B-172545, MAY 3, 1971

B-172545: May 3, 1971

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THE MISTAKE IS GABRIEL'S BID (VIZ. RATHER THAN GUTHION 20% EC) SHOULD HAVE BEEN APPARENT TO THE CONTRACTING OFFICER SINCE GABRIEL SPECIFIED IN ITS BID THE GROSS WEIGHT PER PAIL AS 52 POUNDS AND OBVIOUSLY COULD NOT PUT IN 55.5 LBS. THE CONTRACTING OFFICER IS CHARGED WITH NOTICE OF THE ERROR AND THE CONTRACT MAY BE CANCELLED WITHOUT LIABILITY TO GABRIEL. KUNZIG: REFERENCE IS MADE TO LETTER DATED APRIL 6. TO HAVE BEEN MADE IN ITS OFFER ON ITEM 00321-2 UPON WHICH CONTRACT NO. GS-OOS 04105 WAS BASED IN PART. GUARANTEED GROSS WEIGHTS AND MEASUREMENTS WERE TO BE FURNISHED BY OFFERORS FOR EVALUATION PURPOSES. IT IS REPORTED THAT OFFERS ON ITEM 00321-2 WERE RECEIVED FROM THE CHEMAGRO CHEMICAL CORPORATION AND GABRIEL CHEMICALS LTD.

B-172545, MAY 3, 1971

CONTRACTS - MISTAKE IN BID - CANCELLATION ADVISING THAT CONTRACT MADE WITH GABRIEL CHEMICALS UNDER A SOLICITATION ISSUED BY THE FEDERAL SUPPLY SERVICE FOR 946 PAILS OF GUTHION 20% EC, INSECTICIDE, TO BE PACKED IN 55.5 LBS, NET IN NEW 22 GAUGE STEEL PAILS, MAY BE CANCELLED BECAUSE OF AN ERROR IN GABRIEL'S OFFER. THE MISTAKE IS GABRIEL'S BID (VIZ., BASING ITS OFFER ON FURNISHING REGULAR GUTHION 2E, A STOCK ITEM, RATHER THAN GUTHION 20% EC) SHOULD HAVE BEEN APPARENT TO THE CONTRACTING OFFICER SINCE GABRIEL SPECIFIED IN ITS BID THE GROSS WEIGHT PER PAIL AS 52 POUNDS AND OBVIOUSLY COULD NOT PUT IN 55.5 LBS. OF NET CONTENTS AND GET A PAIL WEIGHING 52 LBS. GROSS. THEREFORE, THE CONTRACTING OFFICER IS CHARGED WITH NOTICE OF THE ERROR AND THE CONTRACT MAY BE CANCELLED WITHOUT LIABILITY TO GABRIEL.

TO MR. KUNZIG:

REFERENCE IS MADE TO LETTER DATED APRIL 6, 1971, WITH ENCLOSURES, FROM YOUR GENERAL COUNSEL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY GABRIEL CHEMICALS, LTD., TO HAVE BEEN MADE IN ITS OFFER ON ITEM 00321-2 UPON WHICH CONTRACT NO. GS-OOS 04105 WAS BASED IN PART.

SOLICITATION NO. FPH-J-45442-N-2-5-71, ISSUED ON JANUARY 4, 1971, BY THE FEDERAL SUPPLY SERVICE, SPECIAL PROGRAMS DIVISION - FPH, WASHINGTON, D.C., INVITED OFFERS UNDER ITEM 00321-2 FOR 946 PAILS OF AZINPHON-METHYL (GUTHION), 20 PERCENT EMULSIFIABLE CONCENTRATE (EC), INSECTICIDE, TO BE PACKED IN "55.5 LBS., NET IN NEW 22 GAUGE 6.6 U.S. GAL. COLD ROLLED STEEL PAILS." THE SOLICITATION REQUESTED OFFERS F.A.S. U.S. PORT OF SHIPMENT AND PROVIDED THAT OFFERS WOULD BE EVALUATED AND AWARD MADE, ITEM BY ITEM, ON BASIS OF THE LOWEST DELIVERED COST TO BANGKOK, THAILAND. GUARANTEED GROSS WEIGHTS AND MEASUREMENTS WERE TO BE FURNISHED BY OFFERORS FOR EVALUATION PURPOSES.

