A-90222, APRIL 6, 1938, 17 COMP. GEN. 819

A-90222: Apr 6, 1938

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CONTRACTS - MISTAKES - BIDS - ACCEPTANCE IN GOOD FAITH AND BIDDER'S NEGLIGENCE WHERE ERROR IN BID 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 BID PRICE BECAUSE OF BIDDER'S CLAIM OF TYPOGRAPHICAL ERROR IN THE UNIT PRICE BID ON ONE ITEM OF THE INVITATION. WAS ACCEPTED MARCH 26. AS TO NINE OF THE ITEMS ADVERTISED AND THAT PURCHASE ORDER FOR SAID ITEMS WAS ISSUED MARCH 27. BELL TYPE PEPPERS SHOULD HAVE READ .105 PER POUND. THE PEPPERS WERE FURNISHED. YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $21.69 WAS DISALLOWED. - BIDDERS OR THEIR AUTHORIZED AGENTS ARE EXPECTED TO EXAMINE THE MAPS. WHICH WILL BE OPEN TO THEIR INSPECTION.

A-90222, APRIL 6, 1938, 17 COMP. GEN. 819

CONTRACTS - MISTAKES - BIDS - ACCEPTANCE IN GOOD FAITH AND BIDDER'S NEGLIGENCE WHERE ERROR IN BID 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 BID PRICE BECAUSE OF BIDDER'S CLAIM OF TYPOGRAPHICAL ERROR IN THE UNIT PRICE BID ON ONE ITEM OF THE INVITATION, THERE HAVING BEEN NO ERROR APPARENT ON THE FACE OF THE BID, EITHER IN UNIT PRICE OR EXTENDED TOTAL FOR THE ITEM INVOLVED, AND NOTHING OF RECORD TO INDICATE THE CONTRACTING OFFICER KNEW BEFORE ACCEPTANCE OF THE BID THAT AN ERROR HAD BEEN MADE; THE MISTAKE HAVING RESULTED SOLELY FROM THE BIDDER'S ADMITTED NEGLIGENCE, AND THE INVITATION HAVING SPECIFICALLY REFERRED TO STANDARD INSTRUCTIONS TO BIDDERS WHICH CAUTIONED BIDDERS WITH RESPECT TO THE PREPARATION OF BIDS.

ACTING COMPTROLLER GENERAL ELLIOTT TO ALDRICH AND CO., INC., APRIL 6, 1938:

YOUR LETTER OF JANUARY 7, 1938, REQUESTS REVIEW OF SETTLEMENT NO. 0542670, DATED DECEMBER 17, 1937, WHICH DISALLOWED YOUR CLAIM FOR $21.69, ALLEGED TO BE DUE BY REASON OF ERROR IN BID ON AN ITEM OF GREEN PEPPERS FURNISHED THE VETERANS' ADMINISTRATION FACILITY, HINES, ILL., UNDER CONTRACT NO. VA-28R-1226.

THE RECORD SHOWS THAT YOUR BID OF MARCH 25, 1937, WAS ACCEPTED MARCH 26, 1937, AS TO NINE OF THE ITEMS ADVERTISED AND THAT PURCHASE ORDER FOR SAID ITEMS WAS ISSUED MARCH 27, 1937. BY LETTER OF MARCH 31, 1937, YOU ADVISED THE PURCHASING OFFICER THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE AS TO ITEM 58, COVERING GREEN PEPPERS, AND REQUESTED THAT A RECLAIM VOUCHER BE FURNISHED IN ORDER THAT YOU MIGHT SUBMIT CLAIM FOR THE DIFFERENCE BETWEEN YOUR BID PRICE AND THE NEXT LOWEST BID. UNDER DATE OF APRIL 7, 1937, THE PURCHASING OFFICER FORWARDED THE NECESSARY FORMS TO YOU AND BY LETTER OF MAY 4, 1937, YOU SUBMITTED RECLAIM VOUCHER IN THE AMOUNT OF $21.69, AND STATED---

OUR TYPIST MADE AN ERROR IN THE TYPING OF THE PROPOSAL ON MARCH 26TH, 1937. THE ITEM NUMBERED 48: SWEET, GREEN, BELL TYPE PEPPERS SHOULD HAVE READ .105 PER POUND. DUE TO HER ERROR IT READ .015. YOUR KIND AND PROMPT ATTENTION IN THE ABOVE MATTER SHALL BE APPRECIATED.

THE PEPPERS WERE FURNISHED, THE BID PRICE THEREFOR PAID, AND YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $21.69 WAS DISALLOWED.

IN THE SECOND PARAGRAPH OF YOUR LETTER REQUESTING REVIEW OF THE DISALLOWANCE YOU STATE:

AS THE ERROR HAD BEEN MADE BY ONE OF OUR TYPISTS, WE FILED OUR CLAIM WITH THE UNDERSTANDING THAT WE COULD BE ALLOWED THE DIFFERENCE BETWEEN OUR PRICE AND THAT OF THE LOWEST BIDDER.

PARAGRAPH 6 OF THE INVITATION IN THIS CASE ADVISED BIDDERS THAT---

COPY OF U.S. STANDARD FORM 22 (INSTRUCTION TO BIDDERS) MAY BE OBTAINED WITHOUT COST UPON APPLICATION TO MANAGER, VETERANS' ADMINISTRATION, HINES, ILLINOIS, OR ANY GOVERNMENT PURCHASING OFFICE.

SAID INSTRUCTIONS PROVIDED IN PARAGRAPHS 14 AND 19, AS FOLLOWS:

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 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 INVOLVED. YOUR BID WAS ACCEPTED ON NINE ITEMS AGGREGATING OVER $1,400 AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE PURCHASING OFFICER, BEFORE ACCEPTANCE OF YOUR BID, KNEW THAT A MISTAKE HAD BEEN MADE BY YOU. IF YOU MADE THE MISTAKE AS ALLEGED ON ONE OF THE NINE ITEMS IN SUBMITTING YOUR BID, SUCH A MISTAKE WAS DUE SOLELY TO YOUR OWN NEGLIGENCE, AND THIS IS ADMITTED BY YOU IN THE LETTERS QUOTED ABOVE. THE MISTAKE WAS NOT INDUCED, OR IN ANY WAY CONTRIBUTED TO, BY THE GOVERNMENT. ON THE CONTRARY, YOU WERE SPECIFICALLY CAUTIONED WITH RESPECT TO THE PREPARATION OF YOUR BID IN THE INSTRUCTIONS TO BIDDERS, SUPRA.

THE GENERAL RULE IS THAT WHERE THERE HAS BEEN A MISTAKE IN BID ON WHICH A CONTRACT IS BASED, THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF. ORDER TO AUTHORIZE RELIEF ON ACCOUNT OF A MISTAKE IN AN ACCEPTED BID IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AT THE TIME OF ACCEPTANCE AND SOUGHT TO TAKE ADVANTAGE THEREOF. THE RECORD IN THIS CASE SHOWS THAT THE BID WAS ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH WITHOUT NOTICE OF ANY ERROR. 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, AND SINCE THE BID PRICE FOR THE MATERIAL HAS BEEN PAID, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION THERETO. SEE 17 COMP. GEN. 452, AND DECISIONS THERE CITED. SEE ALSO 17 COMP. GEN. 373, ID. 456, ID. 546, ID. 560, ID. 598, ID. 599.