B-15839, APRIL 16, 1941, 20 COMP. GEN. 652

B-15839: Apr 16, 1941

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BIDS - MISTAKES - NEGLIGENCE THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF BIDS IS UPON THE BIDDER. MUST NOT HAVE ARISEN FROM NEGLIGENCE OR A FAILURE TO EXERCISE THAT DEGREE OF DILIGENCE WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON. 1941: I HAVE YOUR LETTER OF MARCH 29. 585.00 WAS FURNISHED WITH THE BID. WHICH WAS SUBMITTED ON NOVEMBER 23. THE OPENING OF BIDS SUBMITTED UNDER THIS INVITATION WAS HELD AT 11:30 A.M. WHO WAS ON DUTY IN PORTLAND. THE PHILADELPHIA DEPOT WAS IN RECEIPT OF A TELEGRAM FROM THE CONTRACTOR. IN WHICH IT WAS STATED THAT HIS BID WAS SUBMITTED WITHOUT CONSULTING THE SPECIFICATIONS AND THAT AFTER RECEIPT OF THE SPECIFICATIONS IT WAS DISCOVERED THAT THE PLANT DID NOT HAVE A LARGE PORTION OF THE MACHINERY REQUIRED TO MAKE THE GARMENTS AND DESIRED TO WITHDRAW HIS BID.

B-15839, APRIL 16, 1941, 20 COMP. GEN. 652

BIDS - MISTAKES - NEGLIGENCE THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF BIDS IS UPON THE BIDDER, AND A MISTAKE IN BID, TO BE AVAILABLE IN RELIEVING THE BIDDER UNDER A BID ACCEPTED WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR, MUST NOT HAVE ARISEN FROM NEGLIGENCE OR A FAILURE TO EXERCISE THAT DEGREE OF DILIGENCE WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON. A BIDDER MAY NOT BE RELIEVED OF ITS LIABILITY UNDER A BID ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ERROR, WHERE THE MISTAKE IN BID RESULTED FROM THE BIDDER'S NEGLIGENCE IN FAILING TO ASCERTAIN THE REQUIREMENTS OF THE SPECIFICATIONS REFERRED TO BUT NOT FURNISHED WITH THE INVITATION FOR BIDS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 16, 1941:

I HAVE YOUR LETTER OF MARCH 29, 1941, AS FOLLOWS:

UNDER DATE OF NOVEMBER 15, 1940, THE PHILADELPHIA QUARTERMASTER DEPOT ISSUED INVITATION FOR BIDS NO. 669-41-312 CALLING FOR BIDS FOR THE MANUFACTURE AND DELIVERY, F. O. B. VARIOUS DEPOTS, OF QUANTITIES OF COATS, WOOL, SPRUCE GREEN, C.C.C. IN RESPONSE TO THIS INVITATION, BEN FREEDMAN, AN INDIVIDUAL TRADING AS THE PORTLAND SPORTWEAR MANUFACTURING COMPANY, PORTLAND, OREGON, SUBMITTED A BID OFFERING TO MANUFACTURE AND DELIVER A TOTAL QUANTITY OF 5,000 COATS AT A UNIT PRICE OF $3.17, LESS A DISCOUNT OF 1/2 OF 1 PERCENT FOR PAYMENT WITHIN TWENTY DAYS. BID BOND IN THE AMOUNT OF $1,585.00 WAS FURNISHED WITH THE BID, WHICH WAS SUBMITTED ON NOVEMBER 23, 1940, AND THE OPENING OF BIDS SUBMITTED UNDER THIS INVITATION WAS HELD AT 11:30 A.M., E.S.T., NOVEMBER 25, 1940.

