A-17101, FEBRUARY 4, 1927, 6 COMP. GEN. 504

A-17101: Feb 4, 1927

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ADVERTISING - BIDS - MISTAKE WHERE THE PRICE STATED IN THE BID OF THE LOWEST BIDDER WAS BASED ON AN ALLEGED INCORRECT LIST PRICE QUOTED IT BY THE MANUFACTURER AND THE DIFFERENCE IN PRICES IN THE BIDS SUBMITTED WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE THAT A MISTAKE MAY HAVE BEEN MADE. THERE IS NO AUTHORITY. AFTER THE BIDS ARE OPENED BUT BEFORE AN AWARD IS MADE. IS THE LOWEST BIDDER ON ITEM 17 OF CLASS 429 AND ITEM 3 OF CLASS 430. THE FOLLOWING IS A LIST OF THE BIDDERS AND THE UNIT PRICES QUOTED BY EACH ON THE ITEMS ABOVE REFERRED TO: TABLE CLASS 429. SAYS THAT THROUGH AN ERROR ON THE PART OF THE NEW YORK OFFICE OF THE MANUFACTURER OF THE WRENCHES A LIST PRICE ON THE 48-INCH WRENCH WAS GIVEN THEM OF $48 INSTEAD OF A LIST PRICE OF $84.

A-17101, FEBRUARY 4, 1927, 6 COMP. GEN. 504

ADVERTISING - BIDS - MISTAKE WHERE THE PRICE STATED IN THE BID OF THE LOWEST BIDDER WAS BASED ON AN ALLEGED INCORRECT LIST PRICE QUOTED IT BY THE MANUFACTURER AND THE DIFFERENCE IN PRICES IN THE BIDS SUBMITTED WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE THAT A MISTAKE MAY HAVE BEEN MADE, THERE IS NO AUTHORITY, AFTER THE BIDS ARE OPENED BUT BEFORE AN AWARD IS MADE, TO PERMIT THE WITHDRAWAL OF SUCH BID ON ACCOUNT OF SUCH ALLEGED MISTAKE AND THE AWARDING OF THE CONTRACT TO THE NEXT LOWEST BIDDER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 4, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 19, 1927, REQUESTING DECISION WHETHER THE NAVY DEPARTMENT MAY PERMIT THE WILLIAMS AND WELLS CO. TO BE RELEASED FROM ITS BID SUBMITTED IN RESPONSE TO AN INVITATION TO FURNISH CERTAIN WRENCHES UNDER SCHEDULE 6082, OPENED OCTOBER 26, 1926, AND AWARD THE CONTRACT TO THE NEXT LOWEST BIDDER.

THE SUBMISSION STATES IN SUBSTANCE THAT WILLIAMS AND WELLS CO. IS THE LOWEST BIDDER ON ITEM 17 OF CLASS 429 AND ITEM 3 OF CLASS 430, SCHEDULE 6082. ITEM 17 OF CLASS 429 COVERS 3 WRENCHES 48 INCHES LONG, MAXIMUM WEIGHT 65 POUNDS. ITEM 3 OF CLASS 430 COVERS 36 WRENCHES SIMILAR IN TYPE, WEIGHT, AND DIMENSIONS TO THE WRENCHES COVERED BY ITEM 17 IN CLASS 429.

THE FOLLOWING IS A LIST OF THE BIDDERS AND THE UNIT PRICES QUOTED BY EACH ON THE ITEMS ABOVE REFERRED TO:

TABLE

CLASS 429, ITEM 17

UNIT PRICE WILLIAMS AND WELLS CO ----------------------- ----------- $22.89 COES WRENCH CO ------------------------------------ ----- 36.02 MONTGOMERY AND CO --------------------------------------- 45.00

CLASS 430, ITEM 3, BID A WILLIAMS AND WELLS CO -------------------------- --------- 23.62 COES WRENCH CO --------- -------------------------------- 37.80 MONTGOMERY AND CO. NO BID.

CLASS 430, ITEM 3, BID B WILLIAMS AND WELLS CO - ------------------------ --------- 22.80 COES WRENCH CO -------------- --------------------------- 36.02 MONTGOMERY AND CO ----------------- --------------------- 45.00

THE SUBMISSION ALSO STATES THAT THE WILLIAMS AND WELLS CO. SAYS THAT THROUGH AN ERROR ON THE PART OF THE NEW YORK OFFICE OF THE MANUFACTURER OF THE WRENCHES A LIST PRICE ON THE 48-INCH WRENCH WAS GIVEN THEM OF $48 INSTEAD OF A LIST PRICE OF $84, WHICH LATTER AMOUNT IS THE FIGURE SUBSEQUENTLY CONFIRMED TO THEM; AND THAT IN VIEW OF THE FACT THAT THE COES WRENCH CO., THE MANUFACTURER OF THE WRENCHES INTENDED TO BE SUPPLIED BY THE WILLIAMS AND WELLS CO., ALSO SUBMITTED A BID TO SUPPLY THE WRENCHES COVERED BY ITEM 17 OF CLASS 429 AND ITEM 3 OF CLASS 430, SCHEDULE 6082, AT PRICES CONSIDERABLY HIGHER THAN THE PRICES QUOTED BY THE WILLIAMS AND WELLS CO., IT WOULD APPEAR THAT A MISTAKE HAD BEEN MADE IN THAT CONNECTION.

