B-151764, JUL. 8, 1963

B-151764, JUL. 8, 1963

TO HAMPTON HOBBY HOUSE, INC.

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 10, 1963, WITH ENCLOSURES, IN WHICH, IN EFFECT, YOUR PROTEST THE ACTION TAKEN BY THE CONTRACTING OFFICER IN TERMINATING YOUR RIGHT TO PROCEED UNDER CONTRACT NO. GS-00S-33474, WITH THE GENERAL SERVICES ADMINISTRATION, PROVIDING FOR THE DELIVERY OF CERTAIN QUANTITIES OF ELECTRICAL EXTENSION LIGHTS.

IT APPEARS FROM YOUR LETTER THAT THE BASIS FOR YOUR INQUIRY IS THAT THE FORMAL CONTRACT IN THIS CASE WAS SUBMITTED TO YOU FOR SIGNATURE, ACCOMPANIED BY YOUR "SPECIFICATION SHEET," AND THAT THEREFORE, IN SIGNING THE CONTRACT YOU ASSUMED THAT YOU WOULD BE PERMITTED TO MAKE DELIVERY AGAINST YOUR "SPECIFICATION SHEET.' SPECIFICALLY, YOU STATED THAT:

"* * * WE WOULD NOT HAVE SIGNED THE CONTRACT AT ALL, HOWEVER, AS LONG AS OUR SPECIFICATION SHEET WAS ATTACHED WE ASSUMED THAT IT WAS SATISFACTORY TO DELIVER OUR NUMBERS. WE DID NOT KNOW THE GOVERNMENT SPECIFICATION.

WITH YOUR LETTER THERE WERE COPIES ENCLOSED OF THE DECISIONS RENDERED BY THE BOARD OF CONTRACT APPEALS, GENERAL SERVICES ADMINISTRATION, UNDER DATES OF SEPTEMBER 14 AND NOVEMBER 27, 1962, DENYING YOUR APPEAL FROM THE CONTRACTING OFFICER'S DECISION OF MARCH 9, 1961, TERMINATING YOUR RIGHT TO PROCEED UNDER THE INDICATED CONTRACT, AND YOUR REQUEST FOR RECONSIDERATION OF THE MATTER, AS WELL AS A COPY OF YOUR "SPECIFICATION SHEET.' FOR THE REASONS SET FORTH IN YOUR LETTER YOU REQUESTED TO BE ADVISED AS TO WHAT MAY BE DONE TO "ALLEVIATE" THE CONDITION BROUGHT ABOUT BY THE TERMINATION OF THE CONTRACT.

THE VIEWS OF OUR OFFICE AS SET FORTH HEREIN ARE BASED SOLELY UPON YOUR LETTER AND THE ENCLOSURES THERETO. THE INFORMATION CONTAINED IN THE DECISIONS BY THE BOARD OF APPEALS IS SUCH THAT WE FEEL IT TO BE UNNECESSARY TO OBTAIN AN ADMINISTRATIVE REPORT IN THE MATTER.

THE INVITATION FOR BIDS IN THIS CASE CLEARLY ADVISED PROSPECTIVE BIDDERS THAT ITEMS 10 AND 11 THEREOF--- THE ITEMS HERE INVOLVED--- WERE TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION W-L-661, AND AMENDMENT NO. 1, ETC., AND IT SEEMS CLEAR THAT IN SUBMITTING YOUR BID IN THIS CASE YOU DID SO WITH KNOWLEDGE OF THE STATED REQUIREMENTS.

AT LEAST THERE WAS AN OBLIGATION ON YOUR PART TO ASCERTAIN PRECISELY WHAT WAS REQUIRED TO BE FURNISHED. YOUR STATEMENT THAT YOU DID NOT KNOW THE GOVERNMENT SPECIFICATIONS IS, THEREFORE, NO JUSTIFICATION FOR YOUR POSITION. EVEN IF YOU DID NOT KNOW THE SPECIFICATIONS, YOU ASSUMED THE RESPONSIBILITY OF COMPLIANCE THEREWITH BY YOUR BID.

THE RECORD INDICATES THAT FOLLOWING THE RECEIPT OF YOUR BID THE CONTRACTING OFFICER NOTED CERTAIN DISCREPANCIES THEREIN AND BY TELEGRAM DATED OCTOBER 11, 1960, REQUESTED CONFIRMATION OF YOUR BID PRICES ON ITEMS 10 AND 11. YOU REPLIED BY LETTER DATED OCTOBER 19, 1960, ADVISING, AMONG OTHER THINGS, THAT YOUR BID PRICES WERE INCORRECT AND THAT THE CORRECT PRICES SHOULD BE AS SET FORTH IN THE ENCLOSED SHEET--- HAVING REFERENCE TO YOUR "SPECIFICATION SHEET.' IT THUS APPEARS THAT BY YOUR LETTER OF OCTOBER 19, 1960, YOUR "SPECIFICATION SHEET" CAME INTO THE PICTURE FOR THE FIRST TIME, AND IT OBVIOUSLY WAS SUBMITTED SOLELY IN SUPPORT OF YOUR REQUEST THAT YOUR BID PRICES BE INCREASED.

THE FACT THAT THE "SPECIFICATION SHEET" SUBMITTED WITH YOUR LETTER OF OCTOBER 19, 1960, WAS RETURNED WITH THE FORMAL CONTRACT FOR SIGNATURE, CONSTITUTES NO BASIS FOR AN ASSUMPTION ON YOUR PART THAT DELIVERY MIGHT BE MADE IN ACCORDANCE THEREWITH. AS BEING PARTICULARLY PERTINENT TO THE MATTER HERE INVOLVED, WE HAVE NOTED THAT IN THE DECISION OF SEPTEMBER 14, 1962, THE BOARD OF CONTRACT APPEALS DECIDED THAT THE MATERIAL MANUFACTURED BY WOOD WIRE PRODUCTS, INDIANAPOLIS, INDIANA, PROPOSED TO BE FURNISHED BY YOU, DID NOT MEET THE REQUIREMENTS OF FEDERAL SPECIFICATION W-L-661, AND AMENDMENT NO. 1, AS PROVIDED BY THE CONTRACT. UPON THE BASIS OF THE RECORD PRESENTLY BEFORE US, WE ARE FORCED TO CONCLUDE THAT THE CONTENTIONS SET FORTH IN YOUR LETTER WERE WITHOUT MERIT.

IT MAY BE SAID FURTHER FOR YOUR INFORMATION THAT THE ACCEPTANCE OF YOUR BID BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, GAVE RISE TO A VALID CONTRACT BETWEEN THE PARTIES--- IT WAS NOT THE FORMAL CONTRACT SUBMITTED TO YOU FOR SIGNATURE THAT ESTABLISHED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. THE CONTRACT MERELY SET FORTH IN FORMAL MANNER THE TERMS OF THE PREVIOUS AGREEMENT. SINCE THE RECORD SHOWS THAT YOU FAILED TO MAKE DELIVERIES IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, IT IS OUR VIEW THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER WAS PROPER IN ALL RESPECTS.