A-93926, MAY 5, 1938, 17 COMP. GEN. 915

A-93926: May 5, 1938

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IT HAD BEEN REQUESTED TO SUPPLY INFORMATION AS TO SHIPPING WEIGHT OF THE MATERIAL AND THE BID WAS ACCEPTED BY THE CONTRACTING OFFICER. WITH NOTHING BEFORE HIM AT THE TIME OF ACCEPTANCE TO SHOW CONCLUSIVELY THE BID WAS NOT AS INTENDED. THERE IS NO LEGAL AUTHORITY TO PERMIT THE BIDDER TO REFORM OR WITHDRAW ITS BID. THE GENERAL STATEMENT THAT THE ALLEGED ERROR WAS THE RESULT OF AN IMPROPER QUOTATION BY THE FACTORY DUE TO ITS MISUNDERSTANDING OF THE INVITATION AND SPECIFICATIONS REFERRED TO THEREIN. THAT THE BID WAS NOT ON MATERIAL IN ACCORDANCE THEREWITH. THE RESULTANT BIDS WERE OPENED AT SALINA. THE FOLLOWING IS A BRIEF SUMMARY OF THE QUOTATIONS ECEIVED: CHART ITEM NO. 1 ITEM 1A ACCEPTANCE BIDDER DELIVERED FOB-BSP DISCOUNT PERIOD NO. 1.

A-93926, MAY 5, 1938, 17 COMP. GEN. 915

CONTRACTS - MISTAKES - BIDS - ACCEPTANCE AFTER NOTIFICATION OF MISTAKE - REFORMATION OR WITHDRAWAL WHERE THE LOW BIDDER DID NOT ALLEGE ERROR IN ITS BID UNTIL, AFTER THE OPENING OF BIDS, IT HAD BEEN REQUESTED TO SUPPLY INFORMATION AS TO SHIPPING WEIGHT OF THE MATERIAL AND THE BID WAS ACCEPTED BY THE CONTRACTING OFFICER, SUBJECT TO THE ACTION OF THE COMPTROLLER GENERAL ON THE CLAIM OF MISTAKE, AND WITH NOTHING BEFORE HIM AT THE TIME OF ACCEPTANCE TO SHOW CONCLUSIVELY THE BID WAS NOT AS INTENDED, THE ORIGINAL BID BEING MORE IN LINE WITH THE OTHER BIDS RECEIVED THAT THE BID AMOUNT AFTER THE REQUESTED CORRECTION, THERE IS NO LEGAL AUTHORITY TO PERMIT THE BIDDER TO REFORM OR WITHDRAW ITS BID, AND IT SHOULD BE REQUIRED TO FURNISH THE SPECIFICATION MATERIAL AT THE ACCEPTED BID PRICE OR BE CHARGED WITH ANY EXCESS COST RESULTING FROM ITS DEFAULT AND PURCHASE ELSEWHERE OF THE REQUIRED MATERIAL, THE GENERAL STATEMENT THAT THE ALLEGED ERROR WAS THE RESULT OF AN IMPROPER QUOTATION BY THE FACTORY DUE TO ITS MISUNDERSTANDING OF THE INVITATION AND SPECIFICATIONS REFERRED TO THEREIN, AND THAT THE BID WAS NOT ON MATERIAL IN ACCORDANCE THEREWITH, NOT BEING THE SUBMISSION OF SUCH CONCLUSIVE PROOF AS TO LEAVE NO ROOM FOR DOUBT THAT A MISTAKE OCCURRED, IN WHAT IT CONSISTS, AND THE CORRECTION THAT SHOULD BE MADE.

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

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 1, 1938, AS FOLLOWS:

ON JANUARY 27, 1938, THE SOIL CONSERVATION SERVICE, A BUREAU OF THIS DEPARTMENT, ISSUED FROM ITS REGIONAL OFFICE AT SALINA, KANSAS, INVITATION TO BID NO. SCS-7-1387, COVERING THE PROPOSED PURCHASE OF WIRE CABLE ROPE FOR DELIVERY AT LAWRENCE, KANSAS. THE RESULTANT BIDS WERE OPENED AT SALINA, KANSAS, ON FEBRUARY 10, 1938. THE FOLLOWING IS A BRIEF SUMMARY OF THE QUOTATIONS ECEIVED:

CHART

ITEM NO. 1 ITEM 1A ACCEPTANCE

BIDDER DELIVERED FOB-BSP DISCOUNT PERIOD NO. 1-- (1) $265.63 $265.63 2 PERCENT--- 30 DAYS--- 30 DAYS. NO. 2--- (1) 265.63 ------- 2 PERCENT--- 30 DAYS--- NO. 3--- (1) 260.87 ------- 2 PERCENT---10-20-30 DAYS/60 DAYS. NO. 4--- 235.45 232.45 2 PERCENT--- 10 DAYS--- NO. 5--- 265.63 265.63 (2 PERCENT--- 10-30 DAYS 30 DAYS.

(2 PERCENT---10TH PROX-- NO. 6--- (1) 260.87 ------- 2 PERCENT--- 10-20- 30DAYS60 DAYS. NO. 7--- 265.63 265.63 (2 PERCENT--- 30 DAYS 30 DAYS.

(2 PERCENT--- 10TH PROX- NO. 8--- (1) 265.63 265.63 (2 PERCENT--- 10-20- 30

DAYS OR 60-----------

(2 PERCENT--- 10TH PROX- NO. 9--- (1) 265.63 265.63 (2 PERCENT--- 30 DAYS OR 30 DAYS.

60------------------- NO. 10-- 265.63 265.63 2 PERCENT--- 10-20-30 30 DAYS.

DAYS-----------------

(1) FREIGHT ALLOWANCE.

THE ENTIRE CASE WAS SUBMITTED TO THE WASHINGTON OFFICE OF THE SOIL CONSERVATION SERVICE FOR THE COMPUTATION OF APPLICABLE FREIGHT RATES, EQUALIZATION OFFERS, AND AWARD BY THE DIVISION OF PURCHASE, SALES, AND TRAFFIC OF THIS DEPARTMENT.

BIDDER NO. 4, THE STEEL HARDWARE COMPANY, WICHITA, KANSAS, OFFERED QUOTATIONS BOTH F.O.B. ITS SHIPPING POINT AT KANSAS CITY, MISSOURI, AND DELIVERED AT LAWRENCE, KANSAS, BUT OVERLOOKED STATING THE TOTAL SHIPPING WEIGHT WHICH IS, OF COURSE, ESSENTIAL IN DETERMINING THE PROPER AWARD. FEBRUARY 28, 1938, THE SOIL CONSERVATION SERVICE WROTE TO THE STEEL HARDWARE COMPANY REQUESTING THAT IT INDICATE THE TOTAL SHIPPING WEIGHT OF THE MATERIAL OFFERED. IN RESPONSE TO THIS REQUEST, THE STEEL HARDWARE COMPANY REPLIED AS FOLLOWS:

"WITH REFERENCE TO YOUR LETTER OF FEB. 28, REFERRING TO INVITATION NO. SCS-7-1387, COVERING QUOTATION OF WIRE CABLE ROPE FOR DELIVERY AT LAWRENCE, KANSAS.

"WE THANK YOU VERY MUCH FOR YOUR LETTER, CALLING THE MATTER OF WEIGHT TO OUR ATTENTION. IN RECHECKING THIS BID, WE FIND THAT THE FACTORY WAS IN ERROR IN THEIR QUOTATION TO US, AS THE CABLE THEY QUOTED US WAS FOR HEMP CENTER CABLE ROPE, AND WE NOTICE YOUR INVITATION CALLS FOR ,INDEPENDENT WIRE ROPE CORE.'

"KINDLY CORRECT OUR QUOTATION TO READ UNDER ITEM 1 THREE HUNDRED TWENTY- NINE DOLLARS AND NINETY (SIC) CENTS (329.90) F.O.B. KANSAS CITY, MO. WEIGHT OF MATERIAL TO BE APPROXIMATELY ELEVEN HUNDRED POUNDS. UNDER ITEM 1A, REVISED QUOTATION TO READ THREE HUNDRED THIRTY-TWO DOLLARS AND FORTY- THREE CENTS ($322.43).

"THANKING YOU FOR YOUR KIND ATTENTION IN THIS MATTER, WE REMAIN.'