THE BID OF THE PORTLAND SPORTWEAR MANUFACTURING COMPANY BEING LOW, THE COMMANDING GENERAL OF THE PHILADELPHIA QUARTERMASTER DEPOT UNDER DATE OF NOVEMBER 28, 1940, BY TELEGRAM, REQUESTED INSPECTOR HORACE N. DAVIS, WHO WAS ON DUTY IN PORTLAND, OREGON, TO MAKE AN INVESTIGATION ON THE PORTLAND SPORTWEAR MANUFACTURING COMPANY AS TO THE ABILITY OF THAT COMPANY TO MANUFACTURE 5,000 COATS, WOOL, SPRUCE GREEN, WITHIN NINETY DAYS. INSPECTOR DAVIS REPLIED BY TELEGRAM DATED NOVEMBER 29, 1940, THAT HE BELIEVED THE SAID COMPANY COULD MEET THE CONTRACT REQUIREMENTS AND STATED A LETTER FOLLOWED. THE PHILADELPHIA DEPOT RECEIVED A LETTER FROM INSPECTOR DAVIS ON DECEMBER 2, 1940, IN WHICH HE LISTED THE AVAILABLE PLANT EQUIPMENT AND REITERATED HIS OPINION THAT THE PORTLAND SPORTWEAR MANUFACTURING COMPANY WOULD BE ABLE TO COMPLY WITH THE CONTRACT REQUIREMENTS. ACCORDINGLY, UNDER DATE OF DECEMBER 2, 1940, IN WHICH HE LISTED THE AVAILABLE PLANT EQUIPMENT AND REITERATED HIS OPINION THAT THE PORTLAND SPORTWEAR MANUFACTURING COMPANY WOULD BE ABLE TO COMPLY WITH THE CONTRACT REQUIREMENTS. ACCORDINGLY, UNDER DATE OF DECEMBER 2, 1940, THE PHILADELPHIA DEPOT NOTIFIED THE PORTLAND SPORTWEAR MANUFACTURING COMPANY OF THE ACCEPTANCE OF ITS BID FOR THE MANUFACTURE OF 5,000 COATS, AND UNDER DATE OF DECEMBER 3, 1940, THE DEPOT FORWARDED A FORMAL LETTER OF AWARD TO THE SAID COMPANY. AT 9:00 A.M., DECEMBER 3, 1940, THE PHILADELPHIA DEPOT WAS IN RECEIPT OF A TELEGRAM FROM THE CONTRACTOR, IN WHICH IT WAS STATED THAT HIS BID WAS SUBMITTED WITHOUT CONSULTING THE SPECIFICATIONS AND THAT AFTER RECEIPT OF THE SPECIFICATIONS IT WAS DISCOVERED THAT THE PLANT DID NOT HAVE A LARGE PORTION OF THE MACHINERY REQUIRED TO MAKE THE GARMENTS AND DESIRED TO WITHDRAW HIS BID. THIS WAS THE FIRST INFORMATION THE DEPOT HAD OF THE CONTRACTOR'S DIFFICULTIES. THE DEPOT TELEGRAPHED THE CONTRACTOR ON DECEMBER 3, 1940, THAT THE AWARD WAS MADE IN ACCORDANCE WITH THE BID AND THAT IT WAS WITHOUT LEGAL AUTHORITY TO CANCEL THE CONTRACT.

CONSIDERABLE CORRESPONDENCE THEN ENSUED BETWEEN THE CONTRACTOR AND THE PHILADELPHIA DEPOT, DURING WHICH IT WAS REVEALED THAT THE BIDDER SUBMITTED HIS BID WITHOUT HAVING IN HIS POSSESSION A COPY OF THE APPLICABLE SPECIFICATIONS; THAT PRIOR TO SUBMITTING HIS BID THE BIDDER CONTACTED A LOCAL C.C.C. HEADQUARTERS WITH A VIEW TO DETERMINING THE TYPE OF GARMENT THE INVITATION REFERRED TO. THE BIDDER ALLEGES THAT OFFICIALS OF THE SAID CAMP DID NOT HAVE THE PARTICULAR GARMENT DESCRIBED, BUT STATED THEY WERE OF THE OPINION THAT THE GARMENT DESCRIBED IN THE INVITATION WAS A MACKINAW TYPE OF COAT. THE BIDDER ALLEGES THAT HE SUBMITTED HIS BID ON THE ASSUMPTION THAT THE INVITATION CALLED FOR A MACKINAW TYPE OF COAT, WHEREAS IN REALITY THE INVITATION REFERRED TO A TAILORED UNIFORM COAT.

