A-86472, JUNE 7, 1937, 16 COMP. GEN. 1054

A-86472: Jun 7, 1937

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CONTRACTS - MISTAKES - BIDS - TAX NOT INCLUDED IN PRICE OR EXEMPTION CLAIMED - ISSUANCE OF TAX EXEMPTION CERTIFICATES WHERE A BID NOT ONLY DID NOT SHOW THAT TAX REFUND OR EXEMPTION WAS CLAIMED IN ADDITION TO THE BID PRICE. SHOWED AFFIRMATIVELY THAT THERE WERE "EXCEPTIONS. THERE IS NO AUTHORITY FOR THE ISSUANCE TO THE CONTRACTOR OF TAX EXEMPTION CERTIFICATES. AT THE TIME THIS BID WAS SUBMITTED. THE PRICE ON THIS BID WAS .1025 PER GALLON. WHICH IS 2/10 CENTS LOWER THAN THE BID SUBMITTED BY OUR COMPANY FOR THE SAME COMMODITY ON JUNE 10. WE HAVE COMMUNICATED WITH MR. INASMUCH AS THIS WAS AN OVERSIGHT ON OUR PART. WE FEEL THAT WE ARE ENTITLED TO CONSIDERATION AND WOULD APPRECIATE YOUR ADVISING MR.

A-86472, JUNE 7, 1937, 16 COMP. GEN. 1054

CONTRACTS - MISTAKES - BIDS - TAX NOT INCLUDED IN PRICE OR EXEMPTION CLAIMED - ISSUANCE OF TAX EXEMPTION CERTIFICATES WHERE A BID NOT ONLY DID NOT SHOW THAT TAX REFUND OR EXEMPTION WAS CLAIMED IN ADDITION TO THE BID PRICE, BUT, ON THE CONTRARY, SHOWED AFFIRMATIVELY THAT THERE WERE "EXCEPTIONS--- NONE" AS TO PRICE, THERE IS NO AUTHORITY FOR THE ISSUANCE TO THE CONTRACTOR OF TAX EXEMPTION CERTIFICATES, THE BID REFUND OR EXEMPTION OMISSION CONSTITUTING A UNILATERAL MISTAKE OR "OVERSIGHT" NOT SUCH FOR WHICH RELIEF MAY BE GRANTED.

ACTING COMPTROLLER GENERAL ELLIOTT TO CITIES SERVICE OIL COMPANY, JUNE 7, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 21, 1937, AS FOLLOWS:

ON FEBRUARY 9TH, 1937, WE SUBMITTED A BID COVERING 3,000 GALLONS OF PARAFFINE OIL TO THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, THEIR BID CA 37-470.

AT THE TIME THIS BID WAS SUBMITTED, WE MARKED "EXCEPTIONS--- NONE" AND FAILED TO SHOW THAT THE PRICE AS SUBMITTED DID NOT INCLUDE THE FEDERAL TAX OF 4 CENTS PER GALLON AND THAT PROPERLY SIGNED EXEMPTION CERTIFICATES MUST BE FURNISHED BIDDER. THE PRICE ON THIS BID WAS .1025 PER GALLON, WHICH IS 2/10 CENTS LOWER THAN THE BID SUBMITTED BY OUR COMPANY FOR THE SAME COMMODITY ON JUNE 10, 1936, NO. 74688, AND ALSO ON SEPTEMBER 19, 1936, THEIR NO. 76449. BOTH OF THE LATER BIDS INCLUDED IN EXCEPTIONS, REFERENCE TO THE FEDERAL TAX NOT BEING INCLUDED IN THE PRICE, AND SETTING OUT THE NECESSITY OF SUBMITTING EXEMPTION CERTIFICATES.

WE HAVE COMMUNICATED WITH MR. CURLEY, PURCHASING AGENT OF THE ROCK ISLAND ARSENAL, AND HE ADVISES THAT FOR THE REASON STATED ABOVE, THEY WOULD BE UNABLE TO FURNISH US WITH EXEMPTION CERTIFICATE COVERING 3,000 GALLONS PURCHASED ON THE BID CA37-470 SUBMITTED FEBRUARY 9TH, 1937.

INASMUCH AS THIS WAS AN OVERSIGHT ON OUR PART, WE FEEL THAT WE ARE ENTITLED TO CONSIDERATION AND WOULD APPRECIATE YOUR ADVISING MR. CURLEY OF THE FACT IN ORDER THAT HE MAY PREPARE AND FURNISH OUR COMPANY WITH THE NECESSARY EXEMPTION CERTIFICATE, IN ORDER THAT WE MAY RECEIVE REFUND OF THE TAX PAID.

THE DETERMINATION, PREPARATION, AND SUBMISSION OF A BID IS THE RESPONSIBILITY OF THE BIDDER. THE PRICES BID ARE PRESUMED TO EMBRACE ALL ELEMENTS OF COST AND PROFIT INCLUDING APPLICABLE FEDERAL TAXES, AND AWARD IS REQUIRED TO BE MADE ACCORDINGLY. IF PRICES SUBMITTED ARE IN CONTEMPLATION OF REFUND, EXEMPTION, CREDIT, OR DRAWBACK OF ANY KIND, IT IS INCUMBENT UPON THE BIDDER TO SHOW THAT FACT UPON THE FACE OF THE BID WHEN SUBMITTED. AFTER BIDS ARE OPENED, AND A FORTIORI AFTER A CONTRACT IS AWARDED, PRICES MAY NOT BE ALTERED TO THE PREJUDICE OF THE GOVERNMENT, DIRECT OR INDIRECT. IT IS CLEAR THAT YOUR BID NOT ONLY DID NOT SHOW THAT TAX REFUND OR EXEMPTION WAS CLAIMED IN ADDITION TO THE BID PRICE, BUT, ON THE CONTRARY, SHOWED AFFIRMATIVELY THAT THERE WERE NO EXCEPTIONS. THE CONTRACTING OFFICER WAS NOT ONLY JUSTIFIED IN ACCEPTING THE BID AS SUBMITTED, BUT WAS REQUIRED TO DO SO, IF OTHERWISE PROPER. THEREUPON A CONTRACT WAS CONSUMMATED AT THE BID PRICE, BINDING ALIKE UPON YOU AND THE GOVERNMENT. YOUR FAILURE TO SHOW THAT REFUND OR EXEMPTION OF TAX WOULD BE CLAIMED WAS A UNILATERAL MISTAKE OR "OVERSIGHT" ON YOUR PART, DUE ENTIRELY TO YOUR OWN NEGLIGENCE. THE GENERAL RULE OF LAW THAT RELIEF MAY NOT BE GRANTED FOR UNILATERAL MISTAKE HAS TOO LONG PREVAILED TO BE NOW OPEN TO ARGUMENT, AND THE FACTS STATED ARE NOT SUCH AS TO BRING YOUR CASE WITHIN ANY EXCEPTION TO THAT RULE. A-86269, MAY 21, 1937, 16 COMP. GEN. 1021.

UPON THE FACTS PRESENTED THERE APPEARS NO AUTHORITY FOR FURNISHING YOU WITH A TAX-EXEMPTION CERTIFICATE, AND YOUR REQUEST MUST BE AND IS DENIED.