A-26873, MAY 7, 1929, 8 COMP. GEN. 588

A-26873: May 7, 1929

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PROSPECTIVE BIDDERS ARE NOTIFIED THAT BIDS MAY NOT BE WITHDRAWN AFTER THEY ARE OPENED BECAUSE OF NEGLIGENCE IN SUBMISSION OF BIDS. WHERE BIDS ARE SUBMITTED ON SUCH FORMS AND THE BIDDER DOES NOT ALLEGE MISTAKE UNTIL AFTER THE BIDS ARE OPENED. WHERE SUCH BID IS THE LOWEST BID MEETING THE SPECIFICATIONS THE SAME SHOULD BE ACCEPTED AND IF THE BIDDER REFUSES TO DELIVER THE MATERIAL. FOR DECISION WHETHER YOU ARE AUTHORIZED TO PERMIT THE CONCRETE OIL TANK CO. OTHER IRON WORK IN CONNECTION WITH THIS INSTALLATION AND CONSEQUENTLY OUR FIGURES ARE APPROXIMATELY NINE HUNDRED ($900.00) DOLLARS BELOW WHAT THEY SHOULD HAVE BEEN HAD ALL ITEMS BEEN TAKEN INTO ACCOUNT. 500.00) DOLLARS IS THE VALUE OF THIS INCINERATOR.

A-26873, MAY 7, 1929, 8 COMP. GEN. 588

CONTRACTS - ALLEGED MISTAKE IN BID UNDER THE STANDARD FORM OF INVITATION FOR BIDS AND THE STANDARD FORM OF BID BOND, PROSPECTIVE BIDDERS ARE NOTIFIED THAT BIDS MAY NOT BE WITHDRAWN AFTER THEY ARE OPENED BECAUSE OF NEGLIGENCE IN SUBMISSION OF BIDS, AND WHERE BIDS ARE SUBMITTED ON SUCH FORMS AND THE BIDDER DOES NOT ALLEGE MISTAKE UNTIL AFTER THE BIDS ARE OPENED, SUCH BIDDER MAY NOT BE PERMITTED TO WITHDRAW ITS BID. WHERE SUCH BID IS THE LOWEST BID MEETING THE SPECIFICATIONS THE SAME SHOULD BE ACCEPTED AND IF THE BIDDER REFUSES TO DELIVER THE MATERIAL, PURCHASE SHOULD BE MADE FROM THE NEXT LOWEST BIDDER AFTER NOTICE, AND THE PAPERS TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE FOR COLLECTION OF THE DIFFERENCE IN PRICE FROM THE LOW BIDDER AND ITS SURETY.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MAY 7, 1929:

THERE HAS BEEN RECEIVED YOUR SUBMISSION OF APRIL 13, 1929, IN ACCORDANCE WITH 8 COMP. GEN. 397, FOR DECISION WHETHER YOU ARE AUTHORIZED TO PERMIT THE CONCRETE OIL TANK CO. TO WITHDRAW ITS BID OF $3,372, OPENED MARCH 19, 1929, FOR THE CONSTRUCTION OF AN INCINERATOR AT THE UNITED STATES VETERANS' BUREAU HOSPITAL, BEDFORD, MASS., BECAUSE OF REASONS STATED BY THE CONCRETE OIL TANK CO. IN ITS LETTER DATED MARCH 19, 1929, AS FOLLOWS:

IN CONNECTION WITH OUR BID SUBMITTED THIS DATE ON THE INCINERATOR AT BEDFORD, MASS., PLEASE BE ADVISED THAT OUR ESTIMATING DEPARTMENT HAS LEFT OUT THE CASTINGS, GRATES, AND OTHER IRON WORK IN CONNECTION WITH THIS INSTALLATION AND CONSEQUENTLY OUR FIGURES ARE APPROXIMATELY NINE HUNDRED ($900.00) DOLLARS BELOW WHAT THEY SHOULD HAVE BEEN HAD ALL ITEMS BEEN TAKEN INTO ACCOUNT.

IN VIEW OF THIS, AND IN VIEW OF THE BIDS PRESENTED SHOWING THAT A MINIMUM COST OF APPROXIMATELY FOUR THOUSAND FIVE HUNDRED ($4,500.00) DOLLARS IS THE VALUE OF THIS INCINERATOR, WE RESPECTFULLY ASK THAT OUR BID NOT BE CONSIDERED ON THIS PROJECT AND THAT WE BE HONORABLY EXCUSED FROM FULFILLING OUR BID.

THE NEXT LOWEST BID FOR CONSTRUCTING THE INCINERATOR WAS $4,200, WHILE THE HIGHEST BID WAS $6,995. THERE IS A DIFFERENCE OF $828 BETWEEN THE BID OF THE CONCRETE OIL TANK CO. AND THE NEXT HIGHEST BID OF $4,200, WHILE THERE IS A DIFFERENCE OF $2,795 BETWEEN THE NEXT LOWEST BID AND THE HIGHEST BID. THERE IS ALSO A DIFFERENCE OF $900 BETWEEN THE LOWEST BID AND THE SIXTH OF ELEVEN BIDS RECEIVED. IT IS THUS APPARENT THAT THE DIFFERENCE BETWEEN THE LOWEST AND THE NEXT LOWEST BID IS NOT SUFFICIENT TO JUSTIFY ANY CONCLUSION THAT A MISTAKE WAS MADE IN THE SUBMISSION OF THE LOW BID.

THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS, IN PARAGRAPH 14 THEREOF, NOTIFIED ALL BIDDERS CONCERNED THAT:

WITHDRAWAL OF BIDS.--- BIDS MAY BE WITHDRAWN ON WRITTEN OR TELEGRAPHIC REQUEST RECEIVED FROM BIDDERS PRIOR TO THE TIME FIXED FOR OPENING. NEGLIGENCE ON THE PART OF THE BIDDER IN PREPARING THE BID CONFERS NO RIGHT FOR THE WITHDRAWAL OF THE BID AFTER IT HAS BEEN OPENED.

THE AFORESAID LETTER OF MARCH 19, 1929, NOT ONLY FAILS TO SHOW EXACTLY IN WHAT THE MISTAKE CONSISTED AND THE CORRECTION THAT SHOULD BE MADE SO AS TO LEAVE NO ROOM FOR REASONABLE DOUBT WITH RESPECT THERETO, BUT IT SHOWS CLEARLY THAT THE ERROR WAS NOT ALLEGED UNTIL AFTER THE BIDS HAD BEEN OPENED AND PROSPECTIVE BIDDERS WERE NOTIFIED IN THE ADVERTISEMENT THAT NEGLIGENCE IN THE PREPARATION OF A BID CONFERRED NO RIGHT TO ITS WITHDRAWAL AFTER THE BIDS WERE OPENED. IN FACT, BIDDERS WERE REQUIRED TO SUBMIT A BID BOND CONDITIONED AS FOLLOWS:

* * * IF THE PRINCIPAL SHALL NOT WITHDRAW SAID BID WITHIN THE PERIOD SPECIFIED THEREIN AFTER THE OPENING OF THE SAME, OR, IF NO PERIOD BE SPECIFIED, WITHIN SIXTY (60) DAYS AFTER SAID OPENING, AND SHALL WITHIN THE PERIOD SPECIFIED THEREFOR, OR, IF NO PERIOD BE SPECIFIED, WITHIN TEN (10) DAYS AFTER THE PRESCRIBED FORMS ARE PRESENTED TO HIM FOR SIGNATURE, ENTER INTO A WRITTEN CONTRACT WITH THE GOVERNMENT, IN ACCORDANCE WITH THE BID AS ACCEPTED, AND GIVE BOND WITH GOOD AND SUFFICIENT SURETY OR SURETIES, AS MAY BE REQUIRED, FOR THE FAITHFUL PERFORMANCE AND PROPER FULFILLMENT OF SUCH CONTRACT, OR IN THE EVENT OF THE WITHDRAWAL OF SAID BID WITHIN THE PERIOD SPECIFIED OR THE FAILURE TO ENTER INTO SUCH CONTRACT AND GIVE SUCH BOND WITHIN THE TIME SPECIFIED, IF THE PRINCIPAL SHALL PAY THE GOVERNMENT THE DIFFERENCE BETWEEN THE AMOUNT SPECIFIED IN SAID BID AND THE AMOUNT FOR WHICH THE GOVERNMENT MAY PROCURE THE REQUIRED WORK AND/OR SUPPLIES, IF THE LATTER AMOUNT BE IN EXCESS OF THE FORMER, THEN THE ABOVE OBLIGATION SHALL BE VOID AND OF NO EFFECT, OTHERWISE TO REMAIN IN FULL FORCE AND VIRTUE.

AS WAS STATED IN 8 COMP. GEN. 397, THE PURCHASING OFFICERS OF THE GOVERNMENT HAVE OTHER BUSINESS THAN TO ACT AS GUARDIANS FOR THOSE INDULGING IN POOR BUSINESS METHODS, AND AS THE BID WAS NOT WITHDRAWN PRIOR TO ITS ACCEPTANCE IN THIS CASE AND AS THE ALLEGED ERROR WAS NOT APPARENT ON THE FACE OF THE BID IT SHOULD BE ACCEPTED. IF THE CONTRACTOR FAILS AND REFUSES TO DELIVER AND INSTALL THE INCINERATOR FOR THE ACCEPTED PRICE OF $3,372, NOTICE SHOULD BE GIVEN TO THE CONCRETE OIL TANK CO. AND THE INCINERATOR SHOULD BE PURCHASED FROM THE NEXT LOWEST BIDDER, DEMAND TO BE MADE ACCORDINGLY ON THE CONCRETE OIL TANK CO. FOR PAYMENT OF THE DIFFERENCE OF $828 IN PRICE. THE NOTICE TO IT SHOULD INFORM IT TO THIS EFFECT. IF THE CONCRETE OIL TANK CO. SHOULD REFUSE TO PAY THE DIFFERENCE IN PRICE, ALL OF THE PAPERS, INCLUDING THE BID BOND, SHOULD BE TRANSMITTED TO THIS OFFICE IN ORDER THAT THE PROPER ACTION MAY BE TAKEN TO RECOVER FROM THE LOW BIDDER AND ITS SURETY THE LOSS SUSTAINED BY THE GOVERNMENT BECAUSE OF ITS FAILURE TO COMPLY WITH THE TERMS OF ITS ACCEPTED BID AND THE CONDITION OF ITS BID BOND. SEE 7 COMP. GEN. 193.