B-154753, JUL. 29, 1964

B-154753: Jul 29, 1964

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BIDS WERE REQUESTED FOR FURNISHING 130. YOU STATE THAT THE INTENT OF THE SPECIFICATIONS WAS THAT ALL THE POSTERS WERE TO BE MOUNTED ON BOARD AFTER PRINTING. EASELS WERE TO BE ATTACHED TO THE BACK OF 30. THE BIDS WERE OPENED ON JULY 9. FIVE BIDS WERE RECEIVED RANGING FROM A LOW OF $4. THE SECOND LOW BID WAS $7. SINCE SHELBY'S BID WAS QUITE LOW COMPARED TO THE OTHERS. AWARD WAS THEREFORE MADE TO SHELBY LITHOGRAPHING COMPANY. 265 WAS ARRIVED AT. WAS ALSO SUBMITTED. 000 POSTERS ARE TO BE DELIVERED WITHOUT EASELS. THE FINAL PRODUCT MUST HAVE THE GRAIN RUNNING PARALLEL TO THE 18 INCH DIMENSION OF THE POSTER.'. IT ALSO APPEARS THAT THE PARAGRAPH ON "PRINTING" SHOULD HAVE PRECEDED THE PARAGRAPH ON "EASELING" AND THAT THE REQUIREMENT FOR MOUNTING THE ENTIRE QUANTITY SHOULD HAVE BEEN STATED UNMISTAKABLY UNDER "PRINTING" OR MADE THE SUBJECT OF A SEPARATE PARAGRAPH.

B-154753, JUL. 29, 1964

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

BY LETTER DATED JULY 17, 1964, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO WHETHER SHELBY LITHOGRAPHING COMPANY, INC., MAY BE RELIEVED OF LIABILITY UNDER PURCHASE ORDER NO. 41423, DATED JULY 10, 1964.

BIDS WERE REQUESTED FOR FURNISHING 130,000 COPIES OF A POSTER IN ACCORDANCE WITH SPECIFICATIONS ISSUED UNDER JACKET 732-815, LABOR REQ. 1442. YOU STATE THAT THE INTENT OF THE SPECIFICATIONS WAS THAT ALL THE POSTERS WERE TO BE MOUNTED ON BOARD AFTER PRINTING, AND EASELS WERE TO BE ATTACHED TO THE BACK OF 30,000 POSTERS.

THE BIDS WERE OPENED ON JULY 9, 1964, AND FIVE BIDS WERE RECEIVED RANGING FROM A LOW OF $4,265 BY SHELBY TO A HIGH OF $10,305. THE SECOND LOW BID WAS $7,632. SINCE SHELBY'S BID WAS QUITE LOW COMPARED TO THE OTHERS, THE CONTRACTING OFFICER SUSPECTED THE POSSIBILITY OF ERROR AND TELEPHONED THE BIDDER'S PRESIDENT, MR. PERRY VALESSIS, ON JULY 10, 1964, REQUESTING THAT HE REVIEW THE SPECIFICATIONS AND CONFIRM THE COMPANY'S BID PRICE. MR. VALASSIS REQUESTED CERTAIN INFORMATION IN CONNECTION WITH THE EASEL REQUIREMENT AND SUBSEQUENTLY CONFIRMED THE ORIGINAL QUOTATION BY TELEGRAM DATED JULY 10, 1964. AWARD WAS THEREFORE MADE TO SHELBY LITHOGRAPHING COMPANY, INC., ON THE SAME DAY.

BY TELEPHONE ON JULY 13, 1964, CONFIRMED BY LETTER OF JULY 14, 1964, MR. VALASSIS ADVISED YOUR OFFICE THAT HE HAD INTERPRETED THE SPECIFICATIONS AS REQUIRING MOUNTING ONLY OF THE 30,000 EASEL-BACKED POSTERS, WITH NO MOUNTING FOR THE OTHER 100,000. HE STATED FURTHER IN HIS LETTER THAT HE HAD MADE A $1,000 ERROR IN THE GOVERNMENT'S FAVOR IN ADDING HIS ESTIMATE AND THAT CORRECTION OF THIS ERROR AND INCLUSION OF THE COST OF MOUNTING THE ADDITIONAL 100,000 POSTERS WOULD RESULT IN A REVISED PRICE OF $10,656. A SUPPORTING PHOTOSTAT OF THE ORIGINAL ESTIMATE SHEET, SHOWING HOW THE QUOTATION OF $4,265 WAS ARRIVED AT, WAS ALSO SUBMITTED, TO WHICH HAD BEEN ADDED THE FIGURES MAKING UP THE ALLEGED CORRECT PRICE OF $10,656.

