B-151455, JUL. 12, 1963

B-151455: Jul 12, 1963

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TO WALTER ENGLISH COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 29. BECAUSE OF YOUR FAILURE TO PROPERLY MARK THE CONTAINERS IN WHICH THE CANNED PEACHES WERE PACKED. ON PAGE 6A OF THE INVITATION THERE APPEARED THE FOLLOWING NOTICE: "SPECIAL NOTICE TO BIDDERS: SHIPPING CONTAINER MARKINGS WILL INCLUDE BOTH VA STOCK NUMBER AND FEDERAL STOCK NUMBER SHOWN ABOVE AND PRECEDING DESCRIPTION OF ITEMS. YOUR BID AS TO ITEM 8 WAS ACCEPTED ON AUGUST 9. PURCHASE ORDER NO. 63-HI-40106 WAS ISSUED REQUESTING DELIVERY OF THE CANNED PEACHES. WHICH YOU HAD FAILED TO DO AND WHICH WAS REQUIRED BY THE SPECIFICATIONS. THAT BY TELEGRAM OF THE SAME DATE YOU ADVISED THE CONTRACTING OFFICE THAT YOU WERE STILL WAITING FOR THE PURCHASE ORDER AND FOR ADVICE AS TO THE DATE DELIVERY WAS DESIRED.

B-151455, JUL. 12, 1963

TO WALTER ENGLISH COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1963, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 25, 1963, WHICH DISALLOWED YOUR CLAIM FOR $12.50, REPRESENTING THE AMOUNT DEDUCTED FROM A PAYMENT MADE TO YOU FOR A QUANTITY OF CANNED PEACHES FURNISHED TO THE VETERANS ADMINISTRATION SUPPLY DEPOT, WILMINGTON, CALIFORNIA, PURSUANT TO PURCHASE ORDER NO. 63-HI-40106 DATED AUGUST 13, 1962, BECAUSE OF YOUR FAILURE TO PROPERLY MARK THE CONTAINERS IN WHICH THE CANNED PEACHES WERE PACKED.

THE VETERANS ADMINISTRATION SUPPLY DEPOT, HINES, ILLINOIS, BY INVITATION NO. M4-67-63 REQUESTED BIDS FOR FURNISHING, AMONG OTHER ITEMS, 366 CASES OF CANNED PEACHES, 6 CANS TO THE CASE, ITEM 8. ON PAGE 6A OF THE INVITATION THERE APPEARED THE FOLLOWING NOTICE:

"SPECIAL NOTICE TO BIDDERS: SHIPPING CONTAINER MARKINGS WILL INCLUDE BOTH VA STOCK NUMBER AND FEDERAL STOCK NUMBER SHOWN ABOVE AND PRECEDING DESCRIPTION OF ITEMS. THESE MARKINGS TO APPEAR ON LOCATIONS AS REQUIRED BY FEDERAL STANDARD 123.'

IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID OFFERING TO FURNISH THE CANNED PEACHES UNDER ITEM 8 AT A PRICE OF $8 PER DOZEN CANS. YOUR BID AS TO ITEM 8 WAS ACCEPTED ON AUGUST 9, 1962, AND ON AUGUST 13, 1962,PURCHASE ORDER NO. 63-HI-40106 WAS ISSUED REQUESTING DELIVERY OF THE CANNED PEACHES.

THE RECORD SHOWS THAT AFTER DELIVERING THE PEACHES, YOU SUBMITTED TO THE VETERANS ADMINISTRATION AN INVOICE IN THE AMOUNT OF $1,464 AND THAT BEFORE MAKING PAYMENT THEREON, THE AGENCY DEDUCTED THE SUM OF $12.50 TO COVER THE COST OF STENCILING THE VETERANS ADMINISTRATION STOCK NUMBER ON 366 CASES OF PEACHES, WHICH YOU HAD FAILED TO DO AND WHICH WAS REQUIRED BY THE SPECIFICATIONS.

UNDER THE CONTRACT YOU AGREED TO FURNISH 366 CASES OF CANNED PEACHES. AMONG, OTHER THINGS, THE CONTRACT REQUIRED THAT THE PEACHES BE INSPECTED BY THE DEPARTMENT OF AGRICULTURE FOR GRADE AND QUALITY. THE RECORD SHOWS THAT ON AUGUST 18, 1962, AFTER INSPECTING THE PEACHES AT THE DAVIS CANNING COMPANY, ATWATER, CALIFORNIA, THE DEPARTMENT OF AGRICULTURE ISSUED CERTIFICATE NO. G 082936 AND THAT SUCH CERTIFICATE BEARS THE FOLLOWING STATEMENT: "CASE MARKINGS MEET REQUIREMENTS OF THE PURCHASE ORDER; " THAT BY TELEGRAM DATED OCTOBER 12, 1962, THE CONTRACTING OFFICE REQUESTED YOU TO FURNISH INFORMATION AS TO THE DELIVERY STATUS OF THE SUPPLIES COVERED BY PURCHASE ORDER NO. 63-HI 40106; THAT BY TELEGRAM OF THE SAME DATE YOU ADVISED THE CONTRACTING OFFICE THAT YOU WERE STILL WAITING FOR THE PURCHASE ORDER AND FOR ADVICE AS TO THE DATE DELIVERY WAS DESIRED; AND THAT THE CONTRACTING OFFICE IMMEDIATELY MAILED ANOTHER COPY OF THE PURCHASE ORDER TO YOU.