THE PORTLAND SPORTWEAR MANUFACTURING COMPANY REFUSED TO PERFORM IN ACCORDANCE WITH ITS BID AND UNDER DATE OF DECEMBER 19, 1940, WAS ADVISED BY REGISTERED MAIL THAT ITS RIGHT TO DELIVER THE ENTIRE QUANTITY, 5,000 COATS, WAS TERMINATED AND WAS NOTIFIED THAT PURCHASE OF THE COATS WOULD BE MADE IN THE OPEN MARKET AND ANY EXCESS COSTS OCCASIONED THE GOVERNMENT THEREBY WOULD BE CHARGED AGAINST ITS ACCOUNT. UNDER DATE OF DECEMBER 26, 1940, THE DEPOT NOTIFIED THE SAID COMPANY THAT PURCHASE TO SUPPLY THE DELINQUENCY HAD BEEN MADE AGAINST ITS ACCOUNT AT AN ADDITIONAL COST OF $5,707.75 AND REQUESTED A REMITTANCE IN THAT AMOUNT TO BE FORWARDED TO THE DEPOT AND FURTHER ADVISED THE SAID COMPANY THAT THIS AMOUNT DID NOT INCLUDE OTHER COSTS WHICH MIGHT BE OCCASIONED THE GOVERNMENT DUE TO ITS FAILURE TO MAKE SATISFACTORY PERFORMANCE UNDERITS CONTRACT. TO DATE THE ACTUAL EXCESS COST OF THE PURCHASE IS NOT AVAILABLE, AS THE SUBSTITUTED CONTRACT IS NOT YET COMPLETED. HOWEVER, THE PHILADELPHIA DEPOT ESTIMATES THAT THE LIQUIDATED DAMAGES WILL AMOUNT TO AN ADDITIONAL $792.51.

IN VIEW OF THE FOREGOING, IT APPEARS THAT THIS BIDDER FAILED TO EXERCISE ORDINARY PRUDENT BUSINESS JUDGMENT IN SUBMITTING A BID ON AN ITEM WITHOUT KNOWING FOR CERTAIN THE TYPE OF ITEM INVOLVED, AND ORDINARILY UNDER SUCH CIRCUMSTANCES THIS DEPARTMENT WOULD RECOMMEND THAT THE BIDDER BE HELD STRICTLY TO THE TERMS OF HIS BID. HOWEVER, IN SUBMITTING THIS CASE FOR DECISION, IT IS DESIRED TO POINT OUT THAT THIS BIDDER WAS INEXPERIENCED IN GOVERNMENT BIDDING AND NOT HAVING A COPY OF THE APPLICABLE SPECIFICATIONS, HE ATTEMPTED BY THE ONLY MEANS KNOWN TO HIM TO LEARN THE TYPE OF COAT INVOLVED BY CONTACTING THE LOCAL C.C.C. HEADQUARTERS BEFORE SUBMITTING HIS BID. FURTHER, IT IS POSSIBLE THAT A DECISION HOLDING THIS BIDDER LIABLE FOR THE FULL AMOUNT INVOLVED MIGHT FORCE HIM INTO BANKRUPTCY AND THEREBY ELIMINATE A POSSIBLE FUTURE SOURCE OF SUPPLY FOR THE TYPE OF ITEM WHICH IT IS EQUIPPED TO DELIVER. THEREFORE, IT IS RECOMMENDED THAT THIS BIDDER BE GIVEN SUCH RELIEF AS IS LEGALLY POSSIBLE.

THERE ARE ENCLOSED COPIES OF THE BID AND ABSTRACT OF ALL BIDS RECEIVED AND PERTINENT CORRESPONDENCE. IT IS SUGGESTED THAT AN EARLY DECISION BE RENDERED IN THIS CASE AND THAT ALL ENCLOSURES BE RETURNED THEREWITH.

