B-3961, JUNE 15, 1939, 18 COMP. GEN. 928

B-3961, JUNE 15, 1939, 18 COMP. GEN. 928

SALES - MISTAKES - BIDS - VERIFICATION OF BID PRIOR TO ALLEGATION OF MISTAKE WHERE BIDDER, AFTER HAVING VERIFIED ITS BID UPON REQUEST MADE THEREFOR BY THE CONTRACTING OFFICER WHO HAD NOTICED THE CONSIDERABLE DIFFERENCE BETWEEN ITS BID AND THE ONLY OTHER BID RECEIVED, ALLEGED MISTAKE IN THAT IT MISTOOK THE BID FORM TO BE A REQUEST FOR BID TO SELL TO THE GOVERNMENT RATHER THAN AN OFFER BY THE GOVERNMENT TO SELL, AND THE SPECIFICATIONS AND THE LETTER REQUESTING VERIFICATION CLEARLY SHOWED THERE WAS A SALE RATHER THAN A GOVERNMENT PURCHASE INVOLVED, THERE IS NO LEGAL BASIS TO RELIEVE THE BIDDER FROM ITS OBLIGATION UNDER ITS BID ACCEPTED AFTER THE SAID VERIFICATION, AND, IF DELIVERY AND PAYMENT FOR THE PROPERTY SOLD ARE REFUSED BY THE BIDDER, SAME SHOULD BE DISPOSED OF AS THE INTERESTS OF THE GOVERNMENT MAY REQUIRE, AFTER GIVING DUE NOTICE TO THE BIDDER, AND ANY LOSS INCURRED THEREBY CHARGED TO ITS ACCOUNT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JUNE 15, 1939:

I HAVE YOUR LETTER OF MAY 25, 1939, AS FOLLOWS:

THERE IS SUBMITTED FOR YOUR CONSIDERATION THE QUESTION OF WHETHER THE SINGER SEWING MACHINE COMPANY, 16 SOUTH OAKLAND AVENUE, PASADENA, CALIFORNIA, MAY BE PERMITTED TO WITHDRAW ITS BID ON INVITATION NO. 39 872 FOR THE PURCHASE OF TWO SINGER SEWING MACHINES, ITEMS 1 AND 2, FROM THE VETERANS' ADMINISTRATION FACILITY, LOS ANGELES, CALIFORNIA. THIS COMPANY CLAIMS THAT THE PRICE OF $95.25 BID ON EACH ITEM IS FOR THE SALE TO THE GOVERNMENT OF THE MACHINES INDICATED IN THE INVITATION, AND THAT IT MISTOOK THE VETERANS' ADMINISTRATION INVITATION TO BE A REQUEST FOR A BID TO SUPPLY THE SEWING MACHINES INSTEAD OF AN OFFER FOR THE SALE OF THE OLD MACHINES.

THERE ARE FORWARDED HEREWITH BID OF THE SINGER SEWING MACHINE COMPANY, CORRESPONDENCE BETWEEN THAT CONCERN AND THE VETERANS' ADMINISTRATION FACILITY, LOS ANGELES, CALIFORNIA, AND LETTER OF MAY 4, 1939, FROM THE LOS ANGELES FACILITY ADDRESSED TO THIS OFFICE.

THE FOLLOWING IS AN ABSTRACT OF THE BIDS RECEIVED FOR THE PURCHASE OF THE SEWING MACHINES:

TABLE

UNIT PRICE

BIDDER ITEM 1 ITEM 2 AGGREGATE

(EACH) (EACH) AMOUNT SINGER SEWING MACHINE CO ----------------- $95.25$95.25 $190.50 CHEAP JOHN -------------------------------7.55 7.55 15.10

PLEASE RETURN THE ENCLOSURES WITH YOUR REPLY.

IT APPEARS THAT DUE TO THE CONSIDERABLE DIFFERENCE BETWEEN THE BID OF THE SINGER SEWING MACHINE CO. AND THE ONLY OTHER BID RECEIVED, THE FOLLOWING LETTER DATED MARCH 23, 1939, WAS ADDRESSED TO THE COMPANY:

REFERENCE IS MADE TO YOUR QUOTATION ON OUR INVITATION NO. 39-872, OFFERING FOR SALE SINGER SEWING MACHINE, SERIAL NO. AC779416, MOTOR NO. 189920 AND SINGER SEWING MACHINE SERIAL NO. H-194776, MOTOR NO. CENT FKK- 3, ON WHICH YOU OFFERED A PRICE OF $95.25 EACH.

