A-52489, DECEMBER 11, 1933, 13 COMP. GEN. 169

A-52489: Dec 11, 1933

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IT IS AGREED THAT. IN NO EVENT SHALL THE REVISED PRICES BE MORE THAN SELLER IS WILLING TO QUOTE GENERALLY AT THE TIME OF DELIVERY ON NEW BUSINESS FOR THE SAME PRODUCTS. SUCH A CONDITIONED BID IS INDEFINITE AND UNCERTAIN AND NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS AS THE BID ATTEMPTS TO INCORPORATE THEREIN TERMS AND CONDITIONS NOT OFFERED BY THE GOVERNMENT TO ALL BIDDERS AS A BASIS OF COMPETITION.

A-52489, DECEMBER 11, 1933, 13 COMP. GEN. 169

ADVERTISING - CONDITIONAL BIDS WHEN BIDDERS ATTEMPT TO CONDITION THEIR BIDS BY STIPULATIONS NOT CONTAINED IN THE ADVERTISED SPECIFICATIONS, SUCH BIDS SHOULD BE DISREGARDED AS NOT RESPONSIVE TO THE TERMS OF THE CONTRACT OFFERED TO ALL BIDDERS IN THE ADVERTISED SPECIFICATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, DECEMBER 11, 1933:

THERE HAS BEEN RECEIVED A LETTER DATED DECEMBER 4, 1933, FROM T. A. SHANLEY, COMMANDER, UNITED STATES COAST GUARD, CHIEF, OFFICE OF SUPPLIES AND ACCOUNTS, TO THE EFFECT THAT IN RESPONSE TO AN ADVERTISEMENT DATED NOVEMBER 14, 1933, FOR BIDS TO BE OPENED NOVEMBER 24, 1933, FOR THE DELIVERY OF 4,000 GALLONS OF HIGH TEST AVIATION GASOLINE AT BROADWATER, VA., AND 1,000 GALLONS OF THE SAME GRADE OF GASOLINE AT CHINCO TEAGUE, VA., THERE HAD BEEN RECEIVED FROM H. C. WATSON A BID OF $0.2443 A GALLON FOR DELIVERY AT EACH PLACE, AND FROM THE STANDARD OIL CO. OF NEW JERSEY A BID OF $0.2175 PER GALLON FOR DELIVERY AT BROADWATER AND $0.1877 PER GALLON FOR DELIVERY AT CHINCO TEAGUE, BUT THAT THE LATTER BIDDER HAD ATTACHED A RIDER TO ITS BID ATTEMPTING TO CONDITION ITS BID PRICE. DECISION HAS BEEN REQUESTED WHETHER THE BID OF THE STANDARD OIL CO. OF NEW JERSEY MAY BE ACCEPTED, MR. WATSON NOT HAVING CONDITIONED HIS BID.

THE RECORD DISCLOSES THAT THE STANDARD OIL CO. OF NEW JERSEY MADE A CONDITION OF ITS BID THE FOLLOWING STATEMENT CONTAINED IN A MIMEOGRAPHED FORM ATTACHED THERETO:

N.R.A. DEPRECIATION AND PRICE-FIXING CLAUSE

IF THE NATIONAL INDUSTRIAL RECOVERY ACT, ANY CODE, REGULATION, OR INTERPRETATION THEREOF, OR ANY FUTURE GOVERNMENTAL LAW, REGULATION OR ORDER, OR THE DEPRECIATION OF THE CURRENCY OF THE UNITED STATES BY THE REDUCTION IN THE GOLD CONTENT OF THE DOLLAR, THE ISSUE OF FLAT MONEY, INFLATION, EXPANSION OF CREDIT, OR OTHERWISE, SHALL DIRECTLY OR INDIRECTLY INCREASE THE COST TO THE SELLER IN FURNISHING THE PRODUCTS CALLED FOR HEREIN, OR SHALL DIRECT THAT SUCH PRODUCTS SHALL BE SOLD AT MINIMUM PRICES WHICH SHALL BE AN INCREASE OVER THE PRICES PROVIDED HEREIN, IT IS AGREED THAT, UPON THIRTY DAYS' WRITTEN NOTICE BY SELLER TO BUYER, THE PRICES IN THIS CONTRACT SHALL BE REVISED FROM TIME TO TIME TO INCLUDE SUCH INCREASE. SELLER'S STATEMENT OF ITS INCREASED COSTS AND OF THEIR APPLICATION IN INCREASING PRICES HEREUNDER SHALL BE CONCLUSIVE UPON BUYER, BUT BUYER MAY CANCEL THIS CONTRACT AS TO ANY ITEMS AFFECTED BY SUCH COSTS AT THE END OF SUCH THIRTY-DAY PERIOD BY GIVING TO SELLER AT LEAST FIFTEEN DAYS' ADVANCE WRITTEN NOTICE THEREOF. HOWEVER, IN NO EVENT SHALL THE REVISED PRICES BE MORE THAN SELLER IS WILLING TO QUOTE GENERALLY AT THE TIME OF DELIVERY ON NEW BUSINESS FOR THE SAME PRODUCTS, QUANTITIES, TERRITORIES, KINDS OF CUSTOMERS, AND HANDLING AND DELIVERY CONDITIONS AS PROVIDED IN THIS CONTRACT.

SUCH A CONDITIONED BID IS INDEFINITE AND UNCERTAIN AND NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS AS THE BID ATTEMPTS TO INCORPORATE THEREIN TERMS AND CONDITIONS NOT OFFERED BY THE GOVERNMENT TO ALL BIDDERS AS A BASIS OF COMPETITION. SEE 8 COMP. GEN. 299. CONSEQUENTLY, SUCH BID MAY NOT BE ACCEPTED. SEE DECISION DATED NOVEMBER 13, 1933, A-51799.