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B-132666, SEP. 19, 1957

B-132666 Sep 19, 1957
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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1. 647.27 REPRESENTING THE ADDITIONAL AMOUNT ALLEGED BY YOU TO BE DUE AS THE RESULT OF AN ERROR MADE IN YOUR BID UPON WHICH PURCHASE ORDER NO. 37-20964-37 WAS AWARDED BY THE DEPARTMENT OF THE ARMY ON JUNE 24. YOUR BID WAS ACCEPTED BY PURCHASE ORDER NO. 37 20964-37 ON JUNE 24. YOUR BID FAILED TO SHOW THAT IT WAS BASED ON FURNISHING YOUR STANDARD TYPE OF EXHAUST FANS INSTEAD OF FANS WITH CERTAIN SPECIAL FEATURES AS REQUIRED BY THE SPECIFICATIONS. BY REASON OF THE FACT THAT YOU SUBSEQUENTLY FURNISHED EXHAUST FANS WITH THE SPECIAL FEATURES CALLED FOR YOU NOW ARE CLAIMING THE ADDITIONAL AMOUNT OF$1.

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B-132666, SEP. 19, 1957

TO SANFORD MECHANICAL EQUIPMENT COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1957, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 10, 1957, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1,647.27 REPRESENTING THE ADDITIONAL AMOUNT ALLEGED BY YOU TO BE DUE AS THE RESULT OF AN ERROR MADE IN YOUR BID UPON WHICH PURCHASE ORDER NO. 37-20964-37 WAS AWARDED BY THE DEPARTMENT OF THE ARMY ON JUNE 24, 1955.

IN RESPONSE TO INVITATION NO. ENG-04-203-55-682, ISSUED ON JUNE 3, 1955, BY THE SAN FRANCISCO DISTRICT, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, YOU SUBMITTED A BID DATED JUNE 14, 1955, OFFERING TO FURNISH 12 FANS, EXHAUST, NON-SPARKING, 24 INCHES, ETC., AT $198 EACH OR FOR A TOTAL PRICE OF $2,376. YOUR BID WAS ACCEPTED BY PURCHASE ORDER NO. 37 20964-37 ON JUNE 24, 1955. SUBSEQUENT TO THE ISSUANCE OF THE PURCHASE ORDER, AND FOLLOWING CERTAIN NEGOTIATIONS BETWEEN YOU AND THE CORPS OF ENGINEERS REGARDING APPLICABLE DRAWING ETC., YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN CONNECTION WITH YOUR BID IN THAT YOU HAD FAILED TO ATTACH TO YOUR BID A DATA SHEET COVERING THE TYPE OF EQUIPMENT THAT YOU INTENDED TO FURNISH AND, THEREFORE, YOUR BID FAILED TO SHOW THAT IT WAS BASED ON FURNISHING YOUR STANDARD TYPE OF EXHAUST FANS INSTEAD OF FANS WITH CERTAIN SPECIAL FEATURES AS REQUIRED BY THE SPECIFICATIONS. BY REASON OF THE FACT THAT YOU SUBSEQUENTLY FURNISHED EXHAUST FANS WITH THE SPECIAL FEATURES CALLED FOR YOU NOW ARE CLAIMING THE ADDITIONAL AMOUNT OF$1,647.27 UNDER THE CONTRACT.

IT APPEARS FROM YOUR LETTER DATED JULY 8, 1957, THAT THE REQUEST FOR REVIEW OF THE SETTLEMENT IS BASED PRIMARILY ON YOUR CONTENTION THAT SINCE SPECIFICATION NO. 12-11, UPON WHICH INVITATION NO. ENG-04-203-55 682 IS BASED, WAS OBSOLETE AT THE TIME OF ITS USE, A MUTUAL MISTAKE WAS MADE IN THE CONSUMMATION OF THE TRANSACTION. ALSO, YOU CONTEND THAT YOU HAD TO FURNISH A 27 INCH FAN, WHICH REQUIRED A ONE HORSEPOWER MOTOR INSTEAD OF THE 24 INCH FAN CALLED FOR BY THE INVITATION, WHICH REQUIRED ONLY A ONE- HALF HORSEPOWER MOTOR. IN ADDITION, YOU STATE THAT AN INVITATION ISSUED SUBSEQUENT TO INVITATION NO. ENG-04-203-55 682, WHICH WAS FOR SIMILAR EQUIPMENT, WAS ALSO BASED ON THE ALLEGED OBSOLETE SPECIFICATION NO. 12-11 BUT THAT SHORTLY AFTER YOU REQUESTED VERIFICATION AS TO WHETHER OR NOT SPECIFICATION NO. 12-11 APPLIED, THAT INVITATION WAS RE-ISSUED AND PLACED ON A MORE CURRENT SPECIFICATION.

