B-157747, NOV. 17, 1965

B-157747: Nov 17, 1965

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 23. BY INVITATION NO. 65-21 BIDS WERE REQUESTED FOR FURNISHING TWO DISHWASHING MACHINES. EA 1395.00 2790.00" THE BID OF THE CORPORATION WAS ACCEPTED ON FEBRUARY 24. IT IS REPORTED THAT ON MAY 6. THE CONTRACTING OFFICER CONTACTED THE CORPORATION BY TELEPHONE AND ADVISED THE FIRM THAT THE DISHWASHING RACKS REQUIRED BY THE CONTRACT SPECIFICATIONS WERE NOT DELIVERED WITH THE MACHINES AND THAT THE MACHINES AS DELIVERED COULD NOT BE ACCEPTED UNTIL THE RACKS WERE FURNISHED. THIS LETTER WILL BE THE EXPLANATION OF THE NON RECEIPT. "THESE MACHINES WERE IN ACCORDANCE WITH FEDERAL SPECIFICATIONS NO. 00- D431B. THE DATE OF THESE SPECIFICATIONS IS MAY 22.

B-157747, NOV. 17, 1965

TO THE HONORABLE WILLIAM J. DRIVER, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 23, 1965, FILE REFERENCE 5117/134, FROM THE CONTRACTING OFFICER AT THE VETERANS ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK, REQUESTING A DECISION AS TO WHETHER THE RELIEF SOUGHT BY THE FEARLESS DISHWASHER CO., INC., ROCHESTER, NEW YORK, UNDER PURCHASE ORDER NO. 2371 MAY BE GRANTED.

BY INVITATION NO. 65-21 BIDS WERE REQUESTED FOR FURNISHING TWO DISHWASHING MACHINES. IN RESPONSE THE FEARLESS DISHWASHER CO., INC., SUBMITTED THE FOLLOWING BID:

"1. DISHWASHING MACHINE: COMMERCIAL, FOR STEAM HEATING; TYPE II, SINGLE TANK, MANUALLY FED, SINGLE RACK, SIZE 20 INCH BY 20 INCH (NOMINAL) RACKS, MODEL 50 SMT-20-TIME CONTROLLED PUMPED WASH AND FINAL RINSE; MACHINE SHALL BE DESIGNED FOR STRAIGHT THROUGH OPERATION; MOTOR SHALL BE POLYPHASE, SQUIRREL-CAGE, INDUCTION TYPE WITHOUT COMMUTATION CONFORMING TO CC-M-641; 220 VOLT, 3 PHASE, 60 CYCLE; (TYPE 1 CUTLERY RACKS NOT DESIRED); DOORLIFT OPERATION SHALL BE THE WRAP-AROUND STYLE IN LIEU OF CABLE TYPE; SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATIONS OO-D-431B DATED MAY 22, 1964. EA 1395.00 2790.00"

THE BID OF THE CORPORATION WAS ACCEPTED ON FEBRUARY 24, 1965.

IT IS REPORTED THAT ON MAY 6, 1965, THE CONTRACTING OFFICER CONTACTED THE CORPORATION BY TELEPHONE AND ADVISED THE FIRM THAT THE DISHWASHING RACKS REQUIRED BY THE CONTRACT SPECIFICATIONS WERE NOT DELIVERED WITH THE MACHINES AND THAT THE MACHINES AS DELIVERED COULD NOT BE ACCEPTED UNTIL THE RACKS WERE FURNISHED. A REPRESENTATIVE OF THE CORPORATION REPLIED THAT INTERIM AMENDMENT NO. 1, DATED SEPTEMBER 22, 1964, TO FEDERAL SPECIFICATION OO-D-431B, ELIMINATED THE REQUIREMENT THAT RACKS BE FURNISHED WITH THE MACHINES.

IN A LETTER DATED MAY 6, 1965, THE CORPORATION STATES:

"CONFIRMING OUR PHONE CONVERSATION OF TODAY WITH MR. CALACINO REGARDING NON-RECEIPT OF RACKS WITH THE DISHWASHING MACHINES SHIPPED ON YOUR ORDER 2371. THIS LETTER WILL BE THE EXPLANATION OF THE NON RECEIPT.

"THESE MACHINES WERE IN ACCORDANCE WITH FEDERAL SPECIFICATIONS NO. 00- D431B. THE DATE OF THESE SPECIFICATIONS IS MAY 22, 1964. THERE IS AN INTERIM AMENDMENT NO. 1 DATED SEPT. 22, 1964, AND IN THIS AMENDMENT THERE IS A CHANGE TO PARAGRAPH 3.12.1 WHICH READS AS FOLLOWS:

PLACE A PERIOD AFTER "SPRAY ASSEMBLIES" AND DELETE THE BALANCE OF THE PARAGRAPH, INCLUDING TABLE 1. ADD "IF RACKS ARE REQUIRED, THEY WILL BE PROCURED IN ACCORDANCE WITH SPECIFICATION MIL-R-24-39.'

"THIS AMENDMENT IS THE REASON WHY WE DID NOT SHIP ANY RACKS WITH THE DISHWASHING MACHINES. WE DO STOCK RACKS FOR DISHWASHING MACHINES AND IF WE CAN BE OF SERVICE TO YOU, PLEASE LET US KNOW.'

