A-30991, APRIL 9, 1930, 9 COMP. GEN. 446

A-30991: Apr 9, 1930

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CONTRACTS - MISTAKE IN BID WHERE BIDS WERE REQUESTED FOR THE FURNISHING OF HARDWARE FOR BARRACK CHAIRS (SEAT BOLTS) AND AT THE TIME OF OPENING AND CONSIDERATION OF THE BIDS THERE WAS SUCH A DIFFERENCE IN THE AMOUNT OF THE BIDS AS TO INDICATE A POSSIBLE MISTAKE IN THE LOW BID. THE BIDDER ALLEGED MISTAKE BUT FURNISHED NO EVIDENCE TO ESTABLISH THE MISTAKE AND THE BID WAS ACCEPTED AND DELIVERY MADE. THERE IS NO AUTHORITY FOR PAYMENT OF ANY AMOUNT IN EXCESS THEREOF. IN ELECTING TO FOLLOW SUCH PROCEDURE THE CONTRACTOR REMOVED FROM CONSIDERATION THE QUESTION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES IT COULD HAVE BEEN PERMITTED TO WITHDRAW ITS BID. AMONG WHICH WAS ITEM 4. WAS ACCEPTED. BEFORE AWARD WAS MADE.

A-30991, APRIL 9, 1930, 9 COMP. GEN. 446

CONTRACTS - MISTAKE IN BID WHERE BIDS WERE REQUESTED FOR THE FURNISHING OF HARDWARE FOR BARRACK CHAIRS (SEAT BOLTS) AND AT THE TIME OF OPENING AND CONSIDERATION OF THE BIDS THERE WAS SUCH A DIFFERENCE IN THE AMOUNT OF THE BIDS AS TO INDICATE A POSSIBLE MISTAKE IN THE LOW BID, AND UPON BEING ASKED TO VERIFY ITS BID, THE BIDDER ALLEGED MISTAKE BUT FURNISHED NO EVIDENCE TO ESTABLISH THE MISTAKE AND THE BID WAS ACCEPTED AND DELIVERY MADE, PAYMENT THEREFOR BEING MADE AT THE BID PRICE, THERE IS NO AUTHORITY FOR PAYMENT OF ANY AMOUNT IN EXCESS THEREOF. THE FACT THAT THE CONTRACTOR ELECTED TO ACT ON THE DEPARTMENT'S INSTRUCTIONS TO MAKE DELIVERY OF THE SUPPLIES BID UPON AND TO PRESENT A CLAIM FOR ANY AMOUNT TO WHICH IT BELIEVED ITSELF ENTITLED IN ADDITION TO THE CONTRACT PRICE DOES NOT REQUIRE OR AUTHORIZE ALLOWANCE OF THE CLAIM. IN ELECTING TO FOLLOW SUCH PROCEDURE THE CONTRACTOR REMOVED FROM CONSIDERATION THE QUESTION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES IT COULD HAVE BEEN PERMITTED TO WITHDRAW ITS BID.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 9, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF THE NATIONAL SCREW AND MANUFACTURING COMPANY FOR BALANCE ALLEGED TO BE DUE FOR HARDWARE FOR BARRACK CHAIRS (BOLTS, SEAT) FURNISHED THE ARMY QUARTERMASTER DEPOT, PHILADELPHIA, PA., IN RESPONSE TO CIRCULAR ADVERTISEMENT 669-30-48, DATED JULY 26, 1929.

