B-154844, AUG. 10, 1964

B-154844: Aug 10, 1964

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THE BIDS WERE OPENED ON JULY 6. THIS WAS THE ONLY ITEM ON WHICH TOP CANNING SUBMITTED A BID. TOP CANNING WAS AWARDED ITEM NO. 7 ON JULY 16. THIS WAS CONFIRMED BY THE BIDDER'S LETTER OF SAME DATE. THIS IS A TERRIBLE MISTAKE AS WE DO NOT PACK APPLES AT THIS TIME. "I INTENDED TO BID ON THE PURPLE PLUMS WHICH I IN ALL GOOD FAITH THOUGHT WAS ITEM 7. NOW I FIND IT IS ITEM 8 INSTEAD. I THINK IF YOU WILL LOOK AT THE CONTRACT YOU CAN SEE HOW THIS MISTAKE COULD HAVE BEEN MADE. ALSO IF YOU WILL LOOK ON PAGE 8 OF THE CONTRACT YOU WILL SEE I PUT DOWN THE WEIGHT FOR PURPLE PLUMS WHICH WAS THE ITEM I INTENDED TO BID ON. "I HUMBLY BEG OF YOU THAT THIS CAN BE RECTIFIED IN SOME WAY AS WE DO NOT HAVE OR HAVE WE EVER HAD A SUPPLY OF SLICED APPLES AS WE HAVE NEVER PACKED ANY TO THIS DATE.

B-154844, AUG. 10, 1964

TO ADMINISTRATOR, VETERANS ADMINISTRATION:

WE REFER TO LETTER OF JULY 27, 1964, FILE 074, FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, OFFICE OF MANAGEMENT AND EVALUATION, RELATIVE TO A MISTAKE IN BID ALLEGED AFTER AWARD BY TOP CANNING, INC., UNDER INVITATION FOR BIDS NO. M4-51-65, ISSUED BY THE VETERANS ADMINISTRATION SUPPLY DEPOT, HINES, ILLINOIS.

THE INVITATION SOLICITED BIDS FOR 15 ITEMS OF CANNED FRUITS, VEGETABLES, CATSUP AND JUICES. THE BIDS WERE OPENED ON JULY 6, 1964, AND TOP CANNING, INC., SUBMITTED A BID OF $6.98 PER DOZEN ON ITEM NO. 7, CANNED APPLES 400 DOZEN NO. TEN CANS. THIS WAS THE ONLY ITEM ON WHICH TOP CANNING SUBMITTED A BID. THE OTHER BIDS ON ITEM NO. 7 RANGED FROM $8.73 TO $9.65 PER DOZEN. TOP CANNING WAS AWARDED ITEM NO. 7 ON JULY 16, 1964.

ON JULY 20, 1964, DURING A TELEPHONE CONVERSATION WITH THE VETERANS ADMINISTRATION SUPPLY DEPOT, THE BIDDER STATED THAT IT THOUGHT IT HAD BID, AND INTENDED TO BID, ON ITEM NO. 8, CANNED PLUMS, 500 DOZEN NO. 10 CANS. THIS WAS CONFIRMED BY THE BIDDER'S LETTER OF SAME DATE, IN PERTINENT PART, AS FOLLOWS:

"I CALLED YOUR OFFICE THIS AM REGARDING THE BID I THOUGHT I MADE ON PURPLE PLUMS AND YOUR MAN SAID I HAD BID ON SLICED APPLES. THIS IS A TERRIBLE MISTAKE AS WE DO NOT PACK APPLES AT THIS TIME.

"I INTENDED TO BID ON THE PURPLE PLUMS WHICH I IN ALL GOOD FAITH THOUGHT WAS ITEM 7. NOW I FIND IT IS ITEM 8 INSTEAD. I THINK IF YOU WILL LOOK AT THE CONTRACT YOU CAN SEE HOW THIS MISTAKE COULD HAVE BEEN MADE. ALSO IF YOU WILL LOOK ON PAGE 8 OF THE CONTRACT YOU WILL SEE I PUT DOWN THE WEIGHT FOR PURPLE PLUMS WHICH WAS THE ITEM I INTENDED TO BID ON.

"I HUMBLY BEG OF YOU THAT THIS CAN BE RECTIFIED IN SOME WAY AS WE DO NOT HAVE OR HAVE WE EVER HAD A SUPPLY OF SLICED APPLES AS WE HAVE NEVER PACKED ANY TO THIS DATE. WE PACK RSP CHERRIES, PURPLE PLUMS, AND APPLESAUCE.'

THE FORMAT OF THE BID, IN RESPECT TO THE TWO ITEMS IN QUESTION, IS AS FOLLOWS:

"8915-184-6620 - APPLES, CANNED, GRADE C, STANDARD, SLICED - SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATION Z-A-611C, DATED 9-8-55 AND AMENDMENT NO. 1 DATED 10-25-61. NO. 10 CAN, 6 CANS TO THE CASE. 1963 CROP.

"7. GALLUP, NEW MEXICO (REG. 8) 400 DOZ. WK. OF 8-3-64 NO. 10 CAN $6.98 $2,792.00

"8915-191-4706- PLUMS, CANNED, FRESH, PURPLE CHOICE, GRADE B. TO BE PACKED IN HEAVY SYRUP - SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATION Z-P-491D, DATED 11-26-62, TYPE I. COUNT SHALL BE NOT LESS THAN 75 NOR MORE THAN 90 PER NO. 10 CAN, 6 CANS PER CASE. SHALL BE PACKED FROM 1963 CROP.

"8. GALLUP, NEW MEXICO (REG. 8) 500 DOZ. WK. OF 8-3-64 NO. 10 CAN"

WE AGREE WITH THE BIDDER, AND YOUR REPORT TO US IN THAT RESPECT, THAT THE MANNER IN WHICH THE ITEMS WERE LISTED IN THE INVITATION WAS MISLEADING AND SUBJECT TO POSSIBLE MISINTERPRETATION, MAKING IT ENTIRELY CONCEIVABLE THAT TOP CANNING PLACED ITS BID AMOUNT NEXT TO ITEM NO. 7 WHEN IT IN FACT INTENDED TO BID ON ITEM NO. 8.

MOREOVER, AS POINTED OUT BY THE BIDDER, IT SHOWED ON PAGE 8OF THE INVITATION A GUARANTEED SHIPPING WEIGHT OF PLUMS ONLY. SINCE THE BIDDER SUBMITTED A BID ON ONLY ONE ITEM, THIS FACTOR WOULD SEEM TO SUPPORT THE VIEW THAT THE CONTRACTING OFFICER WAS ON AT LEAST CONSTRUCTIVE NOTICE OF AN ERROR BY THE BIDDER AS TO WHICH ITEM IT INTENDED TO BID ON, AND THAT VERIFICATION OF THE BID SHOULD HAVE BEEN REQUESTED PRIOR TO AWARD.

IN VIEW OF ALL THE CIRCUMSTANCES OF THIS CASE, WE DO NOT BELIEVE THAT THE BIDDER SHOULD BE REQUIRED TO PERFORM UNDER THE CONTRACT. THEREFORE, THE CONTRACT MAY BE CANCELED WITHOUT LIABILITY TO THE COMPANY.