IT IS TO BE NOTED THAT THE STEEL HARDWARE COMPANY DID NOT INDICATE A PERIOD WITHIN WHICH ITS BID WAS OPEN FOR ACCEPTANCE, IN THE ABSENCE OF WHICH IT IS CONSIDERED THAT THE BID IS FOR ACCEPTANCE WITHIN A REASONABLE TIME. THEREFORE, IN ORDER TO PROTECT THE GOVERNMENT'S EQUITY, THE PROCEDURE OUTLINED IN YOUR DECISION A-60053 HAS BEEN FOLLOWED AND THE BIDDER NOTIFIED THAT ITS BID IS ACCEPTED SUBJECT TO THE FINAL ACTION OF THE COMPTROLLER GENERAL ON THE PENDING CLAIM OF MISTAKE.

THERE ARE ENCLOSED HEREWITH ALL BIDS RECEIVED, AN ABSTRACT THEREOF, FREIGHT RATES, AND CORRESPONDENCE HAD WITH THE STEEL HARDWARE COMPANY.

IT IS REQUESTED THAT THE FACTS PRESENTED BE CONSIDERED AND WITH THE RETURN OF ALL PAPERS, THE DEPARTMENT BE ADVISED OF THE PROPER ACTION TO FOLLOW.

IT WOULD APPEAR THAT IN THIS CASE THE BID SUBMITTED WAS THE BID INTENDED TO BE SUBMITTED, ALTHOUGH BASED ON AN ERRONEOUS ASSUMPTION AS TO WHAT THE SPECIFICATIONS REQUIRED. THE KIND OF WIRE ROPE CABLE REQUIRED WAS STATED CLEARLY IN THE INVITATION AND THE ERROR ALLEGED IS THAT THE FACTORY WAS IN ERROR IN ITS QUOTATION TO THE BIDDER, THAT IS, THAT SUCH QUOTATION WAS ON HEMP CENTER CABLE ROPE RATHER THAN CABLE WITH WIRE ROPE CORE AS CALLED FOR IN THE INVITATION AND DESCRIBED IN THE SPECIFICATIONS.

THE GENERAL STATEMENT THAT THE ALLEGED ERROR WAS THE RESULT OF AN IMPROPER QUOTATION BY THE FACTORY DUE TO ITS MISUNDERSTANDING OF THE INVITATION AND SPECIFICATIONS REFERRED TO THEREIN, AND THAT THE BID WAS NOT ON MATERIAL IN ACCORDANCE THEREWITH, IS NOT THE SUBMISSION OF SUCH CONCLUSIVE PROOF AS TO LEAVE NO ROOM FOR DOUBT THAT A MISTAKE OCCURRED, IN WHAT IT CONSISTS, AND THE CORRECTION THAT SHOULD BE MADE IN ACCORDANCE WITH THE PRINCIPLES ANNOUNCED IN MOFFETT, HODGKINS V. ROCHESTER, 178 U.S. 373. FURTHERMORE, IT APPEARS THAT THE BID AS ORIGINALLY SUBMITTED IN THIS INSTANCE IS MORE IN LINE WITH THE OTHER BIDS RECEIVED THAN IS THE BID THE COMPANY LATER CLAIMED TO BE ITS CORRECT BID. THE ESSENTIAL FACTS OF THIS CASE ARE THAT THE LOW BIDDER DID NOT ALLEGE ERROR OR REQUEST WITHDRAWAL OF THE BID PRIOR TO THE TIME FIXED FOR OPENING, AND THAT AT THE TIME THE BID WAS ACCEPTED THERE WAS NOTHING BEFORE THE CONTRACTING OFFICER TO SHOW CONCLUSIVELY THAT THE BID WAS NOT AS INTENDED.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL AUTHORITY TO PERMIT THE STEEL HARDWARE CO. TO REFORM OR WITHDRAW ITS BID AND SAID COMPANY SHOULD BE REQUIRED TO FURNISH SPECIFICATION MATERIAL AT THE PRICE STATED IN ITS ACCEPTED BID. SEE 15 COMP. GEN. 1049, AND DECISIONS THERE CITED. IN THE EVENT OF ITS FAILURE OR REFUSAL TO DO SO, THE REQUIRED MATERIAL SHOULD BE PURCHASED ELSEWHERE AT THE LOWEST PRICE OBTAINABLE, ANY EXCESS COST TO THE GOVERNMENT RESULTING FROM THE DEFAULT TO BE CHARGED TO AND RECOVERED FROM THE DEFAULTING BIDDER.