A-89870, OCTOBER 30, 1937, 17 COMP. GEN. 373

A-89870: Oct 30, 1937

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CONTRACTS - MISTAKES - BIDS - BIDDER'S NEGLIGENCE - CLAIM FOR ADDITIONAL AMOUNT WHERE NO ERROR WAS APPARENT. THE NUMEROUS OTHER BIDS SUBMITTED WERE NOT UNIFORM AS TO PRICE. THERE IS NEITHER BASIS FOR ASSUMING THAT THE CONTRACTING OFFICER KNEW AT THE TIME OF ACCEPTANCE THAT THE BID PRICE WAS NOT AS INTENDED. YOUR BID WAS THE LOWEST RECEIVED FOR THAT ITEM AND WAS. THE REQUIRED QUANTITY OF PIPE OF THE STIPULATED SIZE WAS DELIVERED AND PAYMENT WAS MADE THEREFOR AT THE CONTRACT PRICE. YOUR CLAIM WAS FORWARDED TO THIS OFFICE BY THE ADMINISTRATIVE OFFICE FOR DIRECT SETTLEMENT WITH AN ADVERSE RECOMMENDATION AS TO PAYMENT AND THE CLAIM WAS DISALLOWED IN THE SETTLEMENT OF AUGUST 2. IN YOUR LETTER REQUESTING REVIEW OF THE SETTLEMENT YOU LISTED THE QUOTATIONS RECEIVED ON THE PIPE AND STATED THAT IN YOUR OPINION THOSE QUOTATIONS SHOWED CLEARLY THAT YOUR BID WAS IN ERROR.

A-89870, OCTOBER 30, 1937, 17 COMP. GEN. 373

CONTRACTS - MISTAKES - BIDS - BIDDER'S NEGLIGENCE - CLAIM FOR ADDITIONAL AMOUNT WHERE NO ERROR WAS APPARENT, EITHER IN UNIT PRICE OR EXTENDED TOTAL, ON THE FACE OF THE LOWEST BID RESPONDING TO AN INVITATION FOR BIDS WHICH CLEARLY SET FORTH THE GOVERNMENT'S NEEDS AND SPECIFICALLY REFERRED TO PARAGRAPH 19 OF STANDARD INSTRUCTIONS TO BIDDERS PROVIDING THAT FAILURE TO EXAMINE ALL SPECIFICATIONS, ETC., WOULD BE AT BIDDERS' RISK, AND THE NUMEROUS OTHER BIDS SUBMITTED WERE NOT UNIFORM AS TO PRICE, THERE IS NEITHER BASIS FOR ASSUMING THAT THE CONTRACTING OFFICER KNEW AT THE TIME OF ACCEPTANCE THAT THE BID PRICE WAS NOT AS INTENDED, NOR AUTHORITY FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE, THE MISTAKE HAVING RESULTED FROM THE BIDDER'S NEGLIGENCE, BEING UNILATERAL RATHER THAN MUTUAL, AND NOT HAVING BEEN ALLEGED UNTIL AFTER THE BID HAD BEEN ACCEPTED IN GOOD FAITH.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE STILLWATER CLAY PRODUCTS CO., OCTOBER 30, 1937:

YOUR LETTER DATED AUGUST 21, 1937, REQUESTS REVIEW OF SETTLEMENT DATED AUGUST 2, 1937, WHICH DISALLOWED YOUR CLAIM FOR $139.44 BY REASON OF AN ALLEGED ERROR IN YOUR PROPOSAL DATED SEPTEMBER 28, 1936, ACCEPTED OCTOBER 8, 1936.

THE TREASURY DEPARTMENT, STATE PROCUREMENT OFFICE, MADISON, WIS., INVITED BIDS FOR FURNISHING TWO ITEMS OF VITRIFIED CLAY SEWER PIPE FOR DELIVERY F.O.B. CARS, CHICAGO AND NORTH WESTERN RAILWAY SIDING, WATERWORKS, JANESVILLE, WIS., ONE OF SAID ITEMS CALLING FOR 2,348 FEET OF SUCH PIPE 12 INCHES IN DIAMETER.

IN RESPONSE TO THAT INVITATION YOU PROPOSED TO DELIVER THE REQUIRED QUANTITY OF 12-INCH PIPE FOR $0.224 PER LINEAR FOOT. YOUR BID WAS THE LOWEST RECEIVED FOR THAT ITEM AND WAS, THEREFORE, ACCEPTED. SUBSEQUENTLY, YOU ADVISED THE STATE PROCUREMENT OFFICER THAT YOU HAD MADE AN ERROR IN YOUR PROPOSAL IN THAT IN TAKING THE PRICE FROM A LIST YOU HAD ERRONEOUSLY TAKEN THE PRICE FOR 8-INCH PIPE INSTEAD OF FOR 12 INCH PIPE AS SPECIFIED IN THE INVITATION. THE REQUIRED QUANTITY OF PIPE OF THE STIPULATED SIZE WAS DELIVERED AND PAYMENT WAS MADE THEREFOR AT THE CONTRACT PRICE. THEREAFTER, YOU SUBMITTED A CLAIM FOR $139.44 AS THE BALANCE STATED TO BE DUE ON THE PIPE. YOUR CLAIM WAS FORWARDED TO THIS OFFICE BY THE ADMINISTRATIVE OFFICE FOR DIRECT SETTLEMENT WITH AN ADVERSE RECOMMENDATION AS TO PAYMENT AND THE CLAIM WAS DISALLOWED IN THE SETTLEMENT OF AUGUST 2, 1937.

IN YOUR LETTER REQUESTING REVIEW OF THE SETTLEMENT YOU LISTED THE QUOTATIONS RECEIVED ON THE PIPE AND STATED THAT IN YOUR OPINION THOSE QUOTATIONS SHOWED CLEARLY THAT YOUR BID WAS IN ERROR. YOU URGE, THEREFORE, FURTHER CONSIDERATION BE GIVEN YOUR CLAIM WITH A VIEW TOWARD ALLOWANCE THEREOF. THERE WERE 12 OTHER BIDS ON THIS ITEM AND THEY WERE NOT UNIFORM--- RANGING IN PRICE FROM 32 CENTS PER FOOT TO 43.2 CENTS PER FOOT. HENCE, THERE IS NO BASIS FOR ASSUMING THAT THE CONTRACTING OFFICER KNEW AT THE TIME OF ACCEPTANCE THAT YOUR BID OF 22.4 CENTS PER FOOT WAS NOT AS INTENDED.

THE STANDARD INSTRUCTIONS TO BIDDERS TO WHICH YOUR ATTENTION WAS INVITED IN THE BID FORM PROVIDED IN PARAGRAPH 19, AS FOLLOWS:

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 CAN NOT SECURE RELIEF ON THE PLEA OF ERROR IN THE BID. IN CASE OF ERROR IN THE EXTENSION OF PRICES THE UNIT PRICE WILL GOVERN.

THERE WAS NO ERROR APPARENT ON THE FACE OF YOUR BID, EITHER IN UNIT PRICE OR EXTENDED TOTAL FOR THE ITEM.

THE GENERAL RULE IS THAT WHEN THERE HAS BEEN A MISTAKE IN THE SUBMISSION OF A BID ON WHICH A CONTRACT IS BASED, THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF. THE INVITATION FOR BIDS IN THIS CASE SET FORTH CLEARLY THAT THE GOVERNMENT DESIRED BIDS ON PIPE OF 12-INCH DIAMETER. IS CLEAR, THEREFORE, THAT SUCH MISTAKE AS WAS MADE IN THE BID RESULTED SOLELY FROM YOUR NEGLIGENCE IN THE PREPARATION OF YOUR BID. IT IS EVIDENT, THEREFORE, THAT THE ERROR WAS UNILATERAL RATHER THAN MUTUAL.

SINCE THE MISTAKE WAS NOT MUTUAL AND WAS NOT ALLEGED UNTIL AFTER THE BID HAD BEEN ACCEPTED IN GOOD FAITH, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE. SEE 20 COMP. DEC. 304; 22 ID. 529; 25 ID. 37; 5 COMP. GEN. 605; ID. 781; ID 946; 6 COMP. GEN. 26; ID. 815; 7 COMP. GEN. 493; 8 COMP. GEN. 362; 9 COMP. GEN. 361; ID. 446; 16 COMP. GEN. 779. SEE, ALSO, THE ELLICOTT MACHINE CO. V. THE UNITED STATES, 44 CT.CLS. 127, AND AMERICAN WATER SOFTENER CO. V. THE UNITED STATES, 50 CT.CLS. 209. ..END :