B-136479, JUL. 3, 1958

B-136479, JUL. 3, 1958

TO MR. C. D. BEAN, COMMISSIONER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1958, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING ERRORS WHICH THE EBERHARD FABER PENCIL COMPANY ALLEGES WERE MADE IN ITS BID OPENED ON MAY 16, 1958.

THE FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, NEW YORK, NEW YORK, BY INVITATION NO. FN6N-D-3941-A-5-16-58, REQUESTED BIDS FOR FURNISHING VARIOUS TYPES OF RUBBER ERASERS AS REQUIRED BY GENERAL SERVICES ADMINISTRATION STORES DEPOTS DURING THE PERIOD BEGINNING AUGUST 1, 1958, AND ENDING JANUARY 31, 1959. PROSPECTIVE BIDDERS WERE REQUIRED TO STATE THE MAXIMUM MONTHLY QUANTITY FOR EACH STOCK ITEM WHICH IT WOULD GUARANTEE TO SUPPLY. IN RESPONSE THE EBERHARD FABER PENCIL COMPANY SUBMITTED A BID DATED MAY 13, 1958, OFFERING TO FURNISH ALL BUT ONE OF THE VARIOUS TYPES OF RUBBER ERASERS REQUIRED BY THE INVITATION AT THE UNIT PRICES SET FORTH OPPOSITE EACH STOCK ITEM.

THE INVITATION REQUIRED DELIVERED PRICES FOR THREE ZONES FOR EACH STOCK ITEM, WHICH NORMALLY MIGHT RESULT IN THREE SEPARATE PRICES. EXAMINATION OF THE EBERHARD FABER PENCIL COMPANY'S BID DISCLOSES THAT THE PRICES FOR THE ITEMS BID ON WERE IN SOME CASES PLACED ALONGSIDE OF ONE ZONE AND IN OTHER CASES ALONGSIDE OF THE STOCK ITEM DESCRIPTION; THAT IN TWO CASES THE AMOUNT BID ON A STOCK ITEM WAS DUPLICATED; THAT IN ALL CASES THE FIGURES WERE ENLARGED AND HANDWRITTEN, SO THAT IN FACT THEY OCCUPY A VERTICAL SPACE SUBSTANTIALLY GREATER THAN A SINGLE LINE OF THE TYPE USED IN THE INVITATION, BUT NOT AS MUCH SPACE AS THE THREE LINES USED FOR LISTING THE THREE ZONES; THAT ON PAGE 3 OF THE INVITATION THE COMPANY INDICATED THAT IT WAS BIDDING ON ALL ITEMS INSOFAR AS SOURCE INSPECTION WAS CONCERNED; AND THAT UPON INQUIRY, MR. MARTIN J. GOGE, A REPRESENTATIVE OF THE COMPANY, STATED THAT THE BID PRICES INDICATED ON THE COMPANY'S BID WERE INTENDED TO COVER ALL ZONES FOR EACH STOCK ITEM BID ON AND THAT HE FELT IT WAS UNNECESSARY TO REPEAT THE UNIT PRICES FOR EACH ZONE.

IN A NOTARIZED LETTER DATED MAY 21, 1958, THE COMPANY REQUESTED THAT THE UNIT PRICE SET FORTH OPPOSITE EACH STOCK ITEM BE CONSIDERED AS THE PRICE FOR DELIVERY TO EACH OF THE THREE ZONES. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS ORIGINAL WORKSHEET WHICH SUBSTANTIATES THAT THE COMPANY'S BID PRICES COVERED ALL OF THE REQUIREMENTS OF THE INVITATION REGARDLESS OF ZONES.

YOU STATE THAT IT IS THE FEELING OF THE FEDERAL SUPPLY SERVICE THAT THE EXPLANATION GIVEN BY THE COMPANY IN ITS LETTER OF MAY 21, 1958, IS CONVINCING AND THAT IN ANY EVENT THE UNIT PRICE IS IN NO CASE IN DOUBT; AND THAT SINCE THE ABSTRACT OF BIDS SHOWS THAT MANY OF THE BIDDERS USED THE SAME PRICE FOR EACH OF THE ZONES, THERE IS NO INCONSISTENCY IN THE ACTION OF THE COMPANY ON THIS POINT.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, IT IS APPARENT THAT THE COMPANY INTENDED THAT THE UNIT PRICE SET FORTH OPPOSITE EACH STOCK ITEM BE APPLICABLE TO ALL THE ZONES, AND THE BID ON ITS FACE IS NOT CLEARLY INCONSISTENT WITH SUCH INTENTION. ACCORDINGLY, THE BID OF THE EBERHARD FABER PENCIL COMPANY ON ALL ITEMS BID ON MAY BE CONSIDERED AS RESPONSIVE IN REGARD TO DELIVERY TO ALL THREE ZONES AND, THEREFORE, THE UNIT PRICE SET FORTH OPPOSITE EACH STOCK ITEM MAY BE CONSIDERED AS THE PRICE FOR DELIVERY TO ANY OF THE THREE ZONES.

IN THE EVENT AWARD IS MADE TO THE EBERHARD FABER PENCIL COMPANY, A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.

IN ITS LETTER OF MAY 21, 1958, THE EBERHARD FABER PENCIL COMPANY ALSO ALLEGES THAT ANOTHER ERROR WAS MADE IN ITS BID IN REGARD TO THE STATING OF THE MAXIMUM MONTHLY QUANTITY FOR EACH STOCK ITEM WHICH IT WOULD GUARANTEE TO SUPPLY; THAT IT FIGURED MAXIMUMS AS THOUGH THE QUANTITIES WERE FOR ONE YEAR RATHER THAN SIX MONTHS AND THAT AS A RESULT THEREOF THE AMOUNTS STATED THEREIN WERE UNDERSTATED BY 50 PERCENT. THE COMPANY REQUESTED THAT THE GUARANTEED MAXIMUM MONTHLY QUANTITY SHOWN FOR EACH STOCK ITEM BE DOUBLED. IF SUCH CORRECTION WERE MADE, IT WOULD, IN EFFECT, DECREASE THE QUANTITIES FOR WHICH AWARDS MIGHT BE MADE TO OTHER BIDDERS. ACCEPTANCE OF THE BID AS SUBMITTED WOULD NOT, HOWEVER, PREVENT THE PLACING AND FILLING OF ORDERS FOR QUANTITIES IN EXCESS OF THE GUARANTEED MAXIMUMS STATED.

THE COMPANY CONTENDS THAT THE GUARANTEED MAXIMUM MONTHLY QUANTITIES SHOWN IN ITS BID FOR EACH STOCK ITEM WERE BASED ON THE ERRONEOUS ASSUMPTION THAT THE CONTRACT WAS FOR A PERIOD OF 12 MONTHS; HOWEVER, AT THE TOP OF THE WORKSHEET SUBMITTED BY THE COMPANY, THERE APPEARS THE NOTATION "SIX MONTHS TERM CONTRACT FOR ERASERS AUGUST 1, 1958--- JAN. 31, 1959.' THE EBERHARD FABER PENCIL COMPANY HAS NOT SUBMITTED ANY SUBSTANTIAL PROOF THAT BUT FOR THE ALLEGED ERROR, THE GUARANTEED MAXIMUM MONTHLY QUANTITIES SHOWN IN ITS BID FOR EACH STOCK ITEM WOULD HAVE BEEN TWICE AS MUCH AS THOSE SHOWN IN EACH CASE.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR AUTHORIZING THE EBERHARD FABER PENCIL COMPANY TO INCREASE THE GUARANTEED MAXIMUM MONTHLY QUANTITIES SHOWN IN ITS BID.