B-131835, MAY 29, 1957
Highlights
TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED MAY 13. DA 49-018-ENG-1623 IS BASED. WAS THE DATE SCHEDULED FOR THE FORMAL OPENING OF THE BIDS. PROVIDED THAT ITS BID WAS ACCEPTED WITHIN 60 CALENDAR DAYS AFTER THE DATE OF THE OPENING OF THE BIDS. WAS LOW BIDDER ON FIVE OF THE ITEMS COVERING STAINLESS STEEL TANKS WITH STANDS. WERE IN ORDER. - AWARD WAS MADE TO DESIGNERS FOR INDUSTRY. ON THE FIVE ITEMS ON WHICH IT WAS LOW BIDDER. THE FIRM FURTHER ALLEGED THAT IT WOULD SUFFER A LOSS OF $339.02 IF THE CONTRACT WERE PERFORMED AT THE BID PRICE. IT IS APPARENT FROM THE RECORD THAT THE BID OF DESIGNERS FOR INDUSTRY. HAD EXPIRED BEFORE IT WAS ACCEPTED BY THE GOVERNMENT. WHILE THE EXACT WORDING OF THE LETTER OF FEBRUARY 18 IS NOT FREE OF AMBIGUITY.
B-131835, MAY 29, 1957
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER DATED MAY 13, 1957, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS), WHO REQUESTS A DECISION REGARDING AN ERROR DESIGNERS FOR INDUSTRY, INC., PHILADELPHIA, PENNSYLVANIA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA 49-018-ENG-1623 IS BASED.
INVITATION NO. ENG 49-108-57-39, DATED OCTOBER 25, 1956, SOLICITED BIDS TO SUPPLY SEVEN ITEMS DESCRIBED AS STAINLESS STEEL TANKS WITH STANDS AND 4 ITEMS DESCRIBED AS STAINLESS STEEL CAPS FOR THE TANKS. NOVEMBER 13, 1956, WAS THE DATE SCHEDULED FOR THE FORMAL OPENING OF THE BIDS.
IN BID DATED NOVEMBER 9, 1956, DESIGNERS FOR INDUSTRY, INC. OFFERED TO SUPPLY THE REQUIRED ITEMS AT SPECIFIED PRICES, PROVIDED THAT ITS BID WAS ACCEPTED WITHIN 60 CALENDAR DAYS AFTER THE DATE OF THE OPENING OF THE BIDS.
DESIGNERS FOR INDUSTRY, INC. WAS LOW BIDDER ON FIVE OF THE ITEMS COVERING STAINLESS STEEL TANKS WITH STANDS. BASED ON PRICES PAID FOR SIMILAR EQUIPMENT UNDER A CONTRACT AWARDED ON MARCH 12, 1956, THE CONTRACTING OFFICER CONCLUDED THAT THE BIDS SUBMITTED BY DESIGNERS FOR INDUSTRY, INC. WERE IN ORDER. ON JANUARY 15, 1957--- 63 CALENDAR DAYS AFTER THE DATE OF THE OPENING OF BIDS--- AWARD WAS MADE TO DESIGNERS FOR INDUSTRY, INC. ON THE FIVE ITEMS ON WHICH IT WAS LOW BIDDER.
BY LETTER DATED FEBRUARY 18, 1957, DESIGNERS FOR INDUSTRY, INC. ALLEGED AN ERROR IN ITS BID IN THAT IT HAD FAILED TO INCLUDE THE COST OF FINISHING THE ANGLES FOR THE TANK STANDS, AND REQUESTED AN INCREASE IN PRICE TO COVER THE ADDITIONAL COST OF $792 FOR THE OMITTED WORK. THE FIRM FURTHER ALLEGED THAT IT WOULD SUFFER A LOSS OF $339.02 IF THE CONTRACT WERE PERFORMED AT THE BID PRICE, ALLEGING ALSO THAT THE PRICE OF STAINLESS STEEL HAD INCREASED FIVE PERCENT ON JANUARY 2, 1957.
IRRESPECTIVE OF THE MERITS OF THE BIDDER'S CONTENTION, IT IS APPARENT FROM THE RECORD THAT THE BID OF DESIGNERS FOR INDUSTRY, INC. HAD EXPIRED BEFORE IT WAS ACCEPTED BY THE GOVERNMENT. ANY ATTEMPT TO REVIVE IT, WITHOUT THE BIDDER'S ACQUIESCENCE OR CONSENT, WOULD BE INEFFECTUAL. COMP. GEN. 50, 52. WHILE THE EXACT WORDING OF THE LETTER OF FEBRUARY 18 IS NOT FREE OF AMBIGUITY, WE DO NOT CONSTRUE IT AS AN UNQUALIFIED ACKNOWLEDGMENT OF THE CONTRACT ON THE TERMS AWARDED.
IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED AS A MATTER OF LAW THAT THE PURPORTED AWARD FAILED TO CONSUMMATE A BINDING CONTRACT. ACCORDINGLY, DESIGNERS FOR INDUSTRY, INC. MAY BE EXCUSED FROM PERFORMING ON THE ORDER.