A-69254, FEBRUARY 28, 1936, 15 COMP. GEN. 746

A-69254: Feb 28, 1936

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CONTRACTS - MISTAKE IN BID WHERE FACTS AND CIRCUMSTANCES ARE SUCH AS TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE MISTAKE IN UNIT BID PRICE THE CONTRACTING OFFICER'S ACTION WITH REGARD TO AWARD SHOULD BE IN ACCORDANCE WITH THE PROCEDURE OUTLINED IN DECISION OF FEBRUARY 2. THE UNIT PRICES WILL GOVERN.'. IT WAS NOTED. THE UNIT PRICE FOR THIS ITEM WAS SET FORTH AS $2.30 PER CUBIC YARD. THE ONLY OTHER BID RECEIVED ON THIS ITEM WAS THAT OF THE BERRY COAL AND LUMBER COMPANY. THE UNIT PRICES WILL GOVERN. " AN AWARD WAS MADE TO BIDDER NO. 3 AT THE UNIT PRICE OF $2.30 PER CUBIC YARD. WAS ISSUED TO BIDDER NO. 3. A LETTER WAS RECEIVED IN THIS OFFICE CALLING ATTENTION TO THE ERROR CONTAINED IN THEIR BID.

A-69254, FEBRUARY 28, 1936, 15 COMP. GEN. 746

CONTRACTS - MISTAKE IN BID WHERE FACTS AND CIRCUMSTANCES ARE SUCH AS TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE MISTAKE IN UNIT BID PRICE THE CONTRACTING OFFICER'S ACTION WITH REGARD TO AWARD SHOULD BE IN ACCORDANCE WITH THE PROCEDURE OUTLINED IN DECISION OF FEBRUARY 2, 1929, 8 COMP. GEN. 397, NOTWITHSTANDING THE ADVERTISED SPECIFICATIONS PROVIDED THAT "IN CASE OF ERROR IN THE EXTENSION OF PRICES IN THE BID, THE UNIT PRICES WILL GOVERN.'

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

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 18, 1935, TOGETHER WITH THE INCLOSURES THEREIN REFERRED TO, SAID LETTER BEING AS FOLLOWS:

THE RESETTLEMENT PURCHASE SECTION OF THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, ISSUED UNDER DATE OF OCTOBER 29, 1935, INVITATIONS FOR BIDS ON ITEMS OF CONSTRUCTION MATERIAL TO BE OPENED AT 10:00 A.M., NOVEMBER 6, 1935.

IT WAS NOTED, UPON ABSTRACTING THE FOUR BIDS RECEIVED, THAT THE BID OF THE MIMS MATERIAL COMPANY, BIDDER NO. 3, CONTAINED AN ERROR IN ITS QUOTATION ON ITEM NO. 3. THE UNIT PRICE FOR THIS ITEM WAS SET FORTH AS $2.30 PER CUBIC YARD, FOR A TOTAL BID OF $254.10 ON 77 CUBIC YARDS. THE ONLY OTHER BID RECEIVED ON THIS ITEM WAS THAT OF THE BERRY COAL AND LUMBER COMPANY, BIDDER NO. 2, WHO QUOTED A UNIT PRICE OF $4.10 PER CUBIC YARD. HOWEVER, IN ACCORDANCE WITH THE "CONDITIONS" PRINTED ON THE REVERSE SIDE OF THE BID FORM WHEREIN THE LAST SENTENCE OF CONDITION NO. 1 ATES,"IN CASE OF ERROR IN THE EXTENSION OF PRICES IN THE BID, THE UNIT PRICES WILL GOVERN," AN AWARD WAS MADE TO BIDDER NO. 3 AT THE UNIT PRICE OF $2.30 PER CUBIC YARD, OR $177.10 FOR 77 CUBIC YARDS, AND A PURCHASE ORDER NUMBERED TRA-486, DATED NOVEMBER 7, 1935, WAS ISSUED TO BIDDER NO. 3, CONTAINING THIS ITEM AS ONE OF THREE ON THE ORDER.

UNDER DATE OF NOVEMBER 9, 1935, A LETTER WAS RECEIVED IN THIS OFFICE CALLING ATTENTION TO THE ERROR CONTAINED IN THEIR BID. THE FOLLOWING ARE EXCERPTS:

"WE FIND IN CHECKING OVER OUR BID THAT A TYPOGRAPHICAL ERROR IN THE UNIT PRICE OF SAND WAS MADE. IT SHOULD HAVE BEEN $3.30 PER CUBIC YARD.

