A-35442, FEBRUARY 25, 1931, 10 COMP. GEN. 388

A-35442: Feb 25, 1931

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ADVERTISING - BIDS - MISTAKE - WITHDRAWAL WHERE BIDS WERE REQUESTED FOR THE FURNISHING OF SUPPLIES TO THE GOVERNMENT AND AT THE TIME OF CONSIDERATION OF THE BIDS. THERE WAS SUCH A DIFFERENCE IN PRICE AS TO INDICATE A POSSIBLE MISTAKE IN THE LOW BID AND UPON BEING ASKED TO VERIFY ITS BID THE BIDDER STATED THAT THE PRICES QUOTED WERE CORRECT AND THE AWARD WAS THEN MADE ON THE BASIS OF THE BID AS SUBMITTED. HE SHOULD BE ADVISED THAT PURCHASE WILL BE MADE IN THE OPEN MARKET OF SUPPLIES CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS AND THE DIFFERENCE BETWEEN THE BID PRICE AND THE PRICE THE GOVERNMENT MAY BE REQUIRED TO PAY FOR THE SUPPLIES WILL BE CHARGED AGAINST HIM. 1931: I HAVE YOUR FIRST INDORSEMENT OF FEBRUARY 14.

A-35442, FEBRUARY 25, 1931, 10 COMP. GEN. 388

ADVERTISING - BIDS - MISTAKE - WITHDRAWAL WHERE BIDS WERE REQUESTED FOR THE FURNISHING OF SUPPLIES TO THE GOVERNMENT AND AT THE TIME OF CONSIDERATION OF THE BIDS, THERE WAS SUCH A DIFFERENCE IN PRICE AS TO INDICATE A POSSIBLE MISTAKE IN THE LOW BID AND UPON BEING ASKED TO VERIFY ITS BID THE BIDDER STATED THAT THE PRICES QUOTED WERE CORRECT AND THE AWARD WAS THEN MADE ON THE BASIS OF THE BID AS SUBMITTED, THE BIDDER MAY NOT, THEREAFTER, BE ALLOWED TO WITHDRAW ITS BID ON THE GROUND OF ALLEGED MISTAKE MADE BY AN IRRESPONSIBLE EMPLOYEE. WHERE THE ACCEPTED BIDDER REFUSES TO DELIVER THE SUPPLIES, HE SHOULD BE ADVISED THAT PURCHASE WILL BE MADE IN THE OPEN MARKET OF SUPPLIES CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS AND THE DIFFERENCE BETWEEN THE BID PRICE AND THE PRICE THE GOVERNMENT MAY BE REQUIRED TO PAY FOR THE SUPPLIES WILL BE CHARGED AGAINST HIM.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, BUREAU OF NATIONAL HOMES, FEBRUARY 25, 1931:

I HAVE YOUR FIRST INDORSEMENT OF FEBRUARY 14, 1931, TRANSMITTING THE PAPERS IN CONNECTION WITH A CLAIM OF MISTAKE IN A BID FOR THE FURNISHING OF SUPPLIES TO THE BUREAU OF NATIONAL HOMES, NORTHWESTERN BRANCH, NATIONAL HOME, WIS., OPENING OF DECEMBER 9, 1930.

IT APPEARS THAT UNDER DATE OF NOVEMBER 24, 1930, THE TREASURER OF THE NORTHWESTERN BRANCH, BUREAU OF NATIONAL HOMES, NATIONAL HOME, WIS., ADVERTISED FOR BIDS FOR THE FURNISHING OF CERTAIN SUPPLIES, AMONG WHICH WAS ITEM 405, CALLING FOR A QUANTITY OF DENATURED ALCOHOL, AND ITEMS 410, 411, 412, 413, AND 415, FOR VARIOUS SIZES OF WINDOW GLASS. SIX BIDS WERE RECEIVED ON ITEM 405, RANGING IN PRICE FROM 42 CENTS PER GALLON TO 63 CENTS PER GALLON. THE BID OF THE GUST. BOBKE PAINT CO. OF 42 CENTS PER GALLON, BEING THE LOWEST BID RECEIVED, WAS ACCEPTED. EIGHT BIDS WERE RECEIVED ON ITEMS 410, 411, 412, 413, AND 415, AS FOLLOWS:

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

THE BID OF THE GUST. BOBKE PAINT CO., BEING THE LOWEST BID AS TO ALL ITEMS, WAS ACCEPTED. IT APPEARS THAT UPON THE OPENING AND CONSIDERATION OF THE BIDS BUT BEFORE AWARD, THE CONTRACTING OFFICER WAS OF THE OPINION THAT THE PRICES QUOTED BY SAID GUST. BOBKE PAINT CO. WERE TOO LOW AND ASKED THE BIDDER TO VERIFY ITS BID; THAT THE SAID BIDDER STATED THE PRICES AS QUOTED WERE CORRECT; THAT THEREUPON THE CONTRACT WAS AWARDED TO THE SAID LOW BIDDER; AND THAT THEREAFTER THE SAID BIDDER IN LETTER OF JANUARY 5, 1931, ADVISED AS FOLLOWS:

IN REGARD TO YOUR SPECIFICATION OF NOVEMBER 24, FOR PAINTS AND GLASS, WE ARE SORRY TO SAY THAT AN ERROR WAS MADE IN QUOTING ON THIS MATERIAL.

