B-142786, JUN. 13, 1960

B-142786, JUN. 13, 1960

TO THE RUBBER CORPORATION OF CALIFORNIA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 22, 1960, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 25, 1960, DISALLOWING YOUR CLAIM FOR $11,606.71 UNDER CONTRACT NO. DA-36-243-QM/CTM/3324, DATED NOVEMBER 6, 1958.

IN RESPONSE TO INVITATION NO. QM/CTM/-36-243-59-224, ISSUED ON OCTOBER 2, 1958, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT, YOU SUBMITTED A BID DATED OCTOBER 10, 1958, OFFERING TO FURNISH ITEM NO. 1, COVERING 6,120 PAIR OF WOMEN'S GYMNASIUM SHOES AT $2.40 A PAIR AND ITEM NO. 2 COVERING 2,616 PAIRS OF OLIVE GREEN GYMNASIUM SHOES AT $2.50 A PAIR. ON THE BID FORM YOU DESIGNATED "ALL" IN REFERRING TO BOTH THE MINIMUM AND MAXIMUM QUANTITIES ACCEPTABLE FOR AWARD AS TO ITEM NO. 1 BUT MADE NO DESIGNATION WITH REGARD TO ITEM NO. 2. IT APPEARS THAT ONLY ONE OTHER BID OF $1.95 A PAIR AND $5.25 A PAIR WAS RECEIVED FOR ITEMS NOS. 1 AND 2, RESPECTIVELY. AWARD OF ITEM NO. 2 WAS MADE TO YOU ON NOVEMBER 6, 1958, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY. AN UNDATED LETTER RECEIVED AT THE AGENCY ON DECEMBER 18, 1958, YOU ADVISED THAT YOUR BID WAS UNDERSTOOD TO BE ON ALL UNITS--- BOTH ITEMS NOS. 1 AND 2 --- AND, THEREFORE, YOU LATER FILED YOUR CLAIM OF $11,606.71 FOR THE ADDITIONAL COSTS WHICH YOU STATE RESULTED BY REASON OF BEING AWARDED ONLY ITEM NO. 2 OF THE INVITATION AND WHICH YOU ALSO STATE INVOLVED A MUCH LARGER AND MORE DIVERSIFIED SIZE RUN AND DIFFERENT CLOTH.

YOUR REQUEST OF APRIL 22, 1960, FOR REVIEW OF THE SETTLEMENT APPEARS TO BE BASED ON THE CONTENTION NOW ADVANCED BY YOU THAT YOUR COPY OF THE BID SHOWS THAT YOU HAD INSERTED THE WORD ALL" AS TO THE MINIMUM AND MAXIMUM QUANTITIES APPLICABLE TO ITEM NO. 2 AS WELL AS TO ITEM NO. 1.

AT THE BOTTOM OF BOTH PAGES NOS. 3 AND 4 OF THE BID FORM THERE APPEARED THE FOLLOWING ROVISION:

"* * * IN ADDITION TO ANY OTHER MINIMUM OR MAXIMUM QUANTITY SPECIFIED ABOVE, THE BIDDER STATES THAT UNDER ANY COMBINATIONS OF FOB POINTS BID UPON, THE TOTAL MINIMUM QUANTITY ACCEPTABLE FOR AWARD IS -- ----- UNITS AND THE TOTAL MAXIMUM QUANTITY ACCEPTABLE IS -------- UNITS.'

IN BOTH SPACES OF THE PROVISION ON PAGE 3 OF THE BID, WHICH SETS FORTH ITEM NO. 1, COVERING THE 6,120 PAIRS OF SHOES YOU HAD INSERTED THE WORD "ALL.' HOWEVER, NOTHING WAS INSERTED BY YOU IN EITHER OF THE SPACES OF THE IDENTICAL PROVISION ON PAGE 4, WHICH SETS FORTH ITEM NO. 2, COVERING THE 2,616 PAIRS OF SHOES. SINCE THESE PAGES OF THE BID FORM WHICH ARE OF RECORD BEFORE US APPEAR TO BE PHOTOSTATIC COPIES OF YOUR ORIGINAL BID, WE MUST ACCEPT, AS A FACT, THAT YOU FAILED TO MAKE ANY NOTATION AS TO MINIMUM OR MAXIMUM QUANTITIES IN CONNECTION WITH ITEM NO. 2. BUT EVEN ASSUMING THAT YOU HAD INSERTED THE WORD "ALL" IN THE MINIMUM AND MAXIMUM SPACES PROVIDED FOR ITEM NO. 2, THAT FACT WOULD NOT ESTABLISH YOUR CLAIM SINCE SUCH A NOTATION WOULD HAVE TO BE INTERPRETED AS APPLYING SOLELY TO THAT ITEM AND, AS A MATTER OF FACT, THE ENTIRE QUANTITY UNDER THE ITEM WAS AWARDED TO YOU.

WITH RESPECT TO THE QUESTION AS TO WHETHER YOUR BID, AS SUBMITTED, WAS PROPERLY INTERPRETED IN MAKING THE AWARD, THE PROVISION PERTAINING TO THE MINIMUM OR MAXIMUM QUANTITIES DID NOT APPEAR IN JUST ONE GIVEN PLACE ON THE BID FORM BUT, AS SHOWN ABOVE, APPEARED BOTH AT THE BOTTOM OF PAGE 3 FOR ITEM NO. 1 AND ON PAGE 4 FOR ITEM NO. 2. THEREFORE, AS WAS POINTED OUT IN OUR SETTLEMENT OF MARCH 25, 1960, THE FACT THAT YOU INSERTED THE WORD "ALL" IN BOTH SPACES FOR ITEM NO. 2, CAUSED THE CONTRACTING OFFICER TO PLACE UPON YOUR BID THE ONLY INTERPRETATION WHICH, IN OUR OPINION, IS REASONABLE, NAMELY, THAT YOU WERE OFFERING TO ACCEPT AN AWARD ON THE ENTIRE QUANTITY FOR ITEM NO. 1, BUT WITHOUT ANY LIMITATION AS TO THE QUANTITY THAT YOU WOULD ACCEPT ON ITEM NO. 2, SHOULD YOU BE CONSIDERED FOR AN AWARD ON THAT ITEM.

FOR THESE REASONS, AND SINCE THERE WAS NOTHING ON THE FACE OF YOUR BID WHICH QUALIFIED THE QUANTITY ACCEPTANCE PERMITTED BY PARAGRAPH 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, IT IS CONCLUDED THAT THE AWARD TO YOU OF ITEM NO. 2 ONLY WAS VALID, AND THAT THE GOVERNMENT IS NOT LEGALLY OBLIGATED TO PAY ANY AMOUNT IN EXCESS OF THAT AGREED UPON.