B-147891, FEB. 1, 1962

B-147891, FEB. 1, 1962

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER (R11.4) DATED JANUARY 4, 1962, WITH ENCLOSURES, FROM CAPT. THOMAS H. BELL, BUREAU OF SUPPLIES AND ACCOUNTS, CONCERNING THE CLAIM OF CARBONIC GAS AND SERVICE CORP., NEW YORK, NEW YORK, UNDER SALES CONTRACT NO. N63069-3386.

CONSOLIDATED SURPLUS SALES OFFICE, PHILADELPHIA, PENNSYLVANIA, SOLICITED BIDS--- OPENING DATE SEPTEMBER 13, 1961--- FOR THE PURCHASE FROM THE GOVERNMENT OF 38 ITEMS OF SURPLUS PROPERTY AS LISTED AND DESCRIBED IN SALES INVITATION NO. B-23-62-63069 DATED AUGUST 23, 1961. IN RESPONSE TO THE INVITATION CARBONIC GAS AND SERVICE CORP. SUBMITTED A BID OF $13.05 EACH FOR ITEM NO. 1 WHICH WAS ACCEPTED SEPTEMBER 15, 1961, RESULTING IN AWARD OF CONTRACT NO. N63069-3386.

THE MATERIAL IN ITEM NO. 1 WAS LISTED IN THE INVITATION AS LOCATED AT THE NEW YORK NAVAL SHIPYARD, BUILDING NO. 286. THE QUANTITY (NUMBER OF UNITS) WAS GIVEN AS 246, WITH THE UNIT MEASURE AS "EACH.'

THE RECORD SHOWS THAT SUBSEQUENT TO RECEIPT OF NOTICE OF AWARD OF THE CONTRACT, MR. SIDNEY ARETSKY, PRESIDENT OF THE PURCHASING FIRM, IN TELEPHONE CALLS ON SEPTEMBER 21 AND 22, CONFIRMED BY LETTER DATED SEPTEMBER 23, 1961, TO THE CONTRACTING OFFICER, MAINTAINED THAT UPON A POST-AWARD INSPECTION AT THE DISPOSAL SITE IT WAS DISCOVERED THAT THE LOT OF MATERIAL IN ITEM NO. 1 DID NOT THEN CONTAIN 192 HELIUM CYLINDERS WHICH HE ALLEGED AT THE TIME OF THE FIRM'S PREBID INSPECTION WERE TAGGED "ITEM NO. 1.' FURTHERMORE, MR. ARETSKY ALLEGED THAT THE FIRM'S REPRESENTATIVES WERE LED TO BELIEVE BY ORAL REPRESENTATIONS OF THE DISPOSAL AGENCY'S ESCORT, MR. FELDSTEIN, THAT THE HELIUM CYLINDERS WERE INCLUDED IN THAT ITEM, AND THAT THE FIRM ALSO COULD SELECT 246 CYLINDERS FROM THE WHOLE LOT SHOWN THEM. MR. ARETSKY STATED THAT HIS FIRM'S BID OF $13.05 EACH ON ITEM NO. 1 WAS PREDICATED PRIMARILY ON OBTAINING THESE 192 HELIUM CYLINDERS. IN REPLY, THE PURCHASER WAS ADVISED IN A LETTER DATED OCTOBER 17, 1961, THAT MR. FELDSTEIN, HEAD STOCKMAN OF THE DISPOSAL DIVISION, HAD REFUTED MR. ARETSKY'S ALLEGATIONS AND HAD STATED THAT HE DID NOT COMMIT HIMSELF IN ANY WAY CONCERNING THE 192 HELIUM CYLINDERS AS BEING PART OF ITEM NO. 1. THE PURCHASER WAS ADVISED ALSO THAT A THOROUGH INVESTIGATION MADE AT THE NEW YORK SHIPYARD DISCLOSED THAT DURING THE PERIOD FOR INSPECTION PRIOR TO OPENING OF BIDS THE LOT OF 246 CYLINDERS LISTED AND DESCRIBED IN THE SALES INVITATION UNDER ITEM NO. 1 WAS ASSEMBLED ON THE OUTSIDE PLATFORM OF BUILDING NO. 286 AND THAT THE 192 HELIUM CYLINDERS HERE IN QUESTION, ALTHOUGH SITUATED IN AN ADJACENT AREA TO THE 246 CYLINDERS TAGGED AS ITEM NO. 1, WERE NOT TAGGED FOR SALE AND DEFINITELY WERE NOT INCLUDED IN ITEM NO. 1 AS THEY, IN FACT, WERE NOT THE PROPERTY OF THE DISPOSAL AGENCY.

IN THIS CASE, THE ONLY ISSUE PRESENTED IN WHETHER THE 192 HELIUM CYLINDERS WERE TAGGED AND DISPLAYED TO PROSPECTIVE PURCHASERS AS A PORTION OF ITEM NO. 1. THIS IS SOLELY A DISPUTED QUESTION OF FACT PROPERLY FOR SETTLEMENT AS A DISPUTE UNDER CLAUSE NO. 15 OF THE GENERAL SALE TERMS AND CONDITIONS, PURSUANT TO WHICH THE CONTRACTING OFFICER IS REQUIRED TO DECIDE SUCH MATTERS AND TO FURNISH A COPY OF A WRITTEN DECISION TO THE CONTRACTOR WHO MAY THEN EXERCISE A RIGHT OF APPEAL. WHERE, AS IN THIS INSTANCE, A CONTRACT PROVIDES FOR A DECISION WITH RESPECT TO SPECIFIED MATTERS BY A DESIGNATED OFFICIAL, THE CONTRACTOR IS ENTITLED TO HAVE SUCH DECISION MADE BY THE DESIGNATED OFFICIAL. SEE B-147489, DATED DECEMBER 13, 1961, AND COURT CASES CITED THEREIN. THE RECORD FURNISHED TO OUR OFFICE CONTAINS NO INDICATION THAT SUCH A DECISION WAS RENDERED BY THE CONTRACTING OFFICER.

ACCORDINGLY, THE PERTINENT DOCUMENTS FORWARDED WITH THE LETTER OF JANUARY 4, 1962, ARE BEING RETURNED SO THAT THE ADMINISTRATIVE PROCEDURE PRESCRIBED BY THE "DISPUTES" CLAUSE OF THE CONTRACT MAY BE CARRIED OUT.