"YOU WILL FIND THAT OUR EXTENSION FIGURED $3.30 PER CUBIC YARD.

"WE ARE HOLDING THE PURCHASE ORDER WAITING YOUR FURTHER INSTRUCTIONS.'

UPON RECEIPT OF THIS INFORMATION, THE CASE WAS REOPENED FOR FURTHER CONSIDERATION, AND PRIOR TO THE ARRIVAL OF A SETTLEMENT OR DEFINITE CONCLUSION REGARDING THE MATTER, A SECOND LETTER, DATED NOVEMBER 18, 1935, WAS RECEIVED FROM THE SAME COMPANY.

THE FOLLOWING ARE PERTINENT EXCERPTS FROM THE SECOND LETTER RECEIVED:

"REALIZING THAT SAND WILL BE AMONG THE FIRST ARTICLES YOU WILL NEED ON THIS PROJECT, WE ARE AGAIN REMINDING YOU THAT THERE WAS A TYPOGRAPHICAL ERROR IN OUR UNIT PRICE ON SAND.

"IF YOU CAN AWARD US THIS CONTRACT AT $3.30 PER CUBIC YARD, OR AT OUR EXTENSION OF $254.10, WE WILL BE MORE THAN GLAD TO MAKE EVERY EFFORT TO GET THIS SAND ON THE JOB AT THE TIME REQUIRED.'

THE REPLY OF THIS OFFICE, DATED NOVEMBER 21, 1935, TO THE TWO FOREGOING LETTERS CONTAINED INSTRUCTIONS AS PER THE FOLLOWING QUOTATION:

"UNDER THE CIRCUMSTANCES, WE ARE INSTRUCTING YOU TO MAKE SHIPMENT AS PROMPTLY AS POSSIBLE OF THE MATERIALS AS ORDERED ON THE ABOVE MENTIONED ORDER, AND TO DO YOUR PART TO ADJUST THE DIFFERENCE BY TAKING THE FOLLOWING ACTION: SECURE AN IDENTICAL COPY OF THE BID SUBMITTED BY YOU UNDER DATE OF NOVEMBER 1, 1935, AND CERTIFY WITH YOUR NOTARIZED SIGNATURE AS TO ITS CORRECTNESS. PREPARE A STATEMENT IN WHICH YOU EXPLAIN IN DETAIL THE MANNER IN WHICH THE ERROR WAS COMMITTED, AND REQUEST REIMBURSEMENT FOR THE DIFFERENCE IN PRICE BETWEEN THE FIGURE $2.30, ON WHICH THE AWARD WAS MADE AND YOUR "CORRECT" FIGURE OF $3.30, WHICH, IT IS SHOWN FROM YOUR EXTENSION PRICE, YOU INTENDED TO INSERT IN YOUR BID. FORWARD THESE PAPERS TO THIS OFFICE, WHERE THE MATTER WILL BE SUMMARIZED AND PRESENTED TO THE COMPTROLLER GENERAL WITH SUCH RECOMMENDATIONS AS THE CIRCUMSTANCES AND REGULATIONS UNDER WHICH THIS OFFICE FUNCTIONS MAY PERMIT.'

ATTACHED HEREWITH ARE THREE PAPERS RECEIVED FROM THE CLAIMANT IN REPLY TO OUR LETTER OF NOVEMBER 21, 1935, TO WIT:

1. NOTARIZED CERTIFICATION, DATED NOVEMBER 22, 1935, WITH REFERENCE TO CAUSE FOR ERROR IN BID.

2. LETTER DATED NOVEMBER 22, 1935, MENTIONING ENCLOSURES AND STATING THAT SHIPMENT OF MATERIALS WILL BEGIN AS OF THAT DATE.

3. COPY OF BID BEARING TWO IMPRINTS OF NOTARY SEAL AND SIGNATURE OF NOTARY PUBLIC.

IT IS THE BELIEF OF THIS OFFICE THAT THE STATEMENT OF THE CLAIMANT THAT THE ERROR SHOWN IN ITS BID OF $2.30 PER CUBIC YARD FOR ITEM NO. 3 WAS A TYPOGRAPHICAL ERROR IS A TRUE ONE, INASMUCH AS THE TOTAL PRICE OF $254.10 FOR THE FULL 77 CUBIC YARDS RESULTS IN A PRICE PER CUBIC YARD OF $3.30, AND ALSO, TAKING INTO CONSIDERATION THE AMOUNT QUOTED IN THE ONE OTHER BID RECEIVED ON THIS ITEM, $4.10, IT APPEARS DOUBLY TRUE.

