A-21689, FEBRUARY 23, 1928, 7 COMP. GEN. 514

A-21689: Feb 23, 1928

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ADVERTISING - BIDS - MISTAKE - WITHDRAWAL WHERE BIDS WERE REQUESTED FOR THE FINISHING OF A QUANTITY OF LONG TIME BURNING KEROSENE OIL. " A BIDDER MAY NOT WITHDRAW ITS BID AFTER THE BIDS HAVE BEEN OPENED. BEFORE AWARD IS MADE. 1928: I HAVE YOUR LETTER OF FEBRUARY 10. BIDS WERE TO BE OPENED AT 2 P.M. FOUR BIDS WERE RECEIVED AS FOLLOWS: EXPLOSIVE CHEMICAL CO. INFORMATION IS REQUESTED AS TO WHETHER THE QUOTATION AS SUBMITTED BY YOU WOULD COVER DELIVERY F.O.B. AS THIS KEROSENE IS INTENDED FOR THE SUPERINTENDENT OF LIGHTHOUSES. WILL PROBABLY LEAVE NEW YORK VIA THE NEW YORK AND PORTO RICO STEAMSHIP COMPANY. ADVISED THE SUPERINTENDENT OF LIGHTHOUSES AS FOLLOWS: REPLYING TO YOURS OF THE 26TH YOU ARE ADVISED THAT WE CAN MAKE DELIVERY OF THE 16.

A-21689, FEBRUARY 23, 1928, 7 COMP. GEN. 514

ADVERTISING - BIDS - MISTAKE - WITHDRAWAL WHERE BIDS WERE REQUESTED FOR THE FINISHING OF A QUANTITY OF LONG TIME BURNING KEROSENE OIL, AND THE SPECIFICATIONS PROVIDED THAT THE OIL MUST BE PACKED IN SPECIAL EXPORT CASES, WITH A FURTHER PROVISION THAT "PROPOSALS MAY BE WITHDRAWN ONLY ON WRITTEN REQUEST RECEIVED BY THE OFFICER HOLDING THEM PRIOR TO THE TIME FIXED FOR OPENING SAME," A BIDDER MAY NOT WITHDRAW ITS BID AFTER THE BIDS HAVE BEEN OPENED, BUT BEFORE AWARD IS MADE, ON THE GROUND OF ALLEGED MISTAKE IN THAT, IN SUBMITTING ITS BID, IT FIGURED THE PRICE ON THE BASIS OF COMMERCIAL EXPORT CANS AND CASES INSTEAD OF SPECIAL EXPORT CANS AND CASES AS CALLED FOR IN THE SPECIFICATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, FEBRUARY 23, 1928:

I HAVE YOUR LETTER OF FEBRUARY 10, 1928, REQUESTING DECISION AS TO WHETHER THE TIDE WATER OIL SALES CORPORATION MAY BE ALLOWED TO WITHDRAW ITS BID SUBMITTED IN RESPONSE TO CIRCULAR ADVERTISEMENT NO. 26011, ISSUED BY THE SUPERINTENDENT OF LIGHTHOUSES, STATEN ISLAND, N.Y., JANUARY 11, 1928, ON THE GROUND OF ALLEGED MISTAKE IN THE SUBMISSION THEREOF.

IT APPEARS THAT UNDER DATE OF JANUARY 11, 1928, THE SUPERINTENDENT OF LIGHTHOUSE, STATEN ISLAND, N.Y., THIRD DISTRICT, ADVERTISED FOR BIDS FOR THE FURNISHING OF A QUANTITY OF LONG-TIME BURNING KEROSENE OIL IN SPECIAL EXPORT CASES TO BE STRICTLY IN ACCORDANCE WITH CERTAIN SPECIFICATIONS ATTACHED TO AND MADE A PART OF THE SAID ADVERTISEMENT, DELIVERY TO BE MADE AS FOLLOWS: FOB AND SECURED ON CARS OR OTHER CARRIER AT PLACE OF MFG.

OIL MUST NOT BE LOADED OR SHIPPED UNTIL CONTRACTOR RECEIVES COMPLETE SHIPPING INSTRUCTIONS AND GOVERNMENT BILL OF LADING.

BIDS WERE TO BE OPENED AT 2 P.M., JANUARY 26, 1928. FOUR BIDS WERE RECEIVED AS FOLLOWS: EXPLOSIVE CHEMICAL CO., $3,827.20; TIDE WATER OIL SALES CORPORATION, $2,900.80; WEST INDIA OIL O., $3,136; ATLANTIC REFINING CO., $3,750.