THE REPORT OF THE COMMANDING OFFICER OF THE QUARTERMASTER DEPOT, PHILADELPHIA, PENNSYLVANIA, IS AS FOLLOWS:

1. THE RECORDS OF THIS DEPOT SHOW THAT MR. BEN FREEDMAN, AN INDIVIDUAL TRADING AS PORTLAND SPORTWEAR MFG. CO., SUBMITTED A PROPOSAL PURSUANT TO INVITATION FOR BIDS NO. 669-41-312, ISSUED NOVEMBER 15, 1940, WHICH, TOGETHER WITH OTHERS SUBMITTED PURSUANT TO THE SAME INVITATION, WAS OPENED AT THIS DEPOT NOVEMBER 26, 1940. AS MAY BE NOTED FROM ATTACHED SIGNED BID, PORTLAND SPORTWEAR MFG. CO. OFFERED DELIVERY OF 5,000 COATS, WOOL, SPRUCE GREEN, C.C.C., F.O.B., JEFFERSONVILLE QUARTERMASTER DEPOT OR THIS DEPOT FOR A UNIT PRICE OF $3.17, SUBJECT TO A DISCOUNT OF 1/2 OF 1 PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS.

2. THE BID SET FORTH THAT MANUFACTURE WOULD TAKE PLACE, IN THE EVENT OF AWARD, AT THE BIDDER'S PLANT LOCATED AT 3432 SE. BELMONT ST., PORTLAND, OREGON, AND IN ADDITION, ON SHEETS NOS. 8 AND 9, FURNISHED SPECIFIC INFORMATION RELATIVE TO THE SIZE OF THE PLANT, A DESCRIPTION OF EQUIPMENT, NUMBER OF PERSONNEL, AND MANY OTHER FACTS SHOWING CONTRACTOR'S QUALIFICATIONS FOR PERFORMANCE. SHEET NO. 8 SHOWS THAT THE BUSINESS OF THIS CONCERN AT THE TIME THE BID WAS SUBMITTED WAS THE MANUFACTURE OF COATS, PANTS, AND SHIRTS; THAT THE CAPACITY OF THE PLANT AND EQUIPMENT, OPERATED ON A 40-HOUR WEEK BASIS WITH ONE SHIFT AMOUNTED TO 3,000 GARMENTS PER WEEK; THAT THE PLANT WAS THEN OPERATING AT ONLY 50 PERCENT CAPACITY; THAT RESOURCES TO PERFORM THE CONTRACT WERE AVAILABLE; AND, THAT THE PLANT WOULD BE EXPANDED TO CARRY OUT THE CONTRACT IF SUCH WERE NECESSARY. SHEET NO. 9 INDICATED THAT THE PLANT PRODUCED ITEMS OF THE SAME GENERAL CHARACTERISTICS AS THE GARMENT DESCRIBED IN THE INVITATION, AND IF FURTHER APPEARS ON SHEET NO. 11 THAT MATERIALS TO BE FURNISHED BY THE GOVERNMENT FOR THE MANUFACTURE OF THE GARMENTS WOULD BE DELIVERED F.O.B. RAILWAY CARS AT THE CITY IN WHICH CONTRACTOR'S FACTORY WAS LOCATED, THAT IS, PORTLAND, OREGON.

3. STANDARD GOVERNMENT FORM OF BID BOND IN THE PENAL SUM OF $1,585.00 WAS EXECUTED BY BEN FREEDMAN, AS PRINCIPAL, AND THE NEW YORK CASUALTY CO., AS SURETY, AND THE SAME WAS SUBMITTED WITH THE PROPOSAL PRIOR TO THE OPENING OF THE BIDS.

