B-128652, AUG. 23, 1956

B-128652, AUG. 23, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR THE PRODUCTION TOOL SUPPLY COMPANY, VAN DYKE, MICHIGAN, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. 228S-15068 WAS AWARDED.

BY INVITATION NO. B-179-56, THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, REQUESTED BIDS--- TO BE OPENED MARCH 21, 1956--- FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER SURPLUS ITEMS, 425 COMMERCIAL GROUND HIGH SPEED STEEL HAND TAPS, ITEM 17A. THE CONDITION OF THE TAPS COVERED BY ITEM 17A WAS DESCRIBED IN THE INVITATION AS BEING "APPARENTLY UNUSED-IN GOOD CONDITION.' IN RESPONSE THE PRODUCTION TOOL SUPPLY COMPANY SUBMITTED A BID DATED MARCH 13, 1956, OFFERING TO PURCHASE, AMONG OTHER ITEMS, THE TAPS COVERED BY ITEM 17A AT A PRICE OF $4.277 EACH. THE 10 OTHER BIDS ON ITEM 17A RANGED FROM $2.07 EACH TO $0.05 EACH. THE BID OF THE COMPANY, WHICH WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $1,250.99, WAS ACCEPTED AS TO ITEMS 17A AND 74 ON APRIL 16, 1956.

BY LETTER DATED APRIL 18, 1956, THE PRODUCTION TOOL SUPPLY COMPANY ADVISED THAT IT HAD REQUESTED WITHDRAWAL OF ITS BIDS ON ITEMS 16, 17, AND 17A, BY AIRMAIL LETTER SENT ON MARCH 15--- SIX DAYS PRIOR TO THE BID OPENING--- AND HAD ASSUMED THAT THE REQUEST HAD BEEN COMPLIED WITH; THAT IT COULD NOT ACCEPT THE AWARD OF ITEM 17A.

THE CONTRACTING OFFICER, FINDING NO RECORD OF RECEIPT OF SUCH A LETTER, REQUESTED A COPY THEREOF AND VERIFICATION OF ITS TRANSMISSION, AND THE COMPANY ACCORDINGLY FORWARDED A COPY OF ITS ALLEGED LETTER OF MARCH 15, 1956, AND AN AFFIDAVIT THAT IT HAD BEEN DULY MAILED. THE GROUNDS FOR WITHDRAWAL STATED IN THE LETTER OF MARCH 15 WERE THAT THE ARTICLES OFFERED BY THE INVITATION WERE USED AND IN POOR CONDITION, AND THAT MOST OF THEM WERE NOT OF HIGH SPEED STEEL.

THE CONTRACTING OFFICER HAS REPORTED THAT, IN VIEW OF THE COMPANY'S NOTARIZED STATEMENT, IT WAS HIS OPINION THAT ITEM 17A OF THE CONTRACT SHOULD BE CANCELLED; AND THAT HE DOES, IN ADDITION, HAVE KNOWLEDGE THAT THE MATERIAL COVERED BY ITEM 17A DID NOT CORRESPOND WITH THE ADVERTISED DESCRIPTION IN THAT THE TAPS WERE NOT HIGH SPEED STEEL.

THERE IS NO QUESTION AS TO THE ABSOLUTE AND UNQUALIFIED RIGHT OF A BIDDER TO WITHDRAW HIS BID PRIOR TO THE TIME FIXED FOR BID OPENING, AND IT APPEARS THAT THE BIDDER HERE ATTEMPTED TO EXERCISE THAT RIGHT BY ITS LETTER OF MARCH 15. WHILE IT IS REPORTED THAT NO RECORD OF THE RECEIPT OF SUCH LETTER CAN BE FOUND, IT SEEMS AS LIKELY THAT IT WAS MISPLACED AFTER RECEIPT AS THAT IT WAS NEVER RECEIVED. CONSIDERING ALL THE CIRCUMSTANCES, INCLUDING THE FACT THAT THE GOVERNMENT'S DESCRIPTION OF THE ARTICLE COVERED BY ITEM 17A WAS SUBSTANTIALLY INCORRECT, AND THAT THE AMOUNT QUOTED THEREON BY THE PRODUCTION TOOL SUPPLY COMPANY WAS MORE THAN TWICE THE AMOUNT OF THE NEXT HIGHEST BID RECEIVED ON THAT ITEM, WE ARE OF THE OPINION THAT RELIEF PROPERLY MAY BE GRANTED. ACCORDINGLY, ITEM 17A OF CONTRACT NO. 228S-15068 MAY BE CANCELLED WITHOUT LIABILITY TO THE PRODUCTION TOOL SUPPLY COMPANY.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S UNDATED STATEMENT, ARE RETURNED.