A-95511, JULY 14, 1938, 18 COMP. GEN. 39

A-95511: Jul 14, 1938

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THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE BID PRICE NOTWITHSTANDING IT WAS SUBSEQUENTLY DISCOVERED UPON RECEIPT OF THE SUPPLIER'S INVOICE THAT THERE HAS BEEN OVERLOOKED THE FACT THAT 2. 000- SHEET PAPER IS PACKED ONLY 50 ROLLS TO THE CARTON INSTEAD OF 100 ROLLS AS ASSUMED IN COMPUTING THE PRICE PER ROLL. THAT THE GOVERNMENT MAY HAVE RECEIVED MORE SHEETS OF PAPER THAN WOULD HAVE BEEN FURNISHED BY ANY OTHER BIDDER. WHICH WAS ACCEPTED OCTOBER 19. - AND ACCOMPANYING YOUR PROPOSAL WAS A LETTER OF THE SAME DATE STRESSING THE FACT THAT THE ROLLS UPON WHICH YOU WERE BIDDING EACH CONTAINED 2. WE ARE QUOTING YOU ON TOILET PAPER 4 1/2 TIMES 5. THE SAMPLE WE ARE SUBMITTING AS TO QUALITY.

A-95511, JULY 14, 1938, 18 COMP. GEN. 39

CONTRACTS - MISTAKES - BIDS - ERROR ALLEGED AFTER AWARD AND VERIFICATION OF BID PRICE WHERE A BIDDER, IN CONNECTION WITH AN ADVERTISEMENT FOR BIDS FOR A SPECIFIED NUMBER OF ROLLS OF TOILET PAPER OF NOT LESS THAN 1,000 SHEETS, OFFERS TO SUPPLY THE PAPER AT A GIVEN PRICE PER ROLL STRESSING THE FACT THAT THE ROLLS CONTAINED 2,000 SHEETS, AND REAFFIRMS THE PRICE PRIOR TO AWARD BOTH IN CONVERSATION WITH THE CONTRACTING OFFICER AND BY LETTER, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE BID PRICE NOTWITHSTANDING IT WAS SUBSEQUENTLY DISCOVERED UPON RECEIPT OF THE SUPPLIER'S INVOICE THAT THERE HAS BEEN OVERLOOKED THE FACT THAT 2,000- SHEET PAPER IS PACKED ONLY 50 ROLLS TO THE CARTON INSTEAD OF 100 ROLLS AS ASSUMED IN COMPUTING THE PRICE PER ROLL, AND THAT THE GOVERNMENT MAY HAVE RECEIVED MORE SHEETS OF PAPER THAN WOULD HAVE BEEN FURNISHED BY ANY OTHER BIDDER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE WEST DISINFECTING COMPANY, JULY 14, 1938:

YOUR LETTER OF APRIL 9, 1938, REQUESTS REVIEW OF THAT PART OF SETTLEMENT NO. 0487254, DATED FEBRUARY 24, 1938, WHICH DISALLOWED YOUR CLAIM FOR $200, THE AMOUNT CLAIMED IN ADDITION TO YOUR BID PRICE ON TOILET PAPER FURNISHED TO THE VETERANS' ADMINISTRATION FACILITY, TUSKEGEE, ALA., UNDER YOUR PROPOSAL OF OCTOBER 13, 1937, WHICH WAS ACCEPTED OCTOBER 19, 1937--- A MISTAKE IN THE BID PRICE HAVING BEEN ALLEGED.

ON OCTOBER 7, 1937, THE VETERANS' ADMINISTRATION FACILITY, TUSKEGEE, ALA., INVITED BIDS UPON CERTAIN ARTICLES OF TOILET AND TOWEL PAPER FOR DELIVERY WITHIN THE STOREROOM OF THE FACILITY--- THE BIDS TO BE OPENED ON OCTOBER 18, 1937. ITEM 1 OF THIS INVITATION CALLED FOR 5,000 ROLLS OF---

PAPER, TOILET, TISSUE, TYPE I--- ROLL, ROUND, PER FEDERAL SPECIFICATION NO. UU-P-556A.

