A-97924, SEPTEMBER 22, 1938, 18 COMP. GEN. 251

A-97924: Sep 22, 1938

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CONTRACTS - MISTAKES - BIDS - DISCOUNT VARIATION ON OTHERWISE IDENTICAL BIDS WHERE THE FOUR BIDS RECEIVED UNDER ADVERTISED SPECIFICATIONS WERE IDENTICAL EXCEPT AS TO DISCOUNTS OFFERED. - AND THERE WAS NOTHING TO INDICATE THAT THE LARGER OFFER OF DISCOUNT WAS NOT AS INTENDED. BUT FOR SUCH OFFER THE BID ACCEPTED WOULD HAVE BEEN NO MORE ADVANTAGEOUS THAN THE OTHERS. THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE ACCEPTED BID PRICE. WERE NOT COLLUSIVE. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION A GROUP OF PAPERS SUBMITTED BY LETTER OF AUGUST 24 FROM THE PROCUREMENT OFFICER. WHEREAS TWO PERCENT WAS INTENDED. ALLEGING THAT THE FORMER FIGURE WAS A TYPOGRAPHICAL MISTAKE.

A-97924, SEPTEMBER 22, 1938, 18 COMP. GEN. 251

CONTRACTS - MISTAKES - BIDS - DISCOUNT VARIATION ON OTHERWISE IDENTICAL BIDS WHERE THE FOUR BIDS RECEIVED UNDER ADVERTISED SPECIFICATIONS WERE IDENTICAL EXCEPT AS TO DISCOUNTS OFFERED--- THREE OFFERING THE SAME DISCOUNT, THE OTHER A LARGER DISCOUNT--- AND THERE WAS NOTHING TO INDICATE THAT THE LARGER OFFER OF DISCOUNT WAS NOT AS INTENDED, AND BUT FOR SUCH OFFER THE BID ACCEPTED WOULD HAVE BEEN NO MORE ADVANTAGEOUS THAN THE OTHERS, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE ACCEPTED BID PRICE, OR FOR PERMITTING WITHDRAWAL OF THE BID, THE BID HAVING BEEN ACCEPTED IN GOOD FAITH WITHOUT NOTICE OF ANY ERROR, THE MISTAKE NOT BEING MUTUAL NOR ALLEGED UNTIL AFTER ACCEPTANCE OF THE BID, AND THE DIFFERENCE IN DISCOUNT, THOUGH CONSIDERABLE, BEING THE ONLY INDICATION THAT THE BIDS, OTHERWISE IDENTICAL ON EACH OF THE SEVERAL ITEMS INVOLVED, WERE NOT COLLUSIVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 22, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 14, 1938, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION A GROUP OF PAPERS SUBMITTED BY LETTER OF AUGUST 24 FROM THE PROCUREMENT OFFICER, NATIONAL PARK SERVICE, BOSTON, MASSACHUSETTS, CONTAINING AMONG OTHER PAPERS, A CONTRACT ENTERED INTO BY HIM ON AUGUST 17 WITH THE NEW ENGLAND BOLT COMPANY, INC., COVERING THE PURCHASE OF CULVERT PIPE AND FITTINGS IN THE AMOUNT OF $926.82.

ON AUGUST 18 THE CONTRACTOR ADVISED THE PROCUREMENT OFFICER THAT AN ERROR HAD BEEN MADE IN THE PREPARATION OF ITS BID IN THAT 25 PERCENT DISCOUNT FOR PAYMENT WITHIN 30 DAYS HAD BEEN OFFERED, WHEREAS TWO PERCENT WAS INTENDED, ALLEGING THAT THE FORMER FIGURE WAS A TYPOGRAPHICAL MISTAKE. WILL BE NOTED THAT THE FOUR BIDDERS ON THE INVITATION QUOTED THE SAME BASE PRICE, ALL OFFERING TWO PERCENT DISCOUNT EXCEPT THE ACCEPTED BIDDER, WHO OFFERED 25 PERCENT.

