A-93133, APRIL 6, 1938, 17 COMP. GEN. 823

A-93133: Apr 6, 1938

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CONTRACTS - MISTAKES - BIDS - ACCEPTANCE IN GOOD FAITH AND BIDDER'S NEGLIGENCE WHERE A BID WAS ACCEPTED IN GOOD FAITH AND PURCHASE ORDER ISSUED BEFORE BIDDER ALLEGED ERROR IN THE BID. THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE ACCEPTED BID PRICE BECAUSE OF BIDDER'S CLAIM IT HAD OVERLOOKED THE SPECIFICATION REQUIREMENTS AS TO THE TYPE OF MATERIAL. YOUR BID AS TO ITEM 3 WAS ACCEPTED OCTOBER 20. YOUR CONTENTION APPARENTLY BEING THAT IN QUOTING A PRICE OF $4.04 PER HUNDREDWEIGHT YOU HAD OVERLOOKED THE REQUIREMENT THAT THE ANGLES WERE TO BE BENT AND WELDED TO THE BARS AND YOU HAVE ASSIGNED AS A REASON FOR SUCH OVERSIGHT THE FOLLOWING NOTATION IN THE INVITATION: THE ITEMS TO BE PLAIN AND IN ACCORDANCE WITH FED.SPEC.

A-93133, APRIL 6, 1938, 17 COMP. GEN. 823

CONTRACTS - MISTAKES - BIDS - ACCEPTANCE IN GOOD FAITH AND BIDDER'S NEGLIGENCE WHERE A BID WAS ACCEPTED IN GOOD FAITH AND PURCHASE ORDER ISSUED BEFORE BIDDER ALLEGED ERROR IN THE BID, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE ACCEPTED BID PRICE BECAUSE OF BIDDER'S CLAIM IT HAD OVERLOOKED THE SPECIFICATION REQUIREMENTS AS TO THE TYPE OF MATERIAL, THERE HAVING BEEN NO ERROR APPARENT ON THE FACE OF THE BID AND NOTHING OF RECORD TO INDICATE THE CONTRACTING OFFICER KNEW, BEFORE ACCEPTANCE OF THE BID, THAT A MISTAKE HAD BEEN MADE; THE SPECIFICATIONS HAVING CLEARLY SPECIFIED THE TYPE OF MATERIAL REQUIRED, AND ANY MISTAKE HAVING RESULTED SOLELY FROM THE BIDDER'S FAILURE TO FAMILIARIZE ITSELF WITH THE SPECIFICATIONS NOTWITHSTANDING THE INVITATION SPECIFICALLY CAUTIONED BIDDERS TO DO SO.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE BETHLEHEM FABRICATORS, INC., APRIL 6, 1938:

YOUR LETTER OF FEBRUARY 15, 1938, REQUESTS REVIEW OF SETTLEMENT NO. 0629006, DATED FEBRUARY 10, 1938, WHICH DISALLOWED YOUR CLAIM FOR THE SUM OF $56.51 BY REASON OF AN ALLEGED ERROR IN BID ON STEEL ANGLES FURNISHED THE WORKS PROGRESS ADMINISTRATION, MOBILE, ALA., UNDER PROPOSAL DATED OCTOBER 16, 1936, ACCEPTED OCTOBER 20, 1936.

IT APPEARS THAT UNDER DATE OF OCTOBER 1, 1936, THE STATE PROCUREMENT OFFICE, MOBILE, ALA., ISSUED INVITATIONS FOR BIDS ON THREE ITEMS--- THE FIRST TWO CONSISTING OF BEAMS AND THE THIRD OF ANGLES--- BIDS TO BE OPENED OCTOBER 19, 1936. YOUR BID AS TO ITEM 3 WAS ACCEPTED OCTOBER 20, 1936, AND PURCHASE ORDER ISSUED THE SAME DATE. SAID ITEM COVERED MATERIAL DESCRIBED AS FOLLOWS:

CHART

ANGLES: STEEL, 2 1/2 TIMES 2 INCHES TIMES 1/4 INCH TIMES 29 FEET

8 INCHES AT 3.62 POUNDS/FT. BENT TO 2 1/2 INCHES PARABOLIC CROWN

WITH 2 INCHES TIMES 1/4 INCH TIMES 1 FOOT 6 INCHES AT 2.125 BARS

WELDED 2 FT. CENTER TO CENTER AS PER BLUE PRINTS (8 ANGLES) 884 POUNDS.

