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B-124445, NOV. 10, 1955

B-124445 Nov 10, 1955
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TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 14. TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. DA 36-038-ORD-18903 WAS BASED. ALTHOUGH THE OPENING DATE OF THE BIDS WAS FEBRUARY 10. THE AWARD OF THE CONTRACT WAS MARCH 14. THE EARLIEST ALLEGATION OF ERROR DISCLOSED OF RECORD IS THAT CONTAINED IN THE CONTRACTOR'S LETTER OF JUNE 22. ASSUMED IN ACCORDANCE WITH NORMAL COMMERCIAL PRACTICE THAT PLATING ON OUTSIDE SURFACES OF PARTS ONLY WAS REQUIRED SINCE THE BLUEPRINT DID NOT SPECIFY ANYTHING TO THE CONTRARY. PURPORTEDLY COVERING THE PLATING OF EXTERNAL AND INTERNAL SURFACES WERE FURNISHED. THE ESTIMATED COMPONENT COST FACTORS WERE PRORATED IN THE BREAKDOWNS TO EACH OF NINE DRAWINGS.

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B-124445, NOV. 10, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 14, 1955, WITH ENCLOSURES, FROM THE CHIEF OF FINANCE, FILE FINEY 167/7 JUN 55 EASTERN TOOL AND MANUFACTURING CO., INC., FURNISHING THE REPORT REQUESTED IN OUR LETTER OF JULY 7, 1955, RELATIVE TO AN ERROR ALLEGED BY EASTERN TOOL AND MANUFACTURING COMPANY, INC., TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. DA 36-038-ORD-18903 WAS BASED.

ALTHOUGH THE OPENING DATE OF THE BIDS WAS FEBRUARY 10, 1955, AND THE AWARD OF THE CONTRACT WAS MARCH 14, 1955, THE EARLIEST ALLEGATION OF ERROR DISCLOSED OF RECORD IS THAT CONTAINED IN THE CONTRACTOR'S LETTER OF JUNE 22, 1955, ADDRESSED TO THE ROCHESTER ORDNANCE DISTRICT. THE LETTER INCLUDED, AMONG OTHER THINGS, A STATEMENT THAT THE CORPORATION AND ITS PLATING VENDOR, THE TRIPP PLATING WORKS, ASSUMED IN ACCORDANCE WITH NORMAL COMMERCIAL PRACTICE THAT PLATING ON OUTSIDE SURFACES OF PARTS ONLY WAS REQUIRED SINCE THE BLUEPRINT DID NOT SPECIFY ANYTHING TO THE CONTRARY. REASON THEREOF, AND IN VIEW OF THE ADVICE RECEIVED SINCE THE AWARD THAT THE CONTRACT REQUIRES THE PLATING OF ALL SURFACES, BOTH INSIDE AND OUTSIDE, THE CONTRACTOR REQUESTS AN INCREASE OF $1.975 IN ITS UNIT BID PRICE--- FROM $17.262 TO $19.237--- SINCE ALLEGEDLY THE BID INCLUDED ONLY $0.279 PER UNIT FOR PLATING OUTSIDE SURFACES ONLY, WHEREAS TO COVER THE COST OF THE PLATING AS REQUIRED, THE UNIT PRICE SHOULD BE $2.254. SUPPORT OF THE ALLEGATION OF ERROR AND REQUEST FOR RELIEF, TWO COMPARATIVE BREAKDOWNS OF COSTS, ONE TOTALLING $0.279 COVERING THE PLATING OF EXTERNAL SURFACES ONLY AND THE OTHER, TOTALLING $2.254, PURPORTEDLY COVERING THE PLATING OF EXTERNAL AND INTERNAL SURFACES WERE FURNISHED. THE ESTIMATED COMPONENT COST FACTORS WERE PRORATED IN THE BREAKDOWNS TO EACH OF NINE DRAWINGS. THE REQUESTED INCREASE IN THE CONTRACT PRICE IS COMMENSURATE WITH THE DIFFERENCE IN THE TWO COST BREAKDOWNS.

IN THE 3RD INDORSEMENT DATED SEPTEMBER 1, 1955, THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID PRIOR TO AWARD; THAT AT PRE-AWARD CONFERENCES BETWEEN A PRODUCTION SPECIALIST FROM THE ARSENAL AND THE CONTRACTOR, IN THE CONTRACTOR'S PLANT ON TWO SUCCESSIVE DAYS, THE DRAWINGS WERE REVIEWED COMPLETELY; AND THAT, INDEPENDENTLY OF SAID CONFERENCES, A SURVEY OF THE CONTRACTOR'S PLANT FACILITIES WAS MADE BY THE ROCHESTER ORDNANCE DISTRICT AT WHICH TIME THE INVITATION FOR BIDS WAS REVIEWED BY THE PARTIES. HE FURTHER STATES THAT ON NONE OF THESE OCCASIONS DID THE CONTRACTOR EITHER ALLEGE ANY ERROR IN ITS BID OR INDICATE ANY MISUNDERSTANDING OF THE DRAWINGS WHICH IT NOW CONTENDS ARE NEITHER LEGIBLE NOR SPECIFIC AS TO PLATING REQUIREMENTS, AND THAT IT IS STANDARD PRACTICE, BOTH IN GOVERNMENT AND INDUSTRY, THAT WHERE PLATING IS SPECIFIED IT IS UNDERSTOOD THAT ALL SURFACES ARE TO BE PLATED.

