B-130404, FEB. 7, 1957

B-130404, FEB. 7, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 17, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS) REQUESTING A DECISION WITH RESPECT TO THE CLAIM FILED BY THE METROPOLITAN SOUND SYSTEM, INC., IN THE AMOUNT OF $115.82 UNDER DEPARTMENT OF THE ARMY PURCHASE ORDER NO. IF 3171- 57, DATED JULY 24, 1956.

IT APPEARS THAT IN RESPONSE TO AN ORAL REQUEST OF JULY 24, 1956, FROM THE CONTRACTING OFFICER, BROOKLYN ARMY TERMINAL, FOR QUOTATIONS ON CERTAIN TYPES OF AMPLIFIERS AND MICROPHONES, THE METROPOLITAN SOUNDSYSTEMS, INC., ORALLY QUOTED, ON THE SAME DATE, A PRICE OF $110 AND $31.16 EACH, 2 PERCENT 10 DAYS, FOR THE AMPLIFIERS AND MICROPHONES, RESPECTIVELY. BY THE ISSUANCE OF PURCHASE ORDER NO. IF 3171-57 ON JULY 24, 1956, AN AWARD WAS MADE TO THE METROPOLITAN SOUND SYSTEMS, INC., FOR TWO EACH OF THE AMPLIFIERS AND MICROPHONES AT THE PRICES QUOTED AND THE EQUIPMENT WAS PICKED UP BY A GOVERNMENT TRUCK ON JULY 25, 1956. IN ITS LETTER DATED JULY 27, 1956, THE METROPOLITAN SOUND SYSTEMS, INC., ADVISED THE COMMANDING OFFICER OF THE BROOKLYN ARMY TERMINAL THAT AN ERROR HAD BEEN MADE IN ITS ORAL QUOTATION OF JULY 24, 1956, IN THAT THE QUOTED PRICE OF $110 EACH, 2 PERCENT 10 DAYS, FOR THE AMPLIFIERS SHOULD HAVE BEEN $165 EACH, NET 30 DAYS. PAYMENT HAS BEEN MADE ON THE BASIS OF THE ORIGINAL QUOTATIONS, AS SET FORTH IN PURCHASE ORDER NO. IF 3171-57, LESS THE PROMPT PAYMENT DISCOUNT OF 2 PERCENT, AND THE METROPOLITAN SOUND SYSTEMS, C., NOW CLAIMS $115.82 AS REPRESENTING THE TOTAL DIFFERENCE BETWEEN ITS BID OF $110 EACH, 2 PERCENT 10 DAYS, AND ITS INTENDED BID OF $165 EACH, NET 30 DAYS, FOR THE TWO AMPLIFIERS FURNISHED.

IN ADDITION TO ADVISING OF THE ERROR, THE METROPOLITAN SOUND SYSTEMS, INC., BY LETTER DATED JULY 27, 1956, STATED THAT PREVIOUS TO ITS ORAL QUOTATION OF JULY 24, 1956, THOMAS J. MCCABE, THE CORPORATION'S OPERATIONS MANAGER, HAD ORALLY QUOTED A MR. MELLI OF THE BROOKLYN ARMY TERMINAL THE CORRECT NET PRICE OF $165 FOR THE TYPE OF AMPLIFIER REQUIRED. IN THIS CONNECTION, THERE IS IN THE RECORD A "PURCHASE REQUEST AND COMMITMENT" FORM DATED JULY 20, 1956, THAT WAS ISSUED BY THE SUPPLY AND AUXILIARY SERVICE TO THE PURCHASING AND CONTRACTING OFFICER REQUESTING THE PURCHASE OF THE AMPLIFIERS AND MICROPHONES. IN ADDITION TO THE FACT THAT THE "PURCHASE REQUEST AND COMMITMENT" FORM LISTED A PRICE OF $165 EACH FOR THE TWO AMPLIFIERS AND $28.20 EACH FOR THE TWO MICROPHONES, THE FORM ALSO REFERRED TO THE STROMBERG CARLSON CORPORATION--- MANUFACTURERS OF THE EQUIPMENT--- AND TO MR. MCCABE'S NAME AND TELEPHONE NUMBER. SINCE IT APPEARS THAT THE "PURCHASE REQUEST AND COMMITMENT" FORM, WHICH WAS ISSUED FOUR DAYS PRIOR TO THE ORAL REQUEST FOR QUOTATIONS, HAD BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER AT THE TIME HE MADE THE SAID REQUEST AND IN VIEW OF THE DETAILED INFORMATION CONTAINED ON THE "PURCHASE REQUEST AND COMMITMENT" FORM, PARTICULARLY THE REFERENCE THEREON TO MR. MCCABE'S NAME AND TELEPHONE NUMBER, WE BELIEVE IT IS REASONABLE TO CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE SUSPECTED THE PROBABILITY OF AN ERROR IN THE SUBSEQUENT ORAL QUOTATION OF $110 EACH FOR THE TWO AMPLIFIERS AND, THEREFORE, HAVE AFFORDED THE METROPOLITAN SOUND SYSTEMS, INC., THE OPPORTUNITY TO VERIFY ITS BID PRIOR TO THE ACCEPTANCE. IT IS NOTED, ALSO, IN THIS CONNECTION, THAT AFTER THE CLAIM HAD BEEN FILED MR. MELLI CONFIRMED THE FACT THAT THE GREATER PRICE OF $165 EACH HAD BEEN QUOTED TO HIM.

ACCORDINGLY, THE CLAIM SHOULD BE ALLOWED, IT OTHERWISE CORRECT, ON THE BASIS OF THE INTENDED NET PRICE OF $165 EACH FOR THE TWO AMPLIFIERS WITHOUT REGARD TO THE PRICE FOR THE MICROPHONES, WHICH THE METROPOLITAN SOUND SYSTEMS, INC., STATES SHOULD HAVE BEEN QUOTED AT $33.24 EACH BUT FORGOES ANY RIGHT WHICH IT MIGHT HAVE TO ANY ADDITIONAL AMOUNT FOR THIS PART OF THE EQUIPMENT.

THE PAPERS, WITH THE EXCEPTION OF THE FINDINGS AND RECOMMENDATIONS OF THE CONTRACTING OFFICER, PHOTOSTATIC COPY OF THE "PURCHASE REQUEST AND COMMITMENT" FORM AND THE PRICE LISTS, ARE RETURNED HEREWITH.