B-6003, SEPTEMBER 28, 1939, 19 COMP. GEN. 404

B-6003: Sep 28, 1939

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IS NOT SUFFICIENT TO CONSTITUTE PRIMA FACIE EVIDENCE OF ERROR. A CONTRACT BASED ON SAID BID WILL NOT BE UNCONSCIONABLE. POINT TO BE OTHER THAN AS SPECIFIED IN THE INVITATION FOR BIDS DOES NOT ESTABLISH CONCLUSIVELY THAT A MISTAKE WAS MADE. THUS INDICATING THAT THE PRICES QUOTED ON ALL OTHER ITEMS WERE F.O.B. THERE IS NO AUTHORITY FOR RELEASING THE BIDDER FROM ITS OBLIGATION UNDER THE BID. AS FOLLOWS: ENCLOSED ARE PAPERS IN CONNECTION WITH AN ALLEGED ERROR IN A BID SUBMITTED BY KOCKOS BROTHERS. THE PURCHASING OFFICER WAS INFORMED OF THE ERROR BY LETTER DATED AUGUST 24TH. THE SLIGHT DIFFERENCE BETWEEN THE BID IN QUESTION AND OTHER BIDS RECEIVED DID NOT PLACE THE PURCHASING OFFICER ON NOTICE THAT AN ERROR HAD BEEN MADE AND IT IS EVIDENT THAT A MUTUAL ERROR WAS NOT MADE IN THIS CASE.

B-6003, SEPTEMBER 28, 1939, 19 COMP. GEN. 404

CONTRACTS - MISTAKES - BIDS - ONE ITEM ONLY WHERE THE SLIGHT DIFFERENCE BETWEEN THE OTHER BIDS ON A PARTICULAR ITEM AND THE BID OF A BIDDER ALLEGING ERROR IN BID ON SAID ITEM, UNDER AN INVITATION TO BID INVOLVING NUMEROUS ITEMS, IS NOT SUFFICIENT TO CONSTITUTE PRIMA FACIE EVIDENCE OF ERROR, AND A CONTRACT BASED ON SAID BID WILL NOT BE UNCONSCIONABLE, AND THE EXPLANATION FURNISHED BY THE LOW BIDDER AFTER THE OPENING OF BIDS THAT HE INTENDED THE F.O.B. POINT TO BE OTHER THAN AS SPECIFIED IN THE INVITATION FOR BIDS DOES NOT ESTABLISH CONCLUSIVELY THAT A MISTAKE WAS MADE, AND THE BIDDER SPECIFICALLY INSERTED ON ANOTHER ITEM OF THE BID AN "F.O.B. POINT" OTHER THAN THAT SPECIFIED IN THE INVITATION FOR BIDS, THUS INDICATING THAT THE PRICES QUOTED ON ALL OTHER ITEMS WERE F.O.B. DESTINATION AS CALLED FOR IN THE INVITATION, THERE IS NO AUTHORITY FOR RELEASING THE BIDDER FROM ITS OBLIGATION UNDER THE BID, IF ACCEPTED WITHIN THE PERIOD DESIGNATED THEREIN.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF WAR, SEPTEMBER 28, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 9, 1939, AS FOLLOWS:

ENCLOSED ARE PAPERS IN CONNECTION WITH AN ALLEGED ERROR IN A BID SUBMITTED BY KOCKOS BROTHERS, LTD., TO THE SAN FRANCISCO GENERAL DEPOT UNDER INVITATION FOR BIDS 928-40-40 OPENED ON AUGUST 23, 1939.

THE PURCHASING OFFICER WAS INFORMED OF THE ERROR BY LETTER DATED AUGUST 24TH. THE SLIGHT DIFFERENCE BETWEEN THE BID IN QUESTION AND OTHER BIDS RECEIVED DID NOT PLACE THE PURCHASING OFFICER ON NOTICE THAT AN ERROR HAD BEEN MADE AND IT IS EVIDENT THAT A MUTUAL ERROR WAS NOT MADE IN THIS CASE. IT IS, THEREFORE, RECOMMENDED THAT KOCKOS BROTHERS, LTD., BE HELD TO THE QUOTATION AS SUBMITTED.

IT IS REQUESTED THAT THE ENCLOSED PAPERS BE RETURNED TO THIS OFFICE WHEN THEY HAVE SERVED THEIR PURPOSE.

