B-167829, JAN 6, 1971

B-167829, JAN 6, 1971

MISTAKE IN OFFER REVERSING PRIOR DECISION WHICH DISALLOWED CLAIM BY TRANSMARES CORPORATION FOR $1,500 WITHHELD AS THE PRICE OF TWO EXTRA CAMERA FILTERS SHOWN ON, BUT NOT FURNISHED UNDER, A FOREST SERVICE ORDER. WHERE CONTRACTING AGENCY HAD IN ITS POSSESSION, PRIOR TO BID OPENING, MATERIAL INDICATING THAT THE EXTRA CAMERA FILTERS WERE NOT INCLUDED IN THE FILTERS FURNISHED BY CLAIMANT AT NO EXTRA CHARGE, AND THE CONTRACTING OFFICER FAILED TO CONSULT SUCH MATERIAL, HE MAY BE REGARDED AS HAVING CONSTRUCTIVE NOTICE OF CLAIMANT'S ERROR IN LISTING THESE FILTERS IN THE PRICE SHOWN ON THE PURCHASE ORDER. THEREFORE THE AMOUNT WITHHELD, $1,500, AS THE ACTUAL PRICE OF THE FILTERS SHOULD BE ALLOWED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 4, 1970, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, FURNISHING US A SUPPLEMENTAL REPORT IN CONNECTION WITH A REQUEST BY THE TRANSMARES CORPORATION FOR RECONSIDERATION OF OUR DECISION B-167829, OCTOBER 17, 1969, WHICH DISALLOWED ITS CLAIM FOR $1,500 WITHHELD AS THE PRICE OF TWO EXTRA CAMERA FILTERS (C AND G) WHICH WERE SHOWN ON, BUT NOT FURNISHED UNDER, FOREST SERVICE PURCHASE ORDER NO. 988-R4-69.

IN ITS LETTER OF JULY 30, 1970, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 17, 1969, TRANSMARES CONTENDS THAT THE AMOUNT OF ITS INVOICE COVERS EXACTLY THE VALUE OF THE ITEMS DELIVERED TO THE U.S. FOREST SERVICE, OGDEN, UTAH, AND THAT THE ENGINEERING DEPARTMENT OF THE FOREST SERVICE'S UTAH OFFICE WAS AWARE OF THE FACT THAT FILTERS C AND G ARE NOT INCLUDED IN THE PRICES SHOWN.

ACCORDING TO THE RECORD, THE FOREST SERVICE'S DIVISION OF ENGINEERING IN OGDEN, UTAH, HAD IN ITS POSSESSION, PRIOR TO BID OPENING, A CATALOG WHICH INDICATED THAT FILTERS C AND G WERE NOT INCLUDED IN THE FILTERS FURNISHED AT NO EXTRA CHARGE WITH THE ZEISS CAMERA RMK A 21/23. MOREOVER, IN HIS LETTER OF JUNE 27, 1969, THE REGIONAL ENGINEER STATED THAT IT WAS THE ENGINEERING DIVISION'S INTENTION TO REQUISITION THE TWO EXTRA FILTERS IN ADDITION TO THE THREE FILTERS NORMALLY SUPPLIED WITH THE CAMERA UNDER CATALOG NO. 51-63-05. HE FURTHER INDICATES THAT FILTERS C AND G SHOULD HAVE BEEN LISTED AS A SEPARATE IDENTITY ITEM IN THE REQUISITION RATHER THAN HAVING BEEN LISTED IN THE REQUEST AS A PART OF CATALOG ITEM 51-63- 05. THE REGIONAL ENGINEER ALSO STATES THAT, IN HIS OPINION, THIS ERROR IN THE REQUISITION AND PURCHASE ORDER PREPARATION RESULTED IN THE OVERSIGHT BY TRANSMARES CORPORATION.

THE CONTRACTING OFFICER, WHO HAD THE RESPONSIBILITY FOR PROCURING THE CAMERA, STATES THAT THE ONLY INFORMATION AVAILABLE TO HIM, AT THE TIME OF ORDERING, WAS THE PRICE QUOTATION FURNISHED IN A LETTER FROM TRANSMARES, AND THE REQUISITION FROM THE DIVISION OF ENGINEERING. THE PRICE QUOTATION DID NOT IDENTIFY THE FILTERS INCLUDED IN THE PRICE SHOWN FOR CATALOG ITEM 51-63-05. HOWEVER, TRANSMARES' LETTER STATED THAT A CATALOG WAS ENCLOSED CONTAINING DETAILED DESCRIPTIONS AND TECHNICAL DATA FOR THE ITEMS ON WHICH PRICES WERE QUOTED. THE CATALOG WAS RETAINED BY THE DIVISION OF ENGINEERING, AND THE CONTRACTING OFFICER DID NOT CONSULT THE CATALOG WHICH DOCUMENTED THAT ONLY FILTERS B, D AND K1 WERE INCLUDED WITH THAT ITEM. HAD THE CONTRACTING OFFICER CONSULTED THE CATALOG, IT WOULD HAVE BEEN APPARENT TO HIM THAT FILTERS C AND G WERE NOT LISTED AS A PART OF ITEM 51- 63-05 AND THAT THE SPECIFIC FILTERS INCLUDED IN THE PRICE QUOTED FOR THAT ITEM SHOULD BE VERIFIED. SEE B-117208, OCTOBER 28, 1953; B-161983, JULY 21, 1967; B 168500, JANUARY 12, 1970. A CHECK OF THE CATALOG BY THE CONTRACTING OFFICER SEEMS TO HAVE BEEN ESPECIALLY REQUIRED IN THE PRESENT CASE, SINCE THE REQUEST FOR THE QUOTATIONS WAS MADE BY THE DIVISION OF ENGINEERING, RATHER THAN BY THE PROCUREMENT OFFICE, AND ITS CONTENTS WERE LIKEWISE NOT BEFORE THE CONTRACTING OFFICER.

IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER MAY BE REGARDED AS HAVING HAD CONSTRUCTIVE NOTICE OF THE ERROR IN TRANSMARES' OFFER WHICH INCLUDED FILTERS C AND G IN THE PRICE SHOWN FOR ITEM 51-63-05 AND, THEREFORE, THE AMOUNT WITHHELD AS THE ACTUAL PRICE OF THOSE FILTERS SHOULD BE ALLOWED.

ACCORDINGLY, PAYMENT OF THE $1,500 DEDUCTED FROM TRANSMARES' INVOICE MAY BE MADE TO THAT FIRM.