A-54232, MARCH 13, 1934, 13 COMP. GEN. 238

A-54232: Mar 13, 1934

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CONTRACTS - CODES OF FAIR COMPETITION - MISTAKE IN BID A BIDDER MAY NOT SECURE RELIEF BY REASON OF ERROR ALLEGED AFTER THE BIDS HAVE BEEN OPENED. AFTER THE BIDS HAVE BEEN OPENED. TO THE EFFECT THAT ITS BID WOULD VIOLATE THE CODE OF ITS INDUSTRY IF AWARD IS TO BE MADE AT ITS BID PRICE IS NOT FOR CONSIDERATION BY THE CONTRACTING OFFICER. THE BIDDING IS NO RESPONSIBILITY OF THE CONTRACTING OFFICER AND IT IS NO PART OF HIS AUTHORITY OR RESPONSIBILITY TO DETERMINE WHETHER A BID AS MADE CONTRAVENES ANY CODE. IT IS HIS DUTY TO ACCEPT THE LOWEST RESPONSIBLE BID AND TO SEE THAT THE CONTRACT ENTERED INTO WITH SUCH LOW BIDDER CONTAINS THE APPLICABLE PROVISIONS RELATIVE TO CODE COMPLIANCE. 1934: I HAVE YOUR LETTER OF MARCH 6.

A-54232, MARCH 13, 1934, 13 COMP. GEN. 238

CONTRACTS - CODES OF FAIR COMPETITION - MISTAKE IN BID A BIDDER MAY NOT SECURE RELIEF BY REASON OF ERROR ALLEGED AFTER THE BIDS HAVE BEEN OPENED. A STATEMENT BY THE LOW BIDDER, AFTER THE BIDS HAVE BEEN OPENED, TO THE EFFECT THAT ITS BID WOULD VIOLATE THE CODE OF ITS INDUSTRY IF AWARD IS TO BE MADE AT ITS BID PRICE IS NOT FOR CONSIDERATION BY THE CONTRACTING OFFICER. THE BIDDING IS NO RESPONSIBILITY OF THE CONTRACTING OFFICER AND IT IS NO PART OF HIS AUTHORITY OR RESPONSIBILITY TO DETERMINE WHETHER A BID AS MADE CONTRAVENES ANY CODE. IT IS HIS DUTY TO ACCEPT THE LOWEST RESPONSIBLE BID AND TO SEE THAT THE CONTRACT ENTERED INTO WITH SUCH LOW BIDDER CONTAINS THE APPLICABLE PROVISIONS RELATIVE TO CODE COMPLIANCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MARCH 13, 1934:

I HAVE YOUR LETTER OF MARCH 6, 1934, AS FOLLOWS:

PURSUANT TO 11 COMP. GEN. 65, THERE ARE PRESENTED FOR CONSIDERATION THE FOLLOWING CIRCUMSTANCES RELATING TO BID RECEIVED BY THE MEDICAL DEPARTMENT OF THE ARMY FROM THE HOSPITAL SUPPLY COMPANY AND THE WATTERS LABORATORIES.

ON FEBRUARY 6, 1934, CIRCULAR ADVERTISEMENT NO. M-NY-34-34 WAS ISSUED BY THE PURCHASING AND CONTRACTING OFFICER, MEDICAL SECTION, NEW YORK GENERAL DEPOT, BROOKLYN, N.Y., INVITING PROPOSALS FOR CERTAIN SURGICAL INSTRUMENTS, AMONG WHICH WAS THE FOLLOWING ITEM:

6 EACH (31560) CYSTOSCOPES, 24F; WITH CONCAVE SHEATH AND EXTRA

CONVEX SHEATH (CONCAVE SHEATH TO BE THE 1922 MODEL); OBTURATOR;

COMBINED CATHETERIZING AND OPERATING TELESCOPE; REMOVABLE FIN,

EXAMINING TELESCOPE, TWO EXTRA LAMPS AND ACCESSORIES; WAPPLER'S

NO. 6124; OR EQUAL.

IN RESPONSE TO THIS CIRCULAR, THE FOLLOWING BIDS WERE RECEIVED ON THE ABOVE ITEM:

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

PRIOR TO MAKING THE AWARD THERE WAS RECEIVED FROM THE HOSPITAL SUPPLY CO. THEIR LETTER OF FEBRUARY 19, 1934, IN WHICH THEY STATED WITH REFERENCE TO THE ABOVE ITEM:

"WE FIND THAT DUE TO N.R.A. CODE REGULATIONS COVERING THIS ITEM, WE ARE NOT PERMITTED TO QUOTE UNDER LIST PRICES ON SAME, AND AS THE NET LIST PRICE FOR THIS ITEM IS $163.00 EACH, NET, NO DISCOUNT, WE WOULD REQUEST YOUR PERMISSION TO WITHDRAW OUR BID ON THIS LINE.'

