A-29458, DECEMBER 21, 1929, 9 COMP. GEN. 256

A-29458: Dec 21, 1929

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THE BIDDER IS NOT ENTITLED TO ANY ADDITIONAL AMOUNT ON ACCOUNT OF AN ALLEGED MISTAKE IN THE ALLOWANCE QUOTED ON THE USED TRUCK. THE PRICES OF WHICH ORDINARILY ARE MORE OR LESS UNIFORM. A COPY OF THE REQUEST FOR BIDS WAS SENT TO 17 PROSPECTIVE BIDDERS. 4 PROPOSALS WERE RECEIVED IN RESPONSE THERETO. WAS LISTED IN OUR BID AS $499. THE PRICE SHOULD HAVE BEEN SHOWN AS $476.40. WITH THIS FIGURE INSERTED IT WILL BE NOTED THE CORRECT NET PRICE TO GOVERNMENT AFTER DEDUCTING TRADE-IN ALLOWANCE WILL BE $231.40. WILL YOU KINDLY MAKE THIS CORRECTION IN OUR BID. WAS ACCEPTED. THE TRUCK WAS DELIVERED UNDER DATE OF MAY 18. THE VOUCHER WAS CERTIFIED BY THE SAID COMPANY AS BEING CORRECT AND JUST. PAYMENT THEREON WAS MADE AND ACCEPTED BY SAID COMPANY WITHOUT QUESTION UNDER DATE OF JULY 5.

A-29458, DECEMBER 21, 1929, 9 COMP. GEN. 256

CONTRACTS - MISTAKE IN BID - USED EQUIPMENT - ACCEPTANCE OF PAYMENT WHERE THE GOVERNMENT ADVERTISED FOR BIDS FOR AN AUTO DELIVERY TRUCK AND THE SPECIFICATIONS REQUESTED, AMONG OTHER THINGS, A QUOTATION OF THE BIDDER'S ALLOWANCE ON A USED TRUCK, THE BIDDER IS NOT ENTITLED TO ANY ADDITIONAL AMOUNT ON ACCOUNT OF AN ALLEGED MISTAKE IN THE ALLOWANCE QUOTED ON THE USED TRUCK, THE BID HAVING BEEN ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH. THE SUBMISSION OF A BID ON USED EQUIPMENT DIFFERS FROM THE SUBMISSION OF A BID FOR NEW OR STAPLE ARTICLES, THE PRICES OF WHICH ORDINARILY ARE MORE OR LESS UNIFORM, AS THERE MAY BE A WIDE VARIANCE IN THE ALLOWANCE OFFERED ON USED EQUIPMENT, CONSIDERATIONS OTHER THAN MARKET VALUE BEING INVOLVED. WHERE A CONTRACTOR CERTIFIES A VOUCHER PRESENTED IN PAYMENT AS BEING CORRECT AND JUST AND ACCEPTS PAYMENT THEREON WITHOUT PROTEST, THE EXECUTION OF THE VOUCHER AND THE ACCEPTANCE OF THE PAYMENT PRECLUDE THE CONTRACTOR FROM RECEIVING ANY ADDITIONAL AMOUNT ON ACCOUNT OF AN ALLEGED MISTAKE.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 21, 1929:

THE FORD MOTOR CO. REQUESTED ALLOWANCE OF ITS CLAIM IN THE SUM OF $150, THE BALANCE ALLEGED TO BE DUE ON ACCOUNT OF A LIGHT DELIVERY TRUCK FURNISHED THE DEPARTMENT OF AGRICULTURE UNDER CONTRACT USDA 4033, DATED APRIL 26, 1929.

IT APPEARS THAT UNDER DATE OF APRIL 11, 1929, THE CHIEF, DIVISION OF PURCHASE, SALES, AND TRAFFIC, DEPARTMENT OF AGRICULTURE, ADVERTISED FOR BIDS FOR FURNISHING A LIGHT AUTO DELIVERY TRUCK, LATEST MODEL, DELIVERY PREPAID, TO A REPRESENTATIVE OF THE DEPARTMENT AT VINCENNES, IND. THE SPECIFICATIONS REQUESTED, AMONG OTHER THINGS, A QUOTATION OF BIDDER'S ALLOWANCE ON A USED FORD TRUCK, 1926 MODEL, ENGINE NO. 13427633. A COPY OF THE REQUEST FOR BIDS WAS SENT TO 17 PROSPECTIVE BIDDERS, AND 4 PROPOSALS WERE RECEIVED IN RESPONSE THERETO, AS FOLLOWS:

