B-134386, DEC. 23, 1957

B-134386, DEC. 23, 1957

TO STERILON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1957, REGARDING OUR SETTLEMENT DATED DECEMBER 3, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $4,671.50 REPRESENTING EXPENSES ALLEGED TO HAVE BEEN INCURRED BY YOU IN CONNECTION WITH INVITATION NO. NPA-30-287 MD-56-368.

IN RESPONSE TO THE INVITATION ISSUED BY THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY ON NOVEMBER 30, 1955, YOU SUBMITTED A BID DATED DECEMBER 12, 1955, OFFERING TO FURNISH A CERTAIN QUANTITY OF CULTURE PETRI DISHES, AS COVERED BY ITEM NO. 1, AT THE UNIT PRICE SPECIFIED, OR FOR A TOTAL PRICE OF $13,543.20 AFTER DISCOUNTING THE OBVIOUS UNIT PRICE CLERICAL ERROR IN THE BID. SUBSEQUENT TO THE OPENING OF THE BIDS AN UNSIGNED FORM, ENTITLED "NOTICE TO BIDDERS," DATED JANUARY 17, 1956, WAS FORWARDED TO YOU AND INADVERTENTLY NAMED YOU AS THE SUCCESSFUL BIDDER. ,NOTIFICATION OF AWARD" ALSO DATED JANUARY 17, 1956, THE MILLIPORE FILTER CORPORATION WAS INFORMED THAT ITS BID, WHICH WAS THE ONLY OTHER BID RECEIVED, HAD BEEN ACCEPTED. NOTWITHSTANDING THAT YOUR BID WAS SOMEWHAT LOWER THAN THAT OF THE MILLIPORE FILTER CORPORATION THE CONTRACT WAS AWARDED TO THAT CORPORATION SINCE THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY APPEARS TO HAVE HAD CONSIDERABLE DOUBT AS TO YOUR ABILITY, AS WELL AS YOUR LICENSE, TO MANUFACTURE THE PETRI DISHES IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. ALSO, IT WAS NOT BELIEVED THAT THE SAMPLES--- REPORTED TO BE A MILLIPORE FILTER CORPORATION PRODUCT-- WHICH YOU FURNISHED WAS REPRESENTATIVE OF THE DISHES THAT YOU INTENDED TO SUPPLY. THE ERROR WAS NOTICED ON FEBRUARY 28, 1956, AND THE GOVERNMENT CONTRACTING OFFICER, BY LETTER DATED FEBRUARY 29, 1956, FORWARDED TO YOU A CORRECTED "NOTICE TO BIDDERS" FORM, INDICATING THAT THE MILLIPORE FILTER CORPORATION WAS THE SUCCESSFUL BIDDER RECEIVED THE ERRONEOUS NOTICE THAT YOU WERE THE SUCCESSFUL BIDDER, YOU ON ITEM NO. 1. YOUR CLAIM HAS BEEN FILED ON THE BASIS THAT AFTER YOU PROCEEDED TO DESIGN AND PURCHASE A COMBINATION MOLD FOR THE MANUFACTURE OF THE CULTURE PETRI DISHES IN VIEW OF THE PROXIMITY OF THE SPECIFIED DELIVERY DATE. THE CLAIM TOTALS $4,671.50, WHICH ALLEGEDLY INCLUDES THE COST OF THE MOLD, TOGETHER WITH ALL ENGINEERING, ADMINISTRATIVE, ETC., EXPENSES INCIDENT THERETO.

WHILE THERE ARE SET FORTH IN YOUR LETTER OF OCTOBER 23, 1957, SEVERAL REASONS AS THE BASIS FOR YOUR REQUEST THAT THERE BE REVERSED THE CONCLUSION REACHED IN OUR SETTLEMENT OF DECEMBER 3, 1956, YET THE PRIME CONTENTION ADVANCED BY YOU APPEARS TO BE THAT ADDITIONAL EXPENSES INCURRED BY YOU IN CONNECTION WITH INVITATION NO. MPA-30-287 MD-56-368 WAS CAUSED BY THE ERRONEOUS INFORMATION WHICH YOU RECEIVED FROM THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY. IT IS AGREED THEN THAT THE SOLE QUESTION PRESENTED BY THE FACTS IN THE CASE HAS TO DO WITH THE LIABILITY THAT ATTACHED TO THE GOVERNMENT BY REASON OF THE ERRONEOUS NOTIFICATION.

