A-93643, APRIL 5, 1938, 17 COMP. GEN. 817

A-93643: Apr 5, 1938

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DEPENDS NOT ALONE ON WHETHER THE BIDDER MADE A MISTAKE BUT ON THE APPLICATION OF LEGAL PRINCIPLES TO ESTABLISHED FACTS IN A PARTICULAR CASE AND SUCH QUESTIONS NECESSARILY ARE FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE AS INVOLVING THE LEGALITY OF CHARGES TO APPROPRIATIONS. GEN. 397 HAVE BEEN MADE IN 16 COMP. AS FOLLOWS: THERE IS PRESENTED HEREWITH FOR YOUR CONSIDERATION THE CASE OF THE PROTECTOSEAL COMPANY OF CHICAGO. CONTRACT A-PA-OSC-CIV-33 WAS AWARDED TO THAT COMPANY UNDER DATE OF FEBRUARY 7. THE ORIGINAL QUOTATIONS OF THE PROTECTOSEAL COMPANY AS LISTED BELOW ARE RESTRICTED TO THOSE ITEMS: TABLE ITEM 1. - 79.20 IT WILL BE NOTED FROM THE ABOVE THAT EACH PUMP ON WHICH A PRICE WAS REQUESTED IS TO BE FURNISHED WITH TEN FEET OF METAL-LINED DISPENSING HOSE WITH PROPER CONNECTIONS FOR ATTACHMENT TO THE PUMP SPOUT ON ONE END AND PROPER FITTINGS AND NOZZLE ON THE OTHER.

A-93643, APRIL 5, 1938, 17 COMP. GEN. 817

CONTRACTS - MISTAKES - BIDS - PROCEDURE THE QUESTION WHETHER A BID MAY BE CHANGED OR WITHDRAWN AFTER THE TIME FIXED FOR OPENING OF BIDS, DEPENDS NOT ALONE ON WHETHER THE BIDDER MADE A MISTAKE BUT ON THE APPLICATION OF LEGAL PRINCIPLES TO ESTABLISHED FACTS IN A PARTICULAR CASE AND SUCH QUESTIONS NECESSARILY ARE FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE AS INVOLVING THE LEGALITY OF CHARGES TO APPROPRIATIONS, AND, WHILE EXCEPTIONS TO THE PROCEDURE OUTLINED IN 8 COMP. GEN. 397 HAVE BEEN MADE IN 16 COMP. GEN. 999, AND 17 ID. 339, WITH RESPECT TO A SPECIFIED CLASS OF MISPLACED DECIMAL POINT, AND DELIVERY PRICE, MISTAKES IN BIDS, NO FURTHER EXCEPTION APPEARS ADVISABLE AT THE PRESENT TIME.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, APRIL 5, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 23, 1938, AS FOLLOWS:

THERE IS PRESENTED HEREWITH FOR YOUR CONSIDERATION THE CASE OF THE PROTECTOSEAL COMPANY OF CHICAGO, ILLINOIS. CONTRACT A-PA-OSC-CIV-33 WAS AWARDED TO THAT COMPANY UNDER DATE OF FEBRUARY 7, 1938, AS A RESULT OF A BID RECEIVED IN RESPONSE TO INVITATION PA-RO-777 CIRCULATED ON JANUARY 22, 1938, FROM THE SOIL CONSERVATION SERVICE REGIONAL OFFICE AT WILLIAMSPORT, PENNSYLVANIA. THE INVITATION REQUESTED QUOTATIONS ON TEN ITEMS OF GASOLINE CANS AND GASOLINE PUMPS.

SINCE THE AMBIGUITY ARISING UNDER THIS CONTRACT AFFECTS ONLY THE ITEMS COVERING THE FURNISHING OF PUMPS, THE ORIGINAL QUOTATIONS OF THE PROTECTOSEAL COMPANY AS LISTED BELOW ARE RESTRICTED TO THOSE ITEMS:

TABLE

ITEM 1. PUMP, ROTARY, HAND POWER, ETC., TO BE FURNISHED WITH 10

FEET OF METAL LINED DISPENSING HOSE WITH PROPER CONNECTIONS FOR

ATTACHING TO PUMP SPOUT ON ONE END AND PROPER FITTINGS AND

NOZZLE ON THE OTHER END.

DELIVERED: KEEDYSVILLE, MARYLAND--------------$79.00

ITEM 3. SAME AS ITEM NO. 1.

DELIVERED: MOUNDSVILLE, WEST VIRGINIA--------- 79.00

ITEM 5. SAME AS ITEM NO. 1.

DELIVERED:RONCEVERTE, WEST VIRGINIA---------- 79.20

ITEM 7. SAME AS ITEM NO. 1.

DELIVERED: RONCEVERTE, WEST VIRGINIA---------- 79.20

ITEM 9. SAME AS ITEM NO. 1.

