A-92440, MARCH 8, 1938, 17 COMP. GEN. 708

A-92440: Mar 8, 1938

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DOES NOT ESTABLISH THAT DATE AS THE DATE OF AWARD IN DETERMINING WHETHER A BIDDER'S MISTAKE WAS ALLEGED PRIOR TO AWARD. WHERE THE MISTAKE WAS DUE SOLELY TO THE BIDDER'S NEGLIGENCE. THERE IS NO AUTHORITY FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE BID PRICE. 530 WAS ACCEPTED ON JUNE 19. THE MATERIAL WAS DELIVERED. THE BID PRICE THEREFOR PAID AND YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $321.03 WAS DISALLOWED. THIS WAS PRIOR TO YOUR ACCEPTANCE OF MY OFFER WHICH WAS MADE ON JULY 3.'. WITH RESPECT TO THE DATE OF ACCEPTANCE THE CONTRACTING OFFICER HAS ADVISED THAT YOUR BID WAS ACTUALLY ACCEPTED JUNE 19. WAS THE DATE THE PURCHASE ORDER WAS ISSUED. THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS TO WHICH YOUR ATTENTION WAS INVITED BY THE INVITATION FOR BIDS.

A-92440, MARCH 8, 1938, 17 COMP. GEN. 708

CONTRACTS - MISTAKES - BIDS - BIDDER'S NEGLIGENCE AND ALLEGATION OF NOTICE OF ERROR PRIOR TO AWARD THE DATE OF ISSUANCE OF A PURCHASE ORDER, WHERE CONTRACT AWARD HAS PREVIOUSLY BEEN MADE, DOES NOT ESTABLISH THAT DATE AS THE DATE OF AWARD IN DETERMINING WHETHER A BIDDER'S MISTAKE WAS ALLEGED PRIOR TO AWARD, AND WHERE THE MISTAKE WAS DUE SOLELY TO THE BIDDER'S NEGLIGENCE, AND NOT INDUCED BY, OR IN ANY WAY CONTRIBUTED TO BY THE GOVERNMENT, THERE IS NO AUTHORITY FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE BID PRICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CONTRACTORS MATERIALS CO., MARCH 8, 1938:

YOUR LETTER OF FEBRUARY 7, 1938, REQUESTS REVIEW OF SETTLEMENT NO. 0699747, DATED FEBRUARY 4, 1938, WHICH DISALLOWED YOUR CLAIM FOR $327.03 ALLEGED TO BE DUE BY REASON OF ERROR IN BID ON CERTAIN MATERIAL FURNISHED THE WORKS PROGRESS ADMINISTRATION AT LASALLE, ILL., UNDER CONTRACT NO. ER- TPS-54-16032, DATED JUNE 19, 1936.

IT APPEARS THAT BY INVITATION NO. 9161, DATED JUNE 11, 1936, THE STATE PROCUREMENT OFFICE, TREASURY DEPARTMENT, CHICAGO, ILL., ADVERTISED FOR BIDS ON CERTAIN BUILDING MATERIALS AS DESCRIBED IN THE INVITATION, BIDS TO BE OPENED JUNE 19, 1936. YOUR BID IN THE AMOUNT OF $2,530 WAS ACCEPTED ON JUNE 19, 1936, AND THE PERFORMANCE BOND EXECUTED THEREAFTER REFERRED TO THE CONTRACT AS OF THAT DATE. BY LETTER OF JUNE 23, 1936, YOU ALLEGED THAT AN ERROR OF $327.03 HAD BEEN MADE IN YOUR BID, IN THAT YOU HAD NOT INCLUDED THEREIN THE WELDED WIRE FABRIC AND REQUESTED PERMISSION TO WITHDRAW YOUR BID. THE CONTRACTING OFFICER BY LETTER OF JUNE 26, 1936, REFUSED THE REQUEST AND ADVISED THAT YOU SHOULD PROCEED WITH DELIVERY OF THE MATERIAL. HE FURTHER ADVISED THAT YOU WOULD BE PERMITTED TO FILE CLAIM FROM ANY ADDITIONAL AMOUNT BELIEVED TO BE DUE. THE MATERIAL WAS DELIVERED, THE BID PRICE THEREFOR PAID AND YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $321.03 WAS DISALLOWED.

YOU STATE IN YOUR LETTER THAT ON JUNE 19, 1936, YOU DISCOVERED THAT YOU HAD MADE AN ERROR AND THAT "ON JUNE 22 I CALLED IN PERSON AT THE OFFICE OF THE W.P.A. IN CHICAGO AND NOTIFIED THEM OF MY ERROR, AND THIS WAS PRIOR TO YOUR ACCEPTANCE OF MY OFFER WHICH WAS MADE ON JULY 3.' WITH RESPECT TO THE DATE OF ACCEPTANCE THE CONTRACTING OFFICER HAS ADVISED THAT YOUR BID WAS ACTUALLY ACCEPTED JUNE 19, 1936, AND IT APPEARS THAT THE DATE, JULY 3, TO WHICH YOU REFER AS DATE OF ACCEPTANCE, WAS THE DATE THE PURCHASE ORDER WAS ISSUED. SUCH PURCHASE ORDER HAS NO BEARING ON THE ACCEPTANCE DATE, THE PURPOSE OF THE ORDER BEING MERELY TO FURNISH YOU WITH PROPER SHIPPING INSTRUCTIONS, ETC.

THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS TO WHICH YOUR ATTENTION WAS INVITED BY THE INVITATION FOR BIDS, 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.

THE MATERIAL UPON WHICH BIDS WERE REQUESTED IS DESCRIBED IN THE INVITATION AS FOLLOWS:

FURNISH ALL CONCRETE REINFORCEMENT BARS, SLAB SPACERS, BEAM SADDLES, CHAIRS, AND WELDED WIRE FABRIC FOR LASALLE-PERU TOWNSHIP HIGH SCHOOL STADIUM AND FOOTBALL FIELD.

CONCRETE REINFORCEMENT BARS SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATION QQ-B-71, B-1, TYPE B (DEFORMED) GRADE 2 (INTERMEDIATE BILLET STEEL). WELDED WIRE FABRIC CONCRETE REINFORCEMENT SHALL BE IN ACCORDANCE WITH THE AMERICAN SOCIETY FOR TESTING MATERIALS "STANDARD SPECIFICATIONS FOR COLD DRAWN STEEL WIRE FOR CONCRETE REINFORCEMENT.' SHAPES, SIZES, LENGTHS, AND BENDINGS SHALL BE AS SHOWN ON DRAWINGS * * *. AND THE FOLLOWING APPEARS OPPOSITE YOUR INSERTED BID PRICE OF $2.530:

TOTAL FOR FURNISHING REINFORCEMENT BARS AND WELDED WIRE FABRIC AS CALLED FOR ON THE ABOVE MENTIONED DRAWINGS WITH THE EXCEPTIONS NOTED HEREIN.

THUS THERE CAN BE NO QUESTION BUT THAT THE MATERIAL DESIRED WAS FULLY DESCRIBED IN THE INVITATION. THERE WAS NO ERROR APPARENT ON THE FACE OF YOUR BID AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER BEFORE ACCEPTANCE OF YOUR BID KNEW THAT A MISTAKE HAD BEEN MADE BY YOU. IF YOU MADE A MISTAKE IN SUBMITTING YOUR BID, SUCH A MISTAKE WAS DUE SOLELY TO YOUR OWN NEGLIGENCE, THE MISTAKE NOT BEING INDUCED BY, OR IN ANY WAY CONTRIBUTED TO BY THE GOVERNMENT. SEE AMERICAN WATER SOFTENER CO. V. UNITED STATES, 50 CT.CLS. 209. YOU WERE CAUTIONED IN THE INSTRUCTIONS TO BIDDERS, SUPRA, THAT YOU COULD NOT SECURE RELIEF ON ACCOUNT OF YOUR FAILURE TO EXAMINE THE SPECIFICATIONS.

THE ACCEPTANCE ON JUNE 19, 1936, OF YOUR BID AS SUBMITTED, CONSUMMATED A CONTRACT AND FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES THERETO. THE RIGHT VESTED IN THE GOVERNMENT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH ITS TERMS AND NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO DIVEST THE GOVERNMENT OF SUCH VESTED RIGHT OR TO ALLOW COMPENSATION FOR PERFORMANCE IN EXCESS OF THE AMOUNT AGREED UPON IN THE CONTRACT. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168; SIMPSON V. UNITED STATES, 172 U.S. 372; PLUMLEY V. UNITED STATES, 226 U.S. 545; PACIFIC HARDWARE CO. V. UNITED STATES 49 CT.CLS. 327; BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 CT.CLS. 584; UNITED STATES V. AMERICAN SALES CORPORATION, 27 FED./2ND) 389, AFFIRMED 32 ID. 141, CERTIORARI DENIED, 280 U.S. 574.

THE CIRCUMSTANCE THAT THE CONTRACTING OFFICER REQUIRED YOU TO FURNISH THE MATERIAL IN ACCORDANCE WITH YOUR ACCEPTED BID AND ADVISED YOU OF YOUR RIGHT TO FILE A CLAIM FOR ANY ADDITIONAL COMPENSATION THOUGHT TO BE DUE COULD NOT GIVE YOU A RIGHT TO ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE. SEE AMERICAN WATER SOFTENER CO. CASE, SUPRA. IN MAKING DELIVERY YOU DID NO MORE THAN YOU WERE OBLIGATED TO DO UNDER YOUR ACCEPTED BID AND INASMUCH AS YOU HAVE BEEN PAID THE CONTRACT PRICE, NOTHING FURTHER IS DUE YOU. WILLARD, SUTHERLAND CO. V. UNITED STATES, 262 U.S. 489.

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 HAS BEEN PAID FOR THE MATERIAL DELIVERED, 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. 456; ID. 546; ID. 560; ID. 598; ID. 599.