A-94133, APRIL 22, 1938, 17 COMP. GEN. 864

A-94133: Apr 22, 1938

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ADVERTISING - BIDS - QUALIFIED - DELIVERY FAILURE OR DELAYS WHERE IT IS DEEMED IN THE INTEREST OF THE UNITED STATES. IS INCLUDING IN ITS BIDS SUBMITTED ON STANDARD FORM NO. 33 FOR SUPPLYING PACKING HOUSE AND DAIRY PRODUCTS TO VETERANS' ADMINISTRATION FACILITIES THE FOLLOWING CONDITION: "DELIVERIES HEREUNDER SHALL BE SUBJECT TO. WHEN THE FAILURES OR DELAYS OF THE CONTRACTOR IN MAKING DELIVERIES IS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR INCLUDING BUT NOT RESTRICTED TO ACTS OF GOD OR THE PUBLIC ENEMY. AS IS UNDERSTOOD FROM YOUR LETTER. IT IS DEEMED IN THE INTEREST OF THE GOVERNMENT THAT THE OBLIGATION OF THE CONTRACTORS TO MAKE DELIVERIES AS REQUIRED UNDER THESE 30-DAY CONTRACTS FOR FURNISHING FOOD SUPPLIES SHOULD BE ABSOLUTE AND THE INVITATION FOR BIDS CONTAINS NO INDICATION THAT CONTRACTORS WILL BE RELIEVED FROM LIABILITY FOR FAILURE OR DELAY IN DELIVERY DUE TO UNAVOIDABLE CAUSES.

A-94133, APRIL 22, 1938, 17 COMP. GEN. 864

ADVERTISING - BIDS - QUALIFIED - DELIVERY FAILURE OR DELAYS WHERE IT IS DEEMED IN THE INTEREST OF THE UNITED STATES, BECAUSE OF THE TYPE AND DURATION OF THE SUPPLY CONTRACTS INVOLVED, THAT THE CONTRACTOR'S OBLIGATION AS TO DELIVERIES SHOULD BE ABSOLUTE, AND THE INVITATION FOR BIDS CONTAINS NO INDICATION OF CONTRACTOR'S RELIEF FROM LIABILITY FOR FAILURE OR DELAY IN DELIVERY DUE TO UNAVOIDABLE CAUSES, ANY BID SO QUALIFIED AS TO RELIEVE THE BIDDER FROM FAILURE OR DELAY IN DELIVERY DUE TO ANY CAUSES OTHER THAN ACTS OF GOD, OF THE PUBLIC ENEMY, OR OF THE GOVERNMENT, SHOULD BE DISREGARDED AS NOT RESPONSIVE TO THE INVITATION FOR BIDS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 22, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 11, 1938, AS FOLLOWS:

THE JACOB DOLD PACKING COMPANY, BUFFALO, N.Y., IS INCLUDING IN ITS BIDS SUBMITTED ON STANDARD FORM NO. 33 FOR SUPPLYING PACKING HOUSE AND DAIRY PRODUCTS TO VETERANS' ADMINISTRATION FACILITIES THE FOLLOWING CONDITION:

"DELIVERIES HEREUNDER SHALL BE SUBJECT TO, AND FAILURES AND/OR DELAYS THEREIN SHALL BE EXCUSED, WHEN THE FAILURES OR DELAYS OF THE CONTRACTOR IN MAKING DELIVERIES IS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR INCLUDING BUT NOT RESTRICTED TO ACTS OF GOD OR THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND/OR UNUSUALLY SEVERE WEATHER.'

THE BID INVITATIONS MAKE NO PROVISION FOR EXCUSING A CONTRACTOR FOR FAILURE OR DELINQUENCY IN MAKING DELIVERIES, FOR THE REASON THAT THE EXCLUSION OF SUCH A PROVISION RESULTS IN MORE DEPENDABLE SOURCES OF SUPPLY, AND BETTER PROTECTS THE INTERESTS OF THE UNITED STATES IN THE EVENT A CONTRACTOR SHOULD DEFAULT. CONTRACTS FOR COMMODITIES OF THE CHARACTER BID UPON BY JACOB DOLD PACKING COMPANY RUN FOR A PERIOD OF 30 DAYS.

PLEASE ADVISE WHETHER BIDS INCLUDING THE CONDITION INDICATED, OR A CONDITION SIMILAR THERETO, MAY BE REJECTED AS NOT RESPONSIVE TO THE INVITATION.

IF, AS IS UNDERSTOOD FROM YOUR LETTER, IT IS DEEMED IN THE INTEREST OF THE GOVERNMENT THAT THE OBLIGATION OF THE CONTRACTORS TO MAKE DELIVERIES AS REQUIRED UNDER THESE 30-DAY CONTRACTS FOR FURNISHING FOOD SUPPLIES SHOULD BE ABSOLUTE AND THE INVITATION FOR BIDS CONTAINS NO INDICATION THAT CONTRACTORS WILL BE RELIEVED FROM LIABILITY FOR FAILURE OR DELAY IN DELIVERY DUE TO UNAVOIDABLE CAUSES, ANY BID SO QUALIFIED AS TO RELIEVE THE BIDDER FROM FAILURE OR DELAY IN DELIVERY DUE TO ANY CAUSES OTHER THAN ACTS OF GOD, OF THE PUBLIC ENEMY, OR OF THE GOVERNMENT SHOULD BE DISREGARDED AS NOT RESPONSIVE TO THE INVITATION FOR BIDS.