A-75520, JUNE 3, 1936, 15 COMP. GEN. 1049

A-75520: Jun 3, 1936

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CONTRACTS - MISTAKES - BIDS - ERRORS IN ADDITION THERE IS NO AUTHORITY FOR THE GRANTING OF RELIEF TO A CONTRACTOR FOR ALLEGED MISTAKE IN BID. WHERE THE MISTAKE WAS NOT APPARENT UPON THE FACT OF THE BID. THE AMOUNT OF THE BID WAS NOT SUCH AS TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE THAT A MISTAKE HAD BEEN MADE. THE ALLEGED MISTAKE WAS NOT CALLED TO ATTENTION UNTIL AFTER OPENING OF THE BIDS. BIDS FOR THE CONSTRUCTION OF THE SUPER-STRUCTURE WERE OPENED ON MARCH 31. THREE BIDS WERE SUBMITTED AS FOLLOWS: S. 000 ALL BIDS WERE ACCOMPANIED BY PROPER SECURITY. THE ESTIMATE PREPARED BY THE ENGINEERS OF THE HOUSING DIVISION FOR THIS WORK WAS $1. THIS TELEGRAM WAS ACKNOWLEDGED BY THE HOUSING DIVISION.

A-75520, JUNE 3, 1936, 15 COMP. GEN. 1049

CONTRACTS - MISTAKES - BIDS - ERRORS IN ADDITION THERE IS NO AUTHORITY FOR THE GRANTING OF RELIEF TO A CONTRACTOR FOR ALLEGED MISTAKE IN BID, EITHER BY REFORMATION, RESCISSION, OR OTHERWISE, WHERE THE MISTAKE WAS NOT APPARENT UPON THE FACT OF THE BID, THE ERROR CONSISTED OF A MISTAKE IN ADDITION OF TABULATIONS ENTERING INTO THE BID EASILY DISCERNIBLE IF DUE DILIGENCE HAD BEEN EXERCISED BY THE CONTRACTOR, THE AMOUNT OF THE BID WAS NOT SUCH AS TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE THAT A MISTAKE HAD BEEN MADE, AND THE ALLEGED MISTAKE WAS NOT CALLED TO ATTENTION UNTIL AFTER OPENING OF THE BIDS.

COMPTROLLER GENERAL MCCARL TO THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS, JUNE 3, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 19, 1936, AS FOLLOWS:

IN CONNECTION WITH THE LOW COST HOUSING AND SLUM CLEARANCE PROJECT BEING CONSTRUCTED UNDER THE SUPERVISION OF THE HOUSING DIVISION OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS IN CHICAGO, ILLINOIS, KNOWN AS THE JANE ADDAMS HOUSES, PROJECT H-1405, BIDS FOR THE CONSTRUCTION OF THE SUPER-STRUCTURE WERE OPENED ON MARCH 31, 1936, AFTER HAVING BEEN DULY ADVERTISED. THREE BIDS WERE SUBMITTED AS FOLLOWS:

S. N. NIELSON COMPANY ----------------------------------- $1,349,000

HENRY ERICSSON COMPANY ---------------------------------- 1,522,000

R. C. WIEBOLDT COMPANY ---------------------------------- 1,577,000

ALL BIDS WERE ACCOMPANIED BY PROPER SECURITY, THE BID OF THE S. N. NIELSEN COMPANY BEING ACCOMPANIED BY A CERTIFIED CHECK IN THE AMOUNT OF $27,000. THE ESTIMATE PREPARED BY THE ENGINEERS OF THE HOUSING DIVISION FOR THIS WORK WAS $1,282,000. ON APRIL 1 THE S. N. NIELSEN COMPANY TELEGRAPHED THAT IT HAD DISCOVERED A GRIEVOUS ERROR ATTRIBUTABLE TO A MISTAKE IN COMPUTATION THAT AMOUNTED TO $140,000, AND REQUESTED PERMISSION TO WITHDRAW ITS BID. THIS TELEGRAM WAS ACKNOWLEDGED BY THE HOUSING DIVISION. ON APRIL 20 A FURTHER TELEGRAM WAS RECEIVED FROM THE S. N. NIELSEN COMPANY STATING THAT THE TELEGRAM WAS TO SERVE AS ITS FORMAL WITHDRAWAL OF THE BID SUBMITTED AND REQUESTING THE RETURN OF ITS CERTIFIED CHECK. THIS TELEGRAM WAS ANSWERED ON THE SAME DATE, ADVISING THE NIELSEN COMPANY THAT THE SPECIFICATIONS DID NOT PERMIT THE WITHDRAWAL OF BIDS AFTER OPENING. ON APRIL 25 A LETTER OF AWARD OVER THE SIGNATURE OF THE ADMINISTRATOR WAS SENT TO THE CONTRACTOR, ACCEPTING THE BID OF THE S. N. NIELSEN COMPANY WITH CERTAIN ALTERNATES WHICH REDUCED THE CONTRACT PRICE TO $1,334,650, THE ACCEPTANCE OF THE BID BEING SUBJECT TO THE FURNISHING OF SATISFACTORY PERFORMANCE AND PAYMENT BONDS AND EXECUTION OF A FORMAL CONTRACT. THE CONTRACT AND BOND FORMS WERE DISPATCHED WITH THIS LETTER.