IT IS REPORTED THAT OFFERS ON ITEM 00321-2 WERE RECEIVED FROM THE CHEMAGRO CHEMICAL CORPORATION AND GABRIEL CHEMICALS LTD. AND WERE EVALUATED IN THE FOLLOWING MANNER:

GUARANTEED EVALUATED

(946 PAILS) GROSS WEIGHT TO

UNIT PRICE F.A.S. U.S. PORT PER PAIL DESTINATION

CHEMAGRO $44.22 NET $41,832.12 (S.F. OR L.A., 64 LBS. $44,679.58

CALIFORNIA)

GRABRIEL 36.00 34,056.00 (N.Y., N.Y.) 52 LBS. 36,875.08

(1/4-20 DAYS) THEREAFTER, ON FEBRUARY 25, 1971, GABRIEL WAS AWARDED CONTRACT NO. GS-OOS-04105 FOR FURNISHING ITEM 00321-2 AND ANOTHER ITEM.

IT IS REPORTED THAT ON MARCH 1, 1971, GABRIEL ADVISED THE PROCURING ACTIVITY BY TELEPHONE THAT A MISTAKE HAD BEEN MADE IN BIDDING ON ITEM 00321-2 IN THAT IT WAS ERRONEOUSLY BASED ON FURNISHING REGULAR GUTHION 2E, A STOCK ITEM, RATHER THAN GUTHION 20% EC. IN A CONFIRMING LETTER DATED MARCH 2, 1971, GABRIEL POINTED OUT THAT IT SPECIFIED IN ITS BID THE GROSS WEIGHT PER PAIL FOR ITEM 00321-2 AS 52 POUNDS AND STATED: "OBVIOUSLY WE COULD NOT PUT 55.5 LBS. OF NET CONTENTS AND GET A PAIL WEIGHING 52 LBS. GROSS." GABRIEL REQUESTED THAT IT BE RELIEVED OF THE OBLIGATION TO FURNISH GUTHION 20% EC UNDER ITEM 00321-2. IN THIS CONNECTION, IT IS REPORTED THAT THE CHEMAGRO CHEMICAL CORPORATION, THE MANUFACTURER OF GUTHION 20% EC FOR EXPORT ONLY, HAS ADVISED THE PROCURING ACTIVITY THAT GUTHION 20% EC WILL NOT BE MADE AVAILABLE BY CHEMAGRO ON THE DOMESTIC MARKET TO GABRIEL OR TO ANY OTHER DEALER.

THE GUARANTEED WEIGHTS FURNISHED BY OFFERORS WERE USED BY THE CONTRACTING OFFICER IN COMPUTING THE OCEAN FREIGHT CHARGES. IN HIS REPORT OF MARCH 12, 1971, THE CONTRACTING OFFICER STATES THAT THE DIFFERENCE BETWEEN THE GROSS WEIGHTS FURNISHED BY THE TWO OFFERORS FOR ITEM 00321-2 AND THE FACT THAT IT IS IMPOSSIBLE TO PACK 55.5 POUNDS NET OF MATERIAL IN A 22-GAUGE STEEL CONTAINER AND ARRIVE AT A GROSS WEIGHT OF 52 POUNDS WAS SO APPARENT AS TO HAVE CHARGED HIM WITH NOTICE OF THE PROBABILITY OF ERROR IN GABRIEL'S OFFER ON THAT ITEM. WE ALSO ARE OF THE OPINION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN AWARE OF THE PROBABILITY OF ERROR IN GABRIEL'S OFFER ON ITEM 00321-2 AND, CONSEQUENTLY, THE OFFER SHOULD NOT HAVE BEEN ACCEPTED WITHOUT REQUESTING THE COMPANY TO VERIFY ITS OFFER.

ACCORDINGLY, ITEM 00321-2 OF CONTRACT NO. GS-OOS-04105 MAY BE CANCELLED WITHOUT LIABILITY TO GABRIEL CHEMICALS LTD.

THE ENCLOSURES SUBMITTED WITH THE LETTER OF APRIL 6, 1971, ARE RETURNED AS REQUESTED.