B-151780, JUL. 9, 1963

B-151780: Jul 9, 1963

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION: REFERENCE IS MADE TO A LETTER DATED JUNE 12. REQUESTING OUR DECISION AS TO THE APPROPRIATE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY THE AMPEX CORPORATION TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. WAS AWARDED. WHICH WAS ISSUED ON APRIL 5. 000 AND SINCE THE AMPEX BID WAS THE ONLY BID RECEIVED. THE GOVERNMENT CONTRACTING OFFICER REQUESTED THE CORPORATION TO CERTIFY THAT THE PRICE QUOTED BY IT WAS EQUAL TO OR BELOW THE PRICE NORMALLY CHARGED INDUSTRIAL FIRMS OR OTHER GOVERNMENT AGENCIES FOR A LIKE ITEM. THE BID WAS ACCEPTED ON APRIL 29. NO MISTAKE WAS APPARENT ON THE FACE OF THE AMPEX CORPORATION'S BID. SINCE THE BID OF THE CORPORATION WAS THE ONLY BID RECEIVED.

B-151780, JUL. 9, 1963

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED JUNE 12, 1963, WITH ENCLOSURES, FROM THE DIRECTOR OF PROCUREMENT, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C., REQUESTING OUR DECISION AS TO THE APPROPRIATE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY THE AMPEX CORPORATION TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. NAS1-2905, DATED APRIL 29, 1963, WAS AWARDED.

IN RESPONSE TO INVITATION NO. L-3324, WHICH WAS ISSUED ON APRIL 5, 1963, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, LANGLEY STATION, HAMPTON, VIRGINIA, THE AMPEX CORPORATION SUBMITTED A BID DATED APRIL 18, 1963, OFFERING TO FURNISH, IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS, ONE RECORDER/REPRODUCER; MAGNETIC TAPE, ETC., AS AN ENTIRE SYSTEM, FOR A TOTAL PRICE OF $22,540. THE DIRECTOR OF PROCUREMENT REPORTS THAT SINCE THE PROCUREMENT EXCEEDED $5,000 AND SINCE THE AMPEX BID WAS THE ONLY BID RECEIVED, THE GOVERNMENT CONTRACTING OFFICER REQUESTED THE CORPORATION TO CERTIFY THAT THE PRICE QUOTED BY IT WAS EQUAL TO OR BELOW THE PRICE NORMALLY CHARGED INDUSTRIAL FIRMS OR OTHER GOVERNMENT AGENCIES FOR A LIKE ITEM. THE CORPORATION SO CERTIFIED BY LETTER DATED APRIL 24, 1963, AND THE BID WAS ACCEPTED ON APRIL 29, 1963. BY LETTER DATED MAY 13, 1963, THE CORPORATION ADVISED THE ADMINISTRATION THAT AN ERROR OF $5,250 HAD BEEN MADE IN ITS BID FOR THE RECORDER/REPRODUCER IN COMPUTING THE TOTAL COST OF THE VARIOUS COMPONENTS COMPRISING THE COMPLETE UNIT PROPOSED TO BE FURNISHED. THE CORPORATION EXPLAINED IN COMPLETE DETAIL HOW THE ERROR OCCURRED AND REQUESTS THAT THE CONTRACT PRICE BE INCREASED TO $27,790 TO COVER THE AMOUNT OF THE ERROR.

AS STATED BY THE CONTRACTING OFFICER, NO MISTAKE WAS APPARENT ON THE FACE OF THE AMPEX CORPORATION'S BID, AND SINCE THE BID OF THE CORPORATION WAS THE ONLY BID RECEIVED, THE USUAL BID COMPARISON BASIS WAS NOT AVAILABLE TO HIM SO AS TO INDICATE THE PROBABILITY OF AN ERROR IN THE BID. THE CONTRACTING OFFICER FURTHER STATES THAT THE LANGLEY RESEARCH CENTER HAD NOT PREVIOUSLY PURCHASED A RECORDER/REPRODUCER THAT MET THE EXACT REQUIREMENTS SET FORTH IN THE SPECIFICATIONS FOR THIS PROCUREMENT AND, THEREFORE, NO PRECISE BID PRICE COMPARISON COULD BE MADE WITH A PREVIOUS PROCUREMENT. MOREOVER, THE FACT THAT, PRIOR TO AWARD, THE AMPEX CORPORATION WAS REQUESTED TO CERTIFY THAT THE PRICE QUOTED FOR THE EQUIPMENT WAS EQUAL TO OR BELOW THAT NORMALLY CHARGED TO INDUSTRIAL FIRMS OR THE GOVERNMENT AFFORDED THE CORPORATION THE OPPORTUNITY TO CHECK THE CORRECTNESS OF THE PRICE IT HAD QUOTED. UNDER THESE CIRCUMSTANCES, WE FIND NO BASIS FOR A DETERMINATION THAT THE CONTRACTING OFFICER WAS ON NOTICE OF THE PROBABILITY OF AN ERROR IN THE BID OF THE AMPEX CORPORATION, THE AMOUNT OF WHICH, IT IS NOTED, COMPARES FAVORABLY WITH THE GOVERNMENT ESTIMATE OF $25,305 FOR THE PROCUREMENT. IT, THEREFORE, MUST BE HELD THAT THE ACCEPTANCE OF THE CORPORATION'S BID WAS IN GOOD FAITH AND THAT SUCH AN ACCEPTANCE CREATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, WE FIND NO LEGAL BASES FOR ALLOWING ANY PART OF THE ADDITIONAL AMOUNT CLAIMED BY THE AMPEX CORPORATION UNDER CONTRACT NO. NAS1 -2905.

A COPY OF THE CONTRACTING OFFICER'S MEMORANDUM DATED MAY 28, 1963, TOGETHER WITH ALL ENCLOSURES ..END :