A-30312, FEBRUARY 5, 1930, 9 COMP. GEN. 339

A-30312: Feb 5, 1930

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THE EVIDENCE OF MISTAKE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE. REQUIRING THE IMMEDIATE PRESENTATION OF SUCH CONVINCING PROOF OF THE EXISTENCE AND CHARACTER OF THE ERROR AS TO LEAVE NO ROOM FOR DOUBT THAT THERE WAS IN FACT A BONA FIDE MISTAKE IN THE BID SOUGHT TO BE CORRECTED OR WITHDRAWN AND TO REMOVE ANY REASONABLE SUSPICION THAT THE CLAIM OF ERROR IS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR OF AVOIDING THE CONSEQUENCE OF AN ILL- ADVISED BID. 1931: I HAVE YOUR LETTER OF JANUARY 21. 419.34 IN ITS BID AND THAT THE BID SHOULD HAVE BEEN $838. THE BID WAS SUBMITTED ON STANDARD GOVERNMENT FORM OF BID WHICH BEARS A NOTE AS FOLLOWS: READ STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS BEFORE PREPARING THIS BID.

A-30312, FEBRUARY 5, 1930, 9 COMP. GEN. 339

CONTRACTS - MISTAKE IN BID - WITHDRAWAL - CORRECTION TO AUTHORIZE THE CORRECTION OR WITHDRAWAL OF A BID BEFORE ACCEPTANCE ON THE BASIS OF A MISTAKE ALLEGED AFTER THE OPENING OF BIDS, THE EVIDENCE OF MISTAKE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE, IN WHAT IT CONSISTS, AND HOW IT OCCURRED, REQUIRING THE IMMEDIATE PRESENTATION OF SUCH CONVINCING PROOF OF THE EXISTENCE AND CHARACTER OF THE ERROR AS TO LEAVE NO ROOM FOR DOUBT THAT THERE WAS IN FACT A BONA FIDE MISTAKE IN THE BID SOUGHT TO BE CORRECTED OR WITHDRAWN AND TO REMOVE ANY REASONABLE SUSPICION THAT THE CLAIM OF ERROR IS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR OF AVOIDING THE CONSEQUENCE OF AN ILL- ADVISED BID.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, FEBRUARY 5, 1931:

I HAVE YOUR LETTER OF JANUARY 21, 1930, REQUESTING DECISION WHETHER THE NATIONAL CONSTRUCTION COMPANY, INC., MAY BE PERMITTED TO WITHDRAW OR REFORM ITS BID OF $780,000 FOR THE GENERAL CONSTRUCTION WORK INVOLVED IN THE CONSTRUCTION OF CERTAIN BUILDINGS AND UTILITIES FOR THE UNITED STATES VETERANS' HOSPITAL AT LEXINGTON, KY., SAID COMPANY HAVING ALLEGED ON JANUARY 15, 1930, THE DAY AFTER THE OPENING OF THE BIDS, THAT IT HAD MADE AN ERROR OF $58,419.34 IN ITS BID AND THAT THE BID SHOULD HAVE BEEN $838,419.34 INSTEAD OF $780,000.

THE BID WAS SUBMITTED ON STANDARD GOVERNMENT FORM OF BID WHICH BEARS A NOTE AS FOLLOWS:

READ STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS BEFORE PREPARING THIS BID.

PARAGRAPH 14 OF THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS PROVIDES:

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.

AS THE BIDDER IN THIS INSTANCE DID NOT REQUEST WITHDRAWAL OF ITS BID PRIOR TO THE TIME FIXED FOR OPENING, THE QUESTION FOR CONSIDERATION IS WHETHER THERE HAS BEEN SHOWN SUCH A BONA FIDE MISTAKE IN THE PREPARATION OF THE BID AS WILL AUTHORIZE ITS WITHDRAWAL OR CORRECTION.

AS WAS SAID IN 8 COMP. GEN. 397, THE MATTER OF SUBMITTING BIDS FOR THE ADVERTISED NEEDS OF THE GOVERNMENT IS NOT ONE FOR SUCH NEGLECTFUL TREATMENT BY BIDDERS AS TO GIVE FREQUENT CAUSE FOR ATTEMPTED WITHDRAWALS ON THE GROUND OF ALLEGED ERROR, AS THE BUSINESS OF THE GOVERNMENT CAN NOT GO FORWARD IN AN ORDERLY MANNER IF BIDDERS ARE ENCOURAGED OR PERMITTED TO SUBMIT INADEQUATELY CONSIDERED PROPOSALS WITH THE UNDERSTANDING THAT THEY MAY WITHDRAW THEM BY SIMPLY ALLEGING ERROR ON THEIR PART WHEN, AFTER OPENING OF BIDS, IT SHOULD BE REVEALED THAT THE PROFIT IS NOT ALL THAT IT MIGHT HAVE BEEN, OR THAT, THROUGH THE BIDDER'S CARELESSNESS, A LOSS IS TO BE SUSTAINED.

AFTER BIDS ARE OPENED AND AN OPPORTUNITY HAD OF KNOWING THE AMOUNTS OF THE OTHER BIDS, WHEREBY THERE MIGHT ARISE A TEMPTATION TO REVISE A BID EITHER UPWARD OR DOWNWARD AS MIGHT BEST SERVE THE INTERESTS OF THE PARTICULAR BIDDER, THE PERMITTING OF ANY CHANGE IN A BID IS A MATTER FOR MOST SERIOUS CONSIDERATION. THIS SITUATION MAKES NECESSARY STRICT ADHERENCE TO THE WELL-ESTABLISHED RULE THAT IN ORDER TO AUTHORIZE THE CORRECTION OR WITHDRAWAL OF A BID BEFORE ACCEPTANCE, ON THE BASIS OF A MISTAKE ALLEGED AFTER THE OPENING OF BIDS, THE EVIDENCE OF MISTAKE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE, IN WHAT IT CONSISTS, AND HOW IT OCCURRED. THAT IS TO SAY, THERE SHOULD BE PRESENTED IMMEDIATELY SUCH CONVINCING PROOF OF THE EXISTENCE AND CHARACTER OF THE ERROR AS TO LEAVE NO ROOM FOR DOUBT THAT THERE WAS IN FACT A BONA FIDE MISTAKE IN THE BID AND TO REMOVE ANY REASONABLE SUSPICION THAT THE CLAIM OF ERROR IS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR OF AVOIDING THE CONSEQUENCE OF AN ILL-ADVISED BID.

IN THE CASE HERE PRESENTED, THERE WERE RECEIVED TWENTY-FOUR BIDS OTHER THAN THAT OF THE NATIONAL CONSTRUCTION COMPANY, INC., RANGING IN AMOUNT FROM $865,800 TO $1,035,000. THE BID AS SUBMITTED BY THE NATIONAL CONSTRUCTION COMPANY, INC., IS $85,800 LESS THAN THE NEXT LOWEST BID, AND, WITH THE CORRECTION OR CHANGE WHICH SAID COMPANY NOW ASKS PERMISSION TO MAKE, ITS BID WOULD BE $27,380.66 BELOW THAT OF THE NEXT LOWEST BID. OTHER WORDS, THIS BIDDER SEEKS TO ALTER ITS BID BY ADDING THERETO SUBSTANTIALLY TWO-THIRDS OF THE DIFFERENCE BETWEEN ITS BID AND THE NEXT HIGHER BID.

THE DIFFERENCE BETWEEN THE BID AS SUBMITTED AND AS PROPOSED TO BE CORRECTED IS SHOWN BY A TABULATION AS FOLLOWS:

TABLE

AS SUBMITTED AS CORRECTED DIFFERENCE EXCAVATION--------- $4,586.50 $4,910.50 $324.00 CONCRETE----------- 44,883.85 51,692.09 6,808.24 FORMS-- ------------ 33,376.23 41,409.83 8,033.40 ROADS, ETC--------- 28,000.00 40,000.00 12,000.00 MASONRY------------ 109,222.09 118,902.30 9,686.22 WATERPROOFING, ETC- 3,323.52 3,775.00 451.48 LATHING, ETC------- 44,835.00 52,000.00 7,165.00 CARPENTRY---------- 26,920.45 29,227.45 2,307.00 HARDWARE----------- 11,750.00 12,250.00 500.00 FIRE DOORS, ETC---- 57,457.38 59,057.38 1,600.00 PAINTING----------- 8,576.00 11,900.00 3,324.00 FINISHED FLOORS---- 14,800.00 15,295.00 495.00 OVERHEAD--- ------ - 30,150.00 35,875.00 5,725.00

TOTAL------------------------------------ 58,419.34

IN EXPLANATION OF THIS DIFFERENCE OF $58,419.34 IT IS ALLEGED, IN SUBSTANCE, THAT IN COMPILING THE BID AS SUBMITTED BUILDING NO. 5, ONE OF THE NUMEROUS ITEMS INCLUDED IN THE ADVERTISEMENT, WAS OMITTED IN ARRIVING AT THE TOTAL QUANTITY OF EXCAVATION, CONCRETE, FORMS, ETC. IT IS TO BE NOTED, HOWEVER, IN THIS CONNECTION, THAT THE ADVERTISEMENT DID NOT REQUIRE, NOR DID THE NATIONAL CONSTRUCTION COMPANY, INC., SUBMIT, AN ITEMIZATION OF THE COST ON WHICH THE BID OF $780,000 WAS BASED. THE EVIDENCE SUBMITTED TO SUPPORT THE CLAIM OF MISTAKE CONSISTS MERELY OF TWO SETS OF SUMMARY SHEETS ATTESTED BY AN AFFIDAVIT MADE BY THE PRESIDENT OF THE COMPANY. ONE SET OF THESE SUMMARY SHEETS PURPORTS TO BE THE ORIGINAL SET ON WHICH THE BID OF $780,000 WAS BASED AND SHOWS, BY TOTALS (NOT BY BUILDINGS OR UNITS OF THE WORK), THE MATERIAL AND LABOR COSTS UNDER THE VARIOUS ELEMENTS, SUCH AS EXCAVATION, CONCRETE, MASONRY, PAINTING, OVERHEAD, ETC. THE OTHER SET, MADE UP AFTER THE BIDS WERE OPENED, IS IN THE SAME FORM BUT WITH THE QUANTITIES AND AMOUNTS INCREASED AS TO 13 OF THE 20 ELEMENTS, THE INCREASE SAID TO BE TO COVER OMISSIONS WITH RESPECT TO BUILDING NO. 5, THERE BEING NOTHING, HOWEVER, IN THE TABULATION TO SHOW WHICH BUILDINGS OR UNITS OF THE WORK WERE OR WERE NOT CONSIDERED IN THE COMPUTATIONS.

I HAVE TO ADVISE THAT THE FACTS SUBMITTED ARE QUITE INSUFFICIENT TO WARRANT OR JUSTIFY THE CONCLUSION THAT THERE WAS SUCH A MISTAKE IN THE BID AS TO AUTHORIZE RELIEVING THE BIDDER FROM ITS OBLIGATION TO PERFORM IN ACCORDANCE THEREWITH.