B-166096, MAR. 5, 1969

B-166096: Mar 5, 1969

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KNOTT: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 3. THE RECORD INDICATES THAT THIS PROCUREMENT WAS EFFECTED BY NEGOTIATION PURSUANT TO 41 U.S.C. 252 (C) (2). WHICH PERMITS NEGOTIATION IF THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING. OFFERS WERE SOLICITED BY TELEPHONE AND SAMMONS' LOW OFFER WAS CONFIRMED BY LETTER AND ACCEPTED BY TELEPHONE. CONFIRMING PURCHASE ORDERS WERE SUBSEQUENTLY FORWARDED BY THE GOVERNMENT AND SIGNED AND RETURNED BY THE COMPANY WITHOUT COMMENT OR EXCEPTION TO PURCHASE DESCRIPTION. THE CONTRACTOR HAS TAKEN THE POSITION THAT IT FAILED TO INCLUDE THE COST OF FRONT-TO-BACK CROSS-SUPPORTS BECAUSE THE GOVERNMENT BUYER IN REQUESTING QUOTATIONS STATED THAT THEY WERE TO BE OMITTED.

B-166096, MAR. 5, 1969

TO MR. KNOTT:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 3, 1969, FROM YOUR GENERAL COUNSEL REQUESTING OUR DECISION AS TO WHETHER ADDITIONAL PAYMENT CAN BE GRANTED TO SAMMONS AND SONS FOR FURNISHING THE GOVERNMENT CERTAIN FRONT-TO -BACK CROSS-SUPPORTS FOR USE WITH THE STEEL PALLET STORAGE RACKS PURCHASED BY THE GOVERNMENT UNDER CONTRACT NO. GS 08S-25383.

THE RECORD INDICATES THAT THIS PROCUREMENT WAS EFFECTED BY NEGOTIATION PURSUANT TO 41 U.S.C. 252 (C) (2), WHICH PERMITS NEGOTIATION IF THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING. OFFERS WERE SOLICITED BY TELEPHONE AND SAMMONS' LOW OFFER WAS CONFIRMED BY LETTER AND ACCEPTED BY TELEPHONE. CONFIRMING PURCHASE ORDERS WERE SUBSEQUENTLY FORWARDED BY THE GOVERNMENT AND SIGNED AND RETURNED BY THE COMPANY WITHOUT COMMENT OR EXCEPTION TO PURCHASE DESCRIPTION, FSE-SA-PR-1, WHICH REQUIRED THE FURNISHING OF FRONT-TO-BACK CROSS-SUPPORTS. THE CONFIRMATION LETTER WHICH HAD BEEN ACCEPTED BY TELEPHONE, HOWEVER, REFERRED TO SAMMONS PART NUMBERS WHICH DID NOT INCLUDE SUCH SUPPORTS.

THE CONTRACTOR HAS TAKEN THE POSITION THAT IT FAILED TO INCLUDE THE COST OF FRONT-TO-BACK CROSS-SUPPORTS BECAUSE THE GOVERNMENT BUYER IN REQUESTING QUOTATIONS STATED THAT THEY WERE TO BE OMITTED, AND, THAT IT INADVERTENTLY SIGNED AND RETURNED THE CONFIRMING PURCHASE ORDER WITHOUT TAKING AN EXCEPTION THERETO. THE BUYER'S VERSION IS THAT IN REQUESTING QUOTATIONS SHE DID NOT REFER TO THE CROSS-SUPPORTS, BUT TO BACK-TO-BACK TIES WHICH WERE NOT REQUIRED, BUT THAT SHE FAILED TO CHECK THE DESCRIPTION IN SAMMONS' CONFIRMING LETTER.

THE CONTRACTING OFFICER HAS STATED THAT HE SHOULD HAVE BEEN ON NOTICE THAT THE DIFFERENCE IN SHIPPING WEIGHTS AND PRICING BETWEEN THIS PROCUREMENT AND THE PREVIOUS CONTRACT INDICATED A DISCREPANCY WHICH SHOULD HAVE BEEN QUESTIONED. THE PREVIOUS PRICE PAID FOR THE SHELF UNIT WAS 30 PERCENT HIGHER THAN THE PRICE QUOTED IN THE PRESENT CASE. IT IS ALSO NOTED THAT THE NEXT LOW OFFEROR IN THE INSTANT PROCUREMENT QUOTED A 22 PERCENT HIGHER PRICE THAN SAMMONS AND SONS FOR THE SHELF ITEMS.

WHERE THE CIRCUMSTANCES ARE SUCH THAT THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF AN ERROR, A BINDING CONTRACT DOES NOT ARISE AND EITHER OUR OFFICE OR THE COURTS MAY ALLOW APPROPRIATE RELIEF. 37 COMP. GEN. 685 AND 17 ID. 575. IN THIS CASE IT APPEARS THERE WAS A MISUNDERSTANDING BETWEEN THE PARTIES TO THE CONTRACT AND, UNDER THE CIRCUMSTANCES, WE MUST CONCUR WITH THE CONTRACTING OFFICER'S VIEW THAT HE SHOULD HAVE BEEN ON NOTICE THEREOF. THE CONTRACTOR WAS THEREFORE NOT OBLIGATED TO FURNISH THE CROSS-MEMBERS AT THE PRICE QUOTED AND THEREFORE MAY BE PAID THE PRICE OF $4,760.16 REQUESTED THEREFOR, WHICH YOUR ADMINISTRATION CONSIDERS REASONABLE AND WHICH WOULD RESULT IN A TOTAL COST OF $570.64 LESS THAN THE NEXT LOW OFFER RECEIVED.

THE FILE TRANSMITTED WITH THE GENERAL COUNSEL'S LETTER OF FEBRUARY 3 IS RETURNED.