THEREFORE, IT IS RESPECTFULLY REQUESTED THAT THE MIMS MATERIAL COMPANY BE ALLOWED THE DIFFERENCE BETWEEN THE ITEM AS AWARDED, 77 CUBIC YARDS OF WASHED SAND AT $2.30 PER CUBIC YARD, OR $177.10, AND THE ITEM AS QUOTED WITH AN ERRONEOUS UNIT PRICE BUT A CORRECT TOTAL FIGURE OF $254.10. THE DIFFERENCE INVOLVED IN THIS ADJUSTMENT IS EXACTLY $77.00.

WHILE ONE OF THE CONDITIONS OF THE BID FORM PROVIDED THAT IN CASE OF ERROR IN THE EXTENSION OF PRICES IN BID THE UNIT PRICES WILL GOVERN, THE FACTS AND CIRCUMSTANCES AS SET FORTH IN YOUR LETTER APPEAR CLEARLY TO SHOW THAT A MISTAKE WAS MADE IN THIS INSTANCE AND THAT THE MISTAKE WAS IN THE UNIT PRICE ITSELF--- THE TOTAL BEING AS INTENDED--- AND WAS OF SUCH A CHARACTER AS TO ENTITLE THE CONTRACTOR TO RELIEF TO THE EXTENT CLAIMED; THAT IS, TO PAYMENT FOR THE 77 CUBIC YARDS OF SAND AT $3.30 PER CUBIC YARD INSTEAD OF AT $2.30 PER CUBIC YARD.

THE FACTS AND CIRCUMSTANCES WERE SUCH AS TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE ERROR AND THE CONTRACTOR SHOULD HAVE BEEN ASKED TO VERIFY ITS BID PRIOR TO THE ACCEPTANCE THEREOF AND IF AN ERROR HAD BEEN THEN CLAIMED, AND, ASSUMING THE REQUIREMENTS OF THE UNITED STATES FOR THE SUPPLIES WOULD PERMIT OF THE DELAY, THE MATTER WOULD HAVE BEEN FOR SUBMISSION TO THIS OFFICE BEFORE ADMINISTRATIVE ACTION ON THE BID IN ACCORDANCE WITH THE PROCEDURE OUTLINED IN 8 COMP. GEN. 397. IN THIS CONNECTION, IT MAY BE SAID THAT IT DOES NOT APPEAR THAT THE CIRCUMSTANCES WERE SUCH THAT THE INTERESTS OF THE GOVERNMENT REQUIRED IMMEDIATE DELIVERY OF THE SAND, IT APPEARING THAT THE CONTRACTOR ALLEGED THE MISTAKE FIRST ON NOVEMBER 9, AND AGAIN ON NOVEMBER 18, AND AFTER THE ALLEGATION THAT AN ERROR HAD BEEN MADE IT WAS NOT UNTIL NOVEMBER 21, OR 12 DAYS AFTER THE ERROR WAS FIRST ALLEGED, THAT THE CONTRACTOR WAS DIRECTED TO MAKE SHIPMENT OF THE SAND AS PROMPTLY AS POSSIBLE.

HOWEVER, IF THE CONTRACTOR HAS DELIVERED THE SAND AND HAS NOT BEEN PAID THEREFOR, WHICH, HOWEVER, IS NOT SHOWN IN THE SUBMISSION, NO OBJECTION WILL BE MADE BY THIS OFFICE IN THIS INSTANCE TO THE CONTRACTOR'SBEING PAID FOR SAND DELIVERED UNDER AND IN ACCORDANCE WITH THE CONTRACT AT THE PRICE INTENDED TO BE BID THEREFORE, TO WIT, $3.30 PER CUBIC YARD. IF THE CONTRACTOR HAS BEEN PAID AT THE RATE OF $2.30 PER CUBIC YARD, A VOUCHER FOR THE ADDITIONAL AMOUNT CLAIMED SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT AS A CLAIM.