A-90181, JANUARY 25, 1938, 17 COMP. GEN. 598

A-90181: Jan 25, 1938

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CONTRACTS - MISTAKES - BIDS - ALLEGATION AFTER ACCEPTANCE IN GOOD FAITH BIDDER'S CLAIM FOR ADDITIONAL AMOUNT AFTER PERFORMANCE WHERE ERROR IN BID TO FURNISH SUPPLIES WAS NOT ALLEGED UNTIL AFTER ITS ACCEPTANCE IN GOOD FAITH AND THE GOVERNMENT INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AND THERE WAS NOTHING ON THE FACE OF THE BID TO SUGGEST ERROR. THE CONTRACTING OFFICER HAD NO MEANS OF KNOWING THE INTENDED BID WAS OTHER THAN AS STATED. THE ERROR WAS NOT MUTUAL AND THERE IS NO AUTHORITY FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE BID PRICE. WAS ACCEPTED APRIL 24. THIS REQUEST WAS REFUSED. YOU WERE REQUIRED TO FURNISH THE MATERIAL WHICH WAS PAID FOR AT THE BID PRICE AND YOUR CLAIM FOR THE ADDITIONAL SUM OF $172.16 WAS DISALLOWED.

A-90181, JANUARY 25, 1938, 17 COMP. GEN. 598

CONTRACTS - MISTAKES - BIDS - ALLEGATION AFTER ACCEPTANCE IN GOOD FAITH BIDDER'S CLAIM FOR ADDITIONAL AMOUNT AFTER PERFORMANCE WHERE ERROR IN BID TO FURNISH SUPPLIES WAS NOT ALLEGED UNTIL AFTER ITS ACCEPTANCE IN GOOD FAITH AND THE GOVERNMENT INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AND THERE WAS NOTHING ON THE FACE OF THE BID TO SUGGEST ERROR, AND THE CONTRACTING OFFICER HAD NO MEANS OF KNOWING THE INTENDED BID WAS OTHER THAN AS STATED, THE ERROR WAS NOT MUTUAL AND THERE IS NO AUTHORITY FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE BID PRICE, THE CIRCUMSTANCE THAT THE CONTRACTING OFFICER REQUIRED THE BIDDER TO FURNISH THE SUPPLIES IN ACCORDANCE WITH ITS ACCEPTED BID AND ADVISED IT OF ITS RIGHT TO FILE A CLAIM FOR ANY ADDITIONAL COMPENSATION THOUGHT TO BE DUE NOT OPERATING TO GIVE BIDDER A RIGHT TO ANY ADDITIONAL PAYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE B-D-R ENGINEERING CORPORATION, JANUARY 25, 1938:

YOUR LETTER OF DECEMBER 7, 1937, REQUESTS REVIEW OF SETTLEMENT NO. 0520285, DATED DECEMBER 3, 1937, WHICH DISALLOWED YOUR CLAIM FOR $172.16 REPRESENTING THE AMOUNT ALLEGED TO BE DUE BY REASON OF ERROR IN BID FOR FURNISHING CERTAIN STEEL WINDOW SASH TO THE TREASURY DEPARTMENT, STATE PROCUREMENT OFFICE, MISSOURI.

IT APPEARS THAT UNDER DATE OF APRIL 15, 1937, THE STATE PROCUREMENT OFFICE OF THE TREASURY DEPARTMENT, JEFFERSON CITY, MO., ADVERTISED FOR BIDS TO BE OPENED APRIL 22, 1937, FOR THREE ITEMS OF STEEL WINDOW SASH. YOUR BID FOR THE THREE ITEMS IN THE AMOUNT OF $279.84, BEING THE LOWEST RECEIVED, WAS ACCEPTED APRIL 24, 1937, AND PURCHASE ORDER NO. 51732 ISSUED THE SAME DATE. BY LETTER OF APRIL 28, 1937, YOU ADVISED THE STATE PROCUREMENT OFFICER THAT AN ERROR HAD BEEN MADE IN YOUR BID BUT THAT NO EXPLANATION COULD BE MADE AS TO HOW THE ERROR OCCURRED AND REQUESTED PERMISSION TO WITHDRAW YOUR BID. THIS REQUEST WAS REFUSED, YOU WERE REQUIRED TO FURNISH THE MATERIAL WHICH WAS PAID FOR AT THE BID PRICE AND YOUR CLAIM FOR THE ADDITIONAL SUM OF $172.16 WAS DISALLOWED.

IN YOUR REQUEST FOR REVIEW YOU STATE IN PART AS FOLLOWS:

UPON RECEIPT OF YOUR PURCHASE ORDER WE EXAMINED OUR FILES AND FOUND THAT THROUGH AN ERROR OUR BID READ $279.84 INSTEAD OF $479.84 AND IMMEDIATELY CALLED MR. MINOGUE, STATE PROCUREMENT OFFICER OF MISSOURI AND EXPLAINED THE FACT THAT WE HAD MADE AN ERROR IN OUR SUBMISSION BID.

MR. MINOGUE ACKNOWLEDGED THE FACT THAT OUR BID WAS ENTIRELY OUT OF LINE FROM OTHER BIDS RECEIVED ON COMPETITIVE MATERIALS AND FURTHER ADVISED THAT IF WE WENT THROUGH WITH THIS CONTRACT OUR CLAIM WOULD BE HONORED FOR THE DIFFERENCE BETWEEN OUR COST AND SELLING PRICE.

THE QUESTION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT,WHETHER, NEVERTHELESS, A LEGAL AND VALID CONTRACT WAS FORMED BY THE ACCEPTANCE OF YOUR BID. THE SPECIFICATIONS FOR THE MATERIAL REQUIRED IN THIS CASE WERE CLEAR AND UNAMBIGUOUS. THE PURCHASING OFFICER HAD NO MEANS OF KNOWING THAT YOUR INTENDED BID WAS OTHER THAN AS STATED IN YOUR OFFER AS THERE WAS NOTHING ON THE FACE OF THE BID INDICATING ERROR. HE WAS JUSTIFIED IN ASSUMING YOU HAD BID EXACTLY WHAT YOU INTENDED TO BID. ACTING FOR THE GOVERNMENT HE ACCEPTED YOUR BID IN GOOD FAITH BEFORE YOU NOTIFIED HIM OF THE ERROR IN BID AND YOU KNEW OR SHOULD HAVE KNOWN THAT IN THE ABSENCE OF FRAUD, BAD FAITH, OR OTHER CIRCUMSTANCE VITIATING THE TRANSACTION, THE ACCEPTANCE OF A BID, OR AN OFFER, FORMS A VALID AND BINDING CONTRACT FIXING THE OBLIGATIONS AND RIGHTS OF THE PARTIES INSOFAR AS A UNILATERAL MISTAKE IS CONCERNED. THE ACCEPTANCE VESTED IN THE UNITED STATES THE RIGHT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH THE CONTRACT TERMS, AND NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO DIVEST THE GOVERNMENT OF SUCH A VESTED RIGHT OR TO ALLOW COMPENSATION FOR PERFORMANCE IN AN AMOUNT GREATER THAN THAT AGREED UPON IN THE CONTRACT. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168; SIMPSON V. UNITED STATES, 172 U.S. 372, 379; PLUMLEY V. UNITED STATES, 226 U.S. 545; PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 CT.CLS. 327; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CLS. 584; UNITED STATES V. AMERICAN SALES CORPORATION, 27 FED./2D) 389, AFFIRMED 32 ID. 141, CERTIORARI DENIED, 280 U.S. 574.

THE CIRCUMSTANCE THAT THE PURCHASING OFFICER REQUIRED YOU TO FURNISH THE SUPPLIES IN ACCORDANCE WITH YOUR ACCEPTED BID AND ADVISED YOU OF YOUR RIGHT TO FILE A CLAIM FOR ANY ADDITIONAL COMPENSATION THOUGHT TO BE DUE, COULD NOT OPERATE TO GIVE YOU A RIGHT TO ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE. HE WAS DUTY BOUND TO REQUIRE SUCH PERFORMANCE JUST AS YOU WERE DUTY BOUND TO PERFORM AND AS HE HAD NO AUTHORITY TO DETERMINE OR SETTLE YOUR CLAIM FOR ADDITIONAL PAYMENT--- THAT BEING A MATTER RESERVED BY LAW TO THIS OFFICE AND THE COURTS--- HE COULD ONLY DEMAND DELIVERY OF THE SUPPLIES AND ADVISE YOU THAT A CLAIM COULD BE SUBMITTED FOR THE AMOUNT ALLEGED TO BE DUE. HE HAD NO AUTHORITY TO, AND SO FAR AS THE RECORD SHOWS, DID NOT ADVISE YOU THAT SUCH CLAIM WOULD BE ALLOWED.

SINCE THE MISTAKE WAS NOT MUTUAL AND WAS NOT ALLEGED UNTIL AFTER THE BID HAD BEEN ACCEPTED IN GOOD FAITH, AND SINCE THE BID PRICE HAS BEEN PAID FOR THE MATERIAL DELIVERED, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION THERETO. SEE 17 COMP. GEN. 452, AND DECISIONS THERE CITED.