B-21190, OCTOBER 24, 1941, 21 COMP. GEN. 362

B-21190: Oct 24, 1941

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THROUGH BONA FIDE ERROR WHICH SHOULD HAVE BEEN APPARENT TO THE CONTRACTING OFFICER. - WHICH WOULD HAVE BEEN ACCEPTED BUT FOR THE ERROR. 1941: I HAVE YOUR LETTER OF OCTOBER 10. AS FOLLOWS: REFERENCE IS MADE TO CONTRACT NO. THE FOLLOWING IS AN ABSTRACT OF THE BIDS RECEIVED ON ITEMS 2 AND 3: CHART ITEM 2 ITEM 3 SWIFT AND CO. . AWARD ON ITEM 2 WOULD HAVE BEEN MADE TO SWIFT AND CO. T22CG-1746) AND AWARD ON ITEM 3 WOULD HAVE BEEN MADE TO CONSOLIDATED BEEF AND PROVISION CO. THERE ARE ENCLOSED A LETTER DATED AUGUST 20. YOUR DECISION IS REQUESTED. IS AS FOLLOWS: REFERRING TO PROPOSALS OPENED 10 A.M. FROM THE CONTRACTING OFFICER'S REPRESENTATIVE IS AS FOLLOWS: HEREWITH CONTRACT WITH SWIFT AND CO.

B-21190, OCTOBER 24, 1941, 21 COMP. GEN. 362

BIDS - MISTAKES - EXTENT OF RELIEF WHERE A BIDDER, THROUGH BONA FIDE ERROR WHICH SHOULD HAVE BEEN APPARENT TO THE CONTRACTING OFFICER, REVERSED ITS INTENDED BID PRICES ON ITEMS 2 AND 3 OF THE INVITATION, RESULTING IN THE ACCEPTANCE OF ITS BID ON ITEM 3 AND THE REJECTION OF ITS BID ON ITEM 2, PAYMENT MAY BE MADE ON THE ACCEPTED BID FOR ITEM 3 IN THE AMOUNT OF THE NEXT LOWEST CORRECT BID, BUT THERE SHOULD BE DEDUCTED FROM SUCH PAYMENT THE DIFFERENCE BETWEEN THE BIDDER'S INTENDED BID PRICE ON ITEM 2--- WHICH WOULD HAVE BEEN ACCEPTED BUT FOR THE ERROR--- AND THE SLIGHTLY HIGHER PRICE PAID UNDER THE ACCEPTED BID ON THAT ITEM.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, OCTOBER 24, 1941:

I HAVE YOUR LETTER OF OCTOBER 10, 1941, AS FOLLOWS:

REFERENCE IS MADE TO CONTRACT NO. T22CG-1747 WITH SWIFT AND CO., BALTIMORE, MD.

THE CONTRACTOR CLAIMS THAT AN ERROR OCCURRED IN SUBMITTING ITS BID OF ?1510 PER POUND ON ITEM 3 ALLEGING THAT IT INTENDED TO BID ?2285 PER POUND ON THIS ITEM; AND THAT AN ERROR OCCURRED IN SUBMITTING ITS BID OF ?2285 PER POUND ON ITEM 2, ALLEGING THAT IT INTENDED TO BID ?1510 PER POUND ON THIS ITEM.

THE FOLLOWING IS AN ABSTRACT OF THE BIDS RECEIVED ON ITEMS 2 AND 3:

CHART

ITEM 2 ITEM 3 SWIFT AND CO. --------------------------------------- 10.2285 10.1510 ARMOUR AND CO. OF DELAWARE ------------------------- .1542 .2190 CONSOLIDATED BEEF AND PROVISION CO. --------------- .1573 .2108 WM. SCHLUDERBERG - T. J. KURDLE CO. --------------- .1600 .2228 ALBERT F. GOETZE, INC. ----------------------------- .1871 NO BID

IF SWIFT AND CO. HAD BID AS IT ALLEGES IT INTENDED TO BID, AWARD ON ITEM 2 WOULD HAVE BEEN MADE TO SWIFT AND CO. RATHER THAN TO ARMOUR AND CO. OF DELAWARE (SEE CONTRACT NO. T22CG-1746) AND AWARD ON ITEM 3 WOULD HAVE BEEN MADE TO CONSOLIDATED BEEF AND PROVISION CO. (SEE CONTRACT NO. T22CG-1749), RATHER THAN TO SWIFT AND CO.

