B-148412, APR. 9, 1962

B-148412: Apr 9, 1962

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TO DECATUR FARMS: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $107.04. ITEM 156 WAS ADVERTISED AND DESCRIBED IN THE INVITATION AS "BUTTER. THE RECORD SHOWS THAT THE PURCHASE ORDER WAS ISSUED ON AUGUST 25. YOU DID NOT INDICATE A MISUNDERSTANDING OF SPECIFICATIONS AFFECTING THE PRICE BID UNTIL YOU WERE CONTACTED BY TELEPHONE ON SEPTEMBER 5. AS YOU WERE ADVISED ON SEPTEMBER 7. BY THE PURCHASING OFFICE IT WAS FELT THAT THE BID INVITATION ADEQUATELY DESCRIBED WHAT WAS REQUIRED. THE INVITATION DEFINITELY STATED THAT INDIVIDUAL CHIPS WERE REQUIRED. FIVE BIDS WERE RECEIVED RANGING IN PRICE FROM $0.7189 TO $0.844 PER POUND. IT DOES NOT APPEAR THAT THE DIFFERENCE IN THE AMOUNTS BID WAS SUCH AS TO INDICATE TO THE CONTRACTING OFFICER THAT YOUR BID WAS OTHER THAN ON THE ITEM DESCRIBED AND DESIRED BY THE INVITATION.

B-148412, APR. 9, 1962

TO DECATUR FARMS:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1962, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 28, 1962, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $107.04, CONSISTING OF AN ADDITIONAL AMOUNT OF $0.10 PER POUND FOR 858 POUNDS OF BUTTER FURNISHED THE VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK, PURSUANT TO ITEM 156 OF CONTRACT NO. 62-14 DATED AUGUST 24, 1961, AND FOR $21.24 WITHHELD FROM PAYMENT OF INVOICE NO. 1674 DATED OCTOBER 3, 1961.

ITEM 156 WAS ADVERTISED AND DESCRIBED IN THE INVITATION AS "BUTTER, 90 PATS PER LB. 92 SCORE IN ACCORDANCE WITH VA ITEM 156 EXCEPT PREPATTED (ON INDIVIDUAL BUTTER CHIPS) CARDBOARD SEPARATORS. 26 LBS. IN CTN. REDDIES OR EQUAL.'

THE RECORD SHOWS THAT THE PURCHASE ORDER WAS ISSUED ON AUGUST 25, 1961, FOR DELIVERIES TO BE MADE ON SEPTEMBER 5, 12, 19, AND 26. YOU DID NOT INDICATE A MISUNDERSTANDING OF SPECIFICATIONS AFFECTING THE PRICE BID UNTIL YOU WERE CONTACTED BY TELEPHONE ON SEPTEMBER 5, 1961, REGARDING THE DELIVERY OF THAT DATE. AS YOU WERE ADVISED ON SEPTEMBER 7, 1961, BY THE PURCHASING OFFICE IT WAS FELT THAT THE BID INVITATION ADEQUATELY DESCRIBED WHAT WAS REQUIRED. THE INVITATION DEFINITELY STATED THAT INDIVIDUAL CHIPS WERE REQUIRED.

FIVE BIDS WERE RECEIVED RANGING IN PRICE FROM $0.7189 TO $0.844 PER POUND. THUS, IT DOES NOT APPEAR THAT THE DIFFERENCE IN THE AMOUNTS BID WAS SUCH AS TO INDICATE TO THE CONTRACTING OFFICER THAT YOUR BID WAS OTHER THAN ON THE ITEM DESCRIBED AND DESIRED BY THE INVITATION.

IN CONNECTION WITH YOUR STATEMENT THAT IT WAS INCUMBENT UPON THE GOVERNMENT TO PROTECT YOUR INTEREST AS WELL AS ITS OWN, ATTENTION IS INVITED TO THE CASE OF SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507, WHEREIN IT WAS STATED THAT THE GOVERNMENT IS NOT OBLIGATED TO PROTECT BIDDERS AGAINST THE CONSEQUENCES OF THEIR OWN ERRORS.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 28, 1962, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO WHOM YOU MAY ADDRESS A FURTHER APPEAL, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE "WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.' 28 U.S.C. 2501. ALSO, THE DISTRICT COURTS OF THE UNITED STATES HAVE SIMILAR JURISDICTION AS TO CLAIMS UNDER $10,000.

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