ON MAY 5, THE NIELSEN COMPANY TELEGRAPHED ASKING THAT CONSENT BE GIVEN TO A FIVE OR TEN DAY EXTENSION TO THE TIME STATED IN THE SPECIFICATIONS FOR THE EXECUTION OF THE CONTRACT AND THE BONDS. THIS TELEGRAM WAS ANSWERED TO THE EFFECT THAT IF THE NIELSEN COMPANY WOULD WIRE ASSURANCE OF ITS INTENT TO SIGN THE CONTRACT, CONSIDERATION WOULD BE GIVEN TO ITS REQUEST; AND ON MAY 6 ANOTHER TELEGRAM WAS RECEIVED FROM THE NIELSEN COMPANY IN WHICH IT WAS STATED THAT THE INTENTION OF THE NIELSEN COMPANY TO SIGN THE CONTRACT WAS SINCERE AND THAT THE CONTRACT DOCUMENTS WOULD BE IN OUR OFFICE ON OR PRIOR TO MAY 15. IN REPLY TO THIS, THE COMPANY WAS ADVISED THAT IF THE EXECUTED CONTRACT AND BONDS WERE RECEIVED ON OR PRIOR TO MAY 15 NO QUESTION WOULD BE RAISED AS TO THE TIME OF RECEIPT OF DOCUMENTS.

THE "INSTRUCTIONS TO BIDDERS" CONTAINED IN THE SPECIFICATIONS STATE IN SECTION 19:

"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.'

SECTION 23 PROVIDES:

"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 CANNOT SECURE RELIEF ON THE PLEA OF ERROR IN THE BID.'

AS YOU WILL NOTE, THE BID OF THE NIELSEN COMPANY IS APPROXIMATELY 5 PERCENT IN EXCESS OF OUR ESTIMATE FOR THE WORK AND THERE IS NOTHING ON THE FACE OF THE BID WHICH WOULD INDICATE THAT THERE WAS ANY ERROR IN THE PRICE STATED. YOUR PUBLISHED OPINIONS HAVE UNIFORMLY HELD THAT A BIDDER CAN WITHDRAW AN OPENED BID BECAUSE OF MISTAKE ONLY "WHERE THERE IS CONCLUSIVE EVIDENCE OF A MUTUAL MISTAKE OR WHERE THERE IS A MISTAKE BY THE BIDDER THAT IS SO APPARENT THAT THE CONTRACTING OFFICER IS PRESUMED TO KNOW THAT THE BID IS NOT INTENDED.' (6 COMP. GEN. 786.) IN 6 COMP. GEN. 504, WHERE A PRICE OF $48 INSTEAD OF $84 WAS QUOTED BY THE BIDDER, AFTER COMMENTING ON THE FACT THAT THE MISTAKE OR NEGLIGENCE OF THE BIDDER WOULD NOT ENTITLE IT TO RELIEF, YOU STATED:

"THE LOW BID SHOULD HAVE BEEN ACCEPTED IMMEDIATELY AND THE CONTRACT AWARDED ACCORDINGLY.'

SEE ALSO 15 COMP. GEN. 233, 10 COMP. GEN. 271, AND 8 COMP. GEN. 588.

THERE IS A SPREAD OF $173,000 BETWEEN THE BID OF THE S. N. NIELSEN COMPANY AND THAT OF THE NEXT LOWEST BIDDER. HOWEVER, IN MY OPINION THIS DIFFERENCE IN A CONTRACT OF THE SIZE OF THE ONE NOW IN QUESTION IS NOT OF SUCH AN AMOUNT AS WOULD LEAD ME TO QUESTION THE BID AS BEING INACCURATE, PARTICULARLY IN VIEW OF THE FACT THAT IT WAS IN EXCESS OF OUR OWN ESTIMATE. IN THIS CONNECTION YOUR ATTENTION IS CALLED TO THE TABULATION OF BIDS FOR THE FOUNDATION WORK FOR THIS SAME PROJECT, WHERE THE BIDS RANGED FROM A LOW OF $104,890 TO A HIGH OF $174,600.

MR. NIELSEN, THE PRESIDENT OF THE S. N. NIELSEN COMPANY, PROTESTED THE AWARD OF THE CONTRACT TO HIS COMPANY.

ENCLOSED IS AN AFFIDAVIT WITH REFERENCE TO THE ERROR CLAIMED BY THE S. N. NIELSEN COMPANY, TOGETHER WITH THE SUMMARY SHEET AND SUBCONTRACTS IN SUPPORT OF THIS CLAIM OF ERROR. FROM THE NATURE OF THE MISTAKE ALLEGED IT IS APPARENT THAT THE GOVERNMENT HAS NO METHOD OF DISPROVING THE STATEMENTS MADE AS TO HOW THE MISTAKE OCCURRED, AND IN VIEW OF THE PAST REPUTATION OF THE OFFICIALS OF THE S. N. NIELSEN COMPANY THERE IS NOTHING TO INDICATE THAT THEIR STATEMENTS CANNOT BE ACCEPTED AS TRUE.