THERE ARE ENCLOSED A LETTER DATED AUGUST 20, 1941, FROM SWIFT AND CO. TO THE COAST GUARD AND A LETTER DATED AUGUST 25, 1941, FROM THE CONTRACTING OFFICER'S REPRESENTATIVE TO COAST GUARD HEADQUARTERS.

YOUR DECISION IS REQUESTED.

THE LETTER OF AUGUST 20, 1941, FROM SWIFT AND CO. IS AS FOLLOWS:

REFERRING TO PROPOSALS OPENED 10 A.M. AUGUST 19, COVERING SUPPLIES FOR SEPTEMBER AND OCTOBER 1941, WE HAD AN ERROR IN INSERTING FIGURES ON ITEMS NOS. 2 AND 3 AND WE WISH YOU WOULD AMEND OUR PROPOSAL TO READ:

ITEM NO. 2, FOREQUARTERS, TY I, FRESH CHILLED, 50,000 POUNDS AT .1510 INSTEAD OF .2285.

ITEM NO. 3, HINDQUARTERS, TY II, FRESH FROZEN, 30,000 POUNDS AT .2285 INSTEAD OF .1510.

THE LETTER OF AUGUST 25, 1941, FROM THE CONTRACTING OFFICER'S REPRESENTATIVE IS AS FOLLOWS:

HEREWITH CONTRACT WITH SWIFT AND CO. COVERING FOOD SUPPLIES FOR SEPTEMBER AND OCTOBER, ALSO LETTER FROM THIS COMPANY STATING THAT THEY HAD MADE AN ERROR IN THEIR BID. THEY DID NOT DISCOVER THE ERROR UNTIL AFTER BIDS WERE OPENED AND ACCEPTED. THEY HAD TWO MEN PRESENT AT THE OPENING, NEITHER OF WHOM OFFERED ANY OBJECTION AT THE TIME. THESE MEN MADE THE USUAL ABSTRACTS OF BIDS RECEIVED. THERE WAS NOTHING TO PUT US ON NOTICE THAT A SEEMING ERROR WAS MADE. MEAT DEALERS FREQUENTLY FIND THEMSELVES OVERSTOCKED ON CERTAIN ITEMS AND BID TO MOVE IT. I COULD SEE NO WAY OUT OF IT EXCEPT TO BULLETIN IT AS BID; THE G.A.O. IS OPEN TO THEM FOR A CLAIM BUT: I ENCLOSE ALSO COPY OF BULLETINS.

I KNOW OF NO OTHER WAY IN WHICH TO HANDLE THE MATTER.

THE BIDS ON WHICH THE CONTRACTS MENTIONED IN YOUR LETTER WERE BASED SHOW THAT THE FOLLOWING PRICES WERE RECEIVED ON BEEF, QUARTERS:

CHART

CONSOLIDATED

ITEM NO. ARMOUR BEEF AND SWIFT AND CO.

AND CO. PROVISION CO. 1 - HINDQUARTERS ------------- $0.2142

$ 10.2182 $0.2235 2 - FOREQUARTERS ------------- .1542 .1573 .2285 3 - HINDQUARTERS ------------- .2192 .2189 .1510 4 - FOREQUARTERS ------------ - .1590 .1598 .1560