IN A CASE INVOLVING AN ALLEGATION OF ERROR IN A BID SUBSEQUENT TO THE ACCEPTANCE THEREOF, THE QUESTION UPON WHICH THE CASE MUST BE DECIDED IS NOT WHETHER AN ERROR WAS, IN FACT, MADE IN THE BID AS ALLEGED BUT RATHER WHAT WERE THE CONDITION AND CIRCUMSTANCES THAT ATTENDED THE ACTUAL ACCEPTANCE OF THE BID. IN THIS CONNECTION, IT IS NOTED IN THE FIRST INSTANCE THAT YOUR BID WAS THE ONLY ONE RECEIVED. THIS BEING THE CASE, THE GOVERNMENT CONTRACTING OFFICER WAS IMMEDIATELY DEPRIVED OF PERHAPS THE MOST IMPORTANT MEDIUM FOR DETERMINING THE PROBABILITY OF AN ERROR IN THE BID, THAT IS THE BID PRICE COMPARISON BASIS. SINCE SUCH A BID COMPARISON BASIS WAS UNAVAILABLE, AND NOTWITHSTANDING THAT A GOVERNMENT CONTRACTING OFFICER IS NOT NECESSARILY REQUIRED TO DO SO, THE CONTRACTING OFFICER OF THE CORPS OF ENGINEERS NEVERTHELESS CONTACTED ANOTHER COMPANY FOR A PRICE CHECK OF THE TYPE OF EXHAUST FANS REQUIRED. THE PRICE CHECK SHOWED YOUR BID PRICE TO BE IN LINE FOR THE TYPE OF EXHAUST FANS REQUIRED AND, THEREFORE, YOUR BID WAS ACCEPTED ON JUNE 24, 1955. HENCE, IT ONLY REASONABLY MAY BE CONCLUDED THAT EVEN THOUGH YOU MAY HAVE MADE AN ERROR IN YOUR BID, AS ALLEGED, IN FAILING TO ATTACH TO YOUR BID A DATA SHEET INDICATING THE TYPE AND SIZE OF THE EQUIPMENT WHICH YOU PROPOSED TO FURNISH--- YOUR STANDARD TYPE OF EXHAUST FAN--- THAT ALL, IF NOT EVEN MORE, EFFORT THAN REASONABLY MIGHT HAVE BEEN EXPECTED OF THE CONTRACTING OFFICER WAS MADE TO ASCERTAIN THE REASONABLENESS OF YOUR OFFER. IN VIEW OF THIS, AND SINCE NO ERROR WAS APPARENT ON THE FACE OF YOUR BID OR IN ANY OF THE OTHER ATTENDANT CIRCUMSTANCES THERETO AND ALSO, SINCE THE RECORD FAILS TO SHOW THAT THE CORPS OF ENGINEERS CONTRIBUTED TO THE ALLEGED ERROR IN ANY MANNER, IT MUST BE HELD THAT THE BID WAS ACCEPTED IN GOOD FAITH. SUCH AN ACCEPTANCE CREATED A VALID OBLIGATION WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH CIRCUMSTANCES.

