A-34556, DECEMBER 18, 1930, 10 COMP. GEN. 271

A-34556: Dec 18, 1930

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CONTRACTS - MISTAKE IN BID A BIDDER MAY NOT BE PERMITTED EITHER TO WITHDRAW OR REFORM HIS BID AFTER THE BIDS ARE OPENED. WHERE THE BID WAS AS INTENDED AND THE DIFFERENCE IN PRICE QUOTED BY SUCH BIDDER AND THE OTHER BIDDERS IS NOT SUCH AS TO MAKE IT UNCONSCIONABLE TO REQUIRE PERFORMANCE IN ACCORDANCE WITH THE BID. BIDS WERE OPENED AT 3 P.M. IS THE LOW BIDDER ON ITEMS 1. IS FIVE CENTS HIGHER PER DRESSER THAN LEARS AND SON. THUS CAUSING THEM TO LOSE THE EXTRA DISCOUNT WHICH THEY WOULD HAVE RECEIVED OTHERWISE. CO'S LETTER WAS RECEIVED. ARE ALL QUOTING ON THE SAME DRESSER. ARE SLIGHTLY HIGHER IN PRICE. THE HOSPITAL IS IN DOUBT AS TO WHETHER TO CANCEL THE BIDS OF THE APEX S. IT IS THEREFORE RESPECTFULLY REQUESTED THAT YOU TRANSMIT A COPY OF THIS LETTER TO THE GENERAL ACCOUNTING OFFICE.

A-34556, DECEMBER 18, 1930, 10 COMP. GEN. 271

CONTRACTS - MISTAKE IN BID A BIDDER MAY NOT BE PERMITTED EITHER TO WITHDRAW OR REFORM HIS BID AFTER THE BIDS ARE OPENED, WHERE THE BID WAS AS INTENDED AND THE DIFFERENCE IN PRICE QUOTED BY SUCH BIDDER AND THE OTHER BIDDERS IS NOT SUCH AS TO MAKE IT UNCONSCIONABLE TO REQUIRE PERFORMANCE IN ACCORDANCE WITH THE BID.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, DECEMBER 18, 1930:

THERE HAS BEEN RECEIVED YOUR INDORSEMENT OF DECEMBER 8, 1930, FORWARDING TO THIS OFFICE FOR DECISION A QUESTION PRESENTED IN LETTER DATED DECEMBER 6, 1930, FROM THE SUPERINTENDENT OF ST. ELIZABETHS HOSPITAL, AS FOLLOWS:

UNDER DATE OF NOVEMBER 13TH, THE HOSPITAL SENT OUT PROPOSALS INVITING BIDS ON 79 STEEL DRESSERS, TO BE FINISHED IN FIVE DIFFERENT COLORS. BIDS WERE OPENED AT 3 P.M., NOVEMBER 28TH, AS FOLLOWS:

TABLE

YELLOW WALNUT PARCH- BLUE PINK TIME

MENT DISC. APEX SERVICE AND EQUIP.

CO., NEW YORK CITY,

F.O.B. HOSPITAL ------- EA. $32.50 $32.50 $34.50 $34.50 $34.50 NET. DOEHLER FURNITURE CO.,

NEW YORK CITY,

"COMPLETE DELIVERY" - 34.62 32.75 36.00 36.00 36.00 2/10 LEARS AND SONS, BALTIMORE,

MD., F.O.B. HOSPITAL - 34.57 32.70 35.95 35.95 35.95 2/10 ENGLANDER SPRING BED O.,

NEW YORK CITY, F.O.B.

WASHINGTON, D.C. ------ 34.65 32.75 36.00 36.00 36.00 NET.

ANALYSIS OF THESE BIDS WOULD INDICATE THAT THE APEX SERVICE AND EQUIPMENT CO. IS THE LOW BIDDER ON ITEMS 1, 3, 4, AND 5. WHILE APPARENTLY LOW ON ITEM 2, TAKING THE TIME DISCOUNT INTO CONSIDERATION OFFERED BY LEARS AND SON, APEX S. AND E. CO. IS FIVE CENTS HIGHER PER DRESSER THAN LEARS AND SON.