THUS ARMOUR AND CO. AND THE CONSOLIDATED BEEF AND PROVISION CO. BOTH QUOTED HIGHER PRICES FOR HINDQUARTERS, ITEMS 1 AND 3, THAN FOR FOREQUARTERS, ITEMS 2 AND 4. YOUR LETTER SHOWS THAT WILLIAM SCHLUDERBERG- -- T. J. KURDLE CO., ALSO, QUOTED A HIGHER PRICE FOR HINDQUARTERS THAN FOR FOREQUARTERS. SWIFT AND CO., HOWEVER, QUOTED A LOWER PRICE FOR HINDQUARTERS UNDER ITEM 1 THAN FOR FOREQUARTERS UNDER ITEM 2, AND ALSO QUOTED LOWER PRICE FOR HINDQUARTERS UNDER ITEM 3 THAN FOR FOREQUARTERS UNDER ITEM 4. FURTHERMORE, THE QUOTATIONS OF SWIFT AND CO. ON ITEMS 2 AND 3 ARE BOTH OUT OF LINE WITH THE OTHER QUOTATIONS RECEIVED ON SAID ITEMS, WHEREAS THE QUOTATIONS ALLEGED TO HAVE BEEN INTENDED ARE IN LINE WITH THE PRICES QUOTED BY THE OTHER BIDDERS THEREON. UNDER THESE CIRCUMSTANCES, SWIFT AND CO. SHOULD HAVE BEEN ASKED TO VERIFY ITS BID BEFORE ANY AWARDS WERE MADE.

IT IS APPARENT THAT A BONA FIDE ERROR WAS MADE BY SWIFT AND CO. IN ITS BID, IN THAT THE PRICES FOR ITEMS 2 AND 3 WERE REVERSED, AS ALLEGED. CONSEQUENTLY, THE COMPANY IS ENTITLED TO RECEIVE PAYMENT FOR DELIVERIES UNDER ITEM 3 IN AN AMOUNT NOT TO EXCEED THE LOWEST CORRECT BID RECEIVED ON SAID ITEM, WHICH APPEARS TO BE $0.2189 PER POUND. HOWEVER, SINCE THE CONTRACT ON ITEM 2 WAS AWARDED TO ARMOUR AND CO. AT THE RATE OF $0.1542 PER POUND, WHEREAS BUT FOR THE ERROR IN BID OF SWIFT AND CO. AWARD TO THIS ITEM WOULD HAVE BEEN MADE TO THE LATTER COMPANY AT THE RATE OF $0.1510 PER POUND, THE GOVERNMENT SHOULD RECEIVE CREDIT FOR THE DIFFERENCE BETWEEN $0.1542 PER POUND AND $0.1510 PER POUND. THEREFORE, IN THE EVENT PAYMENT FOR ITEM 3 HAS NOT BEEN MADE TO SWIFT AND CO., PAYMENT IS AUTHORIZED TO BE MADE THEREFOR IN AN AMOUNT NOT TO EXCEED THE BID OF THE CONSOLIDATED BEEF AND PROVISION CO. IN THE AMOUNT OF $0.2189 PER POUND LESS THE DIFFERENCE BETWEEN THE BID OF ARMOUR AND CO. ON ITEM 2, IN THE AMOUNT OF $0.1542 PER POUND, AND THE INTENDED BID OF SWIFT AND CO. THEREON, IN THE AMOUNT OF $0.1510 PER POUND, ON SUCH QUANTITY OF MEAT AS IS DELIVERED UNDER ITEM 2. THE VOUCHER COVERING SUCH PAYMENT SHOULD CONTAIN A REFERENCE TO THIS DECISION. IF PAYMENT HAS BEEN MADE FOR ITEM 3 AT THE PRICE OF $0.1510 PER POUND, A VOUCHER FOR THE ADDITIONAL AMOUNT CLAIMED MAY BE FORWARDED TO THIS OFFICE FOR SETTLEMENT AS A CLAIM, IN WHICH EVENT THE CLAIM SHOULD BE ACCOMPANIED BY A REPORT SHOWING THE NUMBER OF POUNDS OF MEAT DELIVERED AND ACCEPTED UNDER ITEM 2 IN ORDER THAT THE ABOVE-MENTIONED CREDIT MAY BE TAKEN IN THE SETTLEMENT AND THE LETTER TRANSMITTING THE CLAIM SHOULD REFER TO THIS DECISION.

THE LETTER OF AUGUST 20, 1941, FROM SWIFT AND CO., AND THE LETTER OF AUGUST 25, 1941, ARE RETURNED HEREWITH.