I HAVE JUST BEEN INFORMED THAT A RECENT UNPUBLISHED OPINION OF THE COMPTROLLER GENERAL PERMITTED THE WITHDRAWAL OR REVISION OF BIDS IN A CASE WHERE THE FACTS WERE SIMILAR TO THOSE HERE STATED. THE NIELSEN COMPANY HAS DEPOSITED WITH US A SIGNED CONTRACT FOR THE WORK CALLED FOR BY THE SPECIFICATIONS AT THE PRICE STATED IN THE BID AS ADJUSTED BY THE ACCEPTANCE OF THE SEVERAL ALTERNATES, TOGETHER WITH A PERFORMANCE AND A PAYMENT BOND AS REQUIRED, WITH THE UNDERSTANDING THAT WE WILL SUBMIT THE FACTS TO YOUR OFFICE AND UPON THE FURTHER UNDERSTANDING THAT IF IT IS YOUR OPINION THAT THE FACTS JUSTIFY THE WITHDRAWAL OF THE BID THAT THESE DOCUMENTS WILL BE RETURNED TO THE NIELSEN COMPANY, OTHERWISE IT WILL UNDERTAKE THE WORK IN ACCORDANCE WITH THE CONTRACT AS SIGNED BY IT.

FOR YOUR INFORMATION IT IS HIGHLY DESIRABLE THAT THE SUPERSTRUCTURE WORK FOLLOW IMMEDIATELY BEHIND THE FOUNDATION WORK, WHICH IS NOW WELL ALONG TOWARD COMPLETION, AND WE ARE RELUCTANT TO RECOMMEND THAT THE CONTRACTOR BE PERMITTED TO WITHDRAW A BID WHICH, FROM OUR ESTIMATES, WOULD ENABLE IT TO COMPLETE THE WORK WITHOUT LOSS. ON THE OTHER HAND, IT IS NOT OUR DESIRE TO FORCE THE CONTRACTOR TO ACCEPT A CONTRACT WHICH WOULD BE INEQUITABLE, EVEN THOUGH THE OCCASION OF THE INEQUITY WERE THE CONTRACTOR'S OWN MISTAKE.

I AM, THEREFORE, PRESENTING THE MATTER TO YOU, TOGETHER WITH THE PERTINENT DOCUMENTS, AND REQUEST YOUR RULING AS TO WHETHER, UPON THE FACTS PRESENTED, THE CONTRACTOR SHOULD BE RELIEVED OF ITS OBLIGATION TO PERFORM THE CONTRACT AT THE PRICE STATED IN ITS BID.

I DO NOT RECOMMEND THE REFORMATION OF THE CONTRACT TO PERMIT AN INCREASE IN THE CONTRACT PRICE BY $140,000.

ON APRIL 1, 1936, AFTER THE BIDS WERE OPENED ON MARCH 31, 1936, AND THE BIDS OF OTHER BIDDERS MADE PUBLIC, THE S. N. NIELSON COMPANY SENT A TELEGRAM ADDRESSED TO THE DIRECTOR OF HOUSING, AS FOLLOWS:

REFERENCE OUR BID DATED MARCH THIRTIETH FOR CONSTRUCTION SUPERSTRUCTURE FOR JANE ADDAMS HOUSES STOP UPON RECHECKING BID WE DISCOVER A GREVIOUS ERROR ATTRIBUTABLE TO MISTAKE IN COMPILATION THAT AMOUNTS TO ONE HUNDRED FORTY THOUSAND STOP OUR RECORDS ARE AVAILABLE FOR TAKEOFF OF JOB THAT WILL CONFIRM ERROR STOP UNDER THE CIRCUMSTANCES WE RESPECTFULLY REQUEST PERMISSION TO WITHDRAW OUR BID AND ASK YOUR FAVORABLE CONSIDERATION.

ON APRIL 20, 1936, THE S. N. NIELSON CO. SENT ANOTHER TELEGRAM TO THE DIRECTOR OF HOUSING AS FOLLOWS:

WE ARE UNOFFICIALLY INFORMED THAT CONTRACT FOR THE SUPERSTRUCTURE FOR THE JANE ADDAMS HOUSES, CHICAGO, ILLINOIS, IS IN THE PROCESS OF BEING AWARDED TO US, DESPITE OUR APPEAL AND NOTICE CONTAINED IN TELEGRAM SENT YOU DATED APRIL FIRST STOP IN ORDER NOT TO CAUSE YOUR DEPARTMENT ANY FURTHER UNNECESSARY DELAYS WE WANT YOU TO KNOW THAT IT WILL BE ABSOLUTELY IMPOSSIBLE FOR US TO PROCEED WITH THE WORK IN VIEW OF THE GRIEVOUS ERROR CONTAINED IN OUR BID STOP WE THEREFORE RESPECTFULLY REQUEST THAT YOU CONSIDER THIS OUR FORMAL WITHDRAWAL OF BID SUBMITTED MARCH THIRTIETH STOP WE FURTHER RESPECTFULLY REQUEST IN VIEW OF THE ERROR THAT WE BE DIRECTED TO THE PROPER AUTHORITIES CONCERNING THE RELEASE OF OUR CERTIFIED CHECK SO THAT PROPER PROCEDURE CAN BE ARRANGED FOR.

