICE OF $5 EACH AND THE 400 WATT MERCURY LAMPS AT A PRICE OF $7.65 EACH. ON JUNE 19, 1959, OSRAM WAS AWARDED ITEM 19 FOR A TOTAL AMOUNT OF $948.75 BY CONTRACT NO. GS-OOS-22885-ICA. JULY 29, 1959, THE CONTRACT WAS AMENDED BY AMENDMENT NO. 1 CHANGING THE DELIVERY TERMS FROM F.O.B. VESSEL, HAMBURG, GERMANY, TO C AND F DESTINATION, BELGRADE, YUGOSLAVIA.

IT IS REPORTED THAT BY CABLEGRAM DATED MAY 12, 1960, THE CONSIGNEE IN BELGRADE, YUGOSLAVIA, ADVISED THE CONTRACTING OFFICE THAT IT HAD RECEIVED THE MERCURY LAMPS FROM OSRAM BUT THAT THE BALLAST AND CAPACITORS FOR EACH DIFFERENT TYPE OF LAMP WERE NOT INCLUDED IN THE SHIPMENT. BY LETTER DATED MAY 20, 1960, THE CONTRACTING OFFICER REQUESTED OSRAM TO SHIP THE BALLAST AND CAPACITORS.

IN A LETTER DATED JUNE 1, 1960, OSRAM ADVISED THAT IT DOES NOT MANUFACTURE BALLAST NOR CAPACITORS AND THAT THEREFORE THE CORPORATION WAS NOT IN A POSITION TO SUBMIT ITS QUOTATION ON THE BALLAST OR CAPACITORS WHEN IT BID ON THE MERCURY LAMPS; THAT ITS BID WAS ONLY FOR THE 250 AND 400 WATT LAMPS; AND THAT DUE TO AN ERROR THE FACT THAT IT DOES NOT MANUFACTURE THE BALLAST AND CAPACITORS WAS NOT STRESSED IN ITS BID TRANSMITTAL LETTER OF MAY 12, 1959. THE CORPORATION GAVE THE NAMES AND ADDRESSES OF TWO GERMAN FIRMS THAT MIGHT QUOTE ON THE BALLAST AND CAPACITORS.

IN A LETTER DATED SEPTEMBER 12, 1960, OSRAM OFFERED TO FURNISH THE BALLAST AND CAPACITORS FOR THE 250 WATT LAMPS AT $5.55 EACH AND FOR THE 400 WATT LAMPS AT $7.45 EACH OR A TOTAL PRICE OF $975 FOR THE BALLAST AND CAPACITORS FOR THE 150 LAMPS. THE CORPORATION STATED THAT $975 REPRESENTS THE ACTUAL COST TO IT OF THE BALLAST AND CAPACITORS.

IN A LETTER DATED OCTOBER 20, 1960, THE CONTRACTING OFFICER ADVISED OSRAM THAT THE CONTRACT REQUIRED THE FURNISHING OF SUITABLE BALLAST AND CAPACITORS FOR EACH DIFFERENT TYPE LAMP LISTED THEREIN; THAT NEITHER THE CORPORATION'S QUOTATION NOR ITS LETTER OF MAY 12, 1959, ACCOMPANYING IT, TOOK EXCEPTION TO THE SPECIFICATIONS; AND THAT THE CONTRACTING OFFICER WAS WITHOUT AUTHORITY TO RELIEVE THE CORPORATION OF ITS OBLIGATION TO FURNISH ALL THE MATERIAL SPECIFIED IN THE CONTRACT AND, THEREFORE, HE COULD NOT AUTHORIZE ANY PRICE INCREASE. THE CORPORATION WAS INSTRUCTED TO PROCEED WITH THE DELIVERY OF THE BALLAST AND CAPACITORS AND IT WAS INFORMED THAT IF IT DECIDED TO PROCEED WITH A CLAIM, SUCH CLAIM SHOULD BE SUPPORTED BY ITS WORKSHEET AND ANY OTHER DATA USED IN PREPARING ITS BID.

BY LETTER DATED NOVEMBER 29, 1960, OSRAM SUBMITTED AS EVIDENCE OF ITS ALLEGED MISTAKE IN BID, A COPY OF ITS BID AND A COPY OF ITS PRICE LIST FOR THE OSRAM LAMPS, TOGETHER WITH A STATEMENT THAT IT HAD GIVEN THE GOVERNMENT A DISCOUNT OF 41 PERCENT FROM ITS LIST LESS THE 10 PERCENT LIGHTING TAX, WHICH IT STATED WAS NOT APPLICABLE TO GERMAN EXPORTS. THE CORPORATION REQUESTED THAT IT BE PAID AN ADDITIONAL SUM OF $975 FOR THE BALLAST AND CAPACITORS.

ORDINARILY, WHERE ONLY ONE BID IS RECEIVED ON AN ITEM--- AS IN THE PRESENT CASE--- THERE IS NO BASIS FOR COMPARISON OF BIDS; HENCE, THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. SEE 17 COMP. GEN. 560; 26 ID. 415. IT IS NOTED, HOWEVER, THAT THE TOTAL COST OF THE BALLAST AND CAPACITORS IS $975, WHEREAS THE TOTAL COST OF THE MERCURY LAMPS WITH WHICH THE FORMER ITEMS ARE TO BE USED, IS $948.75. THE RECORD LEAVES LITTLE DOUBT THAT THE CORPORATION'S BID WAS ERRONEOUS AND TO COMPEL THE CORPORATION TO FURNISH THE MERCURY LAMPS COMPLETE WITH BALLAST AND CAPACITORS FOR A TOTAL PRICE OF $948.75 WOULD APPEAR TO BE UNCONSCIONABLE.

ACCORDINGLY, SINCE THE BALLAST AND CAPACITORS HAVE BEEN DELIVERED AND SINCE IT IS REPORTED THAT THE AMOUNT OF $975 REPRESENTS THE ACTUAL VALUE OF THE MATERIAL, AN ADDITIONAL PAYMENT OF THAT AMOUNT IS AUTHORIZED TO BE MADE TO THE CORPORATION.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING SUCH PAYMENT.