4. BIDS WERE OPENED 11:30 A.M., E.S.T., NOVEMBER 26, 1940, IN THE PRESENCE OF A NUMBER OF REPRESENTATIVES OF BIDDERS AND THE PRESS, INCLUDING REPRESENTATIVES OF THE NEW YORK TIMES, THE JOURNAL OF COMMERCE, AND THE DAILY NEW RECORD. AN ABSTRACT OF BIDS WAS PREPARED AND AN EXAMINATION OF THE PROPOSALS UNDERTAKEN TO DETERMINE THE AWARDS. THE RECORDS SHOW THAT THIS DEPOT, ON NOVEMBER 28, 1940, TELEGRAPHED INSPECTOR HORACE N. DAVIS, Q.M.C., WHO WAS ON DUTY AT THE PORTLAND WOOLEN MILLS, PORTLAND, OREGON, TO MAKE AN INVESTIGATION OF THE PORTLAND SPORTWEAR MFG. CO. AS TO THE ABILITY OF THAT COMPANY TO MANUFACTURE 5,000 COATS, WOOL, SPRUCE GREEN, WITHIN 90 DAYS. INSPECTOR DAVIS, IN TELEGRAM RECEIVED AT THIS DEPOT NOVEMBER 29, 1940, STATED THAT HE BELIEVED PORTLAND SPORTWEAR MFG. CO. WOULD BE ABLE TO MEET THE CONTRACTUAL REQUIREMENTS, AND INDICATED THAT A LETTER WOULD FOLLOW. SUCH LETTER WAS RECEIVED AT THIS DEPOT DECEMBER 2, 1940, WHEREIN INSPECTOR DAVIS LISTED THE AVAILABLE PLANT EQUIPMENT, AND REITERATED HIS OPINION THAT THE COMPANY WOULD BE ABLE TO COMPLY WITH THE CONTRACT REQUIREMENTS.

5. AS MAY BE NOTED FROM THE EXHIBITS ATTACHED TO THE CERTIFICATES, DATED FEBRUARY 19, 1941, OF 2ND LIEUT. JOHN LAMON, JR., Q.M.C., THE BID OF PORTLAND SPORTWEAR MFG. CO. WAS THE LOWEST OFFERED UNDER THE INVITATION FOR DELIVERY AT THIS DEPOT OR THE JEFFERSONVILLE QUARTERMASTER DEPOT. WHEREAS A CONSIDERABLE DISPARITY IN PRICE EXISTS BETWEEN THE PRICE TENDERED BY THIS BIDDER AND THE NEXT LOWEST BID OF $4.2957 SUBMITTED BY THE PROGRESSIVE CLOTHING MFG. CO., PHILA., PA., FOR DELIVERY AT THE JEFFERSONVILLE QUARTERMASTER DEPOT, THE SAME DISPARITY DOES NOT EXIST BETWEEN THE PRICE OF $3.15415 OFFERED BY PORTLAND SPORTWEAR MFG. CO. AND THE NEXT LOWEST PRICE OF $3.4713 SUBMITTED BY BIDDER NO. 9, A. PRITSKER AND SONS, INC., BOSTON, MASS., FOR DELIVERY AT THIS DEPOT. MOREOVER, IT SHOULD BE NOTED THAT WHEREAS THE BID OF THE PORTLAND SPORTWEAR MFG. CO. REQUIRED DELIVERY OF GOVERNMENT MATERIALS F.O.B. CARS PORTLAND, OREGON, AT GOVERNMENT EXPENSE, THE NEXT LOWEST BID MERELY REQUIRED THE DELIVERY OF THE MATERIAL, F.O.B. THIS DEPOT, THE COST OF TRANSPORTATION OF THE MATERIALS TO THE FACTORY TO BE AT CONTRACTOR'S EXPENSE. THE EVALUATION OF THE BIDS, THEREFORE, REQUIRED THE ADDITION OF THE COST OF TRANSPORTATION TO THE BID PRICE OF THE PORTLAND SPORTWEAR MFG. CO. BEFORE A PROPER DETERMINATION OF THE LOWEST COST OF PURCHASE COULD BE MADE. SUCH COST OF TRANSPORTATION WAS ESTIMATED TO BE ?08673203 PER UNIT, WHICH, WHEN ADDED TO THE PRICE QUOTED, WOULD DETERMINE THE PER UNIT COST AS $3.24088203. COMPARISON OF THE ADJUSTED NET COST WITH THAT OFFERED BY BIDDER NO. 9 FOR DELIVERY OF THIS DEPOT ($3.4713) INDICATES A MATERIAL REDUCTION OF THE ORIGINAL DISPARITY, AND THEREFORE, THE EXTENT OF THE DISPARITY IS CONSIDERED TO HAVE BEEN INSUFFICIENT TO INDICATE THE POSSIBILITY OF A MISTAKE IN THE PREPARATION OF CLAIMANT'S BID.

