A-91285, DECEMBER 29, 1937, 17 COMP. GEN. 534

A-91285: Dec 29, 1937

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- PARTICULARLY WHERE BIDDER HAS ADMITTED THE ERROR WAS DUE TO ITS "DECIDED CARELESSNESS". THE BID WAS SUBMITTED FEBRUARY 8. WAS THE LOWEST RECEIVED AND THE CONTRACT WAS AWARDED TO YOU ON FEBRUARY 15. 129 WAS ISSUED TO YOU ON FEBRUARY 17. THAT DELIVERY UNDER THE CONTRACT WAS COMPLETED ON MARCH 22. IN THAT THE PRICE OF $5.50 PER 100 LINEAL FEET WAS BASED ON ONE-HALF INCH CONDUIT AND THAT THE CORRECT PRICE SHOULD HAVE BEEN $21.90 PER 100 LINEAL FEET. THAT THE ERROR WAS FIRST NOTED UPON RECEIPT OF THE PURCHASE ORDER BUT NOT CALLED TO THE CONTRACTING OFFICER'S ATTENTION UNTIL THE CONTRACT MATERIALS HAD BEEN DELIVERED. THAT THE ERROR WAS DUE TO "DECIDED CARELESSNESS ON OUR PART.'. THE SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS AND THERE WAS NOTHING ON THE FACE OF YOUR BID SUGGESTING ERROR.

A-91285, DECEMBER 29, 1937, 17 COMP. GEN. 534

CONTRACTS - MISTAKES - BIDS - ONE ITEM OF LUMP-SUM BID - ACCEPTANCE IN GOOD FAITH AND BIDDER'S NEGLIGENCE WHERE AN INVITATION TO BID PROVIDED THAT AWARD WOULD BE MADE TO THE LOWEST QUALIFIED BIDDER FOR THE ENTIRE LOT BUT THAT UNIT PRICES FOR THE VARIOUS ITEMS SHOULD BE SHOWN, AND BIDDER NOTED ERROR IN ONE ITEM OF ITS BID UPON RECEIPT OF PURCHASE ORDER AND ALLEGED SAME AFTER DELIVERY OF THE CONTRACT MATERIAL, ITS CLAIM FOR ADDITIONAL PAYMENT MAY NOT BE ALLOWED--- PARTICULARLY WHERE BIDDER HAS ADMITTED THE ERROR WAS DUE TO ITS "DECIDED CARELESSNESS"--- THERE BEING NO DUTY ON THE CONTRACTING OFFICER TO COMPARE THE BID AS TO THE INVOLVED ITEM WITH THE OTHER BIDS ON SUCH ITEM, THE SPECIFICATIONS HAVING BEEN CLEAR AND UNAMBIGUOUS AND NOTHING APPEARING ON THE FACE OF THE BID SUGGESTING ERROR, AND THE DIFFERENCE BETWEEN THE ACCEPTED "LOT" BID AND THE OTHER "LOT" BIDS NOT BEING SO GREAT THAT IT MUST BE CONCLUDED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE AMERICAN ELECTRIC SUPPLY CO., DECEMBER 29, 1937:

IN YOUR LETTER OF DECEMBER 2, 1937, YOU REQUEST REVIEW OF SETTLEMENT DATED DECEMBER 1, 1937, WHICH DISALLOWED YOUR CLAIM FOR $246 BASED ON AN ALLEGED ERROR IN YOUR BID PROPOSING TO FURNISH CERTAIN MISCELLANEOUS ELECTRICAL SUPPLIES TO THE WORKS PROGRESS ADMINISTRATION, CHICAGO, ILL. THE BID WAS SUBMITTED FEBRUARY 8, 1937, AND ACCEPTED FEBRUARY 15, 1937.

THE INVITATION TO BID PROVIDED THAT AWARD WOULD BE MADE TO THE LOWEST QUALIFIED BIDDER FOR THE ENTIRE LOT BUT THAT UNIT PRICES FOR THE VARIOUS ITEMS SHOULD BE SHOWN. YOUR BID OF $317.25 FOR THE LOT, LESS 2 PERCENT DISCOUNT FOR PAYMENT WITHIN 20 DAYS, WAS THE LOWEST RECEIVED AND THE CONTRACT WAS AWARDED TO YOU ON FEBRUARY 15, 1937. THE RECORD SHOWS THAT PURCHASE ORDER NO. F-110,129 WAS ISSUED TO YOU ON FEBRUARY 17, 1937, AND THAT DELIVERY UNDER THE CONTRACT WAS COMPLETED ON MARCH 22, 1937.

THEREAFTER, YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN YOUR QUOTATION UNDER ITEM 1 OF THE INVITATION, FOR 2-INCH RIGID CONDUIT, IN THAT THE PRICE OF $5.50 PER 100 LINEAL FEET WAS BASED ON ONE-HALF INCH CONDUIT AND THAT THE CORRECT PRICE SHOULD HAVE BEEN $21.90 PER 100 LINEAL FEET; THAT THE ERROR WAS FIRST NOTED UPON RECEIPT OF THE PURCHASE ORDER BUT NOT CALLED TO THE CONTRACTING OFFICER'S ATTENTION UNTIL THE CONTRACT MATERIALS HAD BEEN DELIVERED; AND THAT THE ERROR WAS DUE TO "DECIDED CARELESSNESS ON OUR PART.'

THE SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS AND THERE WAS NOTHING ON THE FACE OF YOUR BID SUGGESTING ERROR. NOR WAS THE DIFFERENCE BETWEEN YOUR "LOT" BID AND THE OTHER "LOT" BIDS RECEIVED SO GREAT THAT IT MUST BE CONCLUDED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. WHETHER THERE WAS SUCH A DIFFERENCE BETWEEN YOUR BID AND THE OTHER BIDS ON ITEM 1 IS NOT CONTROLLING SINCE THE CONTRACTING OFFICER WAS UNDER NO DUTY TO COMPARE THOSE PRICES, THE BIDS BEING REQUESTED, FOR PURPOSES OF AWARD, ON THE "LOT.' IT APPEARS, THEREFORE THAT THE BID WAS ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH AND WITHOUT KNOWLEDGE OF THE ERROR. ORDINARILY, THERE CAN BE NO RELIEF GRANTED FOR A UNILATERAL MISTAKE OF FACT IN THE ABSENCE OF FRAUD OR CONCEALMENT. THE ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 CT.CLS. 127; AMERICAN WATER SOFTENER CO. V. UNITED STATES, 50 CT.CLS. 209.

WITH RESPECT TO YOUR ADMITTED CARELESSNESS IN THE PREPARATION OF YOUR BID, ATTENTION IS INVITED TO THE CASE OF STAR-CHRONICLE PUB.CO. V. NEW YORK EVENING POST, INC., ET AL., 256 FED. 435, WHEREIN THE COURT QUOTED WITH APPROVAL "BLACK" ON "RESCISSION AND CANCELLATION," VOLUME 1, SECTION 131, AS FOLLOWS:

A PARTY CANNOT HAVE RELIEF AGAINST A CONTRACT OR OTHER OBLIGATION INTO WHICH HE HAS ENTERED IN IGNORANCE OF MATERIAL FACTS, OR UNDER A MISTAKE AS TO SUCH FACTS, WHERE NO FRAUD OR IMPOSITION WAS PRACTICED UPON HIM, AND HIS IGNORANCE OR MISTAKE IS ENTIRELY DUE TO HIS OWN NEGLIGENCE OR LACK OF PROPER ATTENTION, OR TO THE FAILURE TO EXERCISE SUCH REASONABLE CARE AND THOUGHTFULNESS AS MAY BE EXPECTED IN BUSINESS TRANSACTIONS FROM MEN OF ORDINARY CARE AND PRUDENCE.

FOR THE REASONS STATED HEREIN THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE, AND IS, SUSTAINED.