IN THIS CONNECTION THERE IS NOTED THE FOLLOWING EXTRACT FROM LETTER OF THE COMPTROLLER GENERAL TO THE SECRETARY OF AGRICULTURE, NOV. 10, 1933 (A- 51737):

"* * * UNDER THE WELL-ESTABLISHED RULE THAT GENERAL WORDS IN A STATUTE DO NOT INCLUDE THE GOVERNMENT, THE MARKETING RULES, * * * WOULD APPEAR TO HAVE NO APPLICATION TO SALES TO THE FEDERAL GOVERNMENT. * * *"

THE FOLLOWING STATEMENT APPEARS IN PUBLISHED DECISION OF THE COMPTROLLER GENERAL, NOV. 29, 1933 (A-51636), QUOTING FROM THE SYLLABUS:

"A BID AS MADE IS THE RESPONSIBILITY OF THE BIDDER AND THE QUESTION OF WHETHER A BIDDER IN SUBMITTING ITS BID VIOLATED SOME CODE APPROVED PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 196, AND THEREBY BECAME SUBJECT TO THE FINE PRESCRIBED IN PARAGRAPH (F) OF SAID SECTION IS FOR JUDICIAL DETERMINATION AND NOT FOR CONSIDERATION BY THE PURCHASING OR CONTRACTING OFFICER IN THE AWARDING OF A CONTRACT.'

IN VIEW OF THE ABOVE, DECISION IS REQUESTED WHETHER THE HOSPITAL SUPPLY CO. MAY LEGALLY BE HELD TO THEIR BID ON THE ABOVE ITEM, OR WHETHER THEIR REQUEST TO WITHDRAW THE SAME MAY BE GRANTED.

THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS SPECIFICALLY NOTIFY ALL CONCERNED THAT ERRORS CONFER NO RIGHT TO WITHDRAWAL OF BIDS AFTER THEY HAVE BEEN OPENED AND THAT A BIDDER MAY NOT SECURE RELIEF BY REASON OF ERROR AFTER BIDS ARE OPENED. THE ONLY PROOF OR EXPLANATION IN SUPPORT OF THE ALLEGED ERROR IS THAT CONTAINED IN LETTER OF FEBRUARY 19, 1934, FROM THE HOSPITAL SUPPLY CO., AS FOLLOWS:

WE FIND THAT DUE TO N.R.A. CODE REGULATIONS COVERING THIS ITEM, WE ARE NOT PERMITTED TO QUOTE UNDER LIST PRICES ON SAME, AND AS THE NET LIST PRICE FOR THIS ITEM IS $163.00 EACH, NET, NO DISCOUNT, WE WOULD REQUEST YOUR PERMISSION TO WITHDRAW OUR BID ON THIS LINE.

THE STATEMENT OF THE SAID HOSPITAL SUPPLY CO. TO THE EFFECT THAT ITS BID WOULD VIOLATE THE CODE OF ITS INDUSTRY IF AWARD IS TO BE MADE AT ITS BID PRICE IS, OF COURSE, NOT FOR CONSIDERATION BY THE CONTRACTING OFFICER. SECTION 3709, REVISED STATUTES, REQUIRES PURCHASES ON BEHALF OF THE UNITED STATES TO BE MADE THROUGH COMPETITION WITH AWARD TO THE LOWEST RESPONSIBLE BIDDER. THE BIDDING IS NO RESPONSIBILITY OF THE CONTRACTING OFFICER AND IT IS NO PART OF HIS AUTHORITY OR RESPONSIBILITY TO DETERMINE WHETHER A BID AS MADE CONTRAVENES ANY CODE. IT IS HIS DUTY TO ACCEPT THE LOWEST RESPONSIBLE BID AND TO SEE THAT THE CONTRACT ENTERED INTO WITH SUCH LOW BIDDER CONTAINS THE APPLICABLE PROVISIONS RELATIVE TO CODE COMPLIANCE (SEE 13 COMP. GEN. 65, 67; ALSO, DECISIONS OF JAN. 22, 1934, A-53012, AND FEB. 21, 1934, A-53805.)

UPON THE BASIS OF THE FACTS NOW BEFORE THIS OFFICE, YOU ARE ADVISED THERE APPEARS NO AUTHORITY FOR PERMITTING WITHDRAWAL OF THE BID OR FOR RELIEVING THE BIDDER FROM THE CONSEQUENCE OF FAILING TO PERFORM IN ACCORDANCE THEREWITH.