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

BY LETTER OF APRIL 29, 1929, THIS CLAIMANT ADVISED THE DEPARTMENT OF AGRICULTURE AS FOLLOWS:

CONFIRMING YOUR TELEPHONE CONVERSATION WITH OUR MR. CORNELL THIS MORNING, THRU CLERICAL ERROR THE NET PRICE OF THE FORD PICK-UP AT VINCENNES, IND., WAS LISTED IN OUR BID AS $499; THE PRICE SHOULD HAVE BEEN SHOWN AS $476.40. WITH THIS FIGURE INSERTED IT WILL BE NOTED THE CORRECT NET PRICE TO GOVERNMENT AFTER DEDUCTING TRADE-IN ALLOWANCE WILL BE $231.40, THE SAME AS SHOWN IN OUR BID.

WILL YOU KINDLY MAKE THIS CORRECTION IN OUR BID.

THE BID OF THE FORD MOTOR CO., OFFERING A TRUCK MEETING THE REQUIREMENTS OF THE SPECIFICATIONS FOR THE SUM OF $476.40, LESS $245 FOR THE USED AUTOMOBILE, WAS ACCEPTED. THE TRUCK WAS DELIVERED UNDER DATE OF MAY 18, 1929, THE VOUCHER PRESENTED FOR PAYMENT BEING STATED IN THE SUM OF $476.40, LESS ALLOWANCE OF $245 ON THE USED CAR; TOTAL, $231.40. THE VOUCHER WAS CERTIFIED BY THE SAID COMPANY AS BEING CORRECT AND JUST, AND PAYMENT THEREON WAS MADE AND ACCEPTED BY SAID COMPANY WITHOUT QUESTION UNDER DATE OF JULY 5, 1929. IT APPEARS THAT ON NOVEMBER 8, 1929, OR OVER FOUR MONTHS AFTER ACCEPTANCE OF PAYMENT, THE SAID COMPANY ALLEGED A MISTAKE IN THE ALLOWANCE MADE FOR THE USED FORD TRUCK, AND NOW CLAIMS THAT THE AMOUNT OF THE ALLOWANCE SHOULD HAVE BEEN $95 INSTEAD OF $245, OR A DIFFERENCE OF $150, AND IN SUPPORT THEREOF STATES, IN SAID LETTER OF NOVEMBER 8, 1929, THAT---

ON APRIL 11, 1929, THE DEPARTMENT OF AGRICULTURE CALLED FOR BIDS ON ONE LIGHT DELIVERY AUTO TRUCK FOR VINCENNES, INDIANA, OFFERING IN TRADE A 1926 MODEL T FORD TRUCK.

THE MATTER OF TRADE-IN ALLOWANCE WAS REFERRED TO OUR INDIANAPOLIS BRANCH, WHO TELEPHONED THEIR DEALER AT VINCENNES, THE SUTTON MOTOR COMPANY, FOR AN APPRAISAL. THE DEALER, CONFUSING THIS APPRAISAL WITH ANOTHER HE HAD JUST MADE ON A GOVERNMENT CAR, PLACED THE VALUE AT $245.00, WHICH FIGURE WAS PASSED TO US AND INCLUDED IN OUR BID.

THE MATTER OF THE ALLEGED MISTAKE WAS REFERRED TO THE SECRETARY OF AGRICULTURE, AND IN A LETTER OF DECEMBER 2, 1929, HE REPORTED IN PART AS FOLLOWS:

WHEN THE BIDS WERE OPENED ON APRIL 23, 1929, IT WAS NOTED THAT THE AMOUNT OFFERED BY THE FORD MOTOR COMPANY ON THE USED EQUIPMENT WAS UNEXPECTEDLY LARGE; BUT IT IS NOT THE CUSTOM OF THE DEPARTMENT TO CHECK WIDE VARIATIONS IN OFFERS ON USED EQUIPMENT FOR THE REASON THAT OFFERS ON USED EQUIPMENT QUITE OFTEN VARY WIDELY, AND THE PROPOSAL WAS ACCEPTED ACCORDINGLY. HOWEVER, I AM NOW ADVISED BY THE INTERESTED BUREAU THAT THE USED EQUIPMENT INVOLVED IN THIS TRANSACTION WAS PURCHASED IN APRIL, 1926, AT A NET COST OF $492.72, HAD BEEN SUBSEQUENTLY DRIVEN APPROXIMATELY 50,000 MILES, AND THAT, IN THE OPINION OF BUREAU OFFICIALS FAMILIAR WITH THE CONDITION OF THE EQUIPMENT AT THE TIME IT WAS TURNED IN, $75 TO $100 WAS A FAIR ESTIMATE OF ITS MARKET PRICE.