DELIVERED: BEVERLY, WEST VIRGINIA------------- 79.20

IT WILL BE NOTED FROM THE ABOVE THAT EACH PUMP ON WHICH A PRICE WAS REQUESTED IS TO BE FURNISHED WITH TEN FEET OF METAL-LINED DISPENSING HOSE WITH PROPER CONNECTIONS FOR ATTACHMENT TO THE PUMP SPOUT ON ONE END AND PROPER FITTINGS AND NOZZLE ON THE OTHER.

PRIOR TO THE DATE SPECIFIED FOR THE OPENING OF THE BIDS, THERE WAS RECEIVED AT THE SOIL CONSERVATION SERVICE REGIONAL OFFICE AT WILLIAMSPORT, A LETTER FROM THE PROTECTOSEAL COMPANY DATED FEBRUARY 1, 1938, WHICH UPON EXAMINATION PROVED TO BE A QUALIFICATION OR REVISION OF ITS BID WITH RESPECT TO CERTAIN ITEMS. THIS LETTER WAS ACCORDINGLY ATTACHED TO AND MADE A PART OF THE BID.

YOU WILL NOTICE THAT THE PROTECTOSEAL COMPANY IN THE ABOVE-MENTIONED LETTER ENDEAVORED TO QUALIFY ITS BID BY INCREASING THE PRICES ON ITEMS 1, 3, 5, AND 7. THE COMPANY STATES THAT THE PRICES CONTAINED IN THE ORIGINAL BID DO NOT INCLUDE THE FLEXIBLE METAL-LINED DISPENSING HOSE WHICH IS EXTRA AND IS FIGURED AT 65 CENTS PER RUNNING FOOT AND THAT THE NECESSARY FITTINGS GO WITH THE HOSE AT THE PRICE THEREIN MENTIONED.

YOUR ATTENTION IS DIRECTED TO THE FACT THAT THE DESCRIPTION OF THE FIRST THREE ITEMS CONFORMS PROPERLY WITH THE DESCRIPTION OF ITEMS 1, 3, AND 5 AS SPECIFIED IN THE INVITATION, BUT THAT WHILE THE PROTECTOSEAL COMPANY'S LETTER OF FEBRUARY 1 SPECIFICALLY REFERS TO ITEM 7 BY NUMBER, THERE IS NO SPECIFIC DESCRIPTION OF ITEM 7 CONTAINED THEREIN AND WHILE THE LETTER OF FEBRUARY 1 DOES NOT SPECIFICALLY MENTION ITEM 9 BY NUMBER, THE DESCRIPTION OF THE LAST ITEM CONTAINED IN THE LETTER CONFORMS WITH THE DESCRIPTION OF ITEM 9 IN THE INVITATION.

ON FEBRUARY 5, 1938, THE DATE SET FOR THE OPENING OF THE BIDS, IT WAS FOUND THAT ALTHOUGH INVITATIONS TO BID WERE CIRCULATED AMONG NINETEEN PROSPECTIVE BIDDERS, THE ONLY BID RECEIVED WAS THAT OF THE PROTECTOSEAL COMPANY.

IN VIEW OF EXISTING AMBIGUITY, THE SOIL CONSERVATION SERVICE REGIONAL OFFICE AT WILLIAMSPORT, IN A LETTER OF FEBRUARY 15, 1938, REQUESTED FROM THE PROTECTOSEAL COMPANY A CONFIRMATION OF ITS BID WITH THE RESULT THAT ON FEBRUARY 17, 1938, THEY WERE INFORMED THAT IT WAS THE INTENTION OF THE CONTRACTOR TO QUOTE ON ITEMS 1, 3, 5, 7, AND 9 IN THE MANNER OUTLINED BELOW:

TABLE

EACH

ITEM 1. 1 NO. 1069F SAFETY TRANSFER PUMP WITH 10 FEET

METAL LINED HOSE F.O.B. KEEDYSVILLE, MARYLAND-------- $85.50

ITEM 3. 2 SAME F.O.B. MOUNDSVILLE, W.VA.-------------- 85.50

ITEM 5. 1 SAME F.O.B. RONCEVERTE, W.VA.--------------- 85.70

ITEM 7. 1 SAME F.O.B. RONCEVERTE, W.VA.--------------- 85.70

ITEM 9. 1 SAME F.O.B. BEVERLY, W.VA.------------------ 85.70

AS STATED ABOVE, ONLY ONE BID WAS RECEIVED AND INASMUCH AS THE PRICES QUOTED WERE CONSIDERED JUST AND REASONABLE, THE PROCUREMENT OFFICER ACCEPTED ALL ITEMS AS LISTED IN THE CONTRACTOR'S LETTER OF FEBRUARY 17, 1938. THE ISSUANCE OF PURCHASE ORDERS FOR ITEMS 7 AND 9, HOWEVER, HAVE BEEN WITHHELD AND THE AWARD OF THESE ITEMS IS CONDITIONAL PENDING RECEIPT OF A DECISION AS TO THE PROPER PROCEDURE TO BE FOLLOWED IN THIS INSTANCE.

