B-132661, AUG. 2, 1957

B-132661, AUG. 2, 1957

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 22, 1957, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY M. PASHELINSKY AND SONS TO HAVE BEEN MADE IN QUOTING ON ITEM NO. 16 OF ITS BID DATED MAY 17, 1957, UPON WHICH CONTRACT NO. (34-601) S-331, DATED MAY 21, 1957, WAS AWARDED. YOU REQUEST A DECISION AS TO WHETHER THE CONTRACT MAY BE CANCELED AS REQUESTED BY THE CONTRACTOR.

BY INVITATION NO. 34-601-S-57-36, THE TINKER AIR FORCE BASE, OKLAHOMA, OFFERED FOR SALE CERTAIN GOVERNMENT PROPERTY. THE CONTRACTOR BID ON SEVERAL OF THE ITEMS BUT THE GOVERNMENT ACCEPTED ONLY THE BID ON ITEM 16, WHICH WAS $0.20386 PER POUND FOR 25,000 POUNDS OF HIGH TEMPERATURE ALLOY SCRAP. THE OTHER BIDS ON THIS ITEM WERE $0.01719, $0.026, $0.028, $0.0301 AND $0.033999.

THE CONTRACTOR ALLEGES THAT IT WAS NOT UNTIL THE DATE SET FOR DELIVERY OF THE PROPERTY BY THE GOVERNMENT TO THE CARRIER AGENT OF THE CONTRACTOR THAT HIS REPRESENTATIVE, WHO WAS AT TINKER AIR FORCE BASE TO ARRANGE FOR THE TRANSFER OF THE PROPERTY, DETERMINED BY INSPECTION THAT THE PROPERTY SOLD TO HIM WAS NOT, IN FACT, THAT WHICH THE SAME REPRESENTATIVE HAD INSPECTED PRIOR TO SUBMISSION OF BID BY THE CONTRACTOR. THE CONTRACTOR ALLEGES THAT THE BASE GUIDE ASSIGNED TO ACCOMPANY THE CONTRACTOR'S REPRESENTATIVE AT THE TIME OF THE INSPECTION PRIOR TO SUBMISSION OF THE CONTRACTOR'S BID INADVERTENTLY DIRECTED THE REPRESENTATIVE TO A DIFFERENT LOT OF PROPERTY FROM THAT DESCRIBED AS LOT 16 IN THE INVITATION. THE REPRESENTATIVE AT THAT TIME MADE A THOROUGH INSPECTION OF THE PROPERTY TO WHICH HE HAD ALLEGEDLY BEEN MISDIRECTED, AND DETERMINED BY A VISUAL INSPECTION AND BY A MAGNET TEST THAT THE PROPERTY WAS NONMAGNETIC, INDICATING THAT THE METAL CONSISTED OF A NICKEL-COBOLT ALLOY.

YOU STATE THAT NICKEL-COBOLT ALLOY METAL IS WORTH APPROXIMATELY WHAT THE CONTRACTOR BID AND THAT THE LOT OF PROPERTY COVERED BY ITEM 16 CONSISTED OF MAGNETIC CHROME-STEEL, WORTH APPROXIMATELY THREE TO FOUR CENTS PER POUND IN THE PRESENT MARKET. ALSO, YOU STATE THAT YOUR INVESTIGATION OF THE CONTRACTOR'S ALLEGATIONS FULLY SUPPORT ITS CLAIM THAT IT SUBMITTED ITS BID FOR LOT 16 IN THE BELIEF THAT LOT 16 CONSISTED OF THE PROPERTY WHICH ITS REPRESENTATIVE HAD MISTAKENLY INSPECTED. IT APPEARS THAT ALTHOUGH THE AIR FORCE GUIDE DIRECTED THE CONTRACTOR TO LOT 16, THROUGH SOME CONFUSION OR MISUNDERSTANDING WHICH WAS PROBABLY CAUSED BY A VERY HEAVY DOWNPOUR OF RAIN THAT TOOK PLACE DURING THE INSPECTION, THE CONTRACTOR'S REPRESENTATIVE INSPECTED ANOTHER LOT OF PROPERTY THAT WAS LOCATED NEAR LOT 16.

IN VIEW OF THE ABOVE, THERE IS A SUBSTANTIAL BASIS TO CONCLUDE THAT THE PROPERTY OFFERED FOR DELIVERY UNDER THE CONTRACT WAS NOT THAT WHICH THE CONTRACTOR'S REPRESENTATIVE INSPECTED PRIOR TO THE SUBMISSION OF HIS BID AND UPON WHICH HIS BID PRICE WAS BASED. THERE IS NO INDICATION THAT THE CONTRACTOR WAS NEGLIGENT IN INSPECTING THE WRONG PROPERTY.

ACCORDINGLY, WE CONCUR IN YOUR RECOMMENDATION THAT THE CONTRACT BE CANCELED WITHOUT LIABILITY TO THE CONTRACTOR.