AFTER RECEIPT OF THE PURCHASE ORDER YOU ALLEGED ERROR IN YOUR BID, YOUR CONTENTION APPARENTLY BEING THAT IN QUOTING A PRICE OF $4.04 PER HUNDREDWEIGHT YOU HAD OVERLOOKED THE REQUIREMENT THAT THE ANGLES WERE TO BE BENT AND WELDED TO THE BARS AND YOU HAVE ASSIGNED AS A REASON FOR SUCH OVERSIGHT THE FOLLOWING NOTATION IN THE INVITATION:

THE ITEMS TO BE PLAIN AND IN ACCORDANCE WITH FED.SPEC. QQ-S-711, CLASS A.

AFTER CONSIDERABLE CORRESPONDENCE CONCERNING THE ALLEGED ERROR, MATERIAL WAS FURNISHED AS CALLED FOR IN THE ACCEPTED BID AND PAYMENT MADE THEREFOR ON THE BASIS OF THE ACTUAL WEIGHT OF THE STEEL FURNISHED AT YOUR BID PRICE OF $4.04 PER HUNDREDWEIGHT.

THE INVITATION IN THIS CASE CONTAINED THE FOLLOWING, IMMEDIATELY PRECEDING THE LISTING OF THE ITEMS REQUIRED:

CAUTION: BIDDERS ARE CAUTIONED TO READ CAREFULLY AND FAMILIARIZE THEMSELVES WITH THE INSTRUCTIONS IN "STANDARD FORM NO. 22--- STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS," THE CONDITIONS ON THE REVERSE SIDE HEREOF, THE TERMS AND CONDITIONS WHICH ARE APPLICABLE TO THIS INVITATION, AS WELL AS, THE SPECIFICATIONS, BLUE PRINTS AND/OR OTHER REFERENCES THAT ARE USED IN THE SPECIFICATIONS TO DESCRIBE THE CHARACTER OR QUALITY OF THE ARTICLE DESIRED. THE "SPECIAL CONDITIONS" ATTACHED HERETO ARE A PART OF THIS INVITATION AND MUST BE RETURNED WITH BID.

THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS, REFERRED TO, PROVIDE 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 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.

PARAGRAPH 1 OF THE SPECIAL CONDITIONS MADE A PART OF THE INVITATION IS IN PERTINENT PART AS FOLLOWS:

EACH PROPOSAL WILL BE RECEIVED WITH THE UNDERSTANDING THAT ACCEPTANCE OF THE OFFER WITHIN THE TIME SPECIFIED IN THE BID SHALL CONSTITUTE A CONTRACT BETWEEN THE BIDDER AND THE UNITED STATES OF AMERICA WHICH WILL BIND THE BIDDER, ON HIS PART, TO FURNISH AND DELIVER THE ARTICLES FOR WHICH HIS OFFER HAS BEEN ACCEPTED. * * *

THE MATERIAL REQUIRED WAS DESCRIBED IN THE SPECIFICATIONS REFERRED TO IN THE INVITATION AND THERE IS NO ROOM FOR DOUBT THAT SAID SPECIFICATIONS CLEARLY CALLED FOR FABRICATED STEEL; THAT IS TO SAY, THAT THE ANGLES BE BENT AND THAT THE BARS BE WELDED THERETO. 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 FAILURE TO FAMILIARIZE YOURSELF WITH THE SPECIFICATIONS AS TO WHICH YOU WERE SPECIFICALLY CAUTIONED IN THE INVITATION. YOU WERE FURTHER CAUTIONED IN THE INSTRUCTIONS TO BIDDERS, SUPRA, THAT YOU COULD NOT SECURE RELIEF ON ACCOUNT OF YOUR FAILURE TO EXAMINE THE SPECIFICATIONS. THUS, CERTAINLY, IT CAN NOT BE SAID THAT THE MISTAKE WAS INDUCED, OR IN ANY WAY CONTRIBUTED TO, BY THE GOVERNMENT. SEE AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 CT.CLS. 209.

THE ACCEPTANCE OF YOUR BID ON OCTOBER 20, 1936, WITHIN THE TIME SPECIFIED BY YOU, CONSUMMATED A CONTRACT AND FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88; PURCELL ENVELOPE COMPANY V. UNITED STATES, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE ACCEPTANCE VESTED IN THE GOVERNMENT THE RIGHT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE CONTRACT AND AT THE CONTRACT PRICE; 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 COMPANY V. UNITED STATES, 49 CT.CLS. 327; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CLS. 584; UNITED STATES V. AMERICAN SALES CORPORATION, 27 FED./2D) 389, AFFIRMED 32 ID. 141, CERTIORARI DENIED, 280 U.S. 574.

SINCE THE MISTAKE WAS NOT MUTUAL AND WAS NOT ALLEGED UNTIL 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 THE PAYMENT OF ANY AMOUNT IN ADDITION THERETO. SEE 17 COMP. GEN. 373; ID. 452; ID. 456; ID. 546; ID. 560; ID. 598; ID. 599, AND DECISIONS THERE CITED.