BY LETTER DATED DECEMBER 19, 1962, YOU SUBMITTED TO THE CONTRACTING OFFICE A CLAIM FOR $12.50, THE AMOUNT DEDUCTED FROM YOUR INVOICE. IN YOUR LETTER YOU CONTENDED THAT THE COST OF STENCILING THE VETERANS ADMINISTRATION STOCK NUMBER ON THE CASES IN NOT CHARGEABLE TO YOU BECAUSE THE OMISSION THEREOF WAS NOT YOUR FAULT; THAT THE INADVERTENT MAILING BY THE CONTRACTING OFFICE OF THE PURCHASE ORDER TO ANOTHER BIDDER, VISALIA CANNING COMPANY, RESULTED IN A LATE DELIVERY ON YOUR PART AND CAUSED MUCH CONFUSION; THAT AS SOON AS YOU WERE INFORMED THAT THE PURCHASE ORDER WAS MAILED TO THE WRONG BIDDER, YOU HAD PEACHES PREPARED FOR SHIPMENT AND SHIPPED IN ACCORDANCE WITH THE URGENT REQUEST OF THE PURCHASING AGENCY; AND THAT NOT HAVING THE PURCHASE ORDER IN YOUR POSSESSION, YOU WERE NOT FULLY INFORMED AS TO THE STENCILING REQUIREMENTS OF THE CONTRACT. YOU ALSO DIRECTED THE ATTENTION OF THE CONTRACTING OFFICE TO THE FACT THAT THE DEPARTMENT OF AGRICULTURE HAD CERTIFIED IN ITS CERTIFICATE THAT "CASE MARKINGS MEET REQUIREMENTS OF THE PURCHASE ORDER.'

YOU WERE ADVISED IN A SPECIAL NOTICE ON PAGE 6A OF THE INVITATION TO BID THAT THE VETERANS ADMINISTRATION STOCK NUMBER AND THE FEDERAL STOCK NUMBER SHALL BE SHOWN ON THE SHIPPING CONTAINERS AND THAT SUCH NUMBERS PRECEDED EACH OF THE DESCRIPTIONS OF THE ITEMS REQUIRED BY THE INVITATION. THIS WAS YOUR OBLIGATION UNDER THE CONTRACT AWARDED TO YOU. SINCE THE INVITATION CONTAINED A SPECIAL NOTICE AS TO THE STENCILING OF THE VETERANS ADMINISTRATION STOCK NUMBER ON THE SHIPPING CONTAINERS AND SINCE SUCH NUMBER APPEARED IN THE DESCRIPTION OF EACH ITEM, YOUR STATEMENT THAT YOU WERE NOT FULLY INFORMED OF THE MARKING REQUIREMENTS PRIOR TO THE SHIPMENT OF THE PEACHES HAS NO MERIT.

PARAGRAPH 9 OF THE VETERANS ADMINISTRATION SUPPLEMENTARY GENERAL PROVISIONS, WHICH WERE INCORPORATED INTO THE CONTRACT BY REFERENCE, PROVIDES AS FOLLOWS:

"PACKING AND MARKING: WHEN DELIVERY IS TO BE MADE TO A VETERANS ADMINISTRATION SUPPLY DEPOT, UNLESS OTHERWISE SPECIFIED, MARKING SHALL BE IN STRICT ACCORDANCE WITH FEDERAL STANDARD NO. 123, ISSUE IN EFFECT ON DATE OF INVITATION TO BID. FAILURE TO COMPLY WITH THE PACKING AND MARKING REQUIREMENTS INDICATED, OR INCORPORATED BY REFERENCE, MAY RESULT IN REJECTION OF THE MERCHANDISE AND REQUEST FOR (A) REPLACEMENT OR (B) REPACKING AND/OR REMARKING. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO (A) PERFORM THE REQUIRED REPACKING AND/OR REMARKING SERVICE AND CHARGE THE CONTRACTOR THEREFOR, WITHOUT CONSULTING THE CONTRACTOR, AT THE RATE OF $5.00 PER HOUR, WITH A MINIMUM CHARGE OF $5.00, OR (B) HAVE THE REQUIRED REPACKING AND/OR REMARKING SERVICES PERFORMED COMMERCIALLY UNDER GOVERNMENT ORDERS AT PREVAILING RATES AND CHARGES. IN CONNECTION WITH ANY DISCOUNT OFFERED, TIME WILL BE COMPUTED FROM THE DATE OF COMPLETION OF SUCH REPACKING AND/OR REMARKING SERVICES.'

SINCE THE VETERANS ADMINISTRATION RESERVED UNDER THE ABOVE PARAGRAPH THE RIGHT TO MAKE THE FINAL INSPECTION AS TO WHETHER THE MARKINGS ON THE SHIPPING CONTAINERS MET THE MARKING REQUIREMENTS OF THE CONTRACT, THE CERTIFICATE OF THE DEPARTMENT OF AGRICULTURE MAY NOT BE ACCEPTED AS CONCLUSIVE EVIDENCE THAT YOU HAD COMPLIED WITH ALL OF THE MARKING REQUIREMENTS OF THE CONTRACT.

IN VIEW OF THE FOREGOING, THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 25, 1963, IS SUSTAINED.