B-152817, DEC. 6, 1963

B-152817: Dec 6, 1963

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A DECISION IS REQUESTED AS TO WHETHER A CONTRACT EVIDENCED BY PURCHASE ORDER NO. 262. 000 WERE AS FOLLOWS: TABLE BIDDERS PRICES BELT OR $1. BID OF BELT OR WAS ACCEPTED. DELIVERY WAS REQUESTED ON OR BEFORE SEPTEMBER 6. ADVISED BELT OR THAT THE PROPOSED SUBSTITUTE WAS UNACCEPTABLE. IT ALLEGED THAT THE TRACK IT OFFERED WAS EQUAL TO THE SPECIFIED TRACK. IT DOES NOT APPEAR THAT BELT OR IS ALLEGING THAT IT MADE A MISTAKE IN ITS BID. THE CONTRACTING ACTIVITY DETERMINED THAT (1) CUBICLE TRACK IS NOT IMMEDIATELY NEEDED. WHICH IS LESS EXPENSIVE THAN STEEL TRACK. THUS IT APPEARS THAT BELT OR IS CONTRACTUALLY OBLIGATED BUT DOES NOT WANT TO SUPPLY AN ITEM NOT IMMEDIATELY NEEDED. WE HAVE BEEN INFORMALLY ADVISED THAT BELT OR WOULD AGREE TO A NO-COST CANCELLATION OF ITS CONTRACT.

B-152817, DEC. 6, 1963

TO ADMINISTRATOR, VETERANS ADMINISTRATION:

IN A LETTER OF NOVEMBER 1, 1963, FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, A DECISION IS REQUESTED AS TO WHETHER A CONTRACT EVIDENCED BY PURCHASE ORDER NO. 262, ISSUED ON AUGUST 20, 1963, TO BELT OR MANUFACTURING CORPORATION, MAY BE CANCELED BECAUSE OF A MISTAKE IN BID.

YOU REPORT THAT THE PRICES RECEIVED FOR THE CUBICLE SCREENING STEEL TRACK, ESTIMATED TO COST $2,000 WERE AS FOLLOWS:

TABLE

BIDDERS PRICES

BELT OR $1,301.50

A1,258.00

B 1,400.00

C 2,543.65

D 3,763.55

ALTHOUGH THE SPECIFICATIONS STATED "TRACK TO BE STEEL," BIDDERS "A," "B" AND "D" OFFERED IN THEIR BIDS TO SUPPLY A SUBSTITUTE CONSTRUCTION.

THE LOW, APPARENTLY RESPONSIVE, BID OF BELT OR WAS ACCEPTED, AND DELIVERY WAS REQUESTED ON OR BEFORE SEPTEMBER 6, 1963. ON SEPTEMBER 18, 1963, THE CONTRACTING OFFICER CALLED THE COMPANY TO INQUIRE WHY DELIVERY HAD NOT BEEN MADE. DURING THIS CONVERSATION BELT OR STATED THAT IT INTENDED TO FURNISH ALUMINUM RATHER THAN STEEL TRACK. AS A RESULT, THE CONTRACTING OFFICER, BY LETTER OF SEPTEMBER 22, 1963, ADVISED BELT OR THAT THE PROPOSED SUBSTITUTE WAS UNACCEPTABLE. IN A LETTER OF SEPTEMBER 27, 1963, BELT OR CONTENDED THAT ITS BID SUBMISSION INCLUDED A COPY OF ITS CATALOG SHOWING THE TYPE OF TRACK IT PROPOSED TO FURNISH. IT ALLEGED THAT THE TRACK IT OFFERED WAS EQUAL TO THE SPECIFIED TRACK, AND INDICATED THAT SPECIFICATIONS NOT PERMITTING ACCEPTANCE OF ITS PRODUCT MUST BE CONSIDERED RESTRICTIVE. THE CONTRACTING OFFICER REPORTS THAT HE HAS NO KNOWLEDGE OF HAVING RECEIVED THIS CATALOG, AND THAT THE BID ITSELF MAKES NO REFERENCE TO THE CATALOG.

FROM THE ABOVE, IT DOES NOT APPEAR THAT BELT OR IS ALLEGING THAT IT MADE A MISTAKE IN ITS BID, BUT RATHER THAT THE COMPANY HAS ACTED UNDER THE ERRONEOUS ASSUMPTION THAT IT COULD OFFER AN ALTERNATIVE ITEM, NOT RESPONSIVE TO THE SPECIFICATIONS, AND STILL BE CONSIDERED FOR AWARD. NOVEMBER 15, 1963, WE RECEIVED A SUPPLEMENTAL REPORT FROM THE OFFICE OF MANAGEMENT AND EVALUATION ADVISING US THAT AFTER FURTHER STUDY, THE CONTRACTING ACTIVITY DETERMINED THAT (1) CUBICLE TRACK IS NOT IMMEDIATELY NEEDED, AND (2) ALUMINUM TRACK, WHICH IS LESS EXPENSIVE THAN STEEL TRACK, WOULD MEET ITS MINIMUM NEEDS AND WOULD NOT BE EXCLUDED IN FUTURE SOLICITATIONS FOR CUBICAL TRACK.

THUS IT APPEARS THAT BELT OR IS CONTRACTUALLY OBLIGATED BUT DOES NOT WANT TO SUPPLY AN ITEM NOT IMMEDIATELY NEEDED, THE PRESENT SPECIFICATIONS FOR WHICH EXCEED THE GOVERNMENT'S MINIMUM NEEDS. WE HAVE BEEN INFORMALLY ADVISED THAT BELT OR WOULD AGREE TO A NO-COST CANCELLATION OF ITS CONTRACT. UNDER THE CIRCUMSTANCES, WE WOULD INTERPOSE NO OBJECTION TO SUCH NO-COST CANCELLATION.