IN THE SUBMISSION IT ALSO APPEARS THAT BIDS WERE SUBMITTED ON OTHER ITEMS INCLUDED IN CLASSES 429 AND 430, SCHEDULE 6082, AND THAT THE COES WRENCH CO. WAS THE LOW BIDDER ON THOSE ITEMS. HOWEVER, IT IS UNDERSTOOD THAT THE QUESTION OF MISTAKE INVOLVED HERE CONCERNS ONLY THE 48-INCH WRENCHES SO THAT THE BIDS ON THE OTHER ITEMS NEED NOT BE FURTHER CONSIDERED.

BIDS UNDER SCHEDULE 6082 WERE OPENED ON OCTOBER 26, 1926. ON OCTOBER 28, 1926, THE WILLIAMS AND WELLS CO., BY LETTER ADDRESSED TO THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, REQUESTED PERMISSION TO WITHDRAW ITS BID ON CLASSES 429 AND 430, SCHEDULE 6082, OPENED OCTOBER 26, 1926, AND STATED THAT THROUGH ERROR THE NEW YORK OFFICE OF THE MANUFACTURER HAD QUOTED TO IT A LIST PRICE OF $48 INSTEAD OF $84 ON THE 48-INCH WRENCHES AND THAT WITH THE DISCOUNTS DEDUCTED FROM THE LIST PRICE, THE DIFFERENCE IN THE NET COST IS ABOUT $12 PER WRENCH. THE BUREAU OF SUPPLIES AND ACCOUNTS REPLIED TO THAT LETTER ON OCTOBER 29, 1926, STATING IN SUBSTANCE THAT IT WOULD BE NECESSARY FOR THE BIDDER TO OBTAIN FROM THE MANUFACTURER AN AFFIDAVIT SETTING FORTH ALL THE CIRCUMSTANCES AND CONDITIONS CONCERNING THE ERROR ALLEGED TO HAVE BEEN MADE. BY LETTER OF NOVEMBER 3, 1926, WILLIAMS AND WELLS CO. FORWARDED TO THE BUREAU OF SUPPLIES AND ACCOUNTS A LETTER, DATED OCTOBER 30, 1926, RECEIVED BY IT FROM THE SALES AGENTS OF THE COES WRENCH CO., AS FOLLOWS:

IN LOOKING THROUGH THE GOVERNMENT ADVERTISER OF RECENT DATE, WE NOTICE THAT YOUR BID TO THE NAVY DEPARTMENT COVERING SCHEDULE OF PURCHASES ON MONKEY WRENCHES WAS EXTREMELY LOW ON THE 48 INCH KEY-MODEL WRENCH.

THE WRITER HAS TALKED THIS MATTER OVER WITH THE PARTY WHO MADE THE QUOTATION TO YOU, AND WAS SURPRISED TO FIND THAT THIS QUOTATION WAS NOT CONFIRMED IN WRITING.

WE BELIEVE AN ERROR HAS BEEN MADE IN OUR QUOTATION TO YOU, AND IT IS JUST POSSIBLE THAT INSTEAD OF YOUR BEING QUOTED $84.00 EACH LIST ON JUST POSSIBLE THAT INSTEAD OF YOUR BEING QUOTED $84.00 LIST ON THE 48 INCH, A LIST OF $48.00 WAS QUOTED.

WE BEG TO CONFIRM TO YOU THE CORRECT PRICES OF $18.00 EACH LIST ON THE 28 INCH, $38.00 EACH LIST ON THE 36 INCH, AND $84.00 EACH LIST ON THE 48 INCH, LESS OUR EXTREME DISCOUNT OF 40, 10, 10 AND 10 PERCENT, F.O.B. WORCESTER, MASS.

TERMS: 30-2-10.