THE INVITATION REFERRED TO IN YOUR LETTER PROVIDED IN PART AS FOLLOWS:

CHART

ITEM ARTICLES OR SERVICES SPEC. NO. QUANTITY

NO. UNIT -------------------------------------- -------------------------

THE SUPPLIES INDICATED HEREIN ARE

REQUIRED BY THE GOVERNMENT AT

DOCK NO. 1, FORT MASON, SAN

FRANCISCO, CALIF., ON OR BEFORE

OCTOBER 12, 1939. UNLESS

OTHERWISE INDICATED BY BIDDER,

BIDS WILL BE CONSIDERED AS BEING

ON THIS BASIS. * * *

2 APPLES, HEAVY PACK, W/LITTLE OR NO 600 CAN.

FREE LIQUOR. NO. 10 CANS, GRADE

C. Z-A611A AND AMEND. 1. ---------------------------------- ------------

THE ABSTRACT OF BIDS SUBMITTED WITH YOUR LETTER SHOWS THAT EIGHT BIDS WERE RECEIVED ON ITEM 2, AS FOLLOWS:

PURITY STORES, LTD --------------------------------- (1) $0.2654

KOCKOS BROS., LTD --------------------------------- .267

HAAS BROS. ------------------------------------------ (1) .2698

R. D. PRINGLE AND CO. ------------------------------- (1) .27

NEWBAUER AND SCHMALE -------------------------------- .2916

JAS. A. SHEALY CO., INC. ------------------------- .293

TIEDEMANN AND MCMORRAN ------------------------------ .29877

WEST AMERICAN SALES CO. --------------------------- .3033

(1) F.O.B. PORTLAND, OREGON. KOCKOS BROTHERS, LTD., THE LOW BIDDER, FREIGHT CONSIDERED, ADVISED IN LETTER OF AUGUST 24, 1939, AS FOLLOWS:

WE HAVE SUBMITTED A QUOTATION FOR ITEM NO. 2 IN THE ABOVE SCHEDULE FOR 600 CANS OF CANNED APPLES AT $0.267 PER CAN, BUT THROUGH TYPOGRAPHICAL OVERSIGHT IT WAS NOT STATED THAT THIS PRICE IS F.O.B. PORTLAND, OREGON.

AS THIS OMISSION CONSIDERABLY AFFECTS THE PRICE QUOTED ON THE ABOVE ITEM WE HEREBY ASK YOUR PERMISSION TO HAVE OUR QUOTATION ON THIS ITEM WITHDRAWN.

YOUR LETTER DOES NOT STATE WHETHER AWARD HAS BEEN MADE ON ITEM 2 OR, IF SO, WHETHER IT WAS MADE BEFORE RECEIPT OF ANY ALLEGATION OF ERROR. HOWEVER, THE EXPLANATION FURNISHED BY THE LOW BIDDER DOES NOT ESTABLISH CONCLUSIVELY THAT A MISTAKE WAS MADE. THE DELIVERY REQUIREMENTS OF THE INVITATION WERE CLEAR; AND IT IS NOTED THAT THIS BIDDER BID ON 22 ITEMS AND WITH RESPECT TO ONE OF THEM--- ITEM NO. 96--- IT INSERTED AFTER ITS BID PRICE "F.O.B. PORTLAND, OREGON," THUS INDICATING THAT THE PRICES QUOTED ON ALL OTHER ITEMS WERE F.O.B. DESTINATION AS CALLED FOR IN THE INVITATION. THE SLIGHT DIFFERENCE BETWEEN THE BID OF KOCKOS BROTHERS, LTD., AND THE OTHER BIDS RECEIVED ON ITEM 2 IS NOT SUFFICIENT TO CONSTITUTE PRIMA FACIE EVIDENCE OF ERROR, AND A CONTRACT BASED ON SAID BID WILL NOT BE UNCONSCIONABLE. IF A MISTAKE WAS MADE AS ALLEGED IT WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE BIDDER, FOR WHICH THE UNITED STATES WAS IN NO WAY RESPONSIBLE, AND THE BIDDER MUST BEAR THE CONSEQUENCES THEREOF. SEE 15 COMP. GEN. 1049 AND CASES THEREIN CITED.

ACCORDINGLY, THERE IS NO AUTHORITY FOR RELEASING KOCKOS BROTHERS, LTD., FROM ITS OBLIGATION UNDER ITS BID, IF ACCEPTED WITHIN THE PERIOD DESIGNATED THEREIN.