[Protest of GSA Rejection of Bid for Furniture]

A-22639, AUGUST 6, 1928, 8 COMP. GEN. 56

CONTRACTS - MISTAKE IN BID WHERE A BID TO FURNISH STIPULATED QUANTITIES OF HARDWARE SUPPLIES WAS ACCEPTED, THE SUPPLIES DELIVERED, AND THE CONTRACT PRICES PAID, AND IT WAS SUBSEQUENTLY ESTABLISHED THAT AT THE TIME OF THE OPENING OF THE BIDS THE CONTRACTING OFFICER WAS PUT UPON NOTICE THAT THE CONTRACTOR HAD MADE A MISTAKE IN SUBMITTING ITS BID ON A PARTICULAR ITEM OF THE SUPPLIES, SUCH MISTAKE BEING APPARENT FROM AN EXAMINATION OF THE BID ITSELF AND FROM A COMPARISON THEREOF WITH THE OTHER BIDS SUBMITTED, THE CONTRACTOR IS ENTITLED TO PAYMENT OF ITS CLAIM FOR THE DIFFERENCE BETWEEN THE CONTRACT PRICE AND THE PRICE INTENDED TO HAVE BEEN SUBMITTED FOR SUCH PARTICULAR ITEM OF SUPPLIES, PROVIDED THAT THE INTENDED BID OF THE CONTRACTOR IS LOWER THAN ANY OTHER BID RECEIVED THEREON.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 6, 1928:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF HIBBARD, SPENCER, BARTLETT AND CO. FOR THE SUM OF $6, A BALANCE CLAIMED FOR CERTAIN HARDWARE SUPPLIES SOLD AND DELIVERED TO THE UNITED STATES VETERANS' BUREAU HOSPITAL NO. 93, LOCATED AT LEGION, TEX., ON PURCHASE ORDER NO. 2042 (REQUISITION NO. H 93-293-C), DATED APRIL 4, 1928, ON ACCOUNT OF AN UNDERPAYMENT FOR SUCH MATERIALS RESULTING FROM AN ALLEGED MISTAKE IN SUBMITTING ITS BID FOR FURNISHING SIX 24-INCH TRIMO NO. 2524, PIPE WRENCHES, AT 95 CENTS EACH INSTEAD OF $1.95 EACH AS WAS INTENDED.

IT APPEARS THAT ON MARCH 21, 1928, THE MEDICAL OFFICER IN CHARGE OF SAID UNITED STATES VETERANS' BUREAU HOSPITAL NO. 93 ADVERTISED FOR SEALED BIDS TO BE PUBLICLY OPENED AT 2 P.M. APRIL 2, 1928, FOR FURNISHING TO SAID HOSPITAL THE SPECIFIED QUANTITIES OF THE VARIOUS KINDS OF HARDWARE SUPPLIES THEREIN DESCRIBED AND DESIGNATED AS ITEMS 1 TO 16, INCLUSIVE, SUBJECT TO THE STIPULATED CONDITIONS. BIDS ON THE REQUIRED 16 ITEMS OF SUPPLIES WERE SUBMITTED BY THE PEDEN IRON AND STEEL CO., THE N. O. NELSON MANUFACTURING CO., THE SAN ANTONIO MACHINE AND SUPPLY CO., AND HIBBARD, SPENCER, BARTLETT AND CO. SUBSEQUENTLY, ON APRIL 4, 1928, THE BIDS OF HIBBARD, SPENCER, BARTLETT AND CO. WERE ACCEPTED BY THE CONTRACTING OFFICER FOR THE SUPPLIES DESIGNATED AS ITEMS 1, 2, 3, 4, 5, 8, 10, 11, 13, 14, AND 16, AND AN AWARD THEREFOR WAS MADE TO SAID COMPANY, AND NOTICE OF THE AWARD WAS FORWARDED TO IT. ALL OF THE SUPPLIES THUS CONTRACTED FOR WITH CLAIMANT COMPANY WERE DELIVERED ON APRIL 23, 1928, AND PAYMENT OF THE CONTRACT PRICES THEREFOR, LESS 2 PER CENT DISCOUNT, AMOUNTING TO $42.68, WAS MADE ON D.O. VOUCHER NO. 1404, DATED MAY 7, 1928. AMONG THE SUPPLIES FURNISHED BY THE CLAIMANT COMPANY UNDER SAID CONTRACT WAS A LOT OF SIX 24- INCH TRIMO NO. 2524 PIPE WRENCHES, DESIGNATED AS ITEM 1, FOR WHICH IT WAS PAID THE CONTRACT PRICE OF 95 CENTS EACH, OR A TOTAL OF $5.70. THE CONTRACTOR CONTENDS THAT IT MADE A MISTAKE IN SUBMITTING ITS BID ON SAID ITEM 1 AND THAT THE CORRECT AMOUNT FOR THE SIX 24-INCH PIPE WRENCHES SHOULD HAVE BEEN $1.95 EACH, OR A TOTAL OF $11.70.

