A-13740, MAY 29, 1926, 5 COMP. GEN. 946

A-13740: May 29, 1926

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HE IS NOT ENTITLED TO RELIEF ON THE GROUND OF AN ALLEGED MISTAKE HAVING BEEN MADE IN HIS BID UNLESS THERE WAS A MISTAKE OF FACT APPARENT ON THE FACE OF THE BID. OR SUCH DISCREPANCY BETWEEN HIS BID AND THE OTHER BIDS SUBMITTED AS TO HAVE PUT THE GOVERNMENT CONTRACTING OFFICER ON NOTICE THAT A MISTAKE HAD BEEN MADE WHEN THE OFFER WAS ACCEPTED. WHICH WOULD RAISE THE IMPLICATION THAT THE OFFER WAS ACCEPTED WITH THE INTENTION OF TAKING ADVANTAGE OF SUCH MISTAKE. WAS AT THE UNIT PRICE OF $0.225. THE NEXT LOWEST BID ON THE ITEM WAS $0.33. WAS ISSUED TO CLAIMANT AS THE LOWEST BIDDER. WERE PURCHASED FROM THE TIDE WATER OIL COMPANY. IN ITS REQUEST FOR REVIEW CLAIMANT STATES THAT THE ERROR WAS MADE BY "AN INEXPERIENCED CLERK.

A-13740, MAY 29, 1926, 5 COMP. GEN. 946

CONTRACTS - MISTAKE IN BID WHERE A BIDDER WHOSE BID TO FURNISH LUBRICATING OIL TO THE GOVERNMENT HAS BEEN ACCEPTED, HE IS NOT ENTITLED TO RELIEF ON THE GROUND OF AN ALLEGED MISTAKE HAVING BEEN MADE IN HIS BID UNLESS THERE WAS A MISTAKE OF FACT APPARENT ON THE FACE OF THE BID, OR SUCH DISCREPANCY BETWEEN HIS BID AND THE OTHER BIDS SUBMITTED AS TO HAVE PUT THE GOVERNMENT CONTRACTING OFFICER ON NOTICE THAT A MISTAKE HAD BEEN MADE WHEN THE OFFER WAS ACCEPTED, AND WHICH WOULD RAISE THE IMPLICATION THAT THE OFFER WAS ACCEPTED WITH THE INTENTION OF TAKING ADVANTAGE OF SUCH MISTAKE.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 29, 1926:

TIDE WATER OIL SALES CORPORATION REQUESTED MARCH 17, 1926, REVIEW OF SETTLEMENT NO. 054445, DATED DECEMBER 10, 1925, DISALLOWING ITS CLAIM FOR ADDITIONAL PAYMENT IN THE AMOUNT OF $443 ALLEGED TO BE DUE THROUGH ERROR IN BID ON 2,500 GALLONS OF LUBRICATING OIL FURNISHED THE ARMY SUPPLY BASE, BROOKLYN, N.Y., IN JANUARY, 1925, UNDER PURCHASE ORDER.

BY CIRCULAR PROPOSAL DATED DECEMBER 29, 1924, THE QUARTERMASTER SUPPLY OFFICER, NEW YORK GENERAL INTERMEDIATE DEPOT, BROOKLYN, N.Y., ADVERTISED THAT SEALED PROPOSALS WOULD BE RECEIVED UNTIL 11 A.M. JANUARY 9, 1925, AT WHICH TIME AND PLACE THEY WOULD BE OPENED, FOR THE FURNISHING OF SUPPLIES AS SPECIFIED IN THE ATTACHED SCHEDULE, THE GOVERNMENT RESERVING THE RIGHT TO REJECT OR ACCEPT ANY OR ALL BIDS, OR ANY PART THEREOF.

IN CLAIMANT'S PROPOSAL, SUBMITTED IN ACCORDANCE WITH SAID ADVERTISEMENT, ITS BID ON ITEM FOR 2,500 GALLONS OF OIL, LUBRICATING, CLASS A, LIGHT, SPEC. 2-24C, 1-GALLON CANS, DELIVERED AT ARMY SUPPLY BASE, BROOKLYN, N.Y., WAS AT THE UNIT PRICE OF $0.225.

THE NEXT LOWEST BID ON THE ITEM WAS $0.33, AND SEVEN OTHER BIDS RANGED FROM $0.41 TO $0.7963.

PURCHASE ORDER NO. 626-25-4941, DATED JANUARY 14, 1925, COVERING SAID ITEM IN ACCORDANCE WITH THE BID PRICE, TOTAL PRICE $562.50, WAS ISSUED TO CLAIMANT AS THE LOWEST BIDDER.

CLAIMANT STATED THAT ITS QUOTED PRICE OF $0.225 REPRESENTED ONLY THE ACTUAL COST OF THE CANS AND CASES, WHICH, AS WELL AS THE OIL, WERE PURCHASED FROM THE TIDE WATER OIL COMPANY, BAYONNE, J., MADE UP ON THE FOLLOWING BASIS:

TABLE COST OF 10/1 GALLON CANS ------------------------------------ - $1.15 COST OF CASE ------------------------------------------------ - .42 FILLING AND LOADING ----------------------------------------- - .68

PER CASE ------------------------------------------------ 2.25 OR, EQUIVALENT TO 22 1/2 CENTS PER GALLON. AND THAT ITS CLERK IN MAKING UP THE BID OVERLOOKED ADDING IN THE COST OF THE MATERIAL AS WELL AS THE COST OF TRANSPORTATION AND THE USUAL PROFIT, VIZ:

TABLEBULK COST OF OIL F.O.B. BAYONNE, N.J ------------ 0.1250 (PER) GAL. TRANSPORTATION ---------------------------------- .0122 GAL. PROFIT ----- -------------------------------------- .0400 GAL.

IN ITS REQUEST FOR REVIEW CLAIMANT STATES THAT THE ERROR WAS MADE BY "AN INEXPERIENCED CLERK, WHO, EVIDENTLY IN ORDER TO COVER THE ERROR, PLACED THE ORDER DIRECT, AND THE ERROR IN PRICE WAS THEREFORE NOT DISCOVERED UNTIL SOME DAYS AFTER SHIPMENT HAD BEEN MADE.'

BASED ON THE ERROR AS STATED, ITS CLAIM IS FOR 2,500 GALLONS AT $0.1772 PER GALLON, AMOUNTING TO $443.

THE FACTS DO NOT SHOW SUCH MUTUAL MISTAKE AS WOULD JUSTIFY THE PAYMENT OF THE ADDITIONAL AMOUNT CLAIMED. THERE IS NO MISTAKE OF FACT APPARENT ON THE FACE OF EITHER CLAIMANT'S PROPOSAL WITH RESPECT TO THE ITEM OR THE PURCHASE ORDER ISSUED TO CLAIMANT AS THE LOWEST BIDDER. NOR IS THE DISCREPANCY BETWEEN CLAIMANT'S BID AND THE NEXT LOWEST BID SUBMITTED SO GREAT AS TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE THAT A MISTAKE HAD BEEN MADE WHEN THE BID WAS ACCEPTED AND TO RAISE AN IMPLICATION THAT THE BID WAS ACCEPTED WITH THE INTENTION OF TAKING ADVANTAGE OF SUCH MISTAKE. THERE CAN BE NO RELIEF GRANTED ON ACCOUNT OF A UNILATERAL MISTAKE OF FACT IN THE ABSENCE OF FRAUD OR CONCEALMENT. ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 CT.CLS. 127; 1 COMP. GEN. 189.

IN THE INSTANT CASE IT WOULD APPEAR FROM THE CONTRACTOR'S OWN STATEMENT THAT THE ALLEGED MISTAKE WAS SOLELY DUE TO THE NEGLIGENCE AND CARELESSNESS OF THE CONTRACTOR'S AGENT AND WAS NOT INDUCTED, OR IN ANY WAY CONTRIBUTED TO, BY THE GOVERNMENT.