B-133655, OCT. 8, 1957

B-133655, OCT. 8, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 30, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) TRANSMITTING FOR OUR DECISION THE MATTER OF AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID OF ANIMATED ADVERTISING, INC., ON WHICH CONTRACT NO. DA-40-058-CIVENG-57-200 WAS AWARDED.

IN RESPONSE TO INVITATION NO. CIVENG-40-058-57-37 ISSUED ON MARCH 12, 1957, BY THE NASHVILLE DISTRICT, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ANIMATED ADVERTISING, INC., SUBMITTED A BID DATED APRIL 5, 1957, OFFERING TO FURNISH, IN ADDITION TO ITEM NO. 2, ITEM NO. 1, COVERING TWO ANIMATED PICTURE DISPLAYS IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS FOR A TOTAL PRICE OF $3,559.14. AFTER A REVIEW WAS MADE OF THE SEVEN BIDS WHICH WERE RECEIVED AN AWARD ON ITEM NO. 1 WAS MADE ON APRIL 12, 1957, TO ANIMATED ADVERTISING, INC., AS THE LOWEST BIDDER. SEVERAL DAYS AFTER THE AWARD WAS EFFECTED, CONTRACT MAILED, ETC., AND DURING THE TIME THAT AN OFFICIAL OF THE NASHVILLE DISTRICT CORPS OF ENGINEERS AND THE PRESIDENT OF ANIMATED ADVERTISING, INC., WERE GOING OVER CERTAIN EXHIBITS IN CONNECTION WITH THE ART WORK REQUIRED FOR THE DISPLAYS, IT WAS LEARNED THAT THE PRESIDENT OF THE CORPORATION HAD THOUGH THAT ONLY ONE ANIMATED PICTURE DISPLAY WAS REQUIRED UNDER CONTRACT NO. DA-40-058-CIVENG-57-200 AND THAT THE BID OF THE CORPORATION CONTEMPLATED DELIVERY OF ONLY ONE DISPLAY. REVIEW OF THE CONTRACT, HOWEVER, CONFIRMED THE FACT THAT TWO DISPLAYS CLEARLY WERE CALLED FOR. BY LETTER DATED APRIL 24, 1957, ANIMATED ADVERTISING, INC., FORMALLY ALLEGED THE MISTAKE AND THE QUESTION PRESENTED BY YOU IS WHETHER OR NOT CONTRACT NO.DA-40-058-CIVENG-57-200 MAY BE CANCELED IN VIEW OF THE CIRCUMSTANCES REPORTED.

SINCE THE RECORD IN THIS CASE APPEARS TO AFFIRM THE CONTRACTING OFFICER'S OPINION THAT ANIMATED ADVERTISING, INC., DID, IN FACT, MAKE AN ERROR ON ITEM NO. 1 OF ITS BID, AS ALLEGED, THE SOLE MATTER FOR CONSIDERATION, AS STRESSED IN YOUR LETTER OF AUGUST 30, 1957, IS THE QUESTION AS TO WHETHER THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF THE ERROR PRIOR TO THE ACCEPTANCE OF THE BID. IN THIS REGARD, THE OVER- ALL PRICE RANGE OF THE BIDS ON ITEM NO. 1 SHOWS A PRICE OF $1,779.57 EACH OF ANIMATED ADVERTISING, INC., AND SIX OTHER BIDS RANGING FROM $2,500 TO $4,723.90. SUCH A VARIED PRICE RANGE, IN AND OF ITSELF, COULD HARDLY BE ACCEPTED AS AN INDICATION OF ERROR IN THE LOW BID. HOWEVER, IN ADDITION TO THE DIFFERENTIAL THAT DID EXIST BETWEEN THE LOW BID OF ANIMATED ADVERTISING, INC., AND THE OTHER BIDS RECEIVED THERE ALSO IS PRESENT WHAT IS BELIEVED TO BE A MUCH MORE IMPORTANT ASPECT OF THE CASE, THAT IS, THE RECEIPT BY THE NASHVILLE DISTRICT OF THE CORPS OF ENGINEERS OF A PRIOR BID OF ANIMATED ADVERTISING, INC., FOR AN ANIMATED PICTURE DISPLAY. IT IS REPORTED THAT IN CONNECTION WITH THE PRIOR BID THE INVITATION CALLED FOR A DISPLAY WHICH WAS IDENTICAL WITH THE ANIMATED PICTURE DISPLAYS TO BE FURNISHED UNDER THE INSTANT INVITATION; THAT THE PREVIOUS PROCUREMENT REPORTED WAS ONLY ABOUT TWO AND ONE-HALF MONTHS BEFORE THE SUBJECT TRANSACTION; AND THAT THE BID OF ANIMATED ADVERTISING, NC., FOR ONE ANIMATED PICTURE DISPLAY UNDER THE PRIOR INVITATION WAS $3,559.14. SINCE THE CORPORATION'S BID FOR THE TWO ANIMATED PICTURE DISPLAYS UNDER INVITATION NO. CIVENG-40-058-57-37 WAS TO THE EXACT AMOUNT AS ITS BID OF ABOUT TWO AND ONE-HALF MONTHS PRIOR TO THE INSTANT BID, FOR ONLY ONE DISPLAY OF AN IDENTICAL NATURE, IT IS BELIEVED THAT SUCH CIRCUMSTANCES MUST BE REGARDED AS CONSTITUTING NOTICE TO THE CONTRACTING OFFICER OF PROBABLE ERROR IN THE BID. THIS BEING THE CASE, ANIMATED ADVERTISING, INC., SHOULD HAVE BEEN AFFORDED THE USUAL OPPORTUNITY TO VERIFY ITS BID PRIOR TO THE ACCEPTANCE THEREOF.

IN VIEW OF THE FOREGOING, OUR OFFICE WILL NOT BE REQUIRED TO OBJECT TO A CANCELLATION OF CONTRACT NO. DA-40-058-CIVENG-57-200 WITH NO ATTENDANT LIABILITY TO ANIMATED ADVERTISING, INC.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF THE CONTRACTING OFFICER DATED JUNE 17, 1957, ARE RETURNED HEREWITH.