SINCE THE DIFFERENCE IN DISCOUNT OFFERED IN THIS CASE WAS SO FAR OUT OF PROPORTION TO THAT OFFERED BY THE OTHER BIDDERS, IT WOULD APPEAR TO BE AN OBVIOUS AND BONA FIDE MISTAKE, AND IT IS FELT THAT THIS BIDDER'S REQUEST OF AUGUST 18 TO HAVE ITS BID WITHDRAWN FROM COMPETITION SHOULD BE GRANTED, OR THAT IT BE PERMITTED TO CORRECT ITS BID IN ACCORDANCE WITH ITS ORIGINAL INTENTION IF IT SHOULD SO DESIRE. THESE PAPERS ARE SUBMITTED IN ACCORDANCE WITH 11 COMP. GEN. 65 FOR YOUR DETERMINATION AS TO THE PROPER DISPOSITION TO BE MADE OF THE MATTER.

THE BID OF THE NEW ENGLAND BOLT COMPANY, INC., WAS ACCEPTED ON AUGUST 17 AND BY LETTER DATED AUGUST 18 THE SAID BIDDER ADVISED AS FOLLOWS:

WE REGRET TO ADVISE AN ERROR IN OUR BID FOR METAL CORRUGATED PIPE WHICH WAS OPENED ON AUGUST 17TH. THROUGH A TYPOGRAPHICAL ERROR OUR BID OFFERED A CASH DISCOUNT OF TWENTY-FIVE PERCENT INSTEAD OF TWO PERCENT WHICH IS THE CUSTOMARY DISCOUNT.

DUE TO THE STENOGRAPHER'S FAILURE TO USE THE SPACE KEY THE FIGURE FIVE WHICH IS ON THE SAME KEY AS THE PERCENT SIGN WAS TRANSFERRED TO THE BID FORM. OUR PREVIOUS BIDS, A NUMBER OF WHICH WE HAVE RECEIVED FORMAL AWARDS, CARRIED THE DISCOUNT OF TWO PERCENT AND IT WAS NOT OUR INTENTION TO DEVIATE FROM THIS PRACTICE.

WE REGRET, SINCERELY, THE ABOVE ERROR BUT WOULD APPRECIATE THE OPPORTUNITY OF WITHDRAWING OUR BID FROM THIS COMPETITION.

THE FOUR BIDS RECEIVED WERE IDENTICAL EXCEPT AS TO THE DISCOUNTS OFFERED- -- THREE OFFERING A DISCOUNT OF 2 PERCENT FOR PAYMENT WITHIN 30 DAYS AND THIS BIDDER OFFERING A DISCOUNT OF 25 PERCENT FOR PAYMENT WITHIN 30 DAYS. THERE WAS NOTHING TO INDICATE THAT THE OFFER OF DISCOUNT WAS NOT AS INTENDED AND BUT FOR SUCH OFFER THIS BID WOULD NOT HAVE BEEN ANY MORE ADVANTAGEOUS THAN THE THREE OTHER BIDS. THE GENERAL RULE IS THAT WHEN THERE HAS BEEN A MISTAKE IN THE SUBMISSION OF A BID THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF. IN ORDER TO AUTHORIZE RELIEF ON ACCOUNT OF A MISTAKE IN AN ACCEPTED BID IT MUST APPEAR THAT THE MISTAKE WAS MUTUAL OR THAT THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE ACCEPTING OFFICER KNEW OF THE MISTAKE AT THE TIME OF ACCEPTANCE AND SOUGHT TO TAKE ADVANTAGE THEREOF. THE RECORD IN THIS CASE SHOWS THAT THE BID WAS ACCEPTED BY THE CONTRACTING OFFICER WITHOUT NOTICE OF ANY ERROR--- THE DIFFERENCE IN DISCOUNT BEING THE ONLY INDICATION THAT THE BIDS, OTHERWISE IDENTICAL ON EACH OF THE FOUR ITEMS INVOLVED, WERE NOT COLLUSIVE.

SINCE THE MISTAKE WAS NOT MUTUAL AND WAS NOT ALLEGED UNTIL AFTER THE BID HAD BEEN ACCEPTED IN GOOD FAITH, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF ANY AMOUNT IN ADDITION TO THE ACCEPTED BID PRICE OR FOR PERMITTING WITHDRAWAL OF THE BID. SEE 15 COMP. GEN. 1049, AND AUTHORITIES THEREIN CITED. SEE, ALSO, AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 CT.CLS. 209. ..END :