B-149414, JUL. 27, 1962

B-149414: Jul 27, 1962

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DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO A LETTER DATED JULY 10. ITS BID WAS ACCEPTED AT A TOTAL CONTRACT PRICE OF $62. WAS ISSUED BY THE CONTRACTING OFFICER. A FORMAL CONTRACT WAS ISSUED UNDER DATE OF JANUARY 3. IT WAS EXPLAINED TO THE COMPANY'S REPRESENTATIVE THAT THIS WAS A TYPOGRAPHICAL ERROR WHICH HAD BEEN DISCOVERED ONLY A DAY OR TWO AGO AND THAT AN AMENDMENT TO THE AWARD HAD BEEN PREPARED AND WAS READY FOR MAILING (CHANGE ORDER DATED FEBRUARY 9. IT WAS EXPLAINED TO HIM BY THE GOVERNMENT PROCUREMENT OFFICER THAT THE INVITATION FOR BIDS STATED "220 VOLTS" AND THAT NOTWITHSTANDING THE ERROR ON THE AWARD THE MOTORS WERE TO BE FURNISHED WITH 220 VOLTS. THE CONTRACTOR STATED THAT INASMUCH AS THE MOTORS HAD ALREADY BEEN PURCHASED FROM ITS SUPPLIER BEFORE THE ERROR WAS NOTICED AND THE MOTORS HAD BEEN REWOUND IT WAS NECESSARY TO CHARGE THE GOVERNMENT FOR THE EXTRA COST TO IT RESULTING FROM THE ERROR.

B-149414, JUL. 27, 1962

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER DATED JULY 10, 1962 (REFERENCE DGSCG), WITH ENCLOSURES, FROM MR. MAURICE L. PARADIS, GENERAL COUNSEL, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, CONCERNING A CLAIM OF GIFFORD-WOOD CO., HUDSON, NEW YORK, FOR $142.12 UNDER SUPPLY CONTRACT NO. DA 44-193 QM (MGS) 1271, OI F-7771-62-EE.

BY BID INVITATION NO. QM (MGS) 44-193-62-983, ISSUED NOVEMBER 6, 1961, AND AMENDMENT NO. 1 THERETO, THE MILITARY GENERAL SUPPLY AGENCY, RICHMOND QUARTERMASTER DEPOT, U.S. ARMY, RICHMOND, VIRGINIA, SOLICITED BIDS FOR FURNISHING TO THE GOVERNMENT VARIOUS ITEMS OF VEGETABLE PEELING MACHINES, INCLUDING ITEM NO. 5 DESCRIBED THEREIN AS FOLLOWS:

"VEGETABLE PEELING MACHINE, ELECTRIC, (COMMERCIAL), AC, 220 VOLTS, 50 CYCLE, SINGLE PHASE, IN ACCORDANCE WITH FEDERAL SPECIFICATION OO-V 185A, DTD 9 JUNE 60, TYPE I, CLASS 1, 2, OR 3 SIZE C. F AND N 7320-J10 8952 (7320-243-2198)"

THE GIFFORD-WOOD CO. SUBMITTED A BID WITH PRICE QUOTATIONS ON ALL THE ADVERTISED ITEMS, INCLUDING A QUOTATION OF $490.20 EACH ON ITEM NO. 5. THE GIFFORD-WOOD CO. BEING THE LOW BIDDER ON ALL THE ITEMS, ITS BID WAS ACCEPTED AT A TOTAL CONTRACT PRICE OF $62,062.20, INCLUDING A TOTAL PRICE OF $3,921.60 FOR ITEM NO. 5, AND NOTICE OF AWARD OF CONTRACT NO. DA 44-193 QM (MGS) 1271, OI F-7771-62-EE, DATED DECEMBER 22, 1961, WAS ISSUED BY THE CONTRACTING OFFICER, FOOD SERVICE EQUIPMENT DIVISION, RICHMOND QUARTERMASTER DEPOT, MILITARY GENERAL SUPPLY AGENCY, RICHMOND, VIRGINIA. A FORMAL CONTRACT WAS ISSUED UNDER DATE OF JANUARY 3, 1962, IN WHICH THE DESCRIPTION FOR ITEM NO. 5 CALLED FOR "200" VOLTS INSTEAD OF 220 AS STATED IN THE BID INVITATION.

THE RECORD SHOWS THAT SUBSEQUENT TO THE MAILING OF THE FORMAL CONTRACT, DURING A TELEPHONE CALL BY THE PROCUREMENT AGENT OF THE GOVERNMENT TO THE GIFFORD-WOOD CO. REGARDING ANOTHER PROCUREMENT, THE COMPANY'S REPRESENTATIVE CALLED ATTENTION TO THE REQUIREMENT ON THE FORMAL CONTRACT FOR "200 VOLTS" FOR ITEM NO. 5 INSTEAD OF 220 VOLTS AS STATED IN THE BID INVITATION. IT WAS EXPLAINED TO THE COMPANY'S REPRESENTATIVE THAT THIS WAS A TYPOGRAPHICAL ERROR WHICH HAD BEEN DISCOVERED ONLY A DAY OR TWO AGO AND THAT AN AMENDMENT TO THE AWARD HAD BEEN PREPARED AND WAS READY FOR MAILING (CHANGE ORDER DATED FEBRUARY 9, 1962). DURING THE TELEPHONE CONSERVATION, THE CONTRACTOR'S REPRESENTATIVE ADVISED THAT THE COMPANY ALREADY HAD PLACED AN ORDER WITH ITS SUPPLIER FOR THE ,200-VOLT" MOTORS AND HE DID NOT KNOW WHAT WOULD BE INVOLVED IN CHANGING THE ORDER AT THAT POINT. IT WAS EXPLAINED TO HIM BY THE GOVERNMENT PROCUREMENT OFFICER THAT THE INVITATION FOR BIDS STATED "220 VOLTS" AND THAT NOTWITHSTANDING THE ERROR ON THE AWARD THE MOTORS WERE TO BE FURNISHED WITH 220 VOLTS.