6. THE STATEMENT OF THE INSPECTOR THAT THE BIDDER COULD PERFORM, THE FACT THAT THE BID OFFERED THE LOWEST COST OF PURCHASE AND THE INFORMATION IN THE PROPOSAL TO THE EFFECT THAT CONTRACTOR WAS QUALIFIED, WOULD EXPAND THE PLANT IF NECESSARY, AND HAD THE RESOURCES TO DO SO, WAS THE BASIS FOR THE AWARD. THE LIST OF MACHINERY FURNISHED BY INSPECTOR DAVIS, WHICH WAS RECEIVED AT THIS DEPOT PRIOR TO THE AWARD, IS NOT CONSIDERED SUFFICIENT TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE OF BIDDER'S INABILITY TO FULFILL THE CONTRACT IN VIEW OF THE UNQUALIFIED STATEMENT IN THE PROPOSAL TO THE EFFECT THAT, IF NECESSARY, THE PLANT WOULD BE EXPANDED, AND THAT SUFFICIENT RESOURCES WERE AVAILABLE FOR PROPER PERFORMANCE. ACCORDINGLY, TELEGRAPHIC NOTICE OF AWARD WAS FORWARDED TO PORTLAND SPORTWEAR MFG. CO., DECEMBER 2, 1940, AND LETTER OF AWARD AUTHORIZING CONTRACTOR TO PROCEED WAS MAILED DECEMBER 3, 1940, SUCH LETTER SETTING FORTH THE TERMS OF THE ACCEPTANCE. IN VIEW OF THE FOREGOING, IT IS EVIDENT THAT THE CONTRACTING OFFICER ACCEPTED THE BID OF THE PORTLAND SPORTWEAR MFG. CO. IN GOOD FAITH.

7. NOTICE OF CONTRACTOR'S DIFFICULTY WAS NOT FURNISHED THE CONTRACTING OFFICER PRIOR TO THE AWARD. THE FIRST NOTICE WAS TELEGRAPHED DECEMBER 2, 1940, FROM PORTLAND, OREGON, AND WAS RECEIVED AT THIS DEPOT, 9 A.M., DECEMBER 3, 1940. CONTRACTOR'S TELEGRAM STATED THAT THE BID WAS MADE WITHOUT CONSULTING THE SPECIFICATIONS; THAT AFTER THE RECEIPT OF THE SPECIFICATIONS, CONTRACTOR DISCOVERED THAT THE PLANT DID NOT HAVE A LARGE PORTION OF THE MACHINERY REQUIRED TO MAKE THE GARMENTS; AND, THAT THEREFORE, IT WAS DESIRED TO WITHDRAW THE BID. THIS DEPOT TELEGRAPHED CONTRACTOR DECEMBER 3, 1940, THAT THE AWARD WAS MADE IN ACCORDANCE WITH THE BID, AND THAT IT WAS WITHOUT LEGAL AUTHORITY TO CANCEL THE CONTRACT. ON THE SAME DATE CONTRACTOR TELEGRAPHED THIS DEPOT A LIST OF MACHINERY ALLEGED TO BE REQUIRED FOR PERFORMANCE, BUT WHICH WAS NOT IN THE PLANT NOR AVAILABLE LOCALLY, AND, FURTHER STATED, THAT SINCE THERE HAD NOT BEEN SUFFICIENT TIME TO OBTAIN THE SPECIFICATIONS, INFORMATION WAS OBTAINED LOCALLY WHICH GAVE CONTRACTOR THE IMPRESSION THAT A MACKINAW TYPE OF COAT WAS REQUIRED, A COAT CONTRACTOR WAS EQUIPPED TO MAKE; BUT, THAT WITH THE AVAILABLE EQUIPMENT, IT WOULD BE IMPOSSIBLE TO MAKE THE COAT REQUIRED BY SPECIFICATIONS. THIS DEPOT REPLIED BY TELEGRAM DECEMBER 4, 1940, TO THE EFFECT THAT NO AUTHORITY EXISTED TO RELEASE CONTRACTOR FROM THE AWARD, AND REQUESTED INFORMATION AS TO WHETHER CONTRACTOR WOULD PERFORM, AS OTHERWISE THERE WOULD BE NO ALTERNATIVE OTHER THAN TO PURCHASE THE COATS IN THE OPEN MARKET, CHARGING ANY ADDITIONAL COST TO THE CONTRACTOR'S ACCOUNT. THEREUPON, CONTRACTOR REPLIED BY AIRMAIL, DECEMBER 13, 1940, TO THE EFFECT THAT UNDER THE CIRCUMSTANCES PORTLAND SPORTWEAR MFG. CO. WOULD NOT BE ABLE TO PERFORM; THAT PATTERNS FURNISHED FOR THE PERFORMANCE WOULD BE RETURNED TO THIS DEPOT; AND, THAT THE PURCHASING OF THESE COATS IN THE OPEN MARKET, INVOLVING A CHARGE TO CONTRACTOR'S ACCOUNT, WOULD NOT BE AUTHORIZED.