IT IS APPARENT THAT THIS CONTRACTOR INTENDED TO CORRECT ITS BID AS TO ALL ITEMS COVERING THE FURNISHING OF PUMPS, BUT THAT IT BECAME CONFUSED DUE TO THE FACT THAT ITEMS 5 AND 7 IN THE INVITATION SPECIFIED SHIPMENT TO THE SAME DESTINATION.

THERE IS FORWARDED HEREWITH THE ORIGINAL SIGNED CONTRACT, TOGETHER WITH ALL THE CORRESPONDENCE PERTAINING TO THE CASE. IN VIEW OF THE FACTS HEREIN PRESENTED, IT IS REQUESTED THAT THE DEPARTMENT BE ADVISED WITH THE RETURN OF THE ENCLOSED PAPERS WHETHER ITEMS 7 AND 9 SHOULD BE ACCEPTED AT THE PRICES QUOTED IN THE ORIGINAL BID OR AT THE PRICES APPEARING IN THE PROTECTOSEAL COMPANY'S LETTER OF FEBRUARY 17, 1938.

IT WILL ALSO BE APPRECIATED IF YOU WILL INFORM THIS OFFICE WHETHER OR NOT IT WOULD BE POSSIBLE TO PERMIT THE PROCUREMENT OFFICERS TO MAKE THE AWARD WITHOUT SUBMITTING THE CASE TO YOUR OFFICE FOR CONSIDERATION IN INSTANCES SUCH AS THIS, WHERE THERE IS SUFFICIENT EVIDENCE TO INDICATE THAT AN OBVIOUS ERROR HAS BEEN MADE.

INCIDENTALLY, IT WILL BE SEEN THAT THE BIDDER IN ITS LETTER OF FEBRUARY 17 QUOTES A PRICE ON TWO PUMPS WITH RESPECT TO ITEM 3, HOWEVER, IT IS PRESUMED THAT ONLY ONE UNIT, AS SPECIFIED IN THE INVITATION, HAS BEEN REQUESTED BY THE PROCUREMENT OFFICER.

IT IS APPARENT FROM THE FACTS SET FORTH IN YOUR LETTER THAT THE CONTRACTOR INTENDED TO CORRECT ITS BID AS TO ALL ITEMS COVERING THE FURNISHING OF PUMPS. ACCORDINGLY, THE BID OF THE PROTECTOSEAL CO. MAY BE CORRECTED AS TO ITEMS 7 AND 9 IN ACCORDANCE WITH ITS LETTER OF FEBRUARY 17, 1938.

IN REGARD TO YOUR REQUEST THAT AUTHORITY BE GRANTED TO PROCUREMENT OFFICERS TO MAKE AWARD IN SUCH CASES AS HERE PRESENTED--- THAT IS, CASES WHERE THERE IS SUFFICIENT EVIDENCE TO INDICATE THAT AN OBVIOUS ERROR HAS BEEN MADE WITHOUT SUBMITTING THE CASE TO THIS OFFICE FOR CONSIDERATION--- IT MAY BE STATED THAT THE QUESTION AS TO WHETHER A BID MAY BE CHANGED OR WITHDRAWN AFTER THE TIME FIXED FOR OPENING DEPENDS NOT ALONE ON WHETHER THE BIDDER MADE A MISTAKE BUT ON THE APPLICATION OF CERTAIN LEGAL PRINCIPLES TO THE ESTABLISHED FACTS IN THE PARTICULAR CASE AND SUCH QUESTIONS NECESSARILY ARE FOR DETERMINATION BY THIS OFFICE AS INVOLVING THE LEGALITY OF THE AMOUNT TO BE CHARGED AGAINST AN APPROPRIATION AND NOT BY ANY ADMINISTRATIVE OFFICE. 11 COMP. GEN. 65; 15 ID. 744. WHILE THIS OFFICE MADE AN EXCEPTION TO THIS RULE IN CASES WHERE THE ERROR INVOLVED IS APPARENT ON THE FACE OF THE BID AND IS ALLEGED OR CONFIRMED BY THE BIDDER BEFORE AWARD, SUCH AS IN THE CASE OF A MISPLACED DECIMAL (17 COMP. GEN. 339), OR THE QUOTATION OF A LOWER PRICE F.O.B. DESTINATION THAN F.O.B. FACTORY (16 COMP. GEN. 999), IT WOULD NOT APPEAR TO BE IN THE INTEREST OF THE UNITED STATES TO MODIFY FURTHER AT THIS TIME THE PROCEDURE OUTLINED IN DECISION OF FEBRUARY 2, 1929, 8 COMP. GEN. 397.