IT APPEARS THAT UNDER DATE OF JULY 26, 1929, THE PURCHASING AND CONTRACTING OFFICER, PHILADELPHIA QUARTERMASTER DEPOT, PHILADELPHIA, PA., ADVERTISED FOR BIDS TO BE OPENED AUGUST 12, 1929, FOR THE FURNISHING OF VARIOUS SUPPLIES TO BE DELIVERED AT SAID DEPOT, AMONG WHICH WAS ITEM 4, WHICH CALLED FOR "BOLTS, SEAT R.H. WITH NUTS AND WASHERS, 1/4 INCH BY 8 1/2 INCHES THREADED 1 1/2 INCHES.' THE NATIONAL SCREW AND MANUFACTURING COMPANY SUBMITTED A BID OF $5.44 PER THOUSAND LESS 2 PERCENT, 10 DAYS, WHICH, BEING THE LOWEST BID RECEIVED, WAS ACCEPTED. IT APPEARS THAT UPON THE OPENING AND CONSIDERATION OF BIDS BY THE PURCHASING BRANCH OF THE SAID DEPOT, AND BEFORE AWARD WAS MADE, IT WAS NOTED THAT THERE WAS SUCH A DIFFERENCE IN THE AMOUNT OF THE BIDS ON THE ITEM HERE IN QUESTION AS TO INDICATE THE POSSIBILITY OF ERROR IN THE BID OF THE SAID NATIONAL SCREW AND MANUFACTURING COMPANY ON SAID ITEM, AND UPON BEING ASKED TO VERIFY ITS BID THE SAID BIDDER STATED IN TELEGRAM OF AUGUST 13, 1929, THAT "PRICE SHOULD BE $6.50 THOUSAND NOT $5.44," BUT NO EVIDENCE WAS SUBMITTED TO ESTABLISH THE MISTAKE AND THE ONLY EXPLANATION WITH REFERENCE THERETO WAS IN A LETTER DATED NOVEMBER 12, 1929, AS FOLLOWS:

THE MISTAKE ON THIS MATERIAL WAS MADE BY OUR SALES DEPARTMENT ESTIMATING THE WEIGHT OF THE MATERIAL; THE PRICE WAS FIGURED ON A PER POUND BASIS; AND WHEN OUR ATTENTION WAS CALLED TO THE LOW PRICE BY LIEUTENANT COLONEL W. A. MCCAIN, CONTRACTING OFFICER, WE CAREFULLY CHECKED OUR FIGURES AND FOUND THE MISTAKE IN THE WEIGHT AND SUBMITTED THE CORRECTED PRICE AT $6.50 NET PER THOUSAND PIECES.

THE BID WAS ACCEPTED AND THE BIDDER WAS DIRECTED TO FURNISH THE SUPPLIES AT THE PRICE QUOTED IN HIS BID, $5.44 PER THOUSAND, LESS 2 PERCENT, 10 DAYS. THE BIDDER MADE DELIVERY ACCORDINGLY AND WAS PAID AT THE BID PRICE AND NOW CLAIMS AN ADDITIONAL SUM OF $35.41 ON ACCOUNT THEREOF.

IN FORWARDING THE CLAIM TO THE CHIEF OF FINANCE, THE QUARTERMASTER GENERAL OF THE ARMY STATED IN HIS FIRST INDORSEMENT OF AUGUST 28, 1929,THAT---

2. IN VIEW OF THE FACT THAT THE ORIGINAL BID OF $5.44 PER 1,000 BOLTS WAS ONLY SLIGHTLY INCREASED TO $6.50 WHEN VERIFICATION WAS REQUESTED, WHICH INCREASED PRICE IS NOT SUCH AS TO INDICATE A TRANSPOSITION OF FIGURES, MISPLACED DECIMAL POINT OR OTHER APPARENT ERROR IN THE ORIGINAL BID PRICE, IT IS BELIEVED THAT THE BIDDER PURPOSELY INTENDED TO QUOTE A LOW PRICE, AND IT IS RECOMMENDED THAT THE BIDDER BE HELD TO THE BID PRICE. * * *

ATTENTION IS INVITED, ALSO, TO THE FIFTEENTH INDORSEMENT OF THE QUARTERMASTER GENERAL DATED JANUARY 11, 1930, AS FOLLOWS:

1. THE PHILADELPHIA DEPOT IS NOT ALONE IN DESIRING TO DO JUSTICE TO BIDDERS AND CONTRACTORS; BUT WHEN, AFTER CONSIDERABLE CORRESPONDENCE, THE ONLY EXPLANATION GIVEN FOR THE ALLEGED ERROR IS THAT A MISTAKE WAS MADE IN COMPUTING THE WEIGHT OF THE METAL ENTERING INTO THE MAKE-UP OF THE 1/4 BY 8 1/2 INCH BOLTS, WHICH EXPLANATION APPARENTLY IS RIGHTLY DISCOUNTED BY THE PHILADELPHIA DEPOT, THERE IS LEFT FOR CONSIDERATION ONLY THE THOUGHT THAT THE CONTRACTOR BELIEVED HE WAS BIDDING ON ONE THING WHEN IN REALITY ANOTHER THING WAS REQUIRED.

