B-127727, JUL. 11, 1956

B-127727, JUL. 11, 1956

TO CADILLAC CANVAS COMPANY:

REFERENCE IS MADE TO A LETTER OF APRIL 9, 1956, IN YOUR BEHALF FROM MR. J. BENJAMIN SIMMONS, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 8, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $4,821.61 UNDER CONTRACT NO. N50M-11594, DATED JULY 11, 1955.

IN RESPONSE TO INVITATION NO. 1155-C, ISSUED ON MAY 5, 1955, BY THE MARINE CORPS CLOTHING DEPOT, PHILADELPHIA, PENNSYLVANIA, YOU SUBMITTED A BID OFFERING TO FURNISH 1,000 TENT FLIES IN THE TOTAL AMOUNT OF $5,990 F.O.B. THE DESTINATIONS SPECIFIED. THE INVITATION PROVIDED, AMONG OTHER THINGS, THAT:

"PRICE QUOTED SHALL BE ON THE BASIS OF THE CONTRACTOR RECEIVING THE GOVERNMENT FURNISHED PROPERTY F.O.B. THE MARINE CORPS POINTS DESIGNATED HEREINAFTER, AND SHALL INCLUDE F.O.B. CARRIER'S EQUIPMENT, WHARF, OR FREIGHT STATION, (AT GOVERNMENT'S OPTION), AT OR NEAR CONTRACTOR'S PLANT.

THE INVITATION ALSO PROVIDED THAT THE MARINE CORPS WOULD FURNISH FROM ITS DEPOTS AT PORTSMOUTH, VIRGINIA, AND PHILADELPHIA, PENNSYLVANIA, 79,300 YARDS OF COTTON DUCK CLOTH AND VARIOUS OTHER COMPONENTS RESPECTIVELY, TO THE SUCCESSFUL BIDDER FOR THE MANUFACTURE OF THE TENT FLIES.

IT APPEARS THAT THE CONTRACTING OFFICER BELIEVED THAT YOUR BID, WHICH WAS THE ONLY ONE RECEIVED ON AN F.O.B. DESTINATION BASIS, OF $5.75 EACH, F.O.B. BARSTOW, CALIFORNIA, AND $6.35 EACH. F.O.B. ALBANY, GEORGIA, WAS DISPROPORTIONATELY LOW IN COMPARISON WITH THE 11 OTHER BIDS RECEIVED ON AN F.O.B. SHIPPING POINT BASIS, WHICH RANGED FROM $5.33 TO $15.45 EACH. VIEW OF THIS, YOU WERE REQUESTED TO VERIFY YOUR BID AND UPON THE AFFIRMATION THEREOF AWARD OF CONTRACT NO. N50M-11594 WAS MADE TO YOU ON JULY 11, 1955. BY LETTER DATED AUGUST 15, 1955, YOU ADVISED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE IN YOUR BID, IN THAT YOU HAD OMITTED THE FREIGHT CHARGES FOR TRANSPORTING THE GOVERNMENT-FURNISHED MATERIAL FROM THE MARINE CORPS DEPOTS TO YOUR PLANT. COMPLETE DELIVERY OF THE TENT FLIES, HOWEVER, SUBSEQUENTLY WAS MADE BY YOU AND FULL PAYMENT EFFECTED IN ACCORDANCE WITH THE TERMS OF THE CONTRACT EMBODYING YOUR ORIGINAL BID PRICE. YOU NOW CLAIM THE ADDITIONAL AMOUNT OF $4,831.61, WHICH YOU STATE REPRESENTS THE COST OF TRANSPORTING THE GOVERNMENT- FURNISHED MATERIAL FROM THE MARINE CORPS DEPOTS TO YOUR PLANT.

WHILE CERTAIN CONTENTIONS ARE SET FORTH IN MR. SIMMON'S LETTER IN CONSIDERABLE DETAIL, IT APPEARS THAT THE REQUEST FOR REVIEW IS BASED PRIMARILY UPON UNITED STATES V. METRO NOVELTY MANUFACTURING COMPANY, INC., 125 F.SUPP. 713, WHEREIN THE COURT HELD THAT THE GOVERNMENT, IN REQUESTING VERIFICATION OF THE BID PRIOR TO AWARD, FAILED TO PUT THE BIDDER ON NOTICE OF THE PROBABILITY OF ERROR. MR. SIMMONS ALSO CITES THE CASE OF KEMP V. UNITED STATES, 38 F.SUPP. 568, IN FURTHER SUPPORT OF HIS POSITION.