IT APPEARS THAT AFTER THE BIDS HAD BEEN OPENED THE SUPERINTENDENT OF LIGHTHOUSES ADDRESSED A LETTER TO THE TIDE WATER OIL SALES CORPORATION, UNDER DATE OF JANUARY 26, 1928, AS FOLLOWS:

1. AT TIME OF OPENING OF PROPOSAL NOTED ABOVE CALLING FOR 16,000 GALLONS LONG-TIME BURNING KEROSENE OIL IN SPECIAL EXPORT CASES UPON WHICH YOU QUOTED A PRICE OF .1813 CENTS PER GALLON, YOUR REPRESENTATIVE STATED THAT HE ASSUMED YOUR QUOTATION COVERED DELIVERY F.O.B. BAYONNE, N.J. INFORMATION IS REQUESTED AS TO WHETHER THE QUOTATION AS SUBMITTED BY YOU WOULD COVER DELIVERY F.O.B. STEAMER, NEW YORK HARBOR, AS THIS KEROSENE IS INTENDED FOR THE SUPERINTENDENT OF LIGHTHOUSES, SAN JUAN, PORTO RICO, AND WILL PROBABLY LEAVE NEW YORK VIA THE NEW YORK AND PORTO RICO STEAMSHIP COMPANY, PIER 35 ATLANTIC BASIN, BROOKLYN.

2. YOUR PROMPT ATTENTION IN THIS MATTER WOULD BE APPRECIATED.

IN REPLY TO SAID LETTER THE TIDE WATER OIL SALES CORPORATION, UNDER DATE OF JANUARY 28, 1928, ADVISED THE SUPERINTENDENT OF LIGHTHOUSES AS FOLLOWS:

REPLYING TO YOURS OF THE 26TH YOU ARE ADVISED THAT WE CAN MAKE DELIVERY OF THE 16,000 GALLONS OF LONG-TIME BURNING KEROSENE OIL IN SPECIAL EXPORT CASES AT .1813 F.O.B. STEAMER NEW YORK HARBOR, AS YOU STATE THE STEAMER WILL PROBABLY LEAVE FROM PIER 35 ATLANTIC BASIN, BROOKLYN.

THEREAFTER, OR ON FEBRUARY 2, 1928, SAID TIDE WATER OIL SALES CORPORATION REQUESTED THAT ITS BID BE DISREGARDED IN MAKING AWARD OF THE CONTRACT FOR THE REASON THAT IN SUBMITTING ITS BID IT HAD MADE A MISTAKE IN THAT IT HAD FIGURED THE PRICE ON THE BASIS OF COMMERCIAL EXPORT CANS AND CASES INSTEAD OF ON SPECIAL EXPORT CANS AND CASES AS CALLED FOR IN THE SPECIFICATIONS.

THE ADVERTISEMENT PROVIDED, AMONG OTHER THINGS, THAT:

A GUARANTY IS REQUIRED WITH THIS PROPOSAL, AND MUST BE IN THE FORM OF A CERTIFIED CHECK FOR 10 PERCENT OF THE BID PAYABLE TO THE COMMISSIONER OF LIGHTHOUSES. SUCCESSFUL BIDDER WILL BE REQUIRED TO SUBMIT AN ADDITIONAL CERTIFIED CHECK FOR 16 PERCENT OF BID. PERFORMANCE BOND WILL NOT BE REQUIRED WITH THIS CONTRACT, AS CHECKS OF SUCCESSFUL BIDDER WILL BE HELD AS SECURITY FOR THE SATISFACTORY COMPLETION OF THE CONTRACT.

PARAGRAPH 4 OF THE INSTRUCTIONS TO BIDDERS PROVIDES:

WITHDRAWAL OR FAILURE TO BID.--- IF A PROSPECTIVE BIDDER IS NOT PREPARED TO SUBMIT A PROPOSAL, THE FACT SHOULD BE SO STATED OVER THEFIRM'S SIGNATURE AND THE BLANK PROPOSAL RETURNED, SO THAT IT MAY BE KNOWN THAT THE MATTER RECEIVED CONSIDERATION. PROPOSALS MAY BE WITHDRAWN ONLY ON WRITTEN REQUESTS RECEIVED BY THE OFFICER HOLDING THEM PRIOR TO THE TIME FIXED FOR OPENING THE SAME. IF THE BIDDER TO WHOM AN AWARD IS MADE FAILS OR REFUSES TO PROCEED WITH THE DELIVERY OF THE ARTICLES, SUPPLIES, OR MATERIALS AS HEREIN PROVIDED, THE CONTRACT WILL BE ANNULLED, AND AN AWARD MAY BE MADE TO THE NEXT MOST DESIRABLE BIDDER IN THE OPINION OF THE GOVERNMENT.