2. GRANT THAT THIS WAS TRUE, THAT THE CONTRACTOR THOUGHT HE WAS BIDDING ON STOVE BOLTS INSTEAD OF CARRIAGE BOLTS, AS ALLEGED; IN THE THREE CATALOGUES CONSULTED BY THIS OFFICE THE PRICES OF STOVE BOLTS, EITHER FLAT OR ROUND HEAD ("R.H.'', ARE HIGHER THAN THOSE OF OVAL HEAD SQUARE SHOULDER "CARRIAGE" BOLTS, SUCH AS THE CONTRACTOR APPARENTLY WAS CALLED UPON TO FURNISH. THEREFORE, THE CONTRACTOR SEEMS TO HAVE GOTTEN OFF LIGHTER THAN IF HE HAD FURNISHED STOVE BOLTS.

IN CONSIDERING THE MATTER OF ALLEGED MISTAKE IN BIDS, I HAD OCCASION TO SAY, IN 8 COMP. GEN. 397, THAT THE MATTER OF SUBMITTING BIDS FOR THE ADVERTISED NEEDS OF THE GOVERNMENT IS NOT ONE FOR SUCH NEGLECTFUL TREATMENT BY BIDDERS AS TO FIND FREQUENT CAUSE FOR ATTEMPTED WITHDRAWALS ON ACCOUNT 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 OR INCREASE THE PRICE BY SIMPLY ALLEGING ERROR ON THEIR PART WHEN, AFTER OPENING THE BIDS, IT SHOULD BE REVEALED THAT THE PROFIT IS NOT ALL THAT IT MIGHT HAVE BEEN OR THAT THROUGH THE BIDDER'SCARELESSNESS A LOSS IS TO BE SUSTAINED.

IT WAS STATED BY MR. JUSTICE MCKENNA, IN DELIVERING THE OPINION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF MOFFETT, HODGKINS AND COMPANY V. ROCHESTER, 178 U.S. 373, 385, THAT---

THE PARTY ALLEGING THE MISTAKE MUST SHOW EXACTLY IN WHAT IT CONSISTS AND THE CORRECTION THAT SHOULD BE MADE. THE EVIDENCE MUST BE SUCH AS TO LEAVE NO REASONABLE DOUBT UPON THE MIND OF THE COURT AS TO EITHER OF THESE POINTS. THE MISTAKE MUST BE MUTUAL AND COMMON TO BOTH PARTIES OF THE INSTRUMENT. * * *

WHILE, AS PREVIOUSLY NOTED, THE CONTRACTOR, UPON BEING ASKED TO VERIFY HIS BID, ALLEGED A MISTAKE IN THE PRICES QUOTED, HOWEVER, THERE WAS NOT SUBMITTED PROMPTLY SUCH CONCLUSIVE PROOF AS TO LEAVE NO ROOM FOR DOUBT THAT A MISTAKE OCCURRED AND IN WHAT IT CONSISTS. SEE, IN THIS CONNECTION DECISION OF FEBRUARY 5, 1930, A-30312, 9 COMP. GEN. 339.

THE FACT THAT THE CONTRACTOR ELECTED TO ACT ON THE DEPARTMENT'S INSTRUCTIONS TO MAKE DELIVERY OF THE SUPPLIES AND AND TO PRESENT A CLAIM FOR ANY AMOUNT TO WHICH IT BELIEVED ITSELF ENTITLED IN ADDITION TO THE CONTRACT PRICE, DOES NOT REQUIRE OR AUTHORIZE ALLOWANCE OF THE CLAIM. ELECTING TO FOLLOW SUCH PROCEDURE, THE CONTRACTOR REMOVED FROM CONSIDERATION THE QUESTION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES IN THIS CASE IT COULD HAVE BEEN PERMITTED TO WITHDRAW ITS BID, THAT IS, HAVE BEEN RELIEVED FROM PERFORMANCE HAD IT SO REQUESTED. THE CONTRACTOR HAS BEEN PAID THE BID PRICE FOR THE SUPPLIES DELIVERED, AND THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION THERETO.

ACCORDINGLY, THE CLAIM FOR THE ADDITIONAL AMOUNT MUST BE AND IS DISALLOWED.