THE RECORD DISCLOSES THAT UNDER DATE OF APRIL 9, 1928, AND PRIOR TO THE DELIVERY OF THE SUPPLIES, THE CONTRACTOR INFORMED THE CONTRACTING OFFICER AT SAID VETERANS' HOSPITAL NO. 93 RELATIVE TO SUCH MISTAKE AND REQUESTED PERMISSION TO CORRECT SAME. THIS WAS REFUSED, AND THE CONTRACTOR WAS INFORMED THAT THE ADMINISTRATIVE OFFICER WAS WITHOUT AUTHORITY TO PERMIT CORRECTIONS OF ERRORS IN BIDS AFTER THE AWARDS FOR THE SUPPLIES HAD BEEN MADE AND THAT THE ONLY RECOURSE WOULD BE FOR THE BIDDER TO SUBMIT TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT A CLAIM FOR THE AMOUNT OF THE LOSS RESULTING FROM THE ERROR IN THE BID. CLAIMANT THEREAFTER COMPLETED ITS CONTRACT BY DELIVERING THE SUPPLIES, AS AGREED, AND PAYMENT OF THE CONTRACT PRICES WAS MADE THEREFOR. THE CONTRACTOR NOW SUBMITS ITS CLAIM TO THIS OFFICE FOR THE $6 LOSS CLAIMED TO HAVE BEEN OCCASIONED BY THE ALLEGED ERROR IN ITS BID ON ITEM 1.

IT IS WELL ESTABLISHED THAT WHERE A MISTAKE IN A SUBMISSION OF A BID HAS BEEN MADE, UPON WHICH A CONTRACT IS BASED, THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF UNLESS IT APPEAR THAT THE MISTAKE WAS MUTUAL, OR THAT THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE ACCEPTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. SEE 26 COMP. DEC. 286; 2 COMP. GEN. 503; 3 ID. 821; 6 ID. 526; AND 7 ID. 493.

THE RECORD DISCLOSES THAT THE CLAIMANT'S BID ON THE FIVE ITEMS OF PIPE WRENCHES, OF VARIOUS SIZES, WAS AS FOLLOWS:

CHART ITEM UNIT TOTAL NO. QUANTITY UNIT ARTICLES AND DESCRIPTION COST COST

1 6 EACH WRENCHES, PIPE, 24 INCH TRIMO NO. 2524 $0.95 $5.70

2 6 " " " 18 " " NO. 2518 1.40 8.40

3 6 " " " 14 " NO. 2514 .95 5.70

4 6 " " " 10 " NO. 2510 .69 4.14

5 3 " " " 6 " NO. 256 .55 1.65 THUS IT APPEARS THAT THE CLAIMANT BID THE SAME PRICE OF 95 CENTS EACH FOR THE 24-INCH PIPE WRENCHES THAT IT DID FOR THE 14-INCH PIPE WRENCHES.

THE FACTS OF RECORD CLEARLY INDICATE THAT AT THE TIME OF THE OPENING OF THE BIDS FOR FURNISHING THE HARDWARE SUPPLIES REQUIRED THE CONTRACTING OFFICER WAS PUT UPON NOTICE THAT HIBBARD, SPENCER, BARTLETT AND CO. HAD MADE A MISTAKE IN SUBMITTING ITS BID OF 95 CENTS EACH FOR THE SIX 24-INCH TRIMO PIPE WRENCHES (ITEM 1) FOR THE UNITED STATES VETERANS' HOSPITAL NO. 93. SUCH MISTAKE WAS APPARENT FROM AN EXAMINATION OF THE BID ITSELF AND ALSO FROM A COMPARISON THEREOF WITH THE OTHER THREE BIDS SUBMITTED. THE BIDS SUBMITTED BY THE THREE OTHER BIDDERS FOR FURNISHING THE SIX 24-INCH PIPE WRENCHES WERE, RESPECTIVELY, $2.17, $2.25, AND $2.30 EACH. UPON THIS STATE OF FACTS THE CONTRACTING OFFICER, BEFORE MAKING AN AWARD, SHOULD HAVE ASKED THE CLAIMANT BIDDER TO VERIFY ITS BID, CALLING ITS ATTENTION TO THE FACT THAT THE SAME PRICE WAS BID FOR THE 14-INCH AND THE 24-INCH SIZE AND UPON LEARNING THAT THE BID ON THE 24-INCH SIZE WAS A MISTAKE, SHOULD THEN HAVE DISREGARDED THE BID ON THAT SIZE.

SINCE THIS PROCEDURE WAS NOT FOLLOWED AND THE CLAIMANT WAS REQUIRED TO FURNISH THE 24-INCH WRENCHES, AND ITS INTENDED BID OF $1.95 EACH IS LOWER THAN ANY OTHER BID RECEIVED THEREON, IT IS ENTITLED TO AN ADDITIONAL SUM OF $6 FOR THE SIX 24-INCH PIPE WRENCHES DELIVERED UNDER SAID CONTRACT.

SETTLEMENT WILL BE MADE ACCORDINGLY AND A CHECK FOR THAT AMOUNT WILL ISSUE TO CLAIMANT IN DUE COURSE.