WE SINCERELY HOPE THAT THE FIGURES MENTIONED IN THE GOVERNMENT ADVERTISER AS BEING QUOTED BY YOU ARE ERRONEOUS. * * *

THE BIDDER DOES NOT SEEK TO MODIFY OR REFORM ITS BID TO CORRESPOND WITH A PRICE OR PRICES THAT IT MIGHT HAVE INTENDED TO SUBMIT ON THE ITEMS COVERING THE 48-INCH WRENCH, BUT IT ASKS TO BE PERMITTED TO WITHDRAW ITS BID COVERING ALL THE ITEMS INCLUDED IN CLASSES 429 AND 430, BECAUSE, AS ALLEGED IN ITS LETTER, THE PRICE BID BY IT ON THE ITEMS COVERING THE 48- INCH WRENCH IN THOSE CLASSES WAS BASED ON AN ERRONEOUS LIST PRICE QUOTED TO IT BY THE AGENT OF THE MANUFACTURER.

IN THE LETTER OF OCTOBER 30, ABOVE QUOTED, THE SALES AGENTS OF THE MANUFACTURER DO NOT SAY DEFINITELY THAT A MISTAKE WAS IN FACT MADE BY THEIR OFFICE IN QUOTING PRICES ON THE 48-INCH WRENCH. BY INNUENDO BUT NOT DIRECTLY THEY INDICATE THAT A MISQUOTATION MIGHT HAVE BEEN MADE BY THEIR OFFICE. THEY SAY IN SUBSTANCE THAT IN LOOKING THROUGH THE GOVERNMENT ADVERTISER THEY NOTICED THAT THE BID SUBMITTED BY WILLIAMS AND WELLS CO. WAS EXTREMELY LOW ON THE 48-INCH KEY-MODEL WRENCH; THAT THEY WERE SURPRISED TO LEARN THAT THE QUOTATION MADE TO WILLIAMS AND WELLS CO. WAS NOT CONFIRMED IN WRITING AND THAT IT IS JUST POSSIBLE THAT INSTEAD OF QUOTING A LIST PRICE OF $84, A LIST PRICE OF $48 WAS QUOTED. HOWEVER, WHETHER THE MANUFACTURER DID OR DID NOT ERR IN QUOTING A PRICE TO THE BIDDER IS NOT MATERIAL TO THE QUESTION HERE PRESENTED.

ON THE FACTS AS PRESENTED IN THE SUBMISSION IT MUST BE HELD THAT THERE WAS NO MISTAKE IN THE BID; THAT IS TO SAY, THE BID AS SUBMITTED WAS AS INTENDED BY THE BIDDER. THE APPARENT REASON FOR REQUESTING WITHDRAWAL IS THAT THE BIDDER, THROUGH NEGLIGENCE ON ITS PART OR OTHERWISE, WAS NOT PROPERLY INFORMED AS TO THE PRICE AT WHICH IT COULD OBTAIN THE ARTICLES PROPOSED TO BE FURNISHED THE GOVERNMENT. CLEARLY THIS WOULD NOT ENTITLE IT TO RELIEF FROM ITS UNDERTAKING TO THE GOVERNMENT.

FURTHERMORE, IT MAY BE ASSUMED THAT THE WILLIAMS AND WELLS CO. IS A REGULAR DEALER IN THE ARTICLE OFFERED BY IT, AND BY REASON OF THAT FACT WAS FAMILIAR WITH THE RELATIVE COST OF THE WRENCHES IN QUESTION; AND YET IT DID NOT QUESTION THE CORRECTNESS OF A PRICE ALLEGED TO HAVE BEEN QUOTED TO IT OF ABOUT HALF THE AMOUNT OF THE PRICE INTENDED TO HAVE BEEN QUOTED. THEN, A FORTIORI, IT MUST BE HELD THAT THE DIFFERENCE IN THE BIDS RECEIVED WAS NOT SUFFICIENTLY GREAT TO PUT THE CONTRACTING OFFICER ON NOTICE THAT THE LOW BIDDER COULD NOT REASONABLY BE ASSUMED TO BE ABLE TO FURNISH THE ARTICLES AT THE BID PRICE. THEREFORE, THE LOW BID SHOULD HAVE BEEN ACCEPTED IMMEDIATELY AND THE CONTRACT AWARDED ACCORDINGLY. SEE 24 COMP. DEC. 534; 4 COMP. GEN. 911; 5 ID. 781; ALSO 21 OP.ATTY.GEN. 186.

THE OBLIGATION OF THE BIDDER TO FURNISH THE 48-INCH WRENCHES AT THE PRICES QUOTED IN ITS BID IS NOT AFFECTED BY THE FACT THAT ITS LETTER REQUESTING PERMISSION TO WITHDRAW ITS BID WAS RECEIVED BEFORE FORMAL AWARD WAS MADE TO IT. SEE DECISION TO YOU OF DECEMBER 14, 1926, A 16327, ALSO 21 OP.ATTY.GEN. 56.

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT THE NAVY DEPARTMENT MAY NOT PERMIT THE WILLIAMS AND WELLS CO. TO WITHDRAW ITS BID AND THAT A CONTRACT MAY NOT BE AWARDED TO THE NEXT LOWEST BIDDER.