ON MAY 6, 1936, THE S. N. NIELSEN CO. TELEGRAPHED THE DIRECTOR OF HOUSING AS FOLLOWS:

OUR INTENTION TO SIGN CONTRACT IS SINCERE STOP WILL HAVE CONTRACT DOCUMENTS IN YOUR OFFICE ON OR PRIOR TO MAY FIFTEENTH; KINDLY EXTEND TIME ACCORDINGLY.

THE BID OF THE S. N. NIELSEN CO. IS SUBSCRIBED BY ELKER R. NIELSEN,SECRETARY OF THE COMPANY, WHO ALSO SUBSCRIBED THE STATEMENT OF THE CONTRACTOR'S QUALIFICATIONS TO PERFORM THE WORK BID UPON. SUBJECT TO CERTAIN ADDITIONS AND SUBTRACTIONS NOT MATERIAL HERE, THE BID SIGNED BY THE SAID ELKER R. NIELSON WAS IN A LUMP SUM, AS FOLLOWS:

BASE BID.--- CONSTRUCTION OF THE PROJECT COMPLETE AND READY FOR OCCUPANCY, FOR THE CONSIDERATION OF ONE MILLION THREE HUNDRED FORTY NINE THOUSAND DOLLARS ($1,349,000.00).

THE SWORN STATEMENT OF CONTRACTOR'S QUALIFICATIONS AVERS THE S. N. NIELSEN CO. WAS ORGANIZED AND INCORPORATED IN 1894 IN THE STATE OF ILLINOIS AND HAS BEEN ENGAGED IN THE CONTRACTING BUSINESS UNDER THE PRESENT FIRM NAME FOR 42 YEARS.

IN A SWORN STATEMENT OF MAY 12, 1936, THE SAID ELKER R. NIELSEN AVERRED, AS FOLLOWS:

E. R. NIELSEN, BEING FIRST DULY SWORN, UNDER OATH DEPOSES AND STATES THAT HE IS THE SECRETARY OF THE S. N. NIELSEN COMPANY, OF CHICAGO, ILLINOIS, AND HE PERSONALLY HANDLED THE COMPILATION OF BIDS FOR THE CONSTRUCTION OF THE SUPERSTRUCTURE OF THE JANE ADDAMS HOUSES, PROJECT NO. H-1405, FOR THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, UNITED STATES GOVERNMENT, AND FURTHER DEPOSES AND STATES THAT THE ATTACHED DETAILED SUMMARY OF ALL SUBCONTRACTORS' BIDS, IS THE ORIGINAL SUMMARY USED PRIOR TO SUBMITTING BID AND THAT ALL FIGURES AND QUOTATIONS THEREIN ARE THE CORRECT FIGURES AND HAVE NOT BEEN ALTERED OR CHANGED IN ANY MANNER.

DEPONENT FURTHER STATES THAT THE ATTACHED BIDS ARE THE ORIGINAL BIDS SUBMITTED BY SUBCONTRACTORS FOR THE JANE ADDAMS HOUSES PROJECT, AND ALL MARKINGS AND NOTATIONS SHOWN ON SAME WERE THE ORIGINAL QUOTATIONS USED IN THE COMPILATION OF THE BID.

DEPONENT FURTHER STATES THAT THE ERRORS OF (1) $50,000.00 OCCASIONED BY THE TABULATION OF THE ELECTRICAL WIRING BID, AND (2) $90,000.00OCCASIONED BY THE TABULATION OF THE ITEM FOR SUPERVISION, OVERHEAD, AND PROFIT, AND MORE CLEARLY SET OUT IN DEPONENT'S LETTER ATTACHED TO THIS FILE, ARE TRUE AND CORRECT AND BOTH ERRORS AS STATED OCCURRED IN THE MANNER AS SET FORTH. FURTHER DEPONENT SAITH NOT.

SAID "DEPONENT'S LETTER" OF MAY 12, 1936, THE FACTS AND STATEMENTS OF WHICH ALSO WERE MADE UNDER OATH, INSOFAR AS MATERIAL, IS AS FOLLOWS:

ON MAY 1ST, 1936, WE RECEIVED FORMAL NOTICE OF YOUR ACCEPTANCE OF OUR BID AND WE HEREBY PROTEST THE AWARD OF THIS CONTRACT AND BEG TO SUBMIT THE FOLLOWING DATA WHICH WE FEEL SHOULD JUSTIFY YOU IN PERMITTING US TO WITHDRAW OUR BID WITHOUT PENALTY. WE CANNOT HELP BUT FEEL THAT WE ARE BEING FORCED INTO SIGNING A MOST INEQUITABLE CONTRACT, WHICH IS BORNE OUT BY OUR ESTIMATING DATA, AND FOR THE REASON ALONE WE RESPECTFULLY REQUEST THAT YOU SUBMIT THIS PROTEST TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR A RULING ON WHETHER OR NOT WE ARE OBLIGED TO REMAIN BOUND TO OUR BID, IN VIEW OF THE LATENT ERRORS APPARENT IN THE RECORD.

