A-82037, DECEMBER 8, 1936, 16 COMP. GEN. 565

A-82037: Dec 8, 1936

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ADVERTISING - BIDS - CORRECTION OR WITHDRAWAL BECAUSE OF MISTAKE - SUBMISSION BY CONTRACTING OFFICER TO GENERAL ACCOUNTING OFFICE THERE IS NO AUTHORITY FOR THE CORRECTION OF A MISTAKE IN BID. WHERE THE MISTAKE IS ALLEGED AFTER THE OPENING OF THE BIDS EXCEPT UPON A CONCLUSIVE SHOWING THAT A BONA FIDE MISTAKE WAS MADE. A MERE ALLEGATION OF ERROR IN TYPING THE PRICE IN THE BID IS NOT CONCLUSIVE EVIDENCE OF A MISTAKE. PARTICULARLY WHERE THERE IS VERY LITTLE DIFFERENCE BETWEEN THE PRICE BID AND THE NEXT LOWEST BID PRICE AND THE TOTAL AS EXTENDED ON THE BID AGREES WITH THE UNIT PRICE. WHEN THE MISTAKE WAS DISCOVERED AND WHEN AND HOW BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER. FOR THE FURNISHING OF 50 CASES OF CHERRIES AND 10 CASES OF TOMATO JUICE IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS FIVE BIDS WERE RECEIVED AS FOLLOWS: TABLE PRICE PER ITEMS CASE KNOEBEL SALES COMPANY .

A-82037, DECEMBER 8, 1936, 16 COMP. GEN. 565

ADVERTISING - BIDS - CORRECTION OR WITHDRAWAL BECAUSE OF MISTAKE - SUBMISSION BY CONTRACTING OFFICER TO GENERAL ACCOUNTING OFFICE THERE IS NO AUTHORITY FOR THE CORRECTION OF A MISTAKE IN BID, OR FOR ITS WITHDRAWAL, WHERE THE MISTAKE IS ALLEGED AFTER THE OPENING OF THE BIDS EXCEPT UPON A CONCLUSIVE SHOWING THAT A BONA FIDE MISTAKE WAS MADE, AND A MERE ALLEGATION OF ERROR IN TYPING THE PRICE IN THE BID IS NOT CONCLUSIVE EVIDENCE OF A MISTAKE, PARTICULARLY WHERE THERE IS VERY LITTLE DIFFERENCE BETWEEN THE PRICE BID AND THE NEXT LOWEST BID PRICE AND THE TOTAL AS EXTENDED ON THE BID AGREES WITH THE UNIT PRICE. QUESTIONS INVOLVING MISTAKE IN BID MAY BE SUBMITTED DIRECTLY TO THE GENERAL ACCOUNTING OFFICE BY THE CONTRACTING OFFICER RATHER THAN THROUGH THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IN ORDER TO MINIMIZE DELAY, BUT THE REQUEST FOR DECISION SHOULD BE ACCOMPANIED BY A COPY OF THE ADVERTISEMENT FOR BIDS, AN ABSTRACT OF THE BIDS RECEIVED, THE CORRESPONDENCE RELATIVE TO THE ERROR, AND A STATEMENT OF FACTS SHOWING, AMONG OTHER THINGS, WHEN THE MISTAKE WAS DISCOVERED AND WHEN AND HOW BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER, PARTICULARLY WHETHER BEFORE OR AFTER ACCEPTANCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 8, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 28, 1936, WITH REFERENCE TO THE BID SUBMITTED FOR THE FURNISHING OF A QUANTITY OF CHERRIES AND TOMATO JUICE TO THE DEPARTMENT OF AGRICULTURE WITH RESPECT TO WHICH THE LOW BIDDER, THE J. S. BROWN MERCANTILE CO., CLAIMS A MISTAKE IN THE SUBMISSION OF ITS BID.

IT APPEARS THAT IN RESPONSE TO A REQUEST OF THE REGIONAL SUPPLY OFFICER, FOREST SERVICE, DENVER, COLO., FOR BIDS TO BE OPENED OCTOBER 28, FOR THE FURNISHING OF 50 CASES OF CHERRIES AND 10 CASES OF TOMATO JUICE IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS FIVE BIDS WERE RECEIVED AS FOLLOWS:

TABLE

PRICE PER

ITEMS CASE KNOEBEL SALES COMPANY --------------------------------- 1 $3.45

2 ------- H. A. MARR GROCERY COMPANY ---------------------------- 1 3.75

2 2.70 WESTERN STATES GROCERY COMPANY -------- --------------- 1 3.85

2 2.84 MOREY MERCANTILE COMPANY ------------------------------ 1 4.08

2 2.72 YOELIN BROTHERS MERCANTILE COMPANY -------------------- 1 3.50

2 2.84 J. S. BROWN MERCANTILE COMPANY -------- --------------- 1 3.24

2 2.88

IT APPEARS THAT AFTER THE OPENING OF THE BIDS AND BEFORE AWARD WAS MADE THE J. S. BROWN MERCANTILE CO., LOW BIDDER ON ITEM 1, ADVISED IN LETTER OF OCTOBER 29, 1936, AS FOLLOWS:

REFERRING TO INVITATION NO. R-2-513, OPENING DATE OF BID WEDNESDAY 2 P.M., OCTOBER 28TH, 1936, ITEM 1 FOR 50 CASES 6/10 RED SOUR PITTED CHERRIES.

THE WRITER WHEN SUBMITTING PRICE ON THIS ITEM TRANSPOSED IN ERROR THE PRICE OF $3.74 PER CASE TO THE PRICE OF $3.24.