IT IS TO BE NOTED THAT BOTH THE REQUEST FOR BIDS AND ACCOMPANYING PROPOSALS STIPULATED IN PLAIN TERMS "LONG TIME BURNING KEROSENE OIL IN SPECIAL EXPORT CASES.' THE SPECIFICATIONS ALSO SET FORTH IN DETAIL THE REQUIREMENTS WITH REFERENCE TO THE PACKING OF THE OIL IN THE PARTICULAR EXPORT CASES.' IT IS ALSO TO BE OBSERVED THAT 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 ITEM IN QUESTION BUT ASKS THAT ITS BID BE DISREGARDED IN MAKING AWARD OF THE CONTRACT.

PROPOSALS THAT HAVE BEEN SUBMITTED IN RESPONSE TO AN ADVERTISEMENT FOR BIDS MAY NOT BE WITHDRAWN AFTER THEY HAVE BEEN OPENED, EVEN BEFORE AWARD IS MADE, AND THE BIDDER IS BOUND TO ACCEPT THE AWARD. 24 COMP. DEC. 534; 6 COMP. GEN. 504; DECISION OF JUNE 4, 1927, A-18696; 21 OP.ATTY.GEN. 56. THE ONLY EXCEPTION TO THIS RULE IS WHERE THERE IS CONCLUSIVE EVIDENCE OF A MUTUAL MISTAKE OR WHERE THERE WAS A MISTAKE BY THE BIDDER THAT IS SO APPARENT THAT THE CONTRACTING OFFICER MUST BE PRESUMED TO HAVE KNOWN THAT THE BID WAS NOT AS INTENDED BY THE BIDDER. THE MERE STATEMENT BY A BIDDER, AFTER THE BIDS HAVE BEEN OPENED, THAT A MISTAKE HAD BEEN MADE IN THE SUBMISSION OF ITS BID IS NOT SUFFICIENT JUSTIFICATION TO ALLOW WITHDRAWAL THEREOF. ESPECIALLY IS THIS TRUE IN THIS CASE IN VIEW OF THE PROVISIONS OF THE INSTRUCTIONS TO BIDDERS, PARAGRAPH 4, QUOTED, SUPRA.

THE BID WAS PLAIN, THERE WAS NOTHING IN THE BID ITSELF OR WHEN COMPARED WITH THE OTHER BIDS RECEIVED TO PUT THE CONTRACTING OFFICER ON NOTICE THAT A MISTAKE HAD BEEN MADE, AND THE CIRCUMSTANCES NOW APPEARING DISCLOSE THAT SUCH MISTAKE AS MAY HAVE BEEN MADE WAS DUE SOLELY TO A LACK OF PROPER CARE ON THE PART OF THE SAID COMPANY. ACCORDINGLY, IT MUST BE HELD THAT THERE IS NO AUTHORITY FOR ALLOWING THE TIDE WATER OIL SALES CORPORATION TO WITHDRAW ITS BID AND THE CONTRACT MAY NOT BE AWARDED TO THE NEXT LOWEST BIDDER. IN EVENT OF THE REFUSAL OF THE SAID TIDE WATER OIL SALES CORPORATION TO ACCEPT AWARD OF THE CONTRACT, ANY INCREASED COSTS INCURRED BY THE UNITED STATES IN THE PROCUREMENT OF SAID OIL, PACKED IN SPECIAL EXPORT CASES, SHOULD BE CHARGED TO THE SAID COMPANY AND IT WOULD BE PROPER TO APPLY THE AMOUNT OF THE CERTIFIED CHECKS DEPOSITED BY THE SAID COMPANY IN ACCORDANCE WITH THE REQUIREMENTS OF THE ADVERTISEMENT QUOTED, SUPRA, IN LIQUIDATION OF ANY EXCESS COSTS OVER AND ABOVE THE BID PRICE OCCASIONED BY ITS DEFAULT.