B-147585, NOV. 29, 1961

B-147585, NOV. 29, 1961

TO HONORABLE JAMES L. HARRISON, PUBLIC PRINTER, GOVERNMENT PRINTING OFFICE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1961, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER ANY EXCESS COSTS ARE CHARGEABLE TO THE FRANKLIN PRINTING COMPANY, PRIMOS, PENNSYLVANIA, BY REASON OF ITS DEFAULT IN THE PERFORMANCE OF THE WORK COVERED BY PURCHASE ORDER NO. 5104 DATED AUGUST 31, 1961.

THE GOVERNMENT PRINTING OFFICE REQUESTED BIDS UNDER JACKET NO. 603873 FOR THE PRODUCTION OF 543 SETS OF EIGHT CHARTS IN ALL; 106 SETS WITH ENGLISH TEXT, 141 SETS WITH SPANISH TEXT, 72 SETS WITH FRENCH TEXT, 224 SETS WITHOUT TEXT (ILLUSTRATIONS ONLY) AND 543 COPIES OF AN EIGHT-PAGE PAMPHLET WITH ENGLISH TEXT. PROSPECTIVE BIDDERS WERE ADVISED IN THE INVITATION THAT THE GOVERNMENT WOULD FURNISH THE PAPER FOR THE CHARTS AND PAMPHLETS AND THAT THEY MUST ENTER IN THEIR BIDS THE NUMBER OF SHEETS OF EACH TYPE OF PAPER THEY WOULD REQUIRE, BEARING IN MIND THAT THE COST OF FURNISHING THE PAPER WOULD BE A FACTOR IN MAKING THE AWARD. IN RESPONSE THE FRANKLIN PRINTING COMPANY SUBMITTED A LETTER BID DATED AUGUST 29, 1961, IN WHICH IT OFFERED TO FURNISH THE CHARTS AND PAMPHLETS FOR THE LUMP-SUM OF $2,453. IN ITS BID THE COMPANY STATED THAT IT WOULD REQUIRE 5,600 SHEETS OF PAPER FOR THE CHARTS AND 160 SHEETS OF PAPER FOR THE PAMPHLETS. THE BID OF THE COMPANY WAS ACCEPTED ON AUGUST 31, 1961, AND ON THE SAME DAY PURCHASE ORDER NO. 5104 WAS ISSUED AND MAILED TO THE COMPANY.

IT IS REPORTED THAT ON SEPTEMBER 6, 1961, THE EXECUTIVE VICE PRESIDENT OF THE FRANKLIN PRINTING COMPANY TELEPHONED ALLEGING THAT THE COMPANY HAD MADE AN ERROR IN ITS BID IN THAT IT HAD BASED ITS BID PRICE ON USING ONE SET OF PLATES INSTEAD OF EIGHT SETS OF FIVE PLATES EACH. IN A CONFIRMING LETTER DATED SEPTEMBER 6, 1961, THE VICE PRESIDENT OF THE COMPANY STATED THAT BECAUSE OF THE ERROR IT WOULD BE IMPOSSIBLE FOR THE COMPANY TO PERFORM THE WORK FOR THE QUOTED PRICE. THE VICE PRESIDENT REQUESTED THAT THE COMPANY BE DECLARED IN DEFAULT OF THE CONTRACT AND HE STATED THAT HE WAS RETURNING THE PURCHASE ORDER WITH ALL ATTACHMENTS. PURSUANT TO ITS REQUEST, THE COMPANY WAS DECLARED IN DEFAULT OF THE CONTRACT ON SEPTEMBER 11, 1961. SUBSEQUENTLY, A REPLACEMENT CONTRACT FOR THE JOB WAS ENTERED INTO WITH THE NEXT LOWEST BIDDER AT AN EXCESS COST OF $277 TO THE GOVERNMENT.