IT IS REPORTED THAT AFTER PROCURING A COPY OF THE INTERIM AMENDMENT TO THE SPECIFICATION THE CONTRACTING OFFICE ADVISED THE COMPANY BY TELEPHONE THAT AS THE CONTRACTING OFFICE HAD NOT CITED THE AMENDMENT IN THE INVITATION, IT WAS NOT APPLICABLE TO THE CONTRACT AND THAT THE MACHINES WOULD NOT BE ACCEPTED UNLESS THE RACKS WERE FURNISHED BY THE CORPORATION. IN REPLY THE CORPORATION STATED THAT AS IT WAS ANXIOUS TO RECEIVE PAYMENT FOR THE MACHINES FURNISHED, IT WOULD FURNISH THE RACKS AND SUBMIT A CLAIM FOR PAYMENT FOR THEM. THE RECORD INDICATES THAT THE RACKS WERE DELIVERED ON JUNE 8, 1965, AND THAT THE CORPORATION SUBMITTED A SEPARATE INVOICE IN THE AMOUNT OF $128.40 FOR THE 14 RACKS WHICH IT FURNISHED.

IN A LETTER DATED JUNE 15, 1965, THE CORPORATION STATED THAT IT HAD MADE A PRACTICE OF USING THE LATEST AMENDMENTS TO A SPECIFICATION SINCE IT FELT THAT WAS ITS RESPONSIBILITY. IT CONTENDED THAT THE INVITATION SHOULD HAVE SPECIFIED THE NUMBER OF RACKS TO BE SUPPLIED WITH EACH DISHWASHING MACHINE.

THE RECORD INDICATES THAT THE CORPORATION SUBMITTED WITH ITS BID LITERATURE WHICH APPEARS TO INDICATE THAT THE CORPORATION DID NOT CONTEMPLATE FURNISHING RACKS AS STANDARD EQUIPMENT. THE CONTRACTING OFFICER STATES THAT THE LITERATURE SUBMITTED BY THE CORPORATION WAS UTILIZED TO SUBSTANTIATE SPECIAL CONDITIONS NOS. 6 AND 7, REQUIRING BIDDERS TO FURNISH WITH THEIR BIDS SATISFACTORY EVIDENCE THAT THE EQUIPMENT OFFERED COMPLIED WITH UNDERWRITERS LABORATORIES STANDARDS AND NATIONAL SANITATION FOUNDATION STANDARDS, AND THAT THE UNSOLICITED LITERATURE WAS OTHERWISE DISREGARDED BECAUSE IT WAS NOT CLEAR FROM THE BID THAT IT WAS THE CORPORATION'S INTENTION TO QUALIFY ITS PROPOSAL. THE LITERATURE SUBMITTED BY THE CORPORATION WITH ITS BID CONSISTS OF THREE SHEETS. IT IS NOTED THAT ON ONE OF THESE SHEETS THERE APPEAR THE SEALS OF UNDERWRITERS LABORATORIES, INC., AND NATIONAL SANITATION FOUNDATION AND, ALSO, A LIST OF VARIOUS ITEMS OF STANDARD EQUIPMENT FOR AN AUTOMATIC DOOR- TYPE STAINLESS STEEL DISHWASHER USING 20-INCH RACKS. AMONG THE VARIOUS ITEMS OF STANDARD EQUIPMENT APPEARING ON SUCH SHEET THERE APPEARS THE FOLLOWING: "PLASTISOL LINED RACKS: 2 PLATE, 1 GLASS, CUP, AND BOWL. ALSO ONE SILVER BASKET.' THIS ITEM WAS LINED OUT IN PEN AND INK AND SINCE BOTH THE UNDERWRITERS' SEALS AND THE ITEMS OF STANDARD EQUIPMENT APPEARED ON THE SAME PAGE CLOSE TO EACH OTHER, WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE THAT THE CORPORATION HAD QUALIFIED ITS BID AND IT SHOULD NOT HAVE BEEN ACCEPTED SINCE IT WAS NONRESPONSIVE TO THE INVITATION FOR BIDS. IN VIEW OF THE CONTRACTING OFFICER'S STATEMENT THAT IT WAS HIS INTENTION THAT RACKS BE SUPPLIED AS PART OF THE BASIC MACHINE AND SINCE THE LITERATURE SUBMITTED BY THE CORPORATION WITH ITS BID SHOWS THAT IT WAS NOT ITS INTENTION TO SUPPLY THE RACKS AS STANDARD EQUIPMENT, WE BELIEVE THAT IT MAY REASONABLY BE CONCLUDED THAT THERE WAS NO MEETING OF THE MINDS OF THE PARTIES IN RESPECT TO THE SUBJECT MATTER OF THE PURCHASE AND, THEREFORE, THAT NO BINDING CONTRACT WAS CONSUMMATED.

ACCORDINGLY, AN ADDITIONAL PAYMENT OF $128.40 IS AUTHORIZED TO BE MADE TO THE FEARLESS DISHWASHER CO., INC., AS ADMINISTRATIVELY RECOMMENDED, FOR THE RACKS DELIVERED BY THE CORPORATION. THIS AMOUNT PLUS THE AMOUNT OF ITS ORIGINAL BID PRICE WILL STILL BE LOWER THAN THE AMOUNT OF THE NEXT LOWEST BID RECEIVED ON THE DISHWASHING MACHINES.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING THE ADDITIONAL PAYMENT.