B-156830, JUN. 3, 1965

B-156830, JUN. 3, 1965

TO THE HONORABLE JAMES L. HARRISON, PUBLIC PRINTER:

BY LETTER DATED MAY 20, 1965, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO WHETHER PURCHASE ORDER NO. 22587, AWARDED TO THE BARTON, DUER AND KOCH PAPER CO., MAY BE CANCELED ON THE BASIS THAT IT HAD FAILED TO NOTE IN ITS BID AN EXCEPTION TO THE SPECIFICATIONS FOR ITEM NO. 189 UNDER AN INVITATION FOR BID DATED FEBRUARY 2, 1965.

IT APPEARS THAT THE CONTRACTOR HAD PREVIOUSLY RESPONDED TO AN INVITATION COVERING THE IDENTICAL ITEM NO. 189, BUT ALL BIDS THEREUNDER WERE RETURNED TO BIDDERS UNOPENED WHEN THE INVITATION WAS CANCELED. THE INSTANT INVITATION WAS A RESOLICITATION OF THE PREVIOUS INVITATION AND REQUESTED BIDS UNDER ITEM NO. 189 FOR 40,000 POUNDS OF "WHITE 25 PERCENT INDEX PAPER * * * GRAIN 34 INCHES DIMENSION.' BIDS WERE OPENED ON FEBRUARY 18, 1965, AND IT APPEARED THAT BARTON SUBMITTED THE LOWEST BID IN THE AMOUNT OF $7,316. THE NEXT LOWEST BID WAS IN THE AMOUNT OF $7,596, OR $280 MORE THAN THE BARTON BID. BARTON'S BID NOT ONLY BORE THE NOTATION ON ITS FACE "SPECIFICATIONS ON ALL ITEMS" BUT IT WAS OTHERWISE UNQUALIFIED AS RESPECTS ITEM NO. 189. AWARD WAS ACCORDINGLY MADE TO BARTON ON MARCH 1, 1965, AND PURCHASE ORDER NO. 22587 WAS ISSUED TO BARTON FOR ITEM 189 AT A COST OF $7,316. SEVERAL DAYS LATER BARTON ALLEGED ERROR IN ITS BID ALLEGING THAT IT HAD FAILED TO NOTE IN ITS BID THE SAME EXCEPTION IT HAD TAKEN WITH RESPECT TO ITS BID ON ITEM NO. 189 UNDER THE PREVIOUSLY CANCELED INVITATION. IN SUPPORT OF THIS ALLEGATION, BARTON FURNISHED ITS ORIGINAL BID UNDER THE CANCELED INVITATION WHICH BORE A QUALIFYING NOTATION AS TO ITEM NO. 189, AND A COPY OF A QUOTATION FROM ITS SUPPLIER WHICH INDICATES THAT THE SPECIFICATION PAPER CANNOT BE SUPPLIED TO BARTON.

THE CONTRACTING OFFICER REPORTS THAT HE BELIEVES THAT BARTON INTENDED TO SUBMIT A QUALIFIED BID ON ITEM NO. 189 AS IT HAD DONE UNDER THE PREVIOUS INVITATION, AND THAT BARTON'S REQUEST FOR RELIEF FROM ITS CONTRACT IS WORTHY OF FAVORABLE CONSIDERATION. FURTHER, THE CONTRACTING OFFICE CONCLUDES THAT SINCE BARTON "HAS FURNISHED CONCLUSIVE PROOF" OF ITS INTENDED BID AND HAS BEEN UNABLE TO FURNISH THE SPECIFICATION PAPER, THE PURCHASE ORDER SHOULD BE CANCELED WITHOUT LIABILITY. WE DO NOT AGREE.

THE BID SUBMITTED BY BARTON DOES NOT INDICATE THEREON ANY CHANGES FROM THE SPECIFICATIONS OR CONTAIN ANY LANGUAGE WHICH WOULD HAVE PUT THE CONTRACTING OFFICER ON NOTICE THAT THE BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF ITEM NO. 189. RATHER, BARTON STATED ON ITS BID THAT IT WOULD, IN EFFECT, COMPLY WITH SPECIFICATIONS ON ALL ITEMS. ANY ERROR, IF MADE, WAS UNILATERAL AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THE CONTRACTING OFFICER, ON THE RECORD BEFORE US, HAD NO REASON TO SUSPECT THAT BARTON COULD NOT FURNISH THE SPECIFICATION PAPER. AND THE FACT THAT BARTON MAY HAVE QUALIFIED ITS BID PREVIOUSLY CERTAINLY WAS NOT A MATTER OF KNOWLEDGE TO THE CONTRACTING OFFICER SINCE THAT BID WAS RETURNED TO BARTON UNOPENED. THE QUALIFICATION INTENDED FOR ITEM NO. 189 DID NOT BECOME KNOWN TO THE CONTRACTING OFFICER UNTIL AFTER AWARD WHEN HE WAS ADVISED BY BARTON.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT ACCEPTANCE OF BARTON'S BID, WITHOUT NOTICE THAT IT INTENDED TO FURNISH OTHER THAN SPECIFICATION PAPER, WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR GRANTING ANY RELIEF TO THE BARTON, DUER AND KOCH PAPER CO. UNDER PURCHASE ORDER NO. 22587. THE PRIOR INVITATION FOR BIDS, CONTRACT AND PURCHASE ORDER NO. 22587 ARE RETURNED HEREWITH.