A REVIEW OF THE FACTS IN THE CASE REVEALS, AS CONTENDED, THAT THERE ARE TWO STATEMENTS IN THE RECORD OF OFFICERS OF YOUR COMPANY AND OF MR. CHARLES E. MASON, YOUR WASHINGTON REPRESENTATIVE, TO THE EFFECT THAT GOVERNMENT OFFICIALS OF THE MARINE CORPS DID NOT, IN THE VERIFICATION OF YOUR BID, APPRISE YOU OF YOUR OBLIGATION FOR THE FREIGHT COSTS ON THE GOVERNMENT-FURNISHED MATERIAL FROM THE MARINE CORPS DEPOTS TO YOUR PLANT. IT IS REPORTED BY THE MARINE CORPS, HOWEVER, THAT AT THE TIME OF THE PREAWARD SURVEY, INVOLVING THE REQUEST FOR VERIFICATION, WHEN THE PROVIDENCE OF YOUR BID WAS QUESTIONED THE SURVEYOR REPORTED THAT:

"THE BIDDER IS AWARE OF THE FACT THAT ACCORDING TO BIDS SUBMITTED, HE WILL BE REQUIRED TO PAY ALL FREIGHT CHARGES ON COMPLETED TENT FLIES TO ALBANY, GEORGIA AND BARSTOW, CALIFORNIA, IN ADDITION TO FREIGHT CHARGES ON ALL GOVERNMENT FURNISHED PROPERTY FROM PORTSMOUTH, VIRGINIA AND PHILADELPHIA, PENNSYLVANIA, AS STATED ON PAGES 2, 3, AND 4 OF THE INVITATION TO BID.'

HENCE, AS ACKNOWLEDGED BY MR. SIMMONS THERE IS A DIRECT CONFLICT OF THIS PERTINENT ISSUE IN THE MATTER AND WHEN THERE IS A COMPLETE DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT THERE IS FOR APPLICATION THE PRINCIPLE, AS SET FORTH IN OUR SETTLEMENT OF MARCH 8, 1956, THAT THE FACTS AS ADMINISTRATIVELY REPORTED MUST, UNDER SUCH CIRCUMSTANCES, BE ACCEPTED BY OUR OFFICE AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE TO OVERCOME THE CORRECTNESS OF SUCH REPORTED FACTS. FURTHER, IT APPEARS THAT THE GOVERNMENT CONTRACTING OFFICE DIRECTED A REQUEST FOR VERIFICATION OF YOUR BID BOTH TO YOU AND TO MR. MASON, YOUR WASHINGTON REPRESENTATIVE. APPEARS THAT THE LACK OF CLARITY OF THE LANGUAGE IN THE INVITATION WAS NOT RESPONSIBLE FOR YOUR ERROR AND THAT THE MANNER IN WHICH THE VERIFICATION WAS REQUESTED WAS SUFFICIENTLY DEFINITE SO THAT YOU SHOULD HAVE CHECKED YOUR TRANSPORTATION COSTS AND DISCOVERED SUCH ERROR AS WAS MADE. THEREFORE, ON THE BASIS OF THE FACTS NOW BEFORE OUR OFFICE THERE APPEARS TO BE NO JUSTIFICATION FOR THE APPLICATION OF THE PRINCIPLE FOR WHICH THE METRO CASE, SUPRA, APPEARS TO STAND.

MOREOVER, THE PRINCIPLE OF LAW SET FORTH IN THE KEMP CASE, SUPRA, CANNOT BE ACCEPTED HERE. THAT CASE DOES NOT APPEAR TO HAVE BEEN DECIDED UPON A QUESTION OF VERIFICATION OF THE BID PRIOR TO AWARD WITH WHICH WE ARE HERE CONCERNED. IN THE INSTANT CASE, THE VERY FACT THAT THE CONTRACTING OFFICE REQUESTED A VERIFICATION OF YOUR BID INDICATES THAT IT HAD SOME DOUBT ORIGINALLY AS TO THE CORRECTNESS THEREOF AND THIS FACT IS ADMITTED BY THE GOVERNMENT. HOWEVER, HAVING LATER AFFORDED YOU THE OPPORTUNITY TO VERIFY THE BID AND RECEIVING AN AFFIRMATION THEREOF, WHICH REPORTEDLY INCLUDED STATEMENTS AS TO YOUR ACKNOWLEDGEMENT OF THE FREIGHT COST OBLIGATION, NO HIGHER DEGREE OF RESPONSIBILITY MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE SUBSEQUENT ACCEPTANCE OF SUCH A BID.

IN CONSIDERING ALL OF THE FACTS AND CIRCUMSTANCES OF RECORD THE LIABILITY FOR THE ENTIRE TRANSACTION REVOLVES ITSELF INTO A QUESTION OF A VERY DOUBTFUL NATURE. THIS BEING THE CASE IT APPEARS CLEARLY TO BE GOVERNED BY THE WELL-RECOGNIZED PRINCIPLE OF LAW LAID DOWN IN LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291 AND CHARLES V. UNITED STATES, 19 C.CLS. 316, 319, WHEREIN THE COURTS FOUND THAT WHERE THERE EXISTS A REASONABLE DOUBT AS TO THE VALIDITY OF A CLAIM AGAINST THE GOVERNMENT, IT HAS BEEN THE ESTABLISHED RULE THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT PROPERLY MAY NOT CERTIFY SUCH A CLAIM FOR PAYMENT.