B-161544, MAY 25, 1967

B-161544: May 25, 1967

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TO THE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO A LETTER DATED MAY 17. THE OFFER WAS TRANSPOSED TO READ .6245. WESTERN UNION CONFIRMED THE HIGHER PRICE TO THE SENDER AND THE LOWER PRICE TO THE RECIPIENT OF THE TELEGRAM AND NEITHER PARTY WAS AWARE OF THE MISTAKE UNTIL AFTER AWARD WAS MADE. IN THE SUBMISSION OF A TELEGRAPHIC BID WESTERN UNION IS AN INDEPENDENT CONTRACTOR. OR AT MOST AN AGENT WHOSE AUTHORITY TO BIND THE SENDER IS LIMITED TO TRANSMISSION OF THE MESSAGE ACTUALLY GIVEN IT. THAT WESTERN UNION DID NOT TRANSMIT THE CORRECT OFFER IS UNDISPUTED. SINCE THE PRICE COMMUNICATED WAS NOT IN FACT DURHAM'S OFFER.

B-161544, MAY 25, 1967

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED MAY 17, 1967, FROM THE CONSUMER AND MARKETING SERVICE, REQUESTING OUR DECISION WHETHER DURHAM MEAT COMPANY OF MOUNTAIN VIEW, CALIFORNIA, MAY WITHDRAW AN OFFER MADE TO SELL FROZEN BEEF.

THE LETTER OF MAY 17, 1967, STATES THAT DURHAM MEAT COMPANY OFFERED A PRICE OF .6425 BY WESTERN UNION TELEGRAPH. HOWEVER, IN THE COURSE OF TRANSMISSION THROUGH A TELEGRAPH RELAY STATION, THE OFFER WAS TRANSPOSED TO READ .6245. WESTERN UNION CONFIRMED THE HIGHER PRICE TO THE SENDER AND THE LOWER PRICE TO THE RECIPIENT OF THE TELEGRAM AND NEITHER PARTY WAS AWARE OF THE MISTAKE UNTIL AFTER AWARD WAS MADE.

IN THE SUBMISSION OF A TELEGRAPHIC BID WESTERN UNION IS AN INDEPENDENT CONTRACTOR, OR AT MOST AN AGENT WHOSE AUTHORITY TO BIND THE SENDER IS LIMITED TO TRANSMISSION OF THE MESSAGE ACTUALLY GIVEN IT. WESTERN UNION TELEGRAPH CO. V. COWIN AND CO., 20 F.2D 103; SEE ALSO 41 COMP. GEN. 165, 168. WESTERN UNION COULD BIND DURHAM MEAT COMPANY ONLY BY TRANSMITTING THE CORRECT OFFER; THAT WESTERN UNION DID NOT TRANSMIT THE CORRECT OFFER IS UNDISPUTED. SINCE THE PRICE COMMUNICATED WAS NOT IN FACT DURHAM'S OFFER, ACCEPTANCE OF THE PURPORTED OFFER COULD NOT BIND DURHAM. ACCORDINGLY, THE AWARD SHOULD BE REGARDED AS A NULLITY.