UNDER DATE OF OCTOBER 13, 1937, YOU AGREED TO SUPPLY THE TOILET PAPER CALLED FOR BY THE ABOVE ITEM AT 4 CENTS PER ROLL--- THE TOTAL PRICE HAVING BEEN EXTENDED AS $200--- AND ACCOMPANYING YOUR PROPOSAL WAS A LETTER OF THE SAME DATE STRESSING THE FACT THAT THE ROLLS UPON WHICH YOU WERE BIDDING EACH CONTAINED 2,000 SHEETS, THAT PORTION OF YOUR LETTER BEING AS FOLLOWS:

ITEM 1. WE ARE QUOTING YOU ON TOILET PAPER 4 1/2 TIMES 5, 2,000 SHEETS TO THE ROLL AT 4 CENTS PER ROLL. THE SAMPLE WE ARE SUBMITTING AS TO QUALITY, ETC., IS 4 1/2 TIMES 4 1/2, BUT THE PAPER WE WILL FURNISH IS 4 1/2 TIMES 5. PLEASE TAKE INTO CONSIDERATION THAT THIS PAPER IS 2,000 SHEETS TO THE ROLL.

WHILE ITEM 1 OF THE INVITATION MADE NO SPECIFIC MENTION OF THE NUMBER OF SHEETS TO THE ROLL, THE FEDERAL SPECIFICATION REFERRED TO THEREIN REQUIRED, AMONG OTHER THINGS, THAT---

EACH ROLL SHALL CONTAIN AN AVERAGE OF NOT LESS THAN 1,000 SHEETS OF PAPER.

YOUR PROPOSAL WAS ACCEPTED ON OCTOBER 19, 1937, BUT AFTER THE BIDS WERE OPENED AND BEFORE AWARD WAS MADE YOUR DISTRICT MANAGER, IN A CONVERSATION WITH THE CONTRACTING OFFICER WHO HAD NOTICED THAT YOUR BID ON THE BASIS OF 2,000 SHEETS TO THE ROLL WAS CONSIDERABLY LOWER THAN THE OTHER BIDS, ADVISED THAT THE BID WAS CORRECT. THIS CONVERSATION WAS CONFIRMED BY A LETTER DATED OCTOBER 22, 1937, IN PERTINENT PART AS FOLLOWS:

REFERRING TO OUR CONVERSATION IN TUSKEGEE ON TUESDAY, WILL APPRECIATE HEARING FROM YOU WITH REFERENCE TO ITEM 1, ON YOUR INVITATION 38-60 AFTER YOU HAVE CHECKED INTO THE MATTER. AS MENTIONED IN OUR CONVERSATION, THE PAPER WE WOULD FURNISH YOU IS 2,000 SHEET PAPER 4 1/2 TIMES 5.

YOUR CLAIM HERE IS BASED UPON AN ALLEGED MISTAKE IN THE BID PRICE IN THAT IN ARRIVING AT THE QUOTED PRICE OF 4 CENTS PER ROLL YOU USED AS A BASIS THE CARTON PRICE AND OVERLOOKED THE FACT THAT 2,000 SHEET PAPER IS PACKED ONLY 50 ROLLS TO THE CARTON, YOUR COMPUTATION BEING MADE ON THE ASSUMPTION THAT A CARTON OF 2,000 SHEET PAPER CONTAINED 100 ROLLS.

THERE WAS NO ALLEGATION OF ANY ERROR IN THE BID PRICE OF 4 CENTS PER ROLL OF 2,000 SHEETS EACH UNTIL NOVEMBER 9, 1937--- AFTER THE PAPER HAD BEEN SHIPPED--- WHEN YOU ADVISED BY LETTER OF SAID DATE TO THE CONTRACTING OFFICER THAT:

* * * THE MILL FROM WHOM WE SECURE THIS PAPER MADE THE SHIPMENT, AND ON RECEIPT OF THEIR INVOICE COVERING SAME WE DISCOVERED THE ERROR.

IN SAID LETTER YOU FURTHER STATED:

* * * I SHOULD HAVE SENSED SOMETHING IN THE WAY OF A MISCALCULATION IN MY CONVERSATION WITH YOU, AND COMPARING OUR QUOTATION WITH OTHERS, AS THERE WAS SUCH A GREAT DIFFERENCE. HOWEVER, IT WAS JUST ONE OF "THOSE THINGS" WHICH ARE OF COURSE UNEXPLAINABLE.

