A-67416, FEBRUARY 28, 1936, 15 COMP. GEN. 744

A-67416: Feb 28, 1936

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CONTRACTS - MISTAKE IN BID - JURISDICTION OF GENERAL ACCOUNTING OFFICE WHERE A BIDDER ALLEGES A MISTAKE IN HIS BID THE QUESTION WHETHER THE BID MAY BE CHANGED OR WITHDRAWN AFTER THE TIME FIXED FOR OPENING IS FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE AND NOT BY ANY ADMINISTRATIVE OFFICER. THE PROCEDURE TO BE FOLLOWED IN SUCH CASES IS THAT OUTLINED IN DECISION OF FEBRUARY 2. IT APPEARS THAT THE CONTRACT WAS NOT AWARDED TO THE LOW BIDDER. FOR THE REASON THAT SAID BIDDER ALLEGED HIS BID WAS INCORRECT WHEN SUBMITTED. THIS BID WAS NOT FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR AN ADVANCED DECISION AS TO WHETHER IT COULD BE WITHDRAWN DUE TO THE FACT THAT THE EVIDENCE SUBMITTED CLEARLY INDICATED THE INABILITY OF THE BIDDER TO DELIVER AT THE PRICE QUOTED AND THE NEXT LOWEST BIDDER TO WHOM AWARD WAS MADE THEN BECAME THE LOW BIDDER.

A-67416, FEBRUARY 28, 1936, 15 COMP. GEN. 744

CONTRACTS - MISTAKE IN BID - JURISDICTION OF GENERAL ACCOUNTING OFFICE WHERE A BIDDER ALLEGES A MISTAKE IN HIS BID THE QUESTION WHETHER THE BID MAY BE CHANGED OR WITHDRAWN AFTER THE TIME FIXED FOR OPENING IS FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE AND NOT BY ANY ADMINISTRATIVE OFFICER, AND THE PROCEDURE TO BE FOLLOWED IN SUCH CASES IS THAT OUTLINED IN DECISION OF FEBRUARY 2, 1929, 8 COMP. GEN. 397.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, FEBRUARY 28, 1936:

THERE HAS COME TO MY ATTENTION CONTRACT NO. W 52 QM-726, DATED AUGUST 3, 1935, WITH THE PORT NEWARK LUMBER AND MATERIAL CO., COVERING THE PURCHASE OF LUMBER FOR THE WAR DEPARTMENT.

IT APPEARS THAT THE CONTRACT WAS NOT AWARDED TO THE LOW BIDDER, W. S. LONG, FOR THE REASON THAT SAID BIDDER ALLEGED HIS BID WAS INCORRECT WHEN SUBMITTED. IN RESPONSE TO A LETTER FROM THIS OFFICE REQUESTING INFORMATION RELATIVE TO THE PROCEDURE FOLLOWED IN THIS CASE, THE QUARTERMASTER, GOVERNORS ISLAND, N.Y., ADVISED IN SECOND INDORSEMENT OF OCTOBER 10, 1935, THAT---

1. ATTACHED HEREWITH ORIGINAL BID OF W. S. LONG ON PROPOSAL NO. 52 36-4 DATED AUGUST 1, 1935, AND LETTER, W. S. LONG DATED AUGUST 5, 1935.

2. THIS BID WAS NOT FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR AN ADVANCED DECISION AS TO WHETHER IT COULD BE WITHDRAWN DUE TO THE FACT THAT THE EVIDENCE SUBMITTED CLEARLY INDICATED THE INABILITY OF THE BIDDER TO DELIVER AT THE PRICE QUOTED AND THE NEXT LOWEST BIDDER TO WHOM AWARD WAS MADE THEN BECAME THE LOW BIDDER; THAT IT WAS BELIEVED THE EMERGENCY REQUIRING IMMEDIATE DELIVERY OF THIS LUMBER TO PINE CAMP WAS SUCH AS TO NECESSITATE IMMEDIATE DECISION AND ACTION BY THIS HEADQUARTERS; THAT CARS OF MATERIEL AND MILITARY IMPEDIMENTA WERE DUE TO ARRIVE AT PINE CAMP FOR THE FIRST ARMY MANEUVERS HELD THEREAT AND LACK OF UNLOADING RAMPS FOR WHICH THIS LUMBER WAS PURCHASED WOULD DELAY THE UNLOADING OF CARS.

3. IT WILL BE NOTED THAT THE EMERGENCY WAS SUCH AS TO NECESSITATE A 5-DAY ADVERTISING AND A SEVEN-DAY DELIVERY. IT IS BELIEVED THAT THIS EMERGENCY WAS NOT CREATED BUT AROSE IN SPITE OF DILIGENT AND CONCENTRATED PLANNING FOR THIS MOBILIZATION.

IT IS TO BE OBSERVED THAT THE MISTAKE IN BID WAS ALLEGED IN LETTER OF AUGUST 5, 1935, WHEREAS THE BID OF THE NEXT LOWEST BIDDER WAS ACCEPTED BY PURCHASE ORDER DATED AUGUST 3, 1935, AND THE FOLLOWING NOTATION APPEARS THEREON:

THIS PURCHASE ORDER CANCELS P.O. 14, DATED AUG. 3, 1935, TO W. S. LONG, NEW YORK CITY IN THE AMOUNT OF $950.79.

IN VIEW OF THE URGENT NEED FOR THE LUMBER, THE LOW BIDDER, W. S. LONG, SHOULD HAVE BEEN CALLED UPON TO DELIVER SAID LUMBER IN ACCORDANCE WITH HIS BID AND THE MATTER REFERRED TO THIS OFFICE FOR CONSIDERATION AND DETERMINATION AS TO THE ADJUSTMENT, IF ANY, TO BE MADE UNDER SAID BID. COMP. GEN. 397.

THE QUESTION AS TO WHETHER A BID MAY BE CHANGED OR WITHDRAWN AFTER THE TIME FIXED FOR OPENING DEPENDS NOT ALONE ON WHETHER THE BIDDER MADE A MISTAKE BUT ON THE APPLICATION OF CERTAIN LEGAL PRINCIPLES TO THE ESTABLISHED FACTS IN THE PARTICULAR CASE, AND SUCH QUESTIONS NECESSARILY ARE FOR DETERMINATION BY THIS OFFICE AS INVOLVING THE LEGALITY OF THE AMOUNT TO BE CHARGED AGAINST AN APPROPRIATION AND NOT BY ANY ADMINISTRATIVE OFFICER. IT MAY BE STATED THAT HAD THE AWARD BEEN MADE TO THE LOWEST BIDDER PRIOR TO NOTICE OF THE ALLEGED MISTAKE, THE FACTS ARE SUCH THAT NO RELIEF WOULD NOW BE GRANTED. CONSEQUENTLY, THE ERRONEOUS PROCEDURE FOLLOWED BY THE CONTRACTING OFFICER IN THIS CASE HAS RESULTED IN AN EXCESS COST TO THE GOVERNMENT OF $100.27.

WHILE NO FURTHER QUESTION WILL BE RAISED WITH RESPECT TO THE TRANSACTION HERE INVOLVED, THE PROPER ADMINISTRATIVE ACTION SHOULD BE TAKEN TO ADVISE THE CONTRACTING OFFICER AS TO THE PROPER PROCEDURE TO BE FOLLOWED IN SUCH MATTERS.