THE ERROR OF $140,000 REFERRED TO WAS ATTRIBUTABLE SOLELY TO ADDITION. OUR SUBCONTRACTOR'S QUOTATION FOR ELECTRICAL WIRING AND UNDERGROUND WORK WAS $55,000, BUT IN TABULATING THIS FIGURE, ALONG WITH THE SUBCONTRACTOR'S FIGURES ON OTHER WORK, THIS SUM WAS TABULATED AS $5,000. OUR DETAILED SUMMARY CARRIED $100,000 FOR SUPERVISION, OVERHEAD, AND PROFIT, AND IN THE TABULATION OF THIS AMOUNT, ALONG WITH OTHER QUOTATIONS, THE $10,000 KEY ON THE ADDING MACHINE WAS INADVERTENTLY USED--- THUS MAKING A GROSS ERROR OF $90,000.

WE ATTACH HERETO A COMPLETE SET OF ALL ORIGINAL SUBCONTRACTOR'S BIDS, TOGETHER WITH OUR ORIGINAL DETAILED SUMMARY OF SAID BIDS, DULY CERTIFIED AND SWORN TO BY MR. E. R. NIELSEN, SECRETARY OF THE S. N. NIELSEN COMPANY, WHO PERSONALLY HANDLED THE COMPILATION OF THE BID, WHICH CLEARLY SHOW BEYOND ANY DOUBT THAT THE ERRORS INVOLVED IN AFFORDING YOU A BID ON THIS PROJECT WERE ATTRIBUTABLE TO ADDITION AND NOT A CHANGE IN PRICE ON QUOTATIONS. A REVIEW OF THE SUBCONTRACTOR'S QUOTATIONS, IN COMPARISON WITH THE BID WE USED IN OUR DETAILED SUMMARY, CLEARLY INDICATES THAT WE HAVE USED THE LOWEST REASONABLE QUOTATION FOR THE PURPOSE OF AFFORDING THE GOVERNMENT A FAIR BID FOR THIS PROJECT. WE DO NOT BELIEVE THE GOVERNMENT HAS ANY DESIRE TO TAKE ADVANTAGE OF AN ERROR BY A CONTRACTOR WHEN SUCH ERROR CAN BE EASILY SUBSTANTIATED BY ORIGINAL RECORDS. THE FORFEITURE OF OUR BID DEPOSIT OF $27,000 AND SUBSEQUENT ATTACHING LIABILITY WOULD BE SECONDARY TO THE HUMILIATING POSITION OF OUR BEING PLACED IN DEFAULT BY NOT SIGNING, AND FOR THAT REASON ONLY ARE WE PREPARED TO UNDERWRITE OUR LOSS IF YOU MAKE IT MANDATORY.

WE FEEL THAT IN FAIRNESS TO ALL THE GOVERNMENT SHOULD PERMIT US TO WITHDRAW OUR BID. EVIDENTLY WHAT IS SOUGHT HERE EITHER IS A REFORMATION OF THE BID AND OF THE CONTRACT WHICH HAVE BEEN SIGNED BY THE S. N. NIELSEN CO. OR A CANCELATION AND RESCISSION OF THE CONTRACT IT HAS SIGNED, DISREGARD OF ITS BID, AND REPAYMENT OF THE BID BOND OR DEPOSIT MADE BY SAID COMPANY.

IT IS NOT SHOWN THAT ANY GOVERNMENT OFFICER HAD ANY KNOWLEDGE OR WAS ON NOTICE OF ANY MISTAKE, AS ALLEGED, PRIOR TO THE OPENING OF THE BIDS. AN ERROR OCCURRED, IT IS ADMITTED THE SAME WAS A LATENT ERROR AS TO ITEMS WHICH A MERE SUPERFICIAL SCANNING OF THE TABULATIONS IN THE OFFICES OF THE COMPANY SHOULD HAVE BROUGHT TO ATTENTION. THESE TABULATIONS WERE NOT KNOWN TO ANY OFFICER OF THE GOVERNMENT, AND INASMUCH AS THE BASE BID ($1,349,000) OF THE NIELSEN CO. WAS $67,000 IN EXCESS OF THE ESTIMATE ($1,282,000) MADE BY ENGINEERS OF THE HOUSING DIVISION FOR THE WORK THERE WAS NO REASON FOR ANYONE EVEN TO SUSPECT ANY ERROR HAD BEEN MADE IN THE BID. NEITHER IS THERE ANY PROPER BASIS FOR SUPPOSING THAT THE NIELSEN CO. WILL NOT MAKE A SUBSTANTIAL PROFIT IN PERFORMING THE CONTRACT IN ACCORDANCE WITH THE CONTRACT IT HAS SIGNED. CERTAINLY THERE IS NO EVIDENCE OR INFORMATION WHICH WOULD JUSTIFY AN ASSUMPTION THAT IT WILL LOSE MONEY IF THE CONTRACT IT HAS SIGNED IS PERFORMED IN THE EFFICIENT AND EXPEDITIOUS MANNER OF WHICH A COMPANY WITH ITS EXPERIENCE SHOULD BE CAPABLE, AND THERE IS A REASONABLE BASIS TO SUPPOSE THAT ON THE BASIC BID WHICH IT MADE AND THE PRICE NAMED IN THE CONTRACT IT HAS SIGNED A PROFIT CAN BE MADE OF NOT LESS THAN $67,000.