IN YOUR LETTER OF APRIL 9, 1938, REQUESTING REVIEW OF THE SETTLEMENT MADE BY THIS OFFICE, YOU STRESS THE POINTS INVOLVED, AS FOLLOWS:

* * * WE REPEAT, THE FACT REMAINS THAT THE ADMINISTRATION DID RECEIVE THE BENEFIT OF TWICE THE AMOUNT OF PAPER THAT WOULD HAVE BEEN FURNISHED BY ANY OTHER BIDDER, WHICH YOUR FILES WILL SUBSTANTIATE, AND THE ERROR WAS VERY APPARENT DUE TO THE GREAT DIFFERENCE BETWEEN OUR BID AND THAT OF OTHER BIDDERS ON A LIKE AMOUNT OF PAPER, AND IN ADDITION THE VETERANS ADMINISTRATION FACILITY AT TUSKEGEE WERE NOTIFIED OF THE ERROR PRIOR TO DELIVERY OF THE PAPER, AND WERE OF COURSE COGNIZANT OF THE FACT THAT THEY WERE GOING TO RECEIVE TWICE THE AMOUNT OF PAPER ON THIS ORDER THAN WOULD HAVE BEEN SUPPLIED BY ANY OTHER BIDDER.

THE RULE IS WELL SETTLED THAT WHERE THERE HAS BEEN A MISTAKE IN BID UPON WHICH A CONTRACT IS BASED, THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF UNLESS IT BE CLEARLY ESTABLISHED THAT THE MISTAKE WAS MUTUAL OR SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AT THE TIME OF ACCEPTANCE AND SOUGHT TO TAKE ADVANTAGE OF IT. IN THE PRESENT CASE THERE WAS NO MUTUAL MISTAKE. IN FACT BOTH THE BID AND ACCEPTANCE WERE EXACTLY AS INTENDED, THE ONLY MISTAKE BEING YOUR ERRONEOUS ASSUMPTION AS TO THE PRICE AT WHICH YOU COULD OBTAIN 5,000 ROLLS OF PAPER OF 2,000 SHEETS TO THE ROLL.

HAVING IN VIEW THE FACT THAT THE FEDERAL SPECIFICATION CITED IN THE INVITATION FOR BIDS AS REGARDS ITEM 1 CALLED FOR ROLLS OF "AN AVERAGE OF NOT LESS THAN 1,000 SHEETS OF PAPER; " THAT YOUR BID WAS ACCOMPANIED BY AN EXPLANATORY LETTER SPECIFICALLY POINTING OUT AS TO THE BID ON SAID ITEMS THAT "WE ARE QUOTING YOU ON TOILET PAPER * * * 2,000 SHEETS TO THE ROLL AT 4 CENTS PER LL," AND SPECIFICALLY REQUESTING THE CONTRACTING OFFICER TO "TAKE INTO CONSIDERATION THAT THIS PAPER IS 2,000 SHEETS TO THE ROLL; " THAT BEFORE AWARD YOU WERE REQUESTED TO VERIFY YOUR BID AS TO WHICH REQUEST YOU ADVISED THE CONTRACTING OFFICER THAT YOUR BID AS SUBMITTED WAS CORRECT; AND THAT SHIPMENT HAD BEEN MADE FROM THE MILL BEFORE YOU ALLEGED AN ERROR IN THE BID, IT CANNOT BE PRESUMED THERE WAS ANY BAD FAITH ON THE PART OF THE GOVERNMENT IN THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES STATED.

IT IS IMMATERIAL IN SUCH A CASE AS THIS THAT THE GOVERNMENT MAY HAVE RECEIVED MORE SHEETS OF PAPER THAN WOULD HAVE BEEN FURNISHED BY ANY OTHER BIDDER, FOR THE SPECIFICATIONS REQUIRED THAT EACH ROLL WAS TO CONTAIN AN AVERAGE "OF NOT LESS THAN 1,000 SHEETS"--- IMPLYING THAT THE AVERAGE MIGHT BE GREATER--- AND YOU FURNISHED NO MORE THAN THE 5,000 ROLLS REQUIRED.

THEREFORE, THE MISTAKE NOT BEING MUTUAL AND NOT HAVING BEEN ALLEGED UNTIL AFTER THE BID HAD BEEN ACCEPTED IN GOOD FAITH, AND THE BID PRICE FOR THE TOILET PAPER COVERED UNDER ITEM 1 OF THE BID HAVING BEEN PAID, THERE EXISTS NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL AMOUNT. SEE 17 COMP. GEN. 819 AND DECISIONS THERE CITED. SEE ALSO AMERICAN WATER SOFTENER CO. V. UNITED STATES, 50 CT.CLS. 209. ..END :