A-91442, DECEMBER 31, 1937, 17 COMP. GEN. 536

A-91442: Dec 31, 1937

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THE LOW BIDDER ALLEGED ERROR IN ITS BID AND THE ERROR IS CLEARLY ESTABLISHED. NO BID BOND WAS REQUIRED. ARE FORWARDED FOR YOUR CONSIDERATION. THIS JAM IS FOR TRANSSHIPMENT TO THE UNITED STATES ARMY TROOPS IN CHINA AT TIENTSIN. BIDS WERE OPENED ON DECEMBER 10. NOTICE OF ERROR IN THE BID SUBMITTED WAS RECEIVED BY THE PURCHASING OFFICER ON DECEMBER 13. THE BIDDER STATED THAT BID WAS MADE ON NO. 2 CAN. WHILE IT IS A FACT THAT THE BID OF .164 PER CAN WAS OUT OF LINE WITH THE OTHER BIDS SUBMITTED AND IS PERHAPS SOME INDICATION THAT THE QUOTATION WAS SUBMITTED UPON A DIFFERENT-SIZED CONTAINER THAN THAT CALLED FOR. IT IS NEVERTHELESS A FACT THAT THE INVITATION TO BID CLEARLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT AND THAT ANY ERROR MADE WAS APPARENTLY THE RESULT OF NEGLIGENCE ON THE PART OF THE BIDDER.

A-91442, DECEMBER 31, 1937, 17 COMP. GEN. 536

CONTRACTS - MISTAKES - BIDS - DISREGARDING OF BID IN MAKING AWARD WHERE, AFTER THE OPENING OF BIDS BUT BEFORE AWARD, THE LOW BIDDER ALLEGED ERROR IN ITS BID AND THE ERROR IS CLEARLY ESTABLISHED, AND NO BID BOND WAS REQUIRED, THE BID SHOULD BE DISREGARDED IN MAKING AWARD ON THE ITEM INVOLVED, AS ITS ACCEPTANCE WOULD NOT BE IN GOOD FAITH AND WOULD NOT GIVE RISE TO A BINDING CONTRACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, DECEMBER 31, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 23, 1937, AS FOLLOWS:

THE ENCLOSED PAPERS IN CONNECTION WITH AN ALLEGED ERROR IN THE BID SUBMITTED BY THE KERR CONSERVING COMPANY, PORTLAND, OREGON, TO THE SAN FRANCISCO GENERAL DEPOT FOR 312 CANS OF JAM, ASSORTED, NO. 10 CANS, ARE FORWARDED FOR YOUR CONSIDERATION. THIS JAM IS FOR TRANSSHIPMENT TO THE UNITED STATES ARMY TROOPS IN CHINA AT TIENTSIN.

BIDS WERE OPENED ON DECEMBER 10, 1937, AND NOTICE OF ERROR IN THE BID SUBMITTED WAS RECEIVED BY THE PURCHASING OFFICER ON DECEMBER 13, 1937. THE BIDDER STATED THAT BID WAS MADE ON NO. 2 CAN, ALTHOUGH THE INVITATION CALLED FOR NO. 10 CAN.

WHILE IT IS A FACT THAT THE BID OF .164 PER CAN WAS OUT OF LINE WITH THE OTHER BIDS SUBMITTED AND IS PERHAPS SOME INDICATION THAT THE QUOTATION WAS SUBMITTED UPON A DIFFERENT-SIZED CONTAINER THAN THAT CALLED FOR, IT IS NEVERTHELESS A FACT THAT THE INVITATION TO BID CLEARLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT AND THAT ANY ERROR MADE WAS APPARENTLY THE RESULT OF NEGLIGENCE ON THE PART OF THE BIDDER.

THE NECESSITY OF IMPRESSING UPON ALL BIDDERS THE DEGREE OF CARE REQUIRED IN THE PREPARATION OF BIDS, RENDERS IT ADVISABLE, IN THE OPINION OF THIS OFFICE, THAT AWARD TO THE KERR CONSERVING COMPANY BE MADE UPON ITS BID AS SUBMITTED. IT IS LIKEWISE RECOMMENDED THAT ACTION BE EXPEDITED AS THE MATERIAL BID UPON IS REQUIRED FOR SHIPMENT ON GOVERNMENT TRANSPORT SAILING IN JANUARY 1938.

THE GENERAL RULE IS THAT PROPOSALS THAT HAVE BEEN SUBMITTED IN RESPONSE TO AN ADVERTISEMENT FOR BIDS MAY NOT BE WITHDRAWN AFTER THEY HAVE BEEN OPENED EVEN BEFORE AWARD IS MADE AND THAT THE BIDDER IS BOUND TO ACCEPT THE AWARD. 6 COMP. GEN. 504; 9 ID. 161. SEE, ALSO, SCOTT V. UNITED STATES, 44 CT.CLS. 524.

THERE IS, OF COURSE, NO OBLIGATION ON THE PART OF THE GOVERNMENT TO HAVE ITS CONTRACTING OFFICERS ACT AS GUARDIANS FOR CARELESS BIDDERS, 8 COMP. GEN. 397, AND THIS OFFICE AGREES WITH THE SUGGESTIONS IN YOUR LETTER, SUPRA, AS TO THE NECESSITY OF IMPRESSING UPON ALL BIDDERS THE DEGREE OF CARE REQUIRED IN THE PREPARATION OF ALL BIDS. HOWEVER, WHEN AN ERROR IS ALLEGED AND CLEARLY ESTABLISHED BEFORE AN AWARD IS MADE, THE ACCEPTANCE OF THE BID WOULD NOT BE IN GOOD FAITH AND, THEREFORE, WOULD NOT GIVE RISE TO A BINDING CONTRACT.

IN THIS INSTANCE THE KERR CONSERVING CO. BID 16.4 CENTS PER CAN FOR THE 312 CANS OF JAM, WHEREAS THE 8 OTHER BIDS RECEIVED ON SAID ITEM RANGED FROM 61.24 CENTS PER CAN TO 95 CENTS PER CAN. HENCE, THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT THAT THIS BIDDER DID MAKE A MISTAKE IN ITS BID AND DID NOT INTEND TO BID 16.4 CENTS PER CAN FOR NO. 10 CANS. BID BOND WAS REQUIRED.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES THE BID OF THE KERR CONSERVING CO. ON THE ITEM INVOLVED SHOULD BE DISREGARDED IN MAKING AWARD.

IT IS NOTED, ALSO, THAT THIS BID WAS SUBMITTED ON THE CONDITION THAT THE BIDDER RECEIVE ,WRITTEN NOTICE OF THE ACCEPTANCE OF THE BID WITHIN 15 DAYS * * * AFTER THE DATE OF THE OPENING OF THE BIDS.' THE DATE OF OPENING WAS DECEMBER 10, 1937, AND THE BIDDER HAS NOT YET RECEIVED WRITTEN NOTICE (OR OTHER NOTICE) OF ACCEPTANCE OF ITS BID.