REGARDING THE CONTENTION THAT THE DRAWINGS WERE NOT LEGIBLE, IT SEEMS APPARENT THAT IF THE CONTRACTOR AT THE TIME OF PREPARING ITS BID CONSIDERED THEM TO BE INADEQUATE FOR THEIR INTENDED PURPOSE, THE EXERCISE OF ORDINARY BUSINESS PRUDENCE WOULD DEMAND THAT A CLARIFICATION OF THE DRAWINGS BE REQUESTED BEFORE SUBMITTING A BID FOR THE JOB ON A MERE GUESS OR ASSUMPTION OF WHAT WAS REQUIRED.

THE CONTRADICTORY STATEMENTS RECEIVED FROM THE CONTRACTOR AND THE CONTRACTING OFFICER AS TO THE STANDARD COMMERCIAL PRACTICE FOLLOWED WHERE PLATING IS CALLED FOR BY THE SPECIFICATIONS INVOLVES A DISPUTED QUESTION OF FACT. IN THAT CONNECTION IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT AS CORRECT THE REPORT FURNISHED BY THE ADMINISTRATIVE OFFICERS. SEE 16 COMP. GEN. 410, 414; 20 ID. 573, 578. IN THE PRESENT CASE, EVEN IF THERE WERE NO SUCH RULE TO INVOKE, AND REGARDLESS OF THE PRACTICE OR CUSTOM IN INDUSTRY, SINCE THE DRAWINGS CONTAIN THE REPEATED PERTINENT STATEMENTS, REFERRING OBVIOUSLY TO THE EXTENT OF THE PLATING, AS "ALL OVER EXCEPT AS NOTED," THE CONCLUSION IS WARRANTED THAT PLATING OF ALL AREAS, WITHOUT EXCEPTION, WAS INTENDED. CERTAINLY SUCH A WORDING, IN THE ABSENCE OF ANY EXCEPTION ON THE RESPECTIVE DRAWINGS, PRECLUDES A FINDING OF ANY JUSTIFICATION FOR THE CONTRACTOR'S DISTINCTION BETWEEN "OUTSIDE" AND "INSIDE" OR "EXTERNAL" AND "INTERNAL" SURFACES, OR FOR ITS CONCLUSION THAT THE PLATING OF WHAT IT TERMED OUTSIDE SURFACES ONLY WAS REQUIRED.

ALTHOUGH THERE WAS A WIDE VARIANCE BETWEEN SOME OF THE BIDS, THE CONTRACTOR'S BID OF $17.262 EACH WAS NOT OUT OF LINE WITH THE OTHER BIDS, SINCE THE FIVE NEXT LOWEST BIDS ELIGIBLE FOR CONSIDERATION ON FURNISHING THE MANDATORY QUANTITY REQUIRED UNDER THE CONTRACT WERE $19.02, $24.40, $27.25, $27.29 AND $28.71. NO ERROR APPEARS ON THE FACE OF THE CONTRACTOR'S BID. HENCE, THE EVIDENCE OF RECORD IN THIS CASE IS INSUFFICIENT TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER HAD ANY REASON TO SUSPECT ERROR IN THE CONTRACTOR'S BID. ALTHOUGH ERROR WAS ALLEGED BY THE CONTRACTOR 100 DAYS AFTER AWARD AND 83 DAYS AFTER THE ADMINISTRATION OF THE CONTRACT WAS TRANSFERRED FROM THE CONTRACTING OFFICE AT PHILADELPHIA TO THE DISTRICT OFFICE IN ROCHESTER, NEW YORK, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER WAS AWARE OF ANY MISUNDERSTANDING ON THE PART OF THE CONTRACTOR, OR ITS SUPPLIER, OF THE DRAWINGS, OR THE PLATING SPECIFICATIONS. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE CONTRACTING OFFICER ACTED IN GOOD FAITH AND, CONSEQUENTLY, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID WAS UPON THE CONTRACTOR. IF IT MADE AN ERROR, AS ALLEGED, IN THE INTERPRETATION OF THE DRAWINGS AND SPECIFICATIONS, IT WAS DUE SOLELY TO ITS OWN FAILURE TO EXERCISE PROPER CARE IN THE CIRCUMSTANCES INVOLVED. SUCH ERROR WAS UNILATERAL-- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, THE FACTS OF RECORD AFFORD NO LEGAL BASIS FOR AUTHORIZING ANY INCREASE IN THE PRICE SPECIFIED IN THE CONTRACT.

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