BEFORE AN AWARD COULD BE MADE, THE HOSPITAL RECEIVED A LETTER FROM THE APEX S. AND E. CO., DATED DECEMBER FIRST (COPY ATTACHED HERETO), STATING THAT THEY HAD MADE AN ERROR IN THEIR BID IN ESTIMATING THE QUANTITY, THAT THIS SHIPMENT WOULD NOT MAKE A CARLOAD, THEREBY COSTING THEM MORE THAN THEY HAD ESTIMATED ON FOR FREIGHT, THUS CAUSING THEM TO LOSE THE EXTRA DISCOUNT WHICH THEY WOULD HAVE RECEIVED OTHERWISE. THEY RESPECTFULLY ASK TO BE RELEASED FROM THEIR BID OF NOVEMBER 28TH.

ANALYSIS OF THE ABOVE BIDS WOULD NOT SEEM TO DISCLOSE ANY MARKED DIFFERENCE WHICH WOULD PUT THE BIDS THEMSELVES ON NOTICE, AND SUGGEST THAT AN ERROR HAD BEEN MADE. THE HOSPITAL HAD MADE NO RECOMMENDATION OF AWARD AT THE TIME THE APEX S. AND E. CO'S LETTER WAS RECEIVED, HAVING FOUND IT NECESSARY TO SECURE ADDITIONAL INFORMATION IN REFERENCE TO SOME OF THE BIDS. THE DRESSERS OFFERED BY THE APEX S. AND E. CO. WOULD BE SATISFACTORY TO THE HOSPITAL, INASMUCH AS THE THREE LOWEST BIDDERS, APEX S. AND E. CO., LEARS AND SON, AND THE DOEHLER FURNITURE CO. ARE ALL QUOTING ON THE SAME DRESSER, MANUFACTURED BY THE DOEHLER FURNITURE CO. THE DOEHLER FURNITURE CO., HOWEVER, FROM WHOM THE APEX S. AND E. CO. WOULD BE COMPELLED TO PURCHASE THESE DRESSERS, ARE SLIGHTLY HIGHER IN PRICE.

THE HOSPITAL IS IN DOUBT AS TO WHETHER TO CANCEL THE BIDS OF THE APEX S. AND E. CO., AS THEY REQUEST, OR NOT. IT IS THEREFORE RESPECTFULLY REQUESTED THAT YOU TRANSMIT A COPY OF THIS LETTER TO THE GENERAL ACCOUNTING OFFICE, WITH THE REQUEST THAT THEY ADVISE THE HOSPITAL IF THIS BID IS TO BE CANCELLED, OR IF THE LOW BIDDER (APEX SERVICE AND EQUIPMENT CO.) IS TO BE NOTIFIED THAT HE MUST FURNISH THE DRESSERS.

THE STANDARD INSTRUCTIONS TO BIDDERS, APPROVED NOVEMBER 19, 1926, BY THE PRESIDENT FOR USE THROUGHOUT THE GOVERNMENT SERVICE, PROVIDED IN PARAGRAPHS 14 AND 19 AS FOLLOWS:

14. 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.

19. ERRORS IN BID.--- BIDDERS OR THEIR AUTHORIZED AGENTS ARE EXPECTED TO EXAMINE THE MAPS, DRAWINGS, SPECIFICATIONS, CIRCULARS, SCHEDULE, AND ALL OTHER INSTRUCTIONS PERTAINING TO THE WORK, WHICH WILL BE OPEN TO THEIR INSPECTION. FAILURE TO DO SO WILL BE AT THE BIDDER'S OWN RISK, AND HE CAN NOT SECURE RELIEF ON THE PLEA OF ERROR IN THE BID. IN CASE OF ERROR IN THE EXTENSION OF PRICES, THE UNIT PRICE WILL GOVERN.