TO MORE FULLY EXPLAIN THIS, I MAY ADD THAT THE PARTY MAKING THIS QUOTATION IS NOT WITH US ANYMORE AND IS NOW ONE OF OUR COMPETITORS. YOU CAN READILY UNDERSTAND THAT WE ARE PLACED IN A RATHER PRECARIOUS POSITION. YOUR OFFICE PHONED TO VERIFY THE ORDER AND THE SAME PARTY VERIFIED THE PRICES ON THE SPECIFICATIONS. LATER WE EXAMINED THE SPECIFICATIONS AND AT ONCE BECAME SUSPICIOUS OF AN ERROR DUE TO THE PRICES BEING EXCEEDINGLY LOW. WE TRUST THAT YOU WILL DO ALL IN YOUR POWER TO CANCEL OUR QUOTATIONS ON THIS PARTICULAR INSTANCE AS THE LOSS WOULD CERTAINLY MEAN MUCH TO US.

FOLLOWING ARE THE ITEMS WE WOULD APPRECIATE HAVING CANCELED AT THE FOLLOWING PRICES:

CHART

COST

NO. 405 ALCOHOL, DENATURED, WOOD -------- AT .42 .60

410 1 BOX 14 BY 18 DSA -------------- 3.60 7.21

411 1 BOX 14 BY 28 DSA -------------- 4.36 8.83

412 1 BOX 16 BY 18 DSA -------------- 3.60 7.21

413 1 BOX 16 BY 28 DSA -------------- 4.36 8.83

415 1 BOX 20 BY 24 DSA -------------- 4.36 8.83

ALSO THE ALCOHOL SAME PARTY MISTOOK FOR DENATURED INSTEAD OF WOOD ALCOHOL AS THE SPECIFICATION CALLED FOR. WE HOPE THAT YOU WILL PARDON US IN THIS INSTANCE AND WE TRUST YOU WILL ADJUST THIS ERROR.

THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS, AS TO THE PROVISIONS OF WHICH ALL BIDDERS ARE ON NOTICE, IN PARAGRAPH 14, PROVIDES:

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.

IN CONSIDERING THE MATTER OF WITHDRAWAL OF BIDS ON ACCOUNT OF ALLEGED MISTAKE I HAD OCCASION TO SAY IN DECISION OF FEBRUARY 2, 1929, 8 COMP. GEN. 397, THAT THE MATTER OF SUBMITTING BIDS FOR ADVERTISED NEEDS OF THE UNITED STATES IS NOT ONE FOR SUCH NEGLECTFUL TREATMENT BY BIDDERS AS TO GIVE FREQUENT CAUSE FOR ATTEMPTED WITHDRAWALS ON THE GROUND OF ALLEGED ERROR. THE BUSINESS OF THE GOVERNMENT CAN NOT GO ORDERLY FORWARD IF BIDDERS BE ENCOURAGED OR PERMITTED TO SUBMIT INADEQUATELY CONSIDERED PROPOSALS WITH UNDERSTANDING THEY MAY WITHDRAW BY SIMPLY ALLEGING ERROR ON THEIR PART, WHEN, AFTER OPENING OF THE BIDS IT SHOULD BE REVEALED THAT THE PROFIT IS NOT ALL THAT IT MIGHT HAVE BEEN OR THAT, THROUGH BIDDER'S CARELESSNESS, A LOSS IS TO BE SUSTAINED.

WHILE AT THE TIME OF OPENING OF THE BIDS IN THIS CASE THERE WAS SOME DOUBT ON THE PART OF THE CONTRACTING OFFICER AS TO THE CORRECTNESS OF THE BID SUBMITTED BY GUST. BOBKE PAINT CO. BECAUSE IT WAS MUCH LOWER THAN THE OTHER BIDS RECEIVED, THE CONTRACTING OFFICER BROUGHT THE MATTER TO THE ATTENTION OF THE SAID BIDDER, WHEREUPON THE BID WAS VERIFIED. AFTER SUCH VERIFICATION THERE WAS NO OTHER COURSE FOR THE CONTRACTING OFFICER TO FOLLOW EXCEPT TO AWARD THE CONTRACT TO THE SAID BIDDER. THE BID WAS PLAIN AND IT WAS ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH, THUS MAKING A VALID AND BINDING CONTRACT. AND EVEN NOW THERE IS NO SHOWING OF MISTAKE, THAT IS, THAT THE BID WAS NOT AS INTENDED. IF THE CLAIMANT INTRUSTED TO AN IRRESPONSIBLE EMPLOYEE SUCH IMPORTANT MATTERS AS PREPARING ESTIMATES FOR BIDS ON GOVERNMENT CONTRACTS, HE MUST BEAR THE CONSEQUENCES THEREOF.

IN VIEW OF ALL THE FACTS OF RECORD IT MUST BE HELD THAT THERE IS NO AUTHORITY FOR PERMITTING GUST. BOBKE PAINT CO. TO WITHDRAW ITS BID. ACCORDINGLY, THE SAID BIDDER SHOULD BE CALLED UPON TO MAKE DELIVERY OF THE SUPPLIES AND ADVISED THAT IF DELIVERY THEREOF IS REFUSED, SUPPLIES CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS WILL BE PURCHASED IN OPEN MARKET AGAINST THE SAID DEFAULTING CONTRACTOR'S ACCOUNT AND THAT THE DIFFERENCE BETWEEN THE BID PRICE AND THE PRICE THE GOVERNMENT MAY BE REQUIRED TO PAY FOR THE SUPPLIES WILL BE CHARGED TO ITS ACCOUNT. SEE IN THIS CONNECTION DECISION OF MAY 7, 1929, 8 COMP. GEN. 588.