IN A LETTER DATED SEPTEMBER 14, 1961, THE VICE PRESIDENT OF THE COMPANY STATED THAT THE MISTAKE IN THE COMPANY'S BID WAS BROUGHT ABOUT BY INCONCLUSIVE AND EVASIVE SPECIFICATIONS WHICH ACCOMPANIED THE INVITATION FOR BID; AND THAT UNDER "QUANTITIES," THE SPECIFICATIONS CALLED FOR ,543 SETS OF 8 CHARTS IN ALL," AND THAT THE SPECIFICATIONS, FOR CLARITY, SHOULD HAVE READ "543 SETS OF 8 CHARTS IN EACH SET, MAKING A TOTAL OF 32 CHARTS IN ALL.' THE VICE PRESIDENT ALSO STATED THAT AFTER ALL OF THE ARTWORK WAS RECEIVED IN HIS OFFICE, HE WAS SO SURPRISED AT THE AMOUNT THEREOF THAT HE CALLED IN AN OUTSIDE UNION PREPARATORY TRADE SHOP FOR AN ALTERNATE BID ON THE WORK AND THAT THE SHOP'S BID FOR MAKING ONLY THE REQUIRED PLATES WAS IN EXCESS OF $3,000; AND THAT SINCE THIS AMOUNT WAS IN EXCESS OF THE COMPANY'S BID PRICE FOR ALL OF THE WORK, HE WAS FIRMLY CONVINCED THAT AN ERROR HAD BEEN MADE IN THE COMPANY'S BID. THE VICE PRESIDENT FURTHER STATED THAT BECAUSE OF THE COMPANY'S MISINTERPRETATION OF MISLEADING SPECIFICATIONS, THE COMPANY HAD NOT ALLOWED FOR ENOUGH STRIPPING TIME, PLATE MAKING TIME OR PRESS MAKE READY TIME. IT WAS ALSO STATED THAT UNDER "PACKING," PAGE 3 OF THE INVITATION, THERE ARE NO GOVERNMENT QUOTED SPECIFICATION NUMBERS TO CORRESPOND WITH THE REQUIREMENTS SPECIFIED IN THE INVITATION. THE VICE PRESIDENT ALSO STATED THAT INASMUCH AS THE COMPANY HAS A CONFIRMING FIGURE FROM A PHILADELPHIA WORKSHOP, IT INDICATES TO HIM THAT THERE MIGHT WELL HAVE BEEN A COMPLETE MISINTERPRETATION OF THE SPECIFICATIONS BY THE NEXT TWO LOW BIDDERS WHO QUOTED PRICES OF $2,730 AND $2,781 AND THAT THE COMPANY'S PROPER PRICE FOR THIS JOB SHOULD HAVE COME CLOSE TO THE FOURTH BIDDER, WHO BID APPROXIMATELY $6,200. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS ORIGINAL ESTIMATE SHEETS FOR THE JOB.

IN YOUR LETTER YOU STATE:

"OUR CONTRACTING OFFICER HAS STATED THAT AT THE TIME OF AWARD AND LATER AT THE TIME THE COMPANY WAS DECLARED IN DEFAULT OF CONTRACT, HE DID NOT REALIZE THAT OUR SPECIFICATIONS WERE NOT SPECIFIC AS TO THE NUMBER OF CHARTS REQUIRED. HE HAS ADVISED THAT THE SPECIFICATIONS SHOULD HAVE PROVIDED FOR 543 SETS OF 8 CHARTS (32 CHARTS IN ALL) WITH THE QUANTITIES SPECIFIED FOR EACH LANGUAGE RATHER THAN FOR 543 SETS OF 8 CHARTS IN ALL. HE BELIEVES THAT THE SPECIFICATIONS WERE NOT SPECIFIC AS TO THE TOTAL NUMBER OF CHARTS REQUIRED AND THAT THIS FIRM BID ON FURNISHING ONLY THE PLATES FOR THE LANGUAGES AND ONE FOR THE COLOR WHEN HE SHOULD HAVE BID ON ONE SET OF 5 PLATES FOR EACH OF THE 8 CHARTS OR A TOTAL OF 40 PLATES. THE CONTRACTOR'S ESTIMATE SHEET CONFIRMS HIS STATEMENT THAT THE QUOTED PRICE INCLUDED ONLY 5 PLATES RATHER THAN 40 PLATES AS REQUIRED TO PRODUCE THE JOB. OUR CONTRACTING OFFICER HAS RECOMMENDED, THEREFORE, THAT THIS OFFICE BE AUTHORIZED TO CANCEL THE DEFAULT ACTION AGAINST THE FRANKLIN PRINTING COMPANY BECAUSE OF OUR FAILURE TO FURNISH COMPLETE SPECIFICATIONS WITH OUR INVITATION TO BID.'

WE ARE OF THE OPINION THAT THE MANNER IN WHICH THE SPECIFICATIONS IN THE PRESENT CASE WERE DRAWN UP WAS TO SOME DEGREE MISLEADING AND SUBJECT TO POSSIBLE MISINTERPRETATION. IN THE CIRCUMSTANCES, THE FRANKLIN PRINTING COMPANY SHOULD NOT BE CHARGED THE EXCESS COSTS INCURRED BY THE GOVERNMENT IN PROCURING THE REQUIRED CHARTS AND PAMPHLETS FROM GATEWAY PRESS, INC.