B-141431, DEC. 23, 1959

B-141431, DEC. 23, 1959

TO THE HONORABLE E. R. QUESADA, ADMINISTRATOR, FEDERAL AVIATION AGENCY:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 7, 1959, REQUESTING A DECISION AS TO WHETHER RESCISSION CAN BE GRANTED BY REASON OF AN ERROR ELECTRICAL SUPPLY CORPORATION ALLEGES IT MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT DATED SEPTEMBER 18, 1959, IS BASED.

BY INVITATION NO. 0150-30B, ISSUED AUGUST 20, 1959, THE AERONAUTICAL CENTER OF THE FEDERAL AVIATION AGENCY AT OKLAHOMA CITY, OKLAHOMA, REQUESTED BIDS FOR 18 DIFFERENT ITEMS OF AIR CONDITIONING FILTERS. SIXTEEN OF THESE WERE OF A DISPOSABLE TYPE AND TWO, INCLUDING ITEM 4, WERE OF A PERMANENT TYPE. ON ITEM 4, ELECTRICAL SUPPLY CORPORATION BID $0.2728 EACH. THE ONLY OTHER BID ON THIS ITEM WAS IN THE AMOUNT OF $7.74 EACH. IN VIEW OF THE WIDE DIFFERENCE IN THE TWO BIDS RECEIVED ON ITEM 4, THE CONTRACTING OFFICER TELEPHONED THE COMPANY TO VERIFY ITS BID ON THIS ITEM. A REPRESENTATIVE OF THE COMPANY STATED THAT A MISTAKE APPEARED TO HAVE BEEN MADE BUT THAT IT WOULD STAND BY THE BID AS SUBMITTED. HOWEVER, THE RECORD BEFORE US INDICATES THAT THE CONTRACTING OFFICER WAS ALSO INFORMED DURING THIS CONVERSATION THAT ELECTRICAL SUPPLY CORPORATION'S WILLINGNESS TO STAND BY THE BID WAS DEPENDENT UPON ITS SUPPLIER'S BEING ABLE TO BACK UP HIS QUOTATION, UPON WHICH ELECTRICAL'S BID WAS BASED. AWARD WAS MADE TO ELECTRICAL SUPPLY CORPORATION FOR SEVERAL ITEMS, INCLUDING ITEM 4, ON SEPTEMBER 18, 1959, AT A TOTAL CONTRACT PRICE OF $603.65.

ON OCTOBER 7, 1959, THE SAME REPRESENTATIVE OF ELECTRICAL SPOKE TO THE CONTRACTING OFFICER AGAIN BY TELEPHONE AND ADVISED THAT ITS SUPPLIER HAD REFUSED TO DELIVER IN ACCORDANCE WITH ITS QUOTATION, AND REQUESTED TO BE RELIEVED FROM FURNISHING ITEM 4. BY SUBSEQUENT LETTERS THE CONTRACTOR ADVISED THAT ITS BID WAS BASED ON ORAL QUOTATIONS FROM ITS SUPPLIER, AND THAT THE QUOTATION IT RECEIVED ON ITEM 4 WAS FOR A DISPOSABLE TYPE FILTER RATHER THAN A PERMANENT TYPE AS REQUIRED BY THE INVITATION. IT IS NOTED THAT ELECTRICAL DID NOT BID ON THE OTHER PERMANENT TYPE FILTER LISTED ON THE INVITATION. THE CONTRACTOR HAS ALSO FURNISHED A LETTER DATED OCTOBER 9, 1959, FROM A DIFFERENT SUPPLIER, QUOTING A PRICE OF $9 EACH FOR THE ITEM 4 PERMANENT TYPE FILTER.

THE RECORD SHOWS THAT ALL ITEMS UNDER THE CONTRACT, EXCEPT ITEM 4, HAVE BEEN DELIVERED, BUT THAT PAYMENT THEREFOR OF THE CONTRACT PRICE OF $592.74 IS BEING WITHHELD PENDING A DECISION BY US. THE CONTRACT PRICE FOR ITEM 4 IS $10.91, WHILE THE COST OF THAT ITEM TO THE CONTRACTOR AT THE UNIT PRICE OF $9 WOULD BE $360.

IN THE CIRCUMSTANCES, WE DO NOT BELIEVE THE CONTRACTOR'S QUALIFIED STATEMENT THAT IT WOULD STAND BEHIND ITS BID CAN BE CONSIDERED A VERIFICATION THEREOF SUFFICIENT TO CONFER VALIDITY UPON THE AWARD MADE. ACCORDINGLY, THE CONTRACT SHOULD BE CANCELED AS TO ITEM 4.