AFTER THE BIDS WERE OPENED ON NOVEMBER 28, 1930, AND BY LETTER DATED DECEMBER 1, 1930, THE APEX SERVICE AND EQUIPMENT COMPANY STATED THAT:

UPON PERUSING OUR RECORDS, WE NOTE THAT AN ERROR WAS MADE IN OUR QUOTATION TO YOU, MAINLY THE COST OF SHIPPING. WHEN WE PURCHASE THE ABOVE LINE, WE RECEIVE A SPECIAL DISCOUNT IF THE QUANTITY INVOLVED CONSTITUTES A CARLOAD. THIS SHIPMENT WILL NOT MAKE A CARLOAD, THEREBY COSTING US ADDITIONAL FOR FREIGHT, AND LOSING THE EXTRA DISCOUNT WHICH WOULD HAVE BEEN RECEIVED OTHERWISE.

IT IS OUR INTENTION TO ADHERE STRICTLY TO YOUR RULES AND IF YOU CAN SEE YOUR WAY CLEAR TO ELIMINATE OUR BID FROM CONSIDERATION, IT WILL BE GREATLY APPRECIATED. WE ALSO WITH TO STATE THAT IF THIS CAN NOT BE DONE WE SHALL BE COMPELLED TO DELIVER SAME, THEREBY SUSTAINING A LOSS TO OUR DEPARTMENT.

THE TABULATION CONTAINED IN THE LETTER OF DECEMBER 6, 1930, OF THE PRICES QUOTED SHOWS A VERY SLIGHT DIFFERENCE IN PRICE BETWEEN THE PRICES QUOTED BY THE APEX SERVICE AND EQUIPMENT CO. AND THE PRICES QUOTED BY THE NEXT LOWEST BIDDER. WHILE THE SPECIFICATIONS AND BIDS WERE NOT SUBMITTED WITH THE REQUEST FOR DECISION, AS SHOULD HAVE BEEN DONE, IT APPEARS FROM THE LETTER OF DECEMBER 1, 1930, THAT NO MISTAKE WAS APPARENT ON THE FACE OF THE BID, OR FROM A COMPARISON WITH THE OTHER BIDS, AND THAT WHAT IS ALLEGED AS AN ERROR WAS MERELY THE FAILURE OF THE APEX SERVICE AND EQUIPMENT CO. PROPERLY TO ESTIMATE OR CONSIDER THE WEIGHT OF THE QUANTITY OF EQUIPMENT INVOLVED, SAID COMPANY ASSUMING THAT THE SHIPMENT WOULD TAKE THE CARLOAD RATE FROM THE PLANT OF THE MANUFACTURER OF THE EQUIPMENT, WHEREAS IT DISCOVERED LATER THAT LESS THAN CARLOAD RATES WOULD HAVE TO BE PAID ON THE SHIPMENT. IN OTHER WORDS, THE APEX SERVICE AND EQUIPMENT CO. SUBMITTED THE BID THAT IT INTENDED TO SUBMIT, AND THE ONLY ALLEGED ERROR IS THE FAILURE TO TAKE INTO CONSIDERATION THE DIFFERENCE BETWEEN THE LESS THAN CARLOAD AND CARLOAD FREIGHT RATE ON THE SHIPMENT IN REACHING SUCH INTENTION.

THIS IS NOT A SUFFICIENT GROUND FOR PERMITTING EITHER THE WITHDRAWAL OR REFORMATION OF THE BID, ESPECIALLY WHEN ALL THE BIDDERS WERE NOTIFIED IN ADVANCE THAT THEIR BIDS COULD NOT BE WITHDRAWN AFTER THE DATE FIXED FOR OPENING AND THAT THEY COULD NOT "SECURE RELIEF ON THE PLEA OF ERROR IN THE BID.'

ANSWERING THE QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THERE IS NO SUFFICIENT BASIS FOR PERMITTING EITHER THE WITHDRAWAL, DISREGARDING, OR REFORMATION OF THE PROPOSAL SUBMITTED BY THE APEX SERVICE AND EQUIPMENT CO. ..END :