THE SPECIFICATIONS READ, IN PERTINENT PART, AS FOLLOWS:

"QUANTITY: 130,000 COPIES ON ONE POSTER (30,000 WITH SINGLE-WING EASELS).

"EASELING: FIRMLY ATTACH TO THE BACK OF 30,000 POSTERS ONE 15 INCH TO 17 INCH SINGLE-WING, SELF-LOCKING CARDBOARD EASEL. THE EASEL MUST BE OF SUCH STRENGTH, AND SO CONSTRUCTED AS TO ENABLE THE POSTER TO STAND RIGIDLY AND IN AN UPRIGHT POSITION WHEN IN USE. THE REMAINING 100,000 POSTERS ARE TO BE DELIVERED WITHOUT EASELS.

"PRINTING: PRINT ONE SIDE ONLY ON WHITE OFFSET PAPER, BASIS 25 BY 38-120M OR HEAVIER AND MOUNT ON BOARD AFTER PRINTING TO A THICKNESS OF.048 INCHES TO .052 INCHES (14-PLY); SEE UNDER "PAPER.'

PAPER: THE CONTRACTOR SHALL FURNISH WHITE OFFSET PAPER, BASIS 25 BY 38- 120M OR HEAVIER AND MATERIALS AND SERVICES NECESSARY TO MOUNT ON BOARD AFTER PRINTING TO A TOTAL THICKNESS OF A 14-PLY BLANK ).048 INCHES TO .052 INCHES THICK) AND EASELS (30,000 COPIES). POSTER BOARD TO BE WHITE PAPER- OR VAT-LINED ON THE BACK SIDE. THE WHITE OFFSET PAPER MUST BE OF HIGH QUALITY, FREE FROM UNBLEACHED OR GROUND WOODPULP, AND THE FINAL PRODUCT MUST HAVE THE GRAIN RUNNING PARALLEL TO THE 18 INCH DIMENSION OF THE POSTER.'

AS INDICATED IN YOUR LETTER, THE LANGUAGE QUOTED ABOVE, AND PARTICULARLY THE CROSS REFERENCE TO "PAPER" UNDER "PRINTING," COULD BE INTERPRETED AS REQUIRING THE MOUNTING OF ONLY 30,000 POSTERS. IT ALSO APPEARS THAT THE PARAGRAPH ON "PRINTING" SHOULD HAVE PRECEDED THE PARAGRAPH ON "EASELING" AND THAT THE REQUIREMENT FOR MOUNTING THE ENTIRE QUANTITY SHOULD HAVE BEEN STATED UNMISTAKABLY UNDER "PRINTING" OR MADE THE SUBJECT OF A SEPARATE PARAGRAPH. SINCE IT HAS BEEN REASONABLY ESTABLISHED THAT THIS AMBIGUITY RESULTED IN THE OMISSION OF THE COST OF MOUNTING 100,000 POSTERS FROM THE BID PRICE OF SHELBY LITHOGRAPHING COMPANY, INC., WHOSE INTERPRETATION CANNOT BE SAID TO HAVE BEEN ENTIRELY UNJUSTIFIED, THE BIDDER CANNOT BE REQUIRED TO FURNISH THE MOUNTING INTENDED TO BE REQUIRED BY PURCHASE ORDER NO. 41423, INASMUCH AS THE AMBIGUITY IN THE CONTRACT MUST BE RESOLVED IN FAVOR OF THE CONTRACTOR'S INTERPRETATION. SEE WPC ENTERPRISES, INC. V. UNITED STATES, 323 F.2D 874, AND CASES CITED THEREIN. IN THE CIRCUMSTANCES THE CONTRACT MAY BE CANCELED BY MUTUAL CONSENT, WITHOUT COST.

WE HAVE BEEN INFORMALLY ADVISED BY OUR OFFICE THAT THE SECOND LOW BIDDER, QUEENS LITHOGRAPHING CORPORATION, HAS VERIFIED THE CORRECTNESS OF ITS BID AND HAS AGREED TO PERFORM, APPARENTLY IN ACCORD WITH THE INTENT OF THE PURCHASE ORDER, AT THE BID PRICE OF $7,632. IF OTHERWISE PROPER, AWARD MAY THEREFORE BE MADE TO THIS BIDDER.