MOREOVER, IT IS OF MORE THAN PASSING INTEREST TO NOTE THAT THERE WERE INCORPORATED AS A PART OF INVITATION NO. ENG-04-203-55-682 CERTAIN PROVISIONS PERTINENT TO YOUR OBLIGATIONS UNDER THIS TRANSACTION, SUCH AS PARAGRAPH NO. 10/D) OF THE TERMS AND CONDITIONS, PARAGRAPH NO. 10 OF THE SPECIAL PROVISIONS AND THE NOTICE SET FORTH ON THE FACE OF THE INVITATION ITSELF. SUCH PROVISIONS HOLD ALL BIDDERS SOLELY RESPONSIBLE FOR THE EXAMINATION OF ALL DRAWINGS, SPECIFICATIONS, ETC., AS WELL AS ASSUMING THE RESPONSIBILITY--- ON A WARRANTY BASIS--- OF FURNISHING EQUIPMENT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS AND OTHER CONDITIONS OF THE INVITATION UNLESS FULL DETAILS AS TO ANY PROPOSED DEPARTURES OF VARIATIONS THEREFROM ARE COMPLETELY SET FORTH AT THE TIME OF THE SUBMISSION OF THE BID. THIS REGARD THERE WOULD APPEAR LITTLE DOUBT BUT THAT YOUR BID WAS SUBMITTED WITHOUT COMPLETE EXAMINATION OF ALL APPLICABLE SPECIFICATIONS, PARTICULARLY SPECIFICATION NO. 12-11. FURTHERMORE, YOU ADMIT YOUR FAILURE TO ATTACH THE DATA SHEET TO YOUR BID WHICH NOT ONLY WAS A VIOLATION OF PARAGRAPH 10 OF THE SPECIAL PROVISIONS OF THE INVITATION COVERING THE SPECIFICATION WARRANTY BUT WHICH IF ATTACHED UNDOUBTEDLY WOULD HAVE SHOWN CLEARLY THE DEPARTURES OR VARIATIONS FROM THE SPECIFICATIONS OF THE EXHAUST FANS WHICH YOU PROPOSED TO FURNISH.

RESPECTING YOUR CONTENTION AS TO THE MUTUAL MISTAKE IN VIEW OF THE USE OF SPECIFICATION NO. 12-11, IN THE FIRST INSTANCE THE RECORD BEFORE OUR OFFICE FAILS TO SHOW THAT SPECIFICATION NO. 12-11 WAS OBSOLETE. HOWEVER, EVEN IF THE USE OF THIS PARTICULAR SPECIFICATION GENERALLY HAD BEEN DISCONTINUED, THE FACT THAT THE CORPS OF ENGINEERS BELIEVED ITS REQUIREMENTS WOULD BE ENTIRELY ADEQUATE FOR THE PARTICULAR PROCUREMENT OF EXHAUST FANS DESIRED AT THAT TIME AND SPECIFICALLY INTENDED TO, AND DID, REVIVE AND INCORPORATE IT AS A PART OF INVITATION NO. ENG-04-203-55-682 WOULD, OF COURSE, RULE OUT ANY POSSIBILITY OF A MISTAKE ON THE PART OF THE DEPARTMENT OF THE ARMY. ALSO, THE VERY FACT THAT YOU MAY HAVE BEEN REQUIRED TO FURNISH A LARGER FAN WITH THE CORRESPONDING LARGER HORSEPOWER MOTOR, WOULD APPEAR TO BE ATTRIBUTED DIRECTLY TO YOUR FAILURE TO ACQUAINT YOURSELF WITH SPECIFICATION NO. 12-11 PRIOR TO COMPUTING YOUR BID NOTWITHSTANDING THE ADVERTISED AVAILABILITY OF SUCH SPECIFICATION FOR EXAMINATION AS WELL AS INFORMATION RELATIVE THERETO BEING AVAILABLE BY TELEPHONE. THAT SPECIFICATION NO. 12-11 MAY HAVE BEEN REPLACED BY ANOTHER LATER SPECIFICATION IN CONNECTION WITH A SUBSEQUENT INVITATION WOULD APPEAR TO MERIT LITTLE, IF ANY, CONSIDERATION SINCE EACH TRANSACTION OF THIS KIND MUST, OF COURSE, BE CONSIDERED ..END :

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