IT WILL BE APPRECIATED IF YOU WILL VERITY YOUR QUOTATION ON THIS INVITATION BY RETURN MAIL.

IN REPLY THERETO THE COMPANY ADVISED BY LETTER DATED MARCH 28, 1939, AS FOLLOWS:

THIS IS TO VERIFY OUR QUOTATION ON YOUR INVITATION NO. 39-872, OFFERING FOR SALE SINGER SEWING MACHINE, SERIAL NO. AC779416, MOTOR NO. 189920 AND SINGER SEWING MACHINE SERIAL NO. H-194776, MOTOR NO. CENT FKK-3, AT A PRICE OF $95.25 EACH.

AFTER SUCH VERIFICATION THERE WAS NO OTHER COURSE FOR THE CONTRACTING OFFICER TO FOLLOW EXCEPT TO MAKE AWARD TO SAID BIDDER. IT WAS NOT UNTIL AFTER THE BID HAD BEEN VERIFIED AND AWARD MADE THAT THERE WAS ANY ALLEGATION OF MISTAKE. THE MISTAKE ALLEGED IS THAT THE BIDDER MISTOOK THE BID FORM TO BE A REQUEST FOR BID TO SUPPLY THE GOVERNMENT WITH TWO MACHINES RATHER THAN AN OFFER BY THE GOVERNMENT TO SELL SAID MACHINES. THERE WOULD APPEAR TO BE NO BASIS WHATEVER FOR SUCH AN ASSUMPTION. THE CIRCULAR PROPOSAL OR ADVERTISEMENT IN THIS CASE APPARENTLY CONSISTED OF ONLY ONE SHEET AND IT IS EVIDENT FROM THE COPY FURNISHED THIS OFFICE THAT HAD THE BIDDER MADE ANY EXAMINATION THEREOF IT WOULD HAVE BEEN OBVIOUS THAT THE GOVERNMENT WAS OFFERING TO SELL AND NOT TO BUY TWO SEWING MACHINES. THE ADVERTISEMENT EVEN GAVE THE SERIAL AND MOTOR NUMBERS OF THE MACHINES OFFERED FOR SALE.

ALSO, SAID NUMBERS WERE MENTIONED IN THE REQUEST FOR VERIFICATION AND IN THE BIDDER'S LETTER OF VERIFICATION.

THE FACT THAT THE CONTRACTING OFFICER IN THIS CASE BEFORE MAKING AWARD REQUESTED THE SINGER SEWING MACHINE CO. TO VERIFY ITS BID AND DID NOT MAKE THE AWARD UNTIL HE RECEIVED A LETTER FROM THAT COMPANY REITERATING ITS BID UNDER THE INVITATION PRECLUDES ANY PRESUMPTION THAT HE EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF THE BIDDER. THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION AFTER RECEIPT OF THE CONTRACTOR'S LETTER OF VERIFICATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. THE ACCEPTANCE OF THE BID UNDER SUCH CIRCUMSTANCES CONSUMMATED A CONTRACT AND FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP CO., 239 U.S. 88; PURCELL ENVELOPE CO. V. UNITED STATES, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, YOU ARE ADVISED THAT UPON THE FACTS OF RECORD IT MUST BE HELD THAT THERE IS NO LEGAL BASIS TO RELIEVE THE SINGER SEWING MACHINE CO. FROM ITS ACCEPTED BID. IF THE SAID BIDDER REFUSED TO ACCEPT DELIVERY OF AND PAY FOR THE MACHINES, SAME, AFTER GIVING DUE NOTICE TO THE BIDDER, SHOULD BE DISPOSED OF AS THE INTERESTS OF THE UNITED STATES MAY REQUIRE, AND ANY LOSS INCURRED BY THE GOVERNMENT BY REASON THEREOF SHOULD BE CHARGED TO THE SINGER SEWING MACHINE CO. ..END :