A-90437, NOVEMBER 18, 1937, 17 COMP. GEN. 408

A-90437: Nov 18, 1937

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IS NOT A COMPLIANCE WITH DECISION IN 14 COMP. TO THE EFFECT THAT WHERE THE TIME FOR ACCEPTANCE IS NOT SUFFICIENT TO PERMIT OF FINAL DETERMINATION OF THE ALLEGED CLAIM OF MISTAKE AND THE BIDDER REFUSES TO EXTEND THE TIME HE SHOULD BE NOTIFIED THAT HIS BID IS ACCEPTED SUBJECT TO THE FINAL ACTION OF THE COMPTROLLER GENERAL AS TO THE ALLEGED MISTAKE. THERE IS FOR CONSIDERATION BY GOVERNMENT CONTRACTING OFFICERS IN CONNECTION WITH THE MATTER OF COLLUSIVE BIDS. 1937: THERE WAS RECEIVED NOVEMBER 12 YOUR LETTER OF NOVEMBER 11. EIGHT BIDS WERE RECEIVED. SEVEN WERE IDENTICAL IN PRICE. WAS FOR $70.00. WHICH IS ATTACHED. STATED THAT THEY WERE WITHDRAWING THEIR BID BECAUSE OF ERROR IN QUOTATION. STATED THAT THE CORRECT PRICE IS $75.00.

A-90437, NOVEMBER 18, 1937, 17 COMP. GEN. 408

ADVERTISING - BIDS - ACCEPTANCE PROCEDURE PENDING RULING ON ALLEGED MISTAKE - REPORTING COLLUSIVE BIDS TO JUSTICE DEPARTMENT WHERE A BIDDER ALLEGES ERROR IN BID LIMITED IN TIME FOR ACCEPTANCE, THE SUBMISSION OF THE MATTER TO THE GENERAL ACCOUNTING OFFICE FOR DETERMINATION WHETHER THE BID SHOULD BE CONSIDERED, WITHOUT PRIOR ACCEPTANCE AND AFTER THE PERIOD FOR ACCEPTANCE HAD EXPIRED, IS NOT A COMPLIANCE WITH DECISION IN 14 COMP. GEN. 612, TO THE EFFECT THAT WHERE THE TIME FOR ACCEPTANCE IS NOT SUFFICIENT TO PERMIT OF FINAL DETERMINATION OF THE ALLEGED CLAIM OF MISTAKE AND THE BIDDER REFUSES TO EXTEND THE TIME HE SHOULD BE NOTIFIED THAT HIS BID IS ACCEPTED SUBJECT TO THE FINAL ACTION OF THE COMPTROLLER GENERAL AS TO THE ALLEGED MISTAKE. THERE IS FOR CONSIDERATION BY GOVERNMENT CONTRACTING OFFICERS IN CONNECTION WITH THE MATTER OF COLLUSIVE BIDS, AN OPINION OF THE ATTORNEY GENERAL DATED AUGUST 10, 1937, AS TO THEIR REJECTION AND REPORTING TO THE DEPARTMENT OF JUSTICE FOR INSTITUTION OF PROCEEDINGS UNDER THE ANTITRUST LAWS IF FOUND WARRANTED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, NOVEMBER 18, 1937:

THERE WAS RECEIVED NOVEMBER 12 YOUR LETTER OF NOVEMBER 11, 1937, AS FOLLOWS:

UNDER DATE OF SEPTEMBER 30, 1937, THE DIVISION OF PURCHASE, SALES AND TRAFFIC, OF THIS DEPARTMENT, ISSUED BIDS ON INVITATION U.S.D.A. NO. 666, FOR ONE TORSION BALANCE FOR THE BUREAU OF CHEMISTRY AND SOILS, THE BIDS HAVING BEEN OPENED AT 2:00 P.M., OCTOBER 12, 1937.

EIGHT BIDS WERE RECEIVED. SEVEN WERE IDENTICAL IN PRICE, QUOTING $75.00, BUT ONE, THE BID OF THE CHEMICAL RUBBER COMPANY, OF CLEVELAND, OHIO, WAS FOR $70.00.

THE CHEMICAL RUBBER COMPANY, IN LETTER DATED OCTOBER 16, WHICH IS ATTACHED, STATED THAT THEY WERE WITHDRAWING THEIR BID BECAUSE OF ERROR IN QUOTATION, AND STATED THAT THE CORRECT PRICE IS $75.00.

IN ACCORDANCE WITH THE PROCEDURE OUTLINED BY YOUR OFFICE, THIS CASE IS SUBMITTED FOR DETERMINATION AS TO WHETHER OR NOT THE BID OF THE CHEMICAL RUBBER COMPANY IS TO BE CONSIDERED.

ALL PAPERS IN CONNECTION WITH THE CASE ARE ENCLOSED.

THE SEVEN BIDDERS SUBMITTING IDENTICAL BID PRICES OF $75 EACH WERE:

CHART

WILLIAMS, BROWN AND EARLE, INC., 918 CHESTNUT ST., PHILA., PA.

A. H. THOMAS CO., W. WASH. SQ., PHILA., PA.

FISHER SCIENTIFIC CO., PITTSBURGH, PA.

EIMER AND AMEND, 3RD AVE., 18TH TO 19TH STS., NEW YORK, N.Y.

CENTRAL SCIENTIFIC CO., 1700 IRVING PARK BLVD., CHICAGO, ILL.

TORSION BALANCE CO., 92 READE ST., NEW YORK, N.Y.

HEIL CORPORATION, ST. LOUIS, MO.

THE LETTER OF OCTOBER 16, 1937, FROM THE CHEMICAL RUBBER CO., WITH REFERENCE TO ITS BID PRICE OF $70, IS AS FOLLOWS:

WE WISH TO INFORM YOU THAT WE ARE WITHDRAWING OUR BID ON A TORSION BALANCE AS SPECIFIED IN YOUR PROPOSAL NO. 666.

WE QUOTED THE PRICE IN ERROR ON THIS ITEM--- THE CORRECT PRICE BEING $75.00.

WE REGRET THIS ERROR ON THIS QUOTATION, BUT IT IS NECESSARY FOR US TO WITHDRAW IT FOR OBVIOUS REASONS.

TRUSTING THAT THIS WILL NOT INCONVENIENCE YOU IN ANY WAY, WE ARE---

THE BIDDER SPECIFIED IN ITS BID THAT THE BID WAS FOR ACCEPTANCE WITHIN 30 DAYS FROM THE DATE OF OPENING. THE BIDS WERE OPENED OCTOBER 12, 1937. NOT ONLY HAS THE BID NOT BEEN ACCEPTED BUT THE PAPERS WERE NOT RECEIVED IN THIS OFFICE UNTIL AFTER THE PERIOD FOR ACCEPTANCE HAD EXPIRED. SEE 14 COMP. GEN. 612. HAD THE BID BEEN ACCEPTED WITHIN THE TIME ALLOWED THEREFOR--- THERE BEING NO PROOF OF BONA FIDE ERROR--- THE BIDDER WOULD HAVE BEEN ENTITLED TO NO RELIEF. SEE SCOTT V. UNITED STATES, 44 CT.CLS. 524; AMERICAN WATER SOFTENER CO. V. UNITED STATES, 50 CT.CLS. 209.

IN THIS CONNECTION YOUR ATTENTION IS INVITED TO AN OPINION OF THE ATTORNEY GENERAL DATED AUGUST 10, 1937, AS TO THE DUTY OF A CONTRACTING OFFICER TO REJECT COLLUSIVE BIDS WITH POSSIBLE ADVISABILITY OF REPORTING THEM TO THE DEPARTMENT OF JUSTICE TO THE END THAT PROCEEDINGS UNDER THE ANTITRUST LAWS MAY BE INSTITUTED IF AFTER FULL INVESTIGATION BY SAID DEPARTMENT IT SHOULD DEEM SUCH PROCEEDINGS WARRANTED.