B-5285, AUGUST 16, 1939, 19 COMP. GEN. 207

B-5285, AUGUST 16, 1939, 19 COMP. GEN. 207

CONTRACTS - MISTAKES - BIDS - TELEGRAPHIC PRICE TRANSMISSION ERROR WHERE A PROCUREMENT OFFICER REQUESTED VERIFICATION OF A BID AND THE BIDDER ALLEGED ERROR IN THAT IT QUOTED THE IDENTICAL PRICE ERRONEOUSLY TRANSMITTED TO IT BY THE TELEGRAPH COMPANY AS THE PRICE SUGGESTED BY THE SUPPLIER, THE BIDDER MAY NOT BE ALLOWED TO CHANGE OR WITHDRAW ITS BID, THE BID HAVING BEEN AS INTENDED AND THERE HAVING BEEN NO MISTAKE IN THE BID AS SUBMITTED; THE BIDDER--- A REGULAR DEALER IN THE SUPPLIES INVOLVED--- NOT HAVING QUESTIONED THE CORRECTNESS OF THE QUOTATION OF ITS SUPPLIER; AND THE DIFFERENCE BETWEEN SAID BID AND THE NEXT LOWEST BID NOT BEING SO GREAT AS TO MAKE UNCONSCIONABLE A CONTRACT BASED ON THE ACCEPTANCE OF THE LOW BID.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, AUGUST 16, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 28, 1939, AS FOLLOWS:

THERE ARE ENCLOSED ALL BIDS RECEIVED IN RESPONSE TO FOREST SERVICE BID INVITATION NO. R-4-733, WHICH WAS ISSUED BY THE REGIONAL FORESTER AT OGDEN, UTAH.

AS WILL BE NOTED, THE SALT LAKE HARDWARE COMPANY SUBMITTED THE LOWEST BID. AT THE TIME BIDS WERE OPENED ON JULY 11, IT APPEARED TO THE PROCUREMENT OFFICER THAT THE PRICE QUOTED WAS IN ERROR AND VERBAL REQUEST WAS MADE OF THE REPRESENTATIVE OF THE COMPANY PRESENT FOR VERIFICATION OF THE QUOTATION. IN RESPONSE TO THIS REQUEST, THE COMPANY HAS FURNISHED THEIR LETTER OF JULY 12, TO WHICH ARE ATTACHED COPIES OF THREE TELEGRAMS. FROM THESE TELEGRAMS IT APPEARS THAT AN ERROR WAS MADE IN TRANSMISSION OF THE FIRST TELEGRAM FROM THE AMERICAN CHAIN AND CABLE COMPANY AT SAN FRANCISCO, CALIFORNIA, TO SALT LAKE, UTAH. INFORMATION IS REQUESTED AS TO WHETHER THE BID OF THE SALT LAKE HARDWARE COMPANY MAY BE WITHDRAWN.

THE INVITATION REFERRED TO IN YOUR LETTER REQUESTED BIDS FOR FURNISHING 75 LOG CHAINS DESCRIBED AS FOLLOWS: "CHAINS, LOG, 3/8 INCHES, STRAIGHT LINK WITH SWIVEL IN CENTER; ROUND HOOK ON ONE END, WITH GRAB HOOK ON THE OTHER; 16-FOOT LONG.' EXAMINATION OF THE BIDS SUBMITTED WITH YOUR LETTER SHOWS THAT THE LOW BID OF THE SALT LAKE HARDWARE CO. IS IN THE AMOUNT OF $1.72 EACH AND THAT 16 OTHER BIDS WERE RECEIVED IN AMOUNTS FROM $2.19 TO $3.10 EACH.

THE SALT LAKE HARDWARE CO., UPON BEING REQUESTED TO VERIFY ITS BID, ADVISED IN LETTER OF JULY 12, 1939, AS FOLLOWS:

KINDLY REFER TO OUR QUOTATION DATED JULY 10, 1939, YOUR BID NO. R-4 733 WHICH OPENED JULY 11, 1939, AT 10:00 A.M. CALLING FOR 75 ONLY LOG CHAINS.

WE WOULD LIKE TO PROTEST THIS BID AS WE HAVE DISCOVERED THAT THERE WAS AN ERROR MADE BY WESTERN UNION IN TRANSMITTING A TELEGRAPHIC QUOTATION FROM OUR FACTORY TO US. OUR FACTORY QUOTED US $2.72 EACH BUT WE BASED OUR PRICE ON THEIR TELEGRAM TO US WHICH READ $1.72 EACH.

WE ARE ENCLOSING COPIES OF TELEGRAMS WHICH WILL EXPLAIN HOW SUCH AN ERROR OCCURRED AND WHICH WE THINK IS JUSTIFICATION OF THE WITHDRAWAL OF OUR BID AS THIS ERROR WAS MADE BY NEITHER US NOR OUR FACTORY AND WAS UNAVOIDABLE SO FAR AS WE ARE CONCERNED.

IT APPEARS FROM THE COPIES OF TELEGRAMS REFERRED TO IN THE BIDDER'S LETTER THAT ITS BID OF $1.72 EACH WAS BASED ON A TELEGRAM RECEIVED BY THE BIDDER JULY 10, 1939, FROM THE AMERICAN CHAIN AND CABLE CO., INC., SAN FRANCISCO, CALIF., AS FOLLOWS:

ANSWERING LETTER SEVENTH FOREST SERVICE INQUIRY 75 LOG CHAINS SUGGEST YOU BID $1.72 EACH DELIVERED OGDEN 18 DAYS STOP WILL EXTEND YOU FIVE PERCENT COMMISSION.

HOWEVER, UPON INVESTIGATION OF THE MATTER IT WAS FOUND THAT THE CORRECT QUOTATION OF THE AMERICAN CHAIN AND CABLE CO., INC., WAS $2.72 BUT THAT THROUGH AN ERROR BY THE TELEGRAPH COMPANY IN ITS SAN FRANCISCO OFFICES THE QUOTATION WAS TRANSMITTED AND RECEIVED BY THE BIDDER AS $1.72 EACH.

THE STANDARDIZED GOVERNMENT INSTRUCTIONS TO BIDDERS, TO WHICH THE ATTENTION OF THE BIDDERS WAS INVITED, PROVIDE, IN PARAGRAPHS 14 AND 19, AS FOLLOWS:

14. WITHDRAWAL OF BIDS.--- BIDS MAY BE WITHDRAWN ON WRITTEN OR TELEGRAPHIC REQUEST RECEIVED FROM BIDDERS PRIOR TO THE TIME FIXED FOR OPENING. NEGLIGENCE ON THE PART OF THE BIDDER IN PREPARING THE BID CONFERS NO RIGHT FOR THE WITHDRAWAL OF THE BID AFTER IT HAS BEEN OPENED.

19. ERRORS IN BID.--- BIDDERS OR THEIR AUTHORIZED AGENTS ARE EXPECTED TO EXAMINE THE MAPS, DRAWINGS, SPECIFICATIONS, CIRCULARS, SCHEDULE, AND ALL OTHER INSTRUCTIONS PERTAINING TO THE WORK, WHICH WILL BE OPEN TO THEIR INSPECTION. FAILURE TO DO SO WILL BE AT THE BIDDER'S OWN RISK, AND HE CANNOT SECURE RELIEF ON THE PLEA OF ERROR IN THE BID. IN CASE OF ERROR IN THE EXTENSION OF PRICES THE UNIT PRICE WILL GOVERN.

IT IS CLEAR FROM THE FACTS OF RECORD THAT THERE WAS NO MISTAKE IN THE BID OF THE SALT LAKE HARDWARE CO. AS SUBMITTED. THAT IS TO SAY, THE BID WAS AS INTENDED BY THE BIDDER AND RELIEF IS NOW SOUGHT ON THE GROUND OF AN ERROR IN TRANSMISSION OF ITS SUPPLIER'S QUOTATION ON WHICH IT BASED ITS BID. FURTHERMORE, IT APPEARS THAT THE BIDDER IS A REGULAR DEALER IN HARDWARE SUPPLIES, BUT NOTWITHSTANDING THIS, IT DID NOT QUESTION THE CORRECTNESS OF THE QUOTATION OF $1.72. THE DIFFERENCE BETWEEN THE LOW BID OF $1.72 AND THE NEXT LOWEST BID IN THE AMOUNT OF $2.19 IS NOT SO GREAT AS TO MAKE UNCONSCIONABLE A CONTRACT BASED ON THE ACCEPTANCE OF THE LOW BID, AND IF THE LOW BIDDER CHOSE TO RELY IN THE PREPARATION OF ITS BID ON A TELEGRAPHIC QUOTATION FROM ITS SUPPLIER, NOW ALLEGED TO HAVE BEEN ERRONEOUSLY MODIFIED IN TRANSMISSION, IT MUST BEAR THE CONSEQUENCES THEREOF. CF. 6 COMP. GEN. 504; 18 ID. 28.

ACCORDINGLY, THE SALT LAKE HARDWARE CO. MAY NOT BE ALLOWED TO CHANGE OR WITHDRAW ITS BID.