B-125370, NOV. 15, 1955

B-125370: Nov 15, 1955

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IT IS REPORTED THAT THE VEHICLES SPECIFIED WERE DELIVERED AND ACCEPTED ON JANUARY 14. THAT PAYMENT OF THE FULL CONTRACT PRICE WAS EFFECTED FOLLOWING THE RECEIPT OF PROPERLY EXECUTED INVOICES CERTIFIED AS "CORRECT AND JUST.'. THE RECORD FURTHER SHOWS THAT YOUR REQUEST FOR A TAX EXEMPTION CERTIFICATE RECEIVED SOMETIME AFTER THE VEHICLES HAD BEEN DELIVERED WAS ADMINISTRATIVELY DENIED. YOUR CLAIM FOR THE FEDERAL EXCISE TAX ON THE VEHICLES SUPPLIED WAS DISALLOWED BY THE SETTLEMENT DATED JULY 15. OUR DECISIONS HAVE CONSISTENTLY HELD THAT THE FORMULATION. SUBMISSION OF A BID FOR A GOVERNMENT CONTRACT IS SOLELY THE RESPONSIBILITY OF THE BIDDER. IS PRESUMED TO HAVE BEEN INCLUDED IN THE QUOTED PRICE.

B-125370, NOV. 15, 1955

TO INTERNATIONAL HARVESTER COMPANY:

YOUR LETTER OF AUGUST 9, 1955, REQUESTS REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 15, 1955, WHICH DISALLOWED YOUR CLAIM FOR $379.26 ALLEGED TO BE DUE FOR FEDERAL EXCISE TAX ON FOUR INTERNATIONAL TRUCKS FURNISHED THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, PURSUANT TO CONTRACT NO. DA-08-123-ENG-1688, DATED NOVEMBER 30, 1954.

THE RECORD SHOWS THAT UNDER ITEMS NOS. 1 (A) AND 2 (A) OF THE BID--- AS ACCEPTED--- SUBMITTED IN RESPONSE TO INVITATION NO. CIVENG-08-123 55-15, DATED OCTOBER 29, 1954, YOU AGREED TO FURNISH THE CORPS OF ENGINEERS, U.S. ARMY, F.O.B. JACKSONVILLE, FLORIDA, FOUR TRUCKS (AUTOMOBILE), STANDARD GAUGE, PICK-UP TYPE, IN ACCORDANCE WITH PRESCRIBED SPECIFICATIONS, FOR THE SUM OF $5,092.34. PARAGRAPH 11-401 OF THE ARMED SERVICES PROCUREMENT REGULATION MADE A PART OF THE CONTRACT SPECIFICALLY PROVIDES:

"/B) FEDERAL TAXES.--- EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS CONTRACT, THE CONTRACT PRICE INCLUDES ALL APPLICABLE FEDERAL TAXES IN EFFECT ON THE CONTRACT DATE.'

IT IS REPORTED THAT THE VEHICLES SPECIFIED WERE DELIVERED AND ACCEPTED ON JANUARY 14, 1955, AND THAT PAYMENT OF THE FULL CONTRACT PRICE WAS EFFECTED FOLLOWING THE RECEIPT OF PROPERLY EXECUTED INVOICES CERTIFIED AS "CORRECT AND JUST.'

THE RECORD FURTHER SHOWS THAT YOUR REQUEST FOR A TAX EXEMPTION CERTIFICATE RECEIVED SOMETIME AFTER THE VEHICLES HAD BEEN DELIVERED WAS ADMINISTRATIVELY DENIED, INASMUCH AS THE CONTRACT PROVIDED THAT THE PURCHASE PRICE INCLUDED ALL FEDERAL TAXES APPLICABLE THEREON AS OF THE CONTRACT DATE--- NOVEMBER 30, 1954. THEREAFTER, YOUR CLAIM FOR THE FEDERAL EXCISE TAX ON THE VEHICLES SUPPLIED WAS DISALLOWED BY THE SETTLEMENT DATED JULY 15, 1955.

OUR DECISIONS HAVE CONSISTENTLY HELD THAT THE FORMULATION, PREPARATION, AND SUBMISSION OF A BID FOR A GOVERNMENT CONTRACT IS SOLELY THE RESPONSIBILITY OF THE BIDDER, AND THAT IN THE ABSENCE OF AN AFFIRMATIVE SHOWING ON THE FACE OR IN THE BODY OF A SUBMITTED BID THAT THE FEDERAL EXCISE TAX HAS BEEN EXCLUDED FROM THE AMOUNT OF THE BID, SUCH TAX, TOGETHER WITH OTHER ELEMENTS OF COST AND PROFIT, IS PRESUMED TO HAVE BEEN INCLUDED IN THE QUOTED PRICE. PARTICULARLY IS THIS TRUE IN THIS CASE WHERE THE INVITATION INDICATED THAT YOUR BID PRICE WAS TO INCLUDE THE TAX IN QUESTION UNLESS YOU STATED OTHERWISE. MOREOVER, AFTER A BID HAS BEEN ACCEPTED, IF IT DEVELOPS THAT THE BIDDER THROUGH INADVERTENCE, NEGLIGENCE, OR OTHERWISE, HAS OMITTED FROM OR INCLUDED IN HIS BID SOME PROVISION TO HIS DETRIMENT, THE CONSEQUENCE OF HIS ERROR MUST BE BORNE BY HIM; AND NO SUBSEQUENT STATEMENT OF A CONTRACTOR THAT THE PRICES ACTUALLY SUBMITTED WERE EXCLUSIVE OF THE TAX MAY BE ACCEPTED AS JUSTIFYING THE ISSUANCE OF TAX EXEMPTION CERTIFICATES. SEE 18 COMP. GEN. 465; 17 ID. 1039; 16 ID. 1021 AND 1054.

IF IT WAS YOUR INTENTION TO SUBMIT THE BID ON A TAX EXEMPTION BASIS AND TO REQUEST TAX EXEMPTION CERTIFICATES REPRESENTING THE AMOUNT OF THE APPLICABLE FEDERAL EXCISE TAX IN ADDITION TO THE QUOTED PRICES, THAT FACT SHOULD HAVE BEEN DISCLOSED AND MADE KNOWN WHEN THE BID WAS SUBMITTED. THE ACCEPTANCE OF YOUR BID IN GOOD FAITH WITHOUT KNOWLEDGE OF THE MISTAKE SUBSEQUENTLY ALLEGED CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES TO THE CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

IT ALSO HAS BEEN HELD THAT NO RELIEF CAN BE GRANTED FOR A UNILATERAL MISTAKE IN THE ABSENCE OF FRAUD OR CONCEALMENT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; ELLIOTT MACHINE COMPANY V. UNITED STATES, 44 C.CLS. 127; UNITED STATES V. CONTI, 119 F.2D 652.

IN VIEW OF THE FOREGOING AND SINCE YOU HAVE RECEIVED THE STIPULATED CONTRACT PRICE FOR THE VEHICLES SUPPLIED, THERE IS NO AUTHORITY FOR THE PAYMENT OF ANY PART OF YOUR CLAIM.