ON THIS RECORD APPEARING, THERE IS NO LEGAL BASIS FOR GRANTING ANY RELIEF AND THERE IS NO AUTHORITY IN THE ADMINISTRATIVE OFFICE OR IN THIS OFFICE TO REFORM THIS BID AND CONTRACT OR TO CANCEL THE CONTRACT AND REFUND THE DEPOSIT. 6 COMP. GEN. 504 (CITING 21 OP.ATTY.GEN. 56, 186); ID. 626; 9 ID. 329; 11 ID. 476; 14 ID. 78; ID. 612; COMP. GEN. MSS. DECISION A- 38782, NOVEMBER 21, 1931; ID. A-44359, OCTOBER 20, 1932; ID. A-49188, JUNE 17, 1933; ID. A-52155, NOVEMBER 24, 1933; ID. A 53120, SEPTEMBER 12, 1934; ID. A-58932, DECEMBER 1, 1934.

THE REFORMATION OF WRITTEN CONTRACTS FOR FRAUD OR MISTAKE IS AN ORDINARY HEAD OF EQUITY JURISDICTION. HEARNE V. MARINE INSURANCE CO; 20 WALL. 488, 490. BUT A BIDDER CANNOT BE RELIEVED BECAUSE OF A MISTAKE IN THE AMOUNT OF HIS BID WHERE SUCH MISTAKE WAS CAUSED BY HIS OWN CARELESSNESS OR INATTENTION TO DETAILS, AND THE MISTAKE IS NOT SO GROSS AS WOULD JUSTIFY A COURT IN SAYING, AS A MATTER OF LAW, THAT THE ACCEPTOR OF THE BID WAS PUT UPON NOTICE THAT A MISTAKE HAD BEEN MADE. LEONARD V. HOWARD, 67 OR. 203, 135 PAC. 549.

IN A SUBSTANTIALLY SIMILAR CASE, ARISING IN ILLINOIS, WHERE THE NIELSEN CO. IS INCORPORATED, IT WAS HELD THAT A MISTAKE IN ADDING A COLUMN OF FIGURES REPRESENTING THE EXTENSION OF ITEMS FOR THE FURNISHING OF WHICH A PRICE HAS BEEN ASKED, THE RESULT OF WHICH IS ADOPTED AS THE BASIS OF A BID FOR THE CONTRACT OF FURNISHING THE MATERIAL, CANNOT, AFTER ACCEPTANCE OF THE BID, BE MADE THE BASIS OF A SUIT IN EQUITY TO CANCEL THE CONTRACT. STEINMEYER ET AL. V. SHCROEPPEL, 226 ILL. 9, 80 N.E. 564, 10 L.R.A. (N.S.) 114. IN THAT CASE THE COURT SAID:

A MISTAKE WHICH WILL JUSTIFY RELIEF IN EQUITY MUST AFFECT THE SUBSTANCE OF THE CONTRACT, AND NOT A MERE INCIDENT OR THE INDUCEMENT FOR ENTERING INTO IT. THE MISTAKE OF THE APPELLANTS DID NOT RELATE TO THE SUBJECT- MATTER OF THE CONTRACT, ITS LOCATION, IDENTITY, OR AMOUNT, AND THERE WAS NEITHER BELIEF IN THE EXISTENCE OF A FACT WHICH DID NOT EXIST, NOT IGNORANCE OF ANY FACT MATERIAL TO THE CONTRACT WHICH DID EXIST. THE CONTRACT WAS EXACTLY WHAT EACH PARTY UNDERSTOOD IT TO BE, AND IT EXPRESSED WHAT WAS INTENDED BY EACH. IF IT CAN BE SET ASIDE ON ACCOUNT OF THE ERROR IN ADDING UP THE AMOUNTS REPRESENTING THE SELLING PRICE, IT WOULD BE SET ASIDE FOR A MISTAKE IN COMPUTING THE PERCENTAGE OF PROFITS WHICH APPELLANTS INTENDED TO MAKE, OR ON ACCOUNT OF A MISTAKE IN THE COST OF LUMBER TO THEM, OR ANY OTHER MISCALCULATION ON THEIR PART. IF EQUITY WOULD RELIEVE ON ACCOUNT OF SUCH A MISTAKE, THERE WOULD BE NO STABILITY IN CONTRACTS; AND WE THINK THE APPELLATE COURT WAS RIGHT IN INCLUDING THAT THE MISTAKE WAS NOT OF SUCH A CHARACTER AS TO ENTITLE THE APPELLANTS TO THE RELIEF PRAYED FOR.

IN CRILLY V. BOARD OF EDUCATION, 54 ILL.APP. 371, WHERE ONE WHO HAD SUBMITTED A PROPOSAL FOR THE ERECTION OF A BUILDING SOUGHT IN EQUITY TO CORRECT HIS BID AND SECURE THE RETURN OF A DEPOSIT ACCOMPANYING THE SAME, ON THE GROUND THAT, BY A CLERICAL MISTAKE, HIS BID WAS $3,000 LESS THAN HE INTENDED IT TO BE, IT WAS HELD THAT THE RELIEF WOULD NOT BE GRANTED, AS THE COMPLAINANT, IF A MISTAKE HAD BEEN MADE, MIGHT EASILY HAVE AVOIDED THE ERROR BY THE EXERCISE OF ORDINARY CARE AND DILIGENCE; AND THEREFORE THE MISTAKE WAS NOT SUCH AS WOULD ENTITLE HIM TO RELIEF IN EQUITY.

SEE, ALSO, BROWN V. LEVY (29 TEX.CIV.APP. 389, 69 S.W., P. 255), IN WHICH IT WAS SOUGHT TO RECOVER THE DEPOSIT WHICH ACCOMPANIED THE BID ON THE GROUND THE BIDDER HAD MADE AN ERROR OF $10,000 IN ADDING THE SEVERAL SUMS ENTERING INTO HIS BID. IN THAT CASE THE COURT SAID:

THE PETITION FAILS TO SHOW THAT THE DEFENDANT WAS IN ANY WISE RESPONSIBLE FOR THE MISTAKE REFERRED TO. WHEN THE PLAINTIFF OFFERED TO BUILD THE HOUSE FOR A SPECIFIED SUM, AND THE DEFENDANT ACCEPTED THE OFFER, A BINDING CONTRACT WAS MADE, AND IT WAS OF NO CONSEQUENCE, IN SO FAR AS THE VALIDITY OF THE CONTRACT WAS CONCERNED, THAT THE PLAINTIFF HAD MADE A MISCALCULATION IN FORMING HIS PRELIMINARY ESTIMATES.

IN BALTIMORE V. J. L. ROBINSON CONSTRUCTION CO. (123 MD. 660, 91 ATL. 682, L.R.A. 1915A, P. 225), INVOLVING THE CONSTRUCTION OF A SCHOOLHOUSE, THE COMPLAINANT BIDDER ASCERTAINED THE BIDS OF HIS COMPETITORS JUST BEFORE THE OPENING AND THEN FOUND THAT IN MAKING UP THE GENERAL TABULATION OF THE COSTS OF THE VARIOUS ITEMS, INCLUDING THE BIDS OF SUBCONTRACTORS, THE AMOUNT FOR HEATING AND VENTILATING HAD BEEN PUT DOWN IN HIS BID AT $952.13, WHILE IT SHOULD HAVE BEEN $11,952.13, THE AMOUNT OF THE SUBCONTRACTOR'S BID, THUS MAKING THE TOTAL OF THE BID $11,000 LESS THAN HAD BEEN INTENDED. THE BID OF THE COMPLAINANT, WITH THIS ERROR, WAS $14,000 LOWER THAN THE BID OF ANY OTHER BIDDER AND, THE BOARD OF MUNICIPAL OFFICERS HAVING REFUSED TO PERMIT THE BID TO BE WITHDRAWN AND AWARDED THE CONTRACT TO IT, THE COMPLAINANT REFUSED TO EXECUTE THE CONTRACT AND BROUGHT AN ACTION AT LAW FOR RECOVERY OF THE DEPOSIT WHICH ACCOMPANIED THE BID. THE COURT GAVE JUDGMENT AGAINST THE COMPLAINANT, HOLDING IT WAS NOT ENTITLED TO A RETURN OF THE DEPOSIT, AND CITED IN SUPPORT OF ITS JUDGMENT, ROBINSON V. BOARD OF EDUCATION, 98 ILL.APP. 100; MORGAN PARK V. GAHAN, 136 ILL., 523, 26 N.E. 1085; TURNER V. FREMONT, 95 C.C.A. 455, 170 FED. 259; DAVIS V. SYRACUSE, 69 MISC. 285, 126 N.Y.SUPP. 1002; WHEATON BLDG. AND LUMBER CO. V. BOSTON, 204 MASS. 218, 90 N.E. 98; 28 CYC., P. 661; AND MCQUILLIN ON MUNICIPAL CORPORATIONS, SECS. 1221, 1222, VOL. 3. EXPLAINING ITS JUDGMENT THE MARYLAND COURT SAID:

WHILE IT MAY APPEAR A HARDSHIP UPON THE BIDDER, THE PRACTICAL SIDE, AS ILLUSTRATED BY THIS RECORD, OF AWARDING CONTRACTS BY CLOSED BIDDING, SHOWS IT TO BE A WISE PROVISION * * *. AFTER THE BIDS WERE ALL IN, AND BEFORE THE BIDS WERE OPENED, THIS APPELLEE EASILY ASCERTAINED FROM HIS COMPETITORS THE AMOUNTS OF THEIR BIDS. WHAT WOULD THERE BE TO PREVENTA DISHONEST BIDDER, UPON FINDING THAT HIS BID WAS EXTREMELY LOW, FROM DECLARING THAT HE HAD MADE A MISTAKE, AND THUS PUT THE CITY TO THE COSTS OF DELAY AND READVERTISING.