THE GENERAL RULE IS, EVEN WHERE THERE IS A CLEAR SHOWING OF A MISTAKE IN THE SUBMISSION OF A BID, THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF. IN THIS CONNECTION, ATTENTION IS INVITED TO THE FOLLOWING STATEMENT MADE BY MR. JUSTICE HOLMES IN DELIVERING THE OPINION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF ROCK ISLAND, ARKANSAS AND LOUISIANA RAILROAD COMPANY V. UNITED STATES, 254 U.S. 141, 143: "MEN MUST TURN SQUARE CORNERS WHEN THEY DEAL WITH THE ERNMENT.'

IN ORDER TO AUTHORIZE RELIEF ON ACCOUNT OF A MISTAKE IN AN ACCEPTED BID, IT MUST APPEAR THAT THE MISTAKE WAS MUTUAL OR THAT THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 504, 526. SEE ALSO MOFFETT, HODGKINS AND CLARKE COMPANY V. ROCHESTER, 178 U.S. 373.

WHILE THE CLAIMANT'S BID ON THE OLD FORD TRUCK WAS GREATER THAN THE ALLOWANCE OFFERED BY OTHER BIDDERS AND GREATER THAN THE REASONABLE MARKET VALUE THEREOF, THERE IS NOTHING THEREIN FROM WHICH KNOWLEDGE ON THE PART OF THE CONTRACTING OFFICER THAT A MISTAKE HAD BEEN MADE CAN BE PRESUMED. THE BID HERE DIFFERS FROM THE SUBMISSION OF A BID FOR NEW OR STAPLE ARTICLES THE PRICES ON WHICH ORDINARILY ARE MORE OR LESS UNIFORM. STATED IN THE ADMINISTRATIVE REPORT, SUPRA, THERE IS OFTEN A WIDE VARIANCE IN THE ALLOWANCES OFFERED ON USED EQUIPMENT, CONSIDERATIONS OTHER THAN MARKET VALUE BEING INVOLVED. A SHORT TIME AGO AN INSTANCE CAME TO THE ATTENTION OF THIS OFFICE IN WHICH ONE BIDDER OFFERED A $50ALLOWANCE ON A USED TRUCK AND ANOTHER BIDDER OFFERED AN ALLOWANCE OF $1,298 ON THE SAME TRUCK, BOTH OFFERS BEING AS INTENDED. FURTHERMORE, IT IS NOTED THAT THE CLAIMANT COMPANY, IN ITS LETTER OF APRIL 29, 1929, SUPRA, CONFIRMED ITS OFFER WITH RESPECT TO THE ALLOWANCE ON THE USED TRUCK AFTER THE BIDS HAD BEEN OPENED AND IT KNEW OR HAD THE OPPORTUNITY OF KNOWING THE OFFERS MADE BY THE OTHER BIDDERS.

THE ALLOWANCE QUOTED WAS CLEAR AND UNAMBIGUOUS ON ITS FACE, AND THE MISTAKE, IF ANY, APPARENTLY WAS DUE SOLELY TO THE NEGLIGENCE OF THE BIDDER, AND THE BID WAS ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH.

AS PREVIOUSLY NOTED, THE CLAIMANT CERTIFIED THE VOUCHER, SUPRA, AS BEING CORRECT AND ACCEPTED PAYMENT THEREON WITHOUT PROTEST. THE EXECUTION OF THE VOUCHER AND ACCEPTANCE OF PAYMENT THEREON WITHOUT PROTEST PRECLUDES CLAIMANT FROM RECEIVING ANY ADDITIONAL AMOUNT ON ACCOUNT OF THE ALLEGED MISTAKE. LOUISVILLE AND NASHVILLE RAILROAD COMPANY V. UNITED STATES, 267 U.S. 395; SOUTHERN PACIFIC COMPANY V. UNITED STATES, 268 U.S. 263; UNITED STATES V. READING COMPANY, 270 U.S. 320; EARLY AND DANIEL COMPANY V. UNITED STATES, 271 U.S. 140; 4 COMP. GEN. 404.