8. SINCE PERFORMANCE WAS NOT FORTHCOMING, THE CONTRACTING OFFICER UNDER DATE OF DECEMBER 19, 1940, TERMINATED THE RIGHT OF PORTLAND SPORTWEAR MFG. CO. TO DELIVER THE COATS IN QUESTION, AND INFORMED CONTRACTOR THAT PURCHASE WOULD BE MADE UNDER ARTICLE 17 OF THE CONTRACT AND ANY EXCESS COST OCCASIONED THE GOVERNMENT THEREBY WOULD BE CHARGED TO CONTRACTOR'S ACCOUNT. PURCHASE WAS MADE UNDER CONTRACT W669 QM CIV-471, DATED DECEMBER 19, 1940, FROM PROGRESSIVE CLOTHING MFG. CO., PHILA., PA., AT AN ESTIMATED EXCESS COST OF PURCHASE IN THE AMOUNT OF $5,707.75. PORTLAND SPORTWEAR MFG. CO. WAS INFORMED TO THIS EFFECT BY LETTER DATED DECEMBER 26, 1940, AND, AS MAY BE NOTED FROM THE RECORD, SEVERAL REQUESTS HAVE BEEN MADE FOR PAYMENT OF THE EXCESS COST, BUT SAME HAS NOT BEEN REMITTED BY CONTRACTOR. IN THIS CONNECTION, IT SHOULD BE NOTED ALSO THAT THE FORMAL CONTRACT HAS NOT BEEN SIGNED BY CONTRACTOR.

9. A DETAILED STATEMENT SHOWING THE COMPUTATION OF THE ESTIMATED EXCESS COST IS ATTACHED, AND IT MAY BE NOTED THEREFROM THAT THE COST HAS BEEN COMPUTED UPON THE BASIS OF THE STATED CONTRACT QUANTITY INASMUCH AS THE SUBSTITUTED CONTRACTOR HAS NOT COMPLETED DELIVERIES. SINCE THE CONTRACT PROVIDES FOR A MINUS VARIATION OF 1.75 PERCENT FOR EACH SIZE, SUCH AMOUNT REPRESENTS THE MAXIMUM COST ARISING FROM THE DIFFERENCE BETWEEN THE PRICE IN THE ORIGINAL CONTRACT AND THAT SET FORTH IN THE SUBSTITUTED AGREEMENT. IT IS PROBABLE THAT FURTHER CHARGES, HOWEVER, WILL BE MADE UPON COMPLETION OF THE SUBSTITUTED CONTRACT, SUCH CHARGES COVERING LIQUIDATED DAMAGES, EXCESS INSPECTION COSTS, ETC. IN THIS CONNECTION, IT SHOULD BE NOTED THAT THE FINANCE OFFICER, U.S. ARMY, PHILADELPHIA, PA., HAS BEEN REQUESTED TO WITHHOLD TENTATIVELY $200.00 FROM ANY FUNDS THAT MIGHT BE DUE THIS CONTRACTOR TO COVER POSSIBLE EXCESS INSPECTION COSTS.

