A-90063, NOVEMBER 9, 1937, 17 COMP. GEN. 388

A-90063: Nov 9, 1937

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THE MERE FACT THAT THE AMOUNTS BID UNDER THE THREE ITEMS WERE CONSIDERABLY HIGHER THAN OTHER BIDS RECEIVED AND SOMEWHAT IN EXCESS OF THE GOVERNMENT ESTIMATE AS TO THE PROBABLE SALE VALUE OF THE ITEMS FOR SALVAGE PURPOSES IS NO INDICATION OF ERROR IN BID. PARTICULARLY WHERE ERROR WAS NOT ALLEGED AS TO THE OTHER TWO ITEMS OF THE BID OFFERING COMPARABLE AMOUNTS FOR BUILDINGS OF SOMEWHAT THE SAME GENERAL SIZE AND DESCRIPTION. RELIEF COULD NOT BE GRANTED AS THE BID WAS CLEAR AND UNAMBIGUOUS. - AND ERROR WAS NOT CONCLUSIVELY ESTABLISHED EVEN AFTER IT WAS ALLEGED. PROVIDING FOR ACCEPTANCE OF "ANY BID OR ANY ITEM OF ANY BID" AND THAT "NO PROPOSAL WILL BE RECEIVED UNLESS ACCOMPANIED BY A DEPOSIT OF THE TOTAL AMOUNT OF THE BID.

A-90063, NOVEMBER 9, 1937, 17 COMP. GEN. 388

SALES - MISTAKES - BIDS - DIFFERENCES BETWEEN AMOUNT BID, OTHER BIDS AND ESTIMATE OF SALE VALUE - DEPOSIT APPLICABILITY TO ALTERNATE BIDS WHERE A BIDDER ALLEGED MISTAKE IN THE AMOUNTS BID ON THREE OF FIVE ITEMS OF INVITATION TO PURCHASE NUMEROUS BUILDINGS AND STRUCTURE ON GOVERNMENT PROPERTY, THE MERE FACT THAT THE AMOUNTS BID UNDER THE THREE ITEMS WERE CONSIDERABLY HIGHER THAN OTHER BIDS RECEIVED AND SOMEWHAT IN EXCESS OF THE GOVERNMENT ESTIMATE AS TO THE PROBABLE SALE VALUE OF THE ITEMS FOR SALVAGE PURPOSES IS NO INDICATION OF ERROR IN BID, PARTICULARLY WHERE ERROR WAS NOT ALLEGED AS TO THE OTHER TWO ITEMS OF THE BID OFFERING COMPARABLE AMOUNTS FOR BUILDINGS OF SOMEWHAT THE SAME GENERAL SIZE AND DESCRIPTION, BUT EVEN IF ERROR HAD BEEN ALLEGED WITH RESPECT TO ALL FIVE ITEMS, RELIEF COULD NOT BE GRANTED AS THE BID WAS CLEAR AND UNAMBIGUOUS--- THE AMOUNTS APPEARING IN PRINTED WORDS AS WELL AS FIGURES--- AND ERROR WAS NOT CONCLUSIVELY ESTABLISHED EVEN AFTER IT WAS ALLEGED. WHERE UNDER INVITATION FOR BIDS ON NUMEROUS STRUCTURES OF VARIOUS KINDS ON GOVERNMENT PROPERTY, PROVIDING FOR ACCEPTANCE OF "ANY BID OR ANY ITEM OF ANY BID" AND THAT "NO PROPOSAL WILL BE RECEIVED UNLESS ACCOMPANIED BY A DEPOSIT OF THE TOTAL AMOUNT OF THE BID," BIDDER, IN A SINGLE BID, SUBMITTED A LUMP-SUM PRICE FOR ALL ITEMS AND ALSO A SEPARATE PRICE ON EACH OF FIVE ITEMS, HIS CLAIM FOR RELIEF FROM HIS BIDS ON THE SEPARATE ITEMS MAY NOT BE ALLOWED ON THE BASIS THAT DEPOSIT OF THE AMOUNT OF THE LUMP-SUM BID DID NOT COVER THE TOTAL OF THE BIDS ON THE SEPARATE ITEMS, AS THE AMOUNT DEPOSITED EXCEEDED THE SAID TOTAL AND CLEARLY THERE WAS NO REQUIREMENT FOR A DEPOSIT OF MORE THAN THE AMOUNT OF THE CONTRACT THAT COULD POSSIBLY BE AWARDED UNDER HIS BIDS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, NOVEMBER 9, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 28, 1937, AS FOLLOWS:

THE REPORT OF THE UNITED STATES DISTRICT ENGINEER, ROCK ISLAND, ILLINOIS, BID OF CLEM J. MCGUIRE, DUBUQUE, IOWA, ABSTRACT OF BIDS RECEIVED, AND SUPPORTING CORRESPONDENCE WITH RESPECT TO A CLAIM OF ERROR IN THE PROPOSAL OF MR. MCGUIRE FOR THE SALE OF SMALL BUILDINGS TO BE REMOVED FROM LAND ACQUIRED BY THE GOVERNMENT AT LOCK AND DAM NO. 11, MISSISSIPPI RIVER, ARE TRANSMITTED FOR YOUR CONSIDERATION.

THIS BIDDER CLAIMS AN ERROR IN THE PRICE OF $200.00 EACH FOR ITEMS 11.24, 11.25, AND 11.26, STATING IT WAS INTENDED TO BID $20.00 EACH FOR THESE BUILDINGS. THE ESTIMATED SALE VALUE OF THESE BUILDINGS WAS $55.00, $60.00, AND $40.00, RESPECTIVELY. HOWEVER, IN THE SALE OF USED PROPERTY, PARTICULARLY OF THE NATURE HERE UNDER CONSIDERATION, ESTIMATED SALVAGE VALUES MAY NOT REFLECT THE TRUE VALUE OF THE PROPERTY TO ANYONE WHO HAS AN ACTUAL NEED FOR THE SAME. THE OTHER BIDS RECEIVED FOR THESE ITEMS ARE SO LOW AS TO INDICATE THE BIDDERS HAD NO DESIRE TO BUY THE BUILDINGS UNLESS AVAILABLE AT A SMALL FRACTION OF THEIR REAL VALUE.

THIS DEPARTMENT FINDS NO CONCLUSIVE EVIDENCE OF ANY ERROR IN THE BIDS FOR ITEMS 11.24, 11.25, AND 11.26.

THE INVITATION FOR BIDS PROVIDED ON PAGE 10 THAT A DEPOSIT OF THE TOTAL AMOUNT OF THE BID SHOULD ACCOMPANY EACH PROPOSAL. THE TOTALS OF MR. MCGUIRE'S BIDS WERE $1,230.00 AND $1,500.00. THE CLEAR INTENT OF SUCH DEPOSIT WAS TO PROTECT THE UNITED STATES IN EVENT OF DEFAULT FOLLOWING AWARD OF CONTRACT. THIS BIDDER COULD ONLY DEFAULT UNDER ONE BID, EITHER IN THE SUM OF $1,230.00 OR $1,500.00. THEREFORE, IT IS LOGICAL TO CONCLUDE THAT THE DEPOSIT OF $1,500.00 WAS IN SUPPORT OF BOTH BIDS.

IT IS RECOMMENDED THAT THE CLAIM OF ERROR BE NOT ALLOWED. THE RETURN OF THE ACCOMPANYING PAPERS WITH YOUR DECISION IS REQUESTED SO THAT THE DISTRICT ENGINEER MAY BE PROPERLY INSTRUCTED WITH RESPECT TO THE AWARD FOR THE PURCHASE OF THIS PROPERTY.