THE CASE OF MOFFETT V. ROCHESTER, 178 U.S. 373, 44 L.E.D. 1008, 20 SUP.CT.REP. 957, RELIED UPON BY THE APPELLEE, WAS UPON A BILL IN EQUITY FOR A REFORMATION OF THE PROPOSAL, AND THEREFORE IS NOT AUTHORITY FOR THE FORM OF ACTION IN THIS CASE. * * *

NO CASE HAS COME TO ATTENTION WHICH GOES FURTHER IN RELIEVING A BIDDER THAN THE CITED CASE OF MOFFETT V. ROCHESTER, BUT EVEN HAD THIS OFFICE, OR THE ADMINISTRATIVE OFFICE INVOLVED, SUCH EQUITABLE JURISDICTION AND AUTHORITY AS WAS THERE EXERCISED BY THE COURT--- WHICH THEY HAVE NOT--- NEVERTHELESS, THE FACTS ASSERTED IN THE RECORDS OF THE PRESENT CASE DO NOT PRESENT ANY SUCH SITUATION REQUIRING EQUITABLE RELIEF AS WAS ESTABLISHED BY COMPETENT EVIDENCE IN THAT CASE SUCH AS, AMONG OTHERS, (1) THAT THE ESTIMATES IN THAT CASE WERE NOT PREPARED BY ANY OFFICERS OF THE COMPLAINANT'S COMPANY BUT BY SUBORDINATES; THE COMPANY'S ENGINEER WAS NEAR -SIGHTED AND IN A NERVOUS AND CONFUSED STATE WHICH THE COURT FOUND RELIEVED THE COMPANY FROM RESPONSIBILITY FOR HIS ERRORS, ONE OF WHICH WAS TO OMIT ANY ESTIMATE OR ALLOWANCE FOR ANY WORK PREPARATORY OR CONNECTED WITH THE DIGGING AND PLACING OF THOUSANDS OF CUBIC YARDS OF DIRT IN CARS, WHEREAS OTHER BIDDERS ASKED $12 AND $15 PER CUBIC YARD, (2) THE BID BOND WAS NOT REGULARLY EXECUTED BY THE COMPLAINANT, (3) THE COMPLAINANT'S OFFICERS WERE MISLED BY OFFICERS OF THE MUNICIPALITY AS TO THE MANNER AND EFFECT OF THEIR BID AND THEN, WHEN NOT RESPONSIVE TO TO THE SPECIFICATIONS THE BID WAS DECLARED INFORMAL BY THE CHAIRMAN OF THE BOARD OF OFFICERS BUT NEVERTHELESS WAS CONSIDERED EQUALLY WITH OTHER BIDS AND ACCEPTED BY THE BOARD ONLY AS TO THE PART OF THE WORK ON WHICH COMPLAINANT AVERRED ERRORS HAD BEEN MADE IN ITS ESTIMATES WHICH WOULD RESULT IN SUBSTANTIAL LOSS, (4) THE OFFICERS OF THE MUNICIPALITY TOOK THE ACTION WHICH THEY DID IN ORDER TO TAKE AN IMPROPER AND UNCONSCIONABLE ADVANTAGE OF THE COMPLAINANT AND THE CLERICAL ERRORS IN ITS ESTIMATES ON A PART OF THE WORK, AND THESE ERRORS WERE PATENT ON THE FACE OF THE ITEMIZED BIDS, ASIDE FROM ANY CLAIM OF ERROR BY THE BIDDER, THE UNITED STATES SUPREME COURT SAYING AS TO THAT,"AND IT SEEMS IMPOSSIBLE FOR THE ERROR TO HAVE ESCAPED THE NOTICE OF THE BOARD; " ALSO, (5) WHILE THE ACTION OF THE COMPLAINANT IN EQUITY WAS PENDING, THE BOARD LET A PART OF THE WORK BID UPON AS TO WHICH COMPLAINANT MADE NO ERROR AND WAS LOW BIDDER, TO ANOTHER CONTRACTOR, AND IN SO DOING THE UNITED STATES SUPREME COURT HELD THAT ,THE CITY, IN EFFECT, EVADED THE RESTRAINING ORDER, FORESTALLED THE ACTION OF THE CIRCUIT COURT, AND PREVENTED THE REFORMATION OF THE PROPOSALS; AND BY PREVENTING THAT JUSTIFIED THE DECREE WHICH WAS ENTERED," VIZ, THE DECREE ADJUDGING THE PROPOSALS OF THE COMPLAINANT FOR THE PART OF CONDUIT AS TO WHICH AN AWARD WAS MADE TO IT,"RESCINDED, CANCELED, AND DECLARED NULL AND VOID AND OF NO EFFECT AND ENJOINING THE MUNICIPAL OFFICERS FROM TAKING ANY ACTION TO ENFORCE THE CONTRACT BASED UPON THE AWARD OR TO FORFEIT THE COMPLAINANT'S BID BOND.'

THE S. N. NIELSEN CO. SHOULD BE REQUIRED TO PERFORM THE CONTRACT IT HAS SIGNED IN ACCORDANCE WITH ITS BID AND THE AWARD MADE THEREON.