10. IT IS CONTENDED THAT SPECIFICATIONS WERE NOT FURNISHED WITH THE INVITATION FOR BIDS AND THAT THERE WAS NOT SUFFICIENT TIME BETWEEN NOVEMBER 22, 1940, THE DATE OF RECEIPT OF THE INVITATION FOR BIDS, AND NOVEMBER 26, 1940, THE DATE FIXED FOR THE OPENING OF BIDS, FOR CONTRACTOR TO OBTAIN THE PERTINENT SPECIFICATIONS; THAT BECAUSE OF THE SHORTNESS OF TIME, CONTRACTOR DID THE NEXT BEST THING AND WENT TO THE LOCAL HEADQUARTERS OF THE CIVILIAN CONSERVATION CORPS IN VANCOUVER, WASHINGTON, WHERE THE PARTICULAR GARMENT DESCRIBED IN THE INVITATION WAS NOT AVAILABLE, BUT THAT THE OPINION WAS GIVEN THAT A MACKINAW TYPE COAT WAS REQUIRED; THAT THEREFORE, A BID AND BID BOND WERE SENT BY AIR MAIL TO THIS DEPOT NOVEMBER 23, 1940; THAT ON THE SAME DAY CONTRACTOR AIRMAILED A REQUEST FOR SPECIFICATIONS TO THIS DEPOT; THAT SHORTLY AFTER THE BID WAS SENT IN INSPECTOR DAVIS VISITED CONTRACTOR'S PLANT TO MAKE A LIST OF MACHINERY, WHICH LIST WAS SENT TO THIS DEPOT VIA AIR MAIL; AND, THAT INSPECTOR DAVIS STATED THAT HE DID NOT KNOW THE KIND OF COAT REQUIRED, BUT WAS UNDER THE IMPRESSION THAT IT WAS A MACKINAW TYPE OF COAT.

11. SINCE MANY BIDDERS MAINTAIN FILES OF CURRENT SPECIFICATIONS AND AMENDMENTS THERETO, IT HAS NOT BEEN THE POLICY OF THIS DEPOT TO FURNISH SPECIFICATIONS WITH EACH INVITATION FOR BIDS, THERE BEING OVER 1,000 NAMES ON THE DEPOT MAILING LIST, MANY OF WHOM BID VERY INFREQUENTLY. HOWEVER, FAILURE TO FURNISH SPECIFICATIONS WITH THE INVITATION, EVEN WHERE THERE WOULD BE INSUFFICIENT TIME FOR THE PROSPECTIVE BIDDER TO OBTAIN THE SAME, CANNOT BE CONSIDERED AS JUSTIFICATION FOR THE SUBMISSION OF A PROPOSAL WITHOUT CONSULTING THE SPECIFICATIONS. THE VALID ACCEPTANCE OF A PROPOSAL SUBMITTED UNDER SUCH CIRCUMSTANCES WOULD NOT BE AFFECTED BY BIDDER'S LACK OF KNOWLEDGE OF THE SPECIFICATIONS. THIS SEEMS TO BE THE FACT IN THE PRESENT CASE, SINCE THE CONTRACTING OFFICER WAS NOT INFORMED OF THE ALLEGED BASIS OF THE PROPOSAL PRIOR TO THE AWARD OF THE CONTRACT.

12. THIS DEPOT HAS NO RECORD OF THE ALLEGED REQUEST FOR SPECIFICATIONS. POSSIBLY PORTLAND SPORTWEAR MFG. CO. DID MAKE SUCH REQUEST, AND IT IS POSSIBLE THAT SPECIFICATIONS WERE FORWARDED TO CONTRACTOR. SEVERAL HUNDRED REQUESTS FOR SPECIFICATIONS ARE RECEIVED DAILY DