A-91675, JANUARY 25, 1938, 17 COMP. GEN. 599

A-91675: Jan 25, 1938

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE LOW BIDDER'S REPRESENTATIVE CLAIMED AN ERROR HAD BEEN MADE IN THE BID BUT DID NOT SUBMIT EITHER PROOF OF ERROR OR EXPLANATION AS TO HOW THE ALLEGED ERROR OCCURRED AND THERE WAS NOTHING BEFORE THE CONTRACTING OFFICER AT TIME OF ACCEPTANCE TO SHOW CONCLUSIVELY THAT THE BID WAS NOT AS INTENDED OR THAT THE ALLEGATION OF ERROR WAS NOT MERELY TO AVOID THE CONSEQUENCES OF AN ILL ADVISED BID. WHO UNDER THE CIRCUMSTANCES MIGHT HAVE BEEN ENTITLED TO RELEASE FROM LIABILITY BECAUSE OF REFUSAL TO PERFORM. WAS ACCEPTED AND PURCHASE ORDER WAS ISSUED MARCH 24. APPEARS FURTHER THAT A REPRESENTATIVE OF YOUR FIRM WAS PRESENT WHEN THE BIDS WERE OPENED AND ALLEGED THAT AN ERROR HAD BEEN MADE IN YOUR QUOTATION BUT NO PROOF OF ERROR WAS SUBMITTED AT THAT TIME AND NO STATEMENT APPEARS TO HAVE BEEN MADE AT THE TIME AS TO HOW THE ALLEGED ERROR WAS MADE OR WHAT YOU INTENDED TO BID.

A-91675, JANUARY 25, 1938, 17 COMP. GEN. 599

CONTRACTS - MISTAKES - BIDS - ALLEGATION OF ERROR UNSUPPORTED PRIOR TO BID ACCEPTANCE WHERE, AT THE OPENING OF BIDS, THE LOW BIDDER'S REPRESENTATIVE CLAIMED AN ERROR HAD BEEN MADE IN THE BID BUT DID NOT SUBMIT EITHER PROOF OF ERROR OR EXPLANATION AS TO HOW THE ALLEGED ERROR OCCURRED AND THERE WAS NOTHING BEFORE THE CONTRACTING OFFICER AT TIME OF ACCEPTANCE TO SHOW CONCLUSIVELY THAT THE BID WAS NOT AS INTENDED OR THAT THE ALLEGATION OF ERROR WAS NOT MERELY TO AVOID THE CONSEQUENCES OF AN ILL ADVISED BID--- A MERE DIFFERENCE IN PRICE NOT BEING SUFFICIENT FOR THIS PURPOSE--- THE BIDDER, WHO UNDER THE CIRCUMSTANCES MIGHT HAVE BEEN ENTITLED TO RELEASE FROM LIABILITY BECAUSE OF REFUSAL TO PERFORM, HAVING PERFORMED THE CONTRACT, MAY NOT BE PAID ANY AMOUNT IN ADDITION TO THE BID PRICE NOTWITHSTANDING THE EXPLANATION AFTER ACCEPTANCE OF THE BID THAT THE ALLEGED MISTAKE RESULTED FROM STENOGRAPHIC ERROR.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PAPER SERVICE CO., JANUARY 25, 1938:

YOUR LETTER OF OCTOBER 26, 1937, REQUESTS REVIEW OF SETTLEMENT DATED OCTOBER 18, 1937, WHICH DISALLOWED YOUR CLAIM FOR $32.40 ALLEGED TO BE DUE BY REASON OF ERROR IN BID ON 36 CASES OF TOILET PAPER DELIVERED TO THE VETERANS' ADMINISTRATION FACILITY, HINES, ILL., UNDER YOUR PROPOSAL DATED MARCH 19, 1937, ACCEPTED MARCH 24, 1937.

IT APPEARS THAT UNDER DATE OF MARCH 17, 1937, THE VETERANS' ADMINISTRATION FACILITY, HINES, L., ADVERTISED FOR BIDS TO BE OPENED MARCH 24, 1937, FOR THE DELIVERY, F.O.B. HINES, ILL., OF TWO KINDS OF TOILET PAPER. YOUR BID TO FURNISH 36 CASES OF TOILET PAPER, BI-FOLD, 4 1/2 BY 5 3/4 INCHES, 800 SHEETS TO PACKAGE, 125 PACKAGES TO CASE, FOR USE IN ONLIWON CABINETS, FOR $4 A CASE, TOTAL $144, BEING THE LOWEST BID RECEIVED, WAS ACCEPTED AND PURCHASE ORDER WAS ISSUED MARCH 24, 1937. APPEARS FURTHER THAT A REPRESENTATIVE OF YOUR FIRM WAS PRESENT WHEN THE BIDS WERE OPENED AND ALLEGED THAT AN ERROR HAD BEEN MADE IN YOUR QUOTATION BUT NO PROOF OF ERROR WAS SUBMITTED AT THAT TIME AND NO STATEMENT APPEARS TO HAVE BEEN MADE AT THE TIME AS TO HOW THE ALLEGED ERROR WAS MADE OR WHAT YOU INTENDED TO BID.

AFTER YOU RECEIVED THE ORDER FOR THE TOILET PAPER IN QUESTION YOU STATED THAT DUE TO A STENOGRAPHIC ERROR YOU QUOTED A PRICE OF $4 A CASE INSTEAD OF $4.90. THEREAFTER YOU DELIVERED THE TOILET PAPER, THE BID PRICE WAS PAID AND YOUR CLAIM FOR THE ADDITIONAL SUM OF $32.40 WAS DISALLOWED IN THE AFORESAID SETTLEMENT.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT THE COST TO YOU FOR THE TOILET PAPER WAS $4.51 PER CASE AND THAT OBVIOUSLY YOU DID NOT INTEND TO FURNISH IT BELOW COST; THAT, AS STATED ABOVE, YOU CALLED ATTENTION OF THE CONTRACTING OFFICER TO YOUR MISTAKE IN YOUR QUOTATION AT THE TIME OF OPENING OF BIDS; AND THAT THE CONTRACTING OFFICER RECOMMENDED THE ALLOWANCE OF YOUR CLAIM AS THE PRICE ALLEGED TO HAVE BEEN INTENDED WAS LOWER THAN ANY OF THE OTHER BIDS RECEIVED. IT IS NOTED THAT THE PAPER PURCHASED BY YOU AT $4.51 PER CASE WAS NOT PURCHASED UNTIL AFTER YOUR BID HAD BEEN ACCEPTED. THE FACT THAT, AFTER RECEIPT OF THE ORDER,YOU PAID $4.51 PER CASE FOR PAPER IS NO PROOF THAT YOUR PREVIOUS OFFER TO FURNISH PAPER TO THE GOVERNMENT AT $4 PER CASE WAS NOT AS INTENDED.

IT IS NOT SUFFICIENT IN CASES WHERE BIDS ARE OPENED AND THE AMOUNTS OF ALL THE BIDS DISCLOSED, THAT THE LOW BIDDER MERELY ALLEGE ERROR IN ITS BID IN ORDER TO BE RELIEVED OF FURNISHING THE SUPPLIES OR MATERIALS ON WHICH IT HAS BID. IN ORDER TO OBTAIN RELIEF IN SUCH CASES THERE SHOULD BE AN IMMEDIATE SUBMISSION OF SUCH PROOF AND EXPLANATION AS TO LEAVE NO ROOM FOR DOUBT THAT A BONA FIDE MISTAKE WAS MADE AND HOW IT OCCURRED. THE MERE FACT THAT YOUR BID WAS SOME 20 PERCENT OR 25 PERCENT LOWER THAN THE NEXT HIGHER BID RECEIVED IS NOT OF ITSELF SUFFICIENT EVIDENCE THAT YOU MADE A MISTAKE ON YOUR QUOTATION. AT THE TIME YOUR BID WAS ACCEPTED THERE WAS NOTHING BEFORE THE CONTRACTING OFFICER TO SHOW CONCLUSIVELY THAT THE BID WAS NOT AS INTENDED OR THAT THE ALLEGATION OF ERROR WAS NOT MERELY TO AVOID THE CONSEQUENCES OF AN ILL-ADVISED BID. IF A MISTAKE WAS MADE IT WAS DUE SOLELY TO THE LACK OF PROPER CARE ON YOUR PART, THE MISTAKE NOT BEING INDUCED BY, OR IN ANY WAY CONTRIBUTED TO BY THE GOVERNMENT.

WHILE THE FACTS IN THIS CASE MIGHT HAVE WARRANTED RELEASING YOU FROM YOUR BID IF YOU HAD REFUSED TO PERFORM (MOFFETT V. ROCHESTER, 178 U.S. 373; 9 COMP. GEN. 160), SINCE YOU ELECTED TO PERFORM THE CONTRACT INSTEAD OF REFUSING TO PERFORM BECAUSE OF MISTAKE, YOU CANNOT BE PAID ANY AMOUNT IN ADDITION TO THE BID PRICE. AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 CT.CLS. 209.

THE FACT THAT YOU MAY HAVE BEEN INDUCED, THROUGH A STATEMENT MADE BY AN OFFICER OR EMPLOYEE OF THE GOVERNMENT TO MAKE DELIVERY OF THE SUPPLIES AND THEN TO FILE A CLAIM FOR THE DIFFERENCE BETWEEN YOUR BID PRICE AND YOUR INTENDED BID PRICE WITH AN INFERENCE THAT YOU WOULD BE PAID AN ADDITIONAL AMOUNT, DOES NOT AFFECT THE LEGAL RIGHTS AND OBLIGATIONS UNDER THE CONTRACT. SINCE YOU ELECTED TO MAKE DELIVERY AND HAVE BEEN PAID YOUR BID PRICE, NOTHING FURTHER IS DUE YOU. SEE WILLARD, SUTHERLAND AND COMPANY V. UNITED STATES, 262 U.S. 489.