THEREAFTER, IN LETTER DATED MARCH 8, 1962, TO THE RICHMOND QUARTERMASTER DEPOT, U.S. ARMY, RICHMOND, VIRGINIA, THE CONTRACTOR FORWARDED AN INVOICE CLAIM FOR $142.12 REPRESENTING THE CHARGES TO IT BY ITS SUPPLIER, KINGSTON CONLEY, INC., FOR REWINDING THE EIGHT MOTORS FROM 200 VOLTS TO 220 VOLTS. THE CONTRACTOR STATED THAT INASMUCH AS THE MOTORS HAD ALREADY BEEN PURCHASED FROM ITS SUPPLIER BEFORE THE ERROR WAS NOTICED AND THE MOTORS HAD BEEN REWOUND IT WAS NECESSARY TO CHARGE THE GOVERNMENT FOR THE EXTRA COST TO IT RESULTING FROM THE ERROR. IN REPLY, BY LETTER DATED MARCH 26, 1962, THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT HE HAD NO AUTHORITY TO PAY ITS CLAIM FOR $142.12 SINCE THE AWARD FOR ITEM NO. 5 CONTAINING THE "200" VOLTAGE DESCRIPTION WAS NOT IN CONFORMANCE WITH THE NOMENCLATURE SPECIFIED IN THE BID INVITATION AND IN ITS BID, WHICH WAS ACCEPTED BY THE GOVERNMENT'S LETTER OF DECEMBER 22, 1961, CONSTITUTING THE DEFINITIVE CONTRACT. THE CONTRACTING OFFICER, THEREFORE, DENIED THE CLAIM FOR $142.12 AND IN HIS REPORT CONCERNING THE PROCUREMENT TRANSACTION RECOMMENDS THAT THE CLAIM BE DISALLOWED.

THE BID INVITATION DESCRIPTION FOR ITEM NO. 5 CLEARLY CALLED FOR "220" VOLTS AND THE CLAIMANT'S BID WAS MADE ON THAT BASIS. THE NOTICE OF AWARD STATED THAT "TO THE EXTENT SET FORTH IN THE NOTICE OF AWARD, YOUR BID IS HEREBY ACCEPTED AND THE GOVERNMENT CONSIDERS THAT A VALID AND BINDING CONTRACT EXISTS.' THE FORMAL AWARD ITSELF CONTAINED THE FOLLOWING STATEMENT: "THIS CONFIRMS LETTER NOTICE OF AWARD DATED 22 DECEMBER 1961.' THE RECORD INDICATES THAT WHILE THE CONTRACTOR DISCOVERED THE DISCREPANCY IN THE VOLTAGE NOMENCLATURE FOR ITEM NO. 5 SOMETIME PRIOR TO FEBRUARY 7, 1962, IT DID NOT CALL THE DISCREPANCY TO THE ATTENTION OF THE PROCUREMENT AGENCY BEFORE ORDERING THE MOTORS FROM ITS SUPPLIER. SINCE THE 220-VOLT REQUIREMENT PROVIDED FOR IN THE BID INVITATION AND IN THE GIFFORD-WOOD CO. BID AS ACCEPTED BY THE THE NOTICE OF AWARD DATED DECEMBER 22, 1961, IS A NORMAL COMMERCIAL VOLTAGE WHEREAS A 200-VOLT MOTOR IS AN UNUSUAL SPECIFICATION AND WAS NOT MENTIONED IN ANY OF THE DOCUMENTS EXCEPT THE FORMAL CONTRACT AWARD, IT WOULD APPEAR IN VIEW OF THE UNUSUAL NATURE OF THE "200-VOLT" MOTOR THAT A PERSON ACTING IN A REASONABLE MANNER WOULD HAVE QUESTIONED THIS SPECIFICATION RATHER THAN ASSUMING WITHOUT VERIFICATION THAT THE GOVERNMENT HAD MADE A SUBSTANTIAL CHANGE IN THE CONTRACT.

THE ACCEPTANCE BY THE CONTRACTING OFFICER OF THE BID AS SUBMITTED BY GIFFORD-WOOD CO. IN RESPONSE TO BID INVITATION NO. QM (MGS) 44-193 62-983 AND AMENDMENT NO. 1 THERETO CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. NO AGENT OR OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR RELINQUISH ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT, OR TO MODIFY AN EXISTING CONTRACT, WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE THE PACIFIC HARDWARE AND STEEL CO. V. UNITED STATES, 49 CT.CL. 327, 335; AMERICAN SALES CORPORATION V. UNITED STATES, 27 F.2D 389, 392, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CL. 584, 607, CERTIORARI DENIED, 292 U.S. 645.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR AUTHORIZING ANY ADJUSTMENT IN THE CONTRACT PRICE ON SUPPLY CONTRACT DA 44-193 QM (MGS) 1271, OI F-7771-62-EE, AS REQUESTED BY GIFFORD-WOOD CO. ..END :