IN REVIEWING THE FACTS, WHEREIN IT IS SHOWN THAT THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY UNEQUIVOCALLY ADMITS THE ERROR OF WHICH YOU COMPLAIN, IT APPEARS HOWEVER THAT SOME ADDITIONAL FACTS PERTAINING TO THE ERROR ARE PARTICULARLY RELEVANT AND ARE WORTHY OF CONSIDERABLE OBSERVATION. IN THIS REGARD, THE VERY FORM OF THE "NOTICE TO BIDDERS" ITSELF, WHICH WAS ERRONEOUSLY FORWARDED TO YOU, IS OF INTEREST. WHILE YOUR NAME WAS ERRONEOUSLY SET FORTH ON THE ,NOTICE TO BIDDERS," AS BEING THE SUCCESSFUL BIDDER, THE NOTICE WAS NOT SIGNED; ALSO, NOTABLY MISSING WERE THE ITEMS OF INFORMATION USUALLY CONTAINED IN "NOTIFICATION OF AWARD.' SUCH ITEMS INCLUDE, AMONG OTHERS, SPECIFIC ADVICE THAT THE BID HAS BEEN ACCEPTED; EXPRESS REFERENCE TO THE TYPE OF SERVICES OR SUPPLIES TO BE FURNISHED; AMOUNT OR AMOUNTS OF THE ACCEPTED BID; AND INFORMATION REGARDING THE FORMAL CONTRACTS TO BE SUBSEQUENTLY EXECUTED AND REFERENCE TO THE AUTHORIZATION TO PROCEED. IN VIEW OF THE ABSENCE OF SUCH INFORMATION, IT APPEARS ONLY REASONABLE TO CONCLUDE THAT YOU WERE ON CONSTRUCTIVE NOTICE THAT THE "NOTICE TO BIDDERS" RECEIVED BY YOU WAS NOT INTENDED TO EFFECT AN ACCEPTANCE OF YOUR BID BUT WAS MERELY INFORMATION FURNISHED TO ALL BIDDERS. THAT YOU WERE ON SUCH CONSTRUCTIVE NOTICE UNDER THESE CIRCUMSTANCES APPEARS TO BE EVEN MORE COMPLETELY AFFIRMED BY THE FACT THAT THE ADMINISTRATIVE OFFICE REPORTS THAT YOU HAVE BEEN THE RECIPIENT OF PAST CONTRACTS AND, THEREFORE, IT IS TO BE ASSUMED THAT YOU EITHER HAVE, OR SHOULD HAVE HAD, A THOROUGH KNOWLEDGE OF ALL OPERATIVE USES OF THE MISCELLANEOUS DOCUMENTS USED BY THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY IN ITS CONTRACT DEALINGS. THIS BEING THE CASE, YOU WERE CHARGED WITH THE RESPONSIBILITY OF VERIFYING THE INFORMATION ON THE "NOTICE TO BIDDERS" FORM WITH THE ARMED SERVICES MEDICAL PROCUREMENT AGENCY PRIOR TO OBLIGATING YOURSELF TO THE EXTENT OF PREPERFORMANCE COSTS WHICH YOU CLAIM.

IT MUST BE PRESUMED THAT IN COMPUTING YOUR BID YOU HAD FULLY CONSIDERED ALL FACTORS CONCERNING THE TIME OF DELIVERY ELEMENT. THEREFORE, IF YOU ELECTED TO INCUR CERTAIN EXPENSES WITHOUT VERIFYING THE ACTUAL CONTRACT AWARD OR ATTEMPTING TO OBTAIN INFORMATION REGARDING THE NOTICE TO PROCEED, FROM WHICH DATE THE DELIVERY PERIOD GENERALLY BEGINS TO RUN, MERELY TO FACILITATE MEETING DELIVERY REQUIREMENTS, WHICH YOU SHOULD HAVE ALLOWED SUFFICIENT TIME FOR IN THE FIRST INSTANCE, SUCH ACTION MUST BE CONCLUDED TO HAVE BEEN PURELY VOLUNTARY ON YOUR PART. IT LONG HAS BEEN HELD BY THE COURTS THAT WHERE SERVICES ARE RENDERED TO THE GOVERNMENT WITHOUT ITS KNOWLEDGE OR REQUEST, AND WHERE NO BENEFIT ACCRUES, SUCH SERVICES ARE VOLUNTARY AND NO CONTRACT CAN BE IMPLIED. THE UTICA, ITHACA AND ELMIRA RAILWAY COMPANY V. THE UNITED STATES, 22 C.CLS. 265. ALSO, AS TO WHERE A REPRESENTATIVE OF THE GOVERNMENT MISTAKENLY, AND WITHOUT AUTHORITY, ADVISES A BIDDER THAT ITS BID HAS BEEN ACCEPTED, SEE THE SHIP CONSTRUCTION AND TRADING CO., INC., A CORPORATION V. THE UNITED STATES, 91 C.CLS. 419. PARTICULARLY PERTINENT TO THE FACTS IN THIS CASE WOULD APPEAR TO BE ABRAHAM ROSENFIELD AND SAMUEL RAPKIN, TRADING AS ROSENFIELD AND RAPKIN V. THE UNITED STATES, 70 C.CLS. 639. ..END :