B-130111, JAN. 31, 1957

B-130111, JAN. 31, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 14, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION WITH RESPECT TO THE CLAIM FILED BY THE MILLS COMPANY UNDER CONTRACT NO. DA 36- 237-SC-47, DATED APRIL 28, 1955, COVERING THE INSTALLATION OF A PROJECTION TEST TUNNEL AT THE TOBYHANNA SIGNAL DEPOT.

BY INVITATION NO. SC-36-237-55-94, DATED APRIL 13, 1955, BIDS WERE INVITED FOR THE INSTALLATION OF A PROJECTION TEST TUNNEL IN THE PHOTOGRAPHIC SHOP, MAINTENANCE DIVISION, TOBYHANNA SIGNAL DEPOT, IN ACCORDANCE WITH APPLICABLE PLANS AND SPECIFICATIONS. THE BID OF THE MILLS COMPANY OF $3,000 WAS ACCEPTED ON APRIL 28, 1955, CONSUMMATING CONTRACT NO. DA-36-237-SC-47--- PURCHASE ORDER NO. 3731-55-MP. THE COMPANY'S OWN SHOP DRAWINGS WERE SUBMITTED, AS REQUIRED, TO THE CONTRACTING OFFICER ON JUNE 22, 1955, WHO ADVISED THE MILLS COMPANY, BY LETTER DATED JULY 7, 1955, THAT FULL APPROVAL OF THE DRAWINGS WOULD HAVE TO BE WITHHELD PENDING RECEIPT OF CERTAIN INFORMATION, WHICH WAS NOT INCLUDED IN THE DRAWINGS SUBMITTED, AS TO THE OVERHEAD PANELS OR CEILING. ON JULY 18, 1955, THE MILLS COMPANY ADVISED THAT IT WAS ITS INTERPRETATION THAT THE PLANS AND SPECIFICATIONS DID NOT REQUIRE A CEILING. THE CONTRACTING OFFICER CONTENDED, HOWEVER, THAT THE PLANS AND SPECIFICATIONS REQUIRED THE INSTALLATION OF A CEILING AND ISSUED THE COMPANY A NOTICE TO PROCEED. THE NOTICE WAS ACKNOWLEDGED BY THE MILLS COMPANY ON SEPTEMBER 21, 1955, WITH THE EXPRESS RESERVATION OF ITS POSITION THAT THE PLANS AND SPECIFICATIONS DID NOT INCLUDE THE CEILING. THE COMPANY COMPLETED THE WORK UNDER THE CONTRACT, WITH THE EXCEPTION OF THE CEILING, ON OCTOBER 13, 1955, BUT NO PAYMENTS HAVE AS YET BEEN MADE.

IT IS ADMITTED IN THE ADMINISTRATIVE REPORT THAT THE SPECIFICATIONS AS TO THE CEILING ARE SOMEWHAT VAGUE AND THE RECORD SHOWS THAT BOTH THE OTHER BIDDERS SPECIFICALLY MENTIONED A CEILING IN THEIR BIDS, AND ONE QUOTED A PRICE FOR IT AS A SEPARATE ITEM. CONSIDERING THE FACT THAT THE BID OF THE MILLS COMPANY OF $3,000 CONTAINED NO REFERENCE TO A CEILING, WHILE THE OTHER TWO BIDS, WHICH DID, WERE IN THE AMOUNTS OF $3,835 (OF WHICH $1,012 WAS FOR A CEILING) AND $3,867, IT APPEARS REASONABLE TO CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE SUSPECTED AN OMISSION OR ERROR IN THE LOW BID OF THE MILLS COMPANY AND, THEREFORE, HAVE AFFORDED THE COMPANY, UNDER SUCH CONDITIONS, THE USUAL OPPORTUNITY TO VERIFY ITS BID PRIOR TO THE ACCEPTANCE THEREOF.

IN VIEW OF THE FOREGOING, AND SINCE THERE CAN BE NO DOUBT THAT THE MILLS COMPANY'S BID DID NOT INCLUDE A CEILING, AS SUBSTANTIATED BY THE SHOP DRAWINGS SUBMITTED BY IT, IT IS BELIEVED THAT THE COMPANY CANNOT BE REQUIRED TO FURNISH A CEILING AT THE CONTRACT PRICE, AND THAT ACCEPTANCE OF THE JOB AS IT NOW STANDS, IF OTHERWISE SATISFACTORY, AND MAKING PAYMENT ONLY IN THE AMOUNT OF $2,822.99, AS QUOTED FOR THE SAME WORK BY THE NEXT BIDDER, WILL CONSTITUTE A PROPER SETTLEMENT.

THE PAPERS, WITH THE EXCEPTION OF THE ORIGINAL ADMINISTRATIVE REPORT DATED NOVEMBER 28, 1956, ARE RETURNED HEREWITH.