WE DID NOT DISCOVER THIS MISTAKE UNTIL LATE IN THE EVENING ON THE OPENING DATE OF BID AND THEREFORE WERE UNABLE TO HAVE CORRECTION MADE. INASMUCH AS THIS MISTAKE WOULD ENTAIL A CONSIDERABLE LOSS TO US IF COMPELLED TO FILL AT THE $3.24 PRICE, WE WOULD APPRECIATE VERY MUCH IF THIS PRICE COULD BE CHANGED TO $3.74 A CASE, OR HAVING OUR BID DESTROYED ENTIRELY.

MAY ADD THAT WE WILL ABIDE BY YOUR DECISION HOWEVER, AND FULFILL THE CONTRACT AS OFFERED IF NECESSARY.

THE BIDDER WAS ADVISED BY THE CONTRACTING OFFICER UNDER DATE OF OCTOBER 30, 1936, THAT THERE WAS NO AUTHORITY TO ALLOW WITHDRAWAL OR CORRECTION OF THE BID AND THAT THE BID WOULD BE ACCEPTED BUT THAT DELIVERY MIGHT BE POSTPONED PENDING DECISION ON THE MATTER BY THIS OFFICE.

PARAGRAPHS 14 AND 19 OF THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS PROVIDE:

14. 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.

19. ERRORS IN BID.--- 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. IN CASE OF ERROR IN THE EXTENSION OF PRICES THE UNIT PRICE WILL GOVERN.

WHEN A MISTAKE IS NOT ALLEGED UNTIL AFTER THE BIDS HAVE BEEN OPENED, AS IN THIS CASE, AND BIDDERS HAVE ASCERTAINED THE AMOUNT QUOTED BY OTHER BIDDERS WHEREBY THERE MIGHT ARISE A TEMPTATION TO REVISE A BID EITHER UPWARD OR DOWNWARD AS MIGHT SERVE THE INTERESTS OF THE PARTICULAR BIDDER, IT IS NECESSARY THAT THERE BE APPLIED THE WELL ESTABLISHED RULE THAT IN ORDER TO AUTHORIZE THE CORRECTION OR WITHDRAWAL OF A BID ON THE BASIS OF A MISTAKE, THE EVIDENCE OF THE MISTAKE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE; THAT IS, THERE MUST BE PRESENTED IMMEDIATELY SUCH CONVINCING PROOF OF THE EXISTENCE AND CHARACTER OF THE ERROR AS TO LEAVE NO ROOM FOR DOUBT THAT THERE WAS A BONA FIDE MISTAKE IN THE BID AND TO REMOVE ANY REASONABLE SUSPICION THAT THE CLAIM OF ERROR WAS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR AVOIDING THE CONSEQUENCE OF AN ILL ADVISED BID. IT MUST BE HELD THAT SUCH PROOF WAS NOT PRESENTED IN THIS CASE--- PARTICULARLY IN VIEW OF THE FACT THAT THE TOTAL AS EXTENDED ON THE BID AGREES WITH THE UNIT PRICE OF $3.24 PLAINLY STATED THEREON AND SAID UNIT PRICE IS ONLY 21 CENTS PER CASE (OR ABOUT 6 PERCENT) LESS THAN THE NEXT LOWEST BID ON SAID ITEM. ACCORDINGLY, NO RELIEF IN THE MATTER MAY BE GRANTED.

IF THE SAID J. S. BROWN MERCANTILE CO. FAILS OR REFUSES TO FURNISH THE CHERRIES IN ACCORDANCE WITH ITS ACCEPTED BID, NOTICE SHOULD BE GIVEN THE SAID BIDDER AND PURCHASE THEREOF MADE AS THE INTERESTS OF THE UNITED STATES MAY REQUIRE, DEMAND TO BE MADE UPON THE SAID BIDDER FOR ANY INCREASED COST OCCASIONED THEREBY. SEE 8 COMP. GEN. 588.

IT IS NOTED THAT THE BIDS IN THIS CASE WERE OPENED OCTOBER 28, 1936; THAT THE MISTAKE WAS ALLEGED BY LETTER OF OCTOBER 29; AND THAT THE MATTER WAS TRANSMITTED HERE BY YOUR LETTER OF NOVEMBER 28, RECEIVED DECEMBER 1. THIS DELAY OF APPROXIMATELY A MONTH COULD HAVE BEEN AVOIDED IF THE CONTRACTING OFFICER IN THE FIELD HAD SUBMITTED THE MATTER DIRECTLY TO THIS OFFICE FOR DECISION BEFORE MAKING AN AWARD. WHILE IT IS THE ESTABLISHED PROCEDURE THAT REQUESTS FOR DECISION AS TO THE LEGALITY OF A PROPOSED OBLIGATION ARE FOR SUBMISSION TO THIS OFFICE BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT ONLY, THIS OFFICE, IN ORDER TO MINIMIZE THE DELAY BETWEEN THE OPENING OF BIDS AND THE AWARDING OF THE CONTRACTS, HAS ADOPTED THE PROCEDURE OF CONSIDERING QUESTIONS INVOLVING MISTAKE IN BID WHEN SUBMITTED DIRECTLY TO THIS OFFICE BY THE CONTRACTING OFFICER PROVIDED THE REQUEST FOR DECISION IS ACCOMPANIED BY A COPY OF THE ADVERTISEMENT FOR BIDS, AN ABSTRACT OF THE BIDS RECEIVED, A COPY OF ALL CORRESPONDENCE RELATIVE TO THE BID ALLEGED TO BE ERRONEOUS, AND A STATEMENT OF THE FACTS IN CONNECTION THEREWITH SHOWING, AMONG OTHER THINGS, WHEN THE MISTAKE WAS DISCOVERED, WHEN AND HOW IT WAS FIRST BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER AND PARTICULARLY AS TO WHETHER BEFORE OR AFTER ACCEPTANCE.