THE ADVERTISEMENT IN THIS CASE LISTED APPROXIMATELY 65 ITEMS COVERING BUILDINGS AND STRUCTURES OF VARIOUS KINDS, ADEQUATE DESCRIPTION BEING FURNISHED IN THE ADVERTISEMENT AS TO EACH ITEM. BIDDERS WERE ADVISED THAT "BIDS WILL BE CONSIDERED ON ANY ONE OR ALL OF THE ITEMS, OR BUILDINGS," AND UNDER PARAGRAPH 1, GENERAL CONDITIONS OF SALE, THAT "NO PROPOSAL WILL BE RECEIVED UNLESS ACCOMPANIED BY A DEPOSIT OF THE TOTAL AMOUNT OF THE BID.' PARAGRAPH 4 OF SAID GENERAL CONDITIONS OF SALE PROVIDES, IN PERTINENT PART---

* * * IN THE EVENT THE PURCHASER FAILS TO REMOVE THE BUILDING OR BUILDINGS PURCHASED WITHIN THE NINETY DAYS STIPULATED ABOVE, ALL RIGHT AND TITLE TO THE PROPERTY WILL REVERT TO THE UNITED STATES, AND THE AMOUNT OF THE DEPOSIT FURNISHED WITH THE BID WILL BE DECLARED FORFEITED. * * *

AND UNDER PARAGRAPH 5 BIDDERS WERE ADVISED THAT THE UNITED STATES RESERVED THE RIGHT TO ACCEPT ,ANY BID OR ANY ITEM IN ANY BID.'

THE RECORD SHOWS THAT CLEM J. MCGUIRE SUBMITTED BIDS UNDER INDIVIDUAL ITEMS 11.22, 11.24, 11.25, 11.26, AND 11.38, HIS QUOTATION BEING $200 EACH FOR THE FIRST FOUR ITEMS AND $430 FOR ITEM 11.38, AND, IN ADDITION THERETO, IN THE BLANK SPACE AT THE BOTTOM OF THE BID SCHEDULE MCGUIRE STATED AS FOLLOWS:

AND FURTHER, I HEREBY OFFER TO PURCHASE ALL OF THE SAID BUILDINGS HEREIN LISTED FOR THE SUM OF $1,500.00. FIFTEEN HUNDRED DOLLARS INCLUDING 11.22, 11.24, 11.25, 11.26, 11.38.

(SIGNED) CLEM J. MCGUIRE,

270 WARTBURG PLACE, DUBUQUE, IA.

(SEE SHEET ATTACHED.)

ENCLOSING HEREWITH CERTIFIED CHECK, AMOUNT $1,500.

BY TELEGRAM OF SEPTEMBER 29, 1937, 4 DAYS AFTER THE BIDS WERE OPENED, MCGUIRE ATTEMPTED TO WITHDRAW HIS INDIVIDUAL BIDS ON THE FIVE ITEMS WITHOUT STATING ANY REASON OR BASIS THEREFOR. IN REPLY HE WAS ADVISED BY TELEGRAM OF OCTOBER 4, 1937, THAT SAID BIDS COULD NOT BE WITHDRAWN AND THAT THEY WOULD BE ACCEPTED. THEREAFTER, MCGUIRE, BY LETTER OF OCTOBER 5, 1937, ALLEGED ERROR IN BID AS TO THREE OF THE FIVE ITEMS, TO WIT, ITEMS 11.24, 11.25, AND 11.26, CLAIMING THAT HE INTENDED TO BID $20 EACH FOR SAID ITEMS INSTEAD OF $200 EACH, NO ERROR BEING ALLEGED AS TO THE OTHER ITEM ON WHICH HE HAD BID $200 OR THE ITEM ON WHICH HE HAD BID $430. WAS CONTENDED, ALSO, IN SAID LETTER THAT HIS BIDS UPON THE SPECIFIC ITEMS WERE NOT ACCOMPANIED BY A DEPOSIT COVERING SUCH ITEMS BUT THAT THE DEPOSIT OF $1,500 SUBMITTED WAS INTENDED TO COVER ONLY HIS BID FOR THE TOTAL OF ALL THE ITEMS UNDER THE LUMP-SUM BID OF $1,500. HE FURTHER CONTENDED THAT AS THE GROSS AMOUNT OF HIS DEPOSIT COVERED ONLY THE BID OF THE TOTAL LUMP SUM, AND WAS INSUFFICIENT TO COVER ALL OF THE BIDS MADE BY HIM, THERE WAS NO DEPOSIT COVERING THE SPECIFIC INDIVIDUAL ITEMS AND, CONSEQUENTLY, NO AUTHORITY TO ACCEPT THE DEPOSIT OF $1,500 AS A DEPOSIT UPON THE SPECIFIC INDIVIDUAL ITEMS.

IN A REPORT OF OCTOBER 11, 1937, CONCERNING THE MATTER THE DISTRICT ENGINEER ADVISED, IN PERTINENT PART, AS FOLLOWS:

3. AFTER THE BIDS WERE OPENED, MR. MCGUIRE CAME TO THIS OFFICE WITH HIS ATTORNEY FOR A CONFERENCE ON THE AWARD. AT THAT TIME MR. MCGUIRE POINT OUT THAT HE SUBMITTED ALTERNATE BIDS, FIRST FOR FIVE INDIVIDUAL ITEMS, AND SECOND, FOR ALL HOUSES OR NONE WITH LUMP-SUM BID OF $1,500.00. CONTENDED THAT HIS CERTIFIED CHECK FOR $1,500.00 ACCOMPANYING BID WAS TO COVER HIS LUMP-SUM BID ONLY, AND THAT NO DEPOSIT HAD BEEN MADE FOR HIS FIRST BID ON FIVE INDIVIDUAL HOUSES TOTALLING $1,230.00. HE ALSO CONTENDED THAT WE SHOULD FIRST CONSIDER HIS LUMP-SUM BID OF $1,500.00 AS COMPARED TO BIDS SUBMITTED BY ALL OTHER BIDDERS, AND THAT HIS BID ON INDIVIDUAL HOUSES SHOULD BE CONSIDERED ONLY IN CASE HIS $1,500.00 BID WAS NOT HIGH. BIDS CONSIDERED ON THIS BASIS WOULD HAVE RESULTED IN ACCEPTANCE OF THE LUMP SUM BID OF $1,500.00 AS HIGHER THAN THE AGGREGATE OF INDIVIDUAL ITEMS BY OTHER BIDDERS. HE WAS INFORMED THAT HIS BIDS AS SUBMITTED DID NOT DIFFERENTIATE BETWEEN HIS ALTERNATE PROPOSALS, AND THAT IT WOULD BE NECESSARY TO CONSIDER FIRST HIS INDIVIDUAL BID ITEMS IN HIS FIRST PROPOSAL, AND THAT HIS LUMP-SUM BID WOULD BE CONSIDERED ONLY IN CASE THE AGGREGATE OF ALL BIDS ON INDIVIDUAL ITEMS DID NOT EXCEED $1,500.00. MR. MCGUIRE INDICATED HE WOULD CLAIM ERROR IN BIDDING AND PROTEST AN AWARD MADE ON SUCH A BASIS.

5. IT IS THE OPINION OF THE DISTRICT ENGINEER THAT * * * THERE WAS NO ERROR IN FACT IN BIDS SUBMITTED ON INDIVIDUAL ITEMS. THE FACT THAT CONSIDERABLY LOWER BIDS WERE RECEIVED ON THESE THREE ITEMS FROM OTHER BIDDERS IS NOT CONCLUSIVE EVIDENCE THAT AN ERROR WAS MADE IN MR. MCGUIRE'S BID. THE ESTIMATED SALE VALUES AS GIVEN THE DEPARTMENT IN THE REQUEST FOR AUTHORITY TO SELL THESE BUILDINGS WERE $55.00, $60.00, AND $40.00 FOR ITEMS 11.24, 11.25, AND 11.26, RESPECTIVELY. THE ESTIMATED SALE VALUE ON ITEM 11.22, ON WHICH MR. MCGUIRE BID $200.00, AND DID NOT INCLUDE IN HIS CLAIM OF ERROR, WAS GIVEN AS $60.00, AND ON ITEM 11.38, ON WHICH MR. MCGUIRE BID $430.00 AND MAKES NO CLAIM OF ERROR, THE ESTIMATED SALE VALUE IS GIVEN AS $50.00.

WITH RESPECT TO THE ALLEGATION OF ERROR AS TO ITEMS 11.24, 11.25, 11.26, IT IS NOTED THAT IN THE SPACES PROVIDED THEREFOR IN THE BID SCHEDULE ATTACHED TO THE ADVERTISEMENT MCGUIRE, IN ADDITION TO INSERTING THE FIGURE "200," ALSO, VERY CAREFULLY, WITH PEN AND INK, PRINTED THE WORDS "TWO HUNDRED," AND THERE IS NOTHING WHATEVER TO SUGGEST ERROR--- THE BIDS ALL BEING UPON THE BASIS OF SO MUCH PER BUILDING. THE MERE FACT THAT THE BID OF MCGUIRE UNDER THESE THREE ITEMS WAS CONSIDERABLY HIGHER THAN THE OTHER BIDS RECEIVED AND SOMEWHAT IN EXCESS OF THE GOVERNMENT ESTIMATE AS TO THE PROBABLE SALE VALUE OF THE ITEMS FOR SALVAGE PURPOSES IS NO INDICATION OF ERROR IN BID. PARTICULARLY IS THIS TRUE IN VIEW OF THE NATURE OF THE ITEMS INVOLVED AND THE FACT THAT NO ERROR WAS ALLEGED AS TO ITEMS 11.22 AND 11.38 COVERING BUILDINGS OF SOMEWHAT THE SAME GENERAL SIZE AND DESCRIPTION AS THOSE LISTED UNDER ITEMS 11.24, 11.25, AND 11.26. BUT EVEN IF ERROR HAD BEEN ALLEGED AS TO ITEMS 11.22 AND 11.38, ALSO, RELIEF FROM THE BID COULD NOT BE GRANTED AS SUCH BID WAS SPECIFIC, CLEAR, AND UNAMBIGUOUS AND ERROR WAS NOT CONCLUSIVELY ESTABLISHED EVEN AFTER BEING ALLEGED. (SEE 15 COMP. GEN. 1049 AND THE AUTHORITIES THEREIN CITED.)

WITH REFERENCE TO THE CONTENTION THAT THE DEPOSIT OF $1,500 WAS INTENDED ONLY TO COVER THE LUMP-SUM BID OF $1,500 AND THAT NO DEPOSIT WAS MADE ON THE FIVE INDIVIDUAL ITEMS, IT IS NOTED THAT THE TOTAL OF MCGUIRE'S BID UNDER THE INDIVIDUAL ITEMS WAS $1,230. CONSEQUENTLY, AS STATED IN YOUR LETTER, QUOTED ABOVE, THE CLEAR INTENT OF SUCH DEPOSIT WAS TO PROTECT THE UNITED STATES IN THE EVENT OF DEFAULT FOLLOWING ANY AWARD TO THIS BIDDER ON THE BID AS SUBMITTED. CLEARLY, THERE WAS NO REQUIREMENT OR REASON FOR A DEPOSIT OF MORE THAN $1,500 WITH THIS BID BECAUSE IN NO EVENT COULD THE CONTRACT TO BE AWARDED THEREON EXCEED THAT AMOUNT AS ACCEPTANCE OF ANY ONE OR ALL FIVE OF THE INDIVIDUAL-ITEM BIDS (THE AGGREGATE OF WHICH IS $1,230) WOULD PRECLUDE ACCEPTANCE OF THE LUMP-SUM BID OF $1,500 FOR ALL OF THE 65 ITEMS.

THE RECORD DOES NOT ESTABLISH THAT A BONA FIDE ERROR IN BID WAS MADE IN THIS CASE AND YOU ARE ADVISED THAT THE BID OF CLEM J. MCGUIRE UNDERITEMS 11.22, 11.24, 11.25, 11.26, AND 11.38, IN THE TOTAL AMOUNT OF $1,230, MAY NOT BE WITHDRAWN OR DISREGARDED, AND IF ACCEPTANCE THEREOF IS IN THE INTEREST OF THE UNITED STATES--- AS APPEARS TO BE THE CASE--- IT SHOULD BE ACCEPTED, AND, IN THE EVENT OF THE BIDDER'S FAILURE TO PAY FOR THE PROPERTY IN ACCORDANCE WITH SUCH ACCEPTED BID, THE MATTER SHOULD BE ADJUSTED IN THE MANNER PROVIDED FOR UNDER PARAGRAPH 4 OF THE GENERAL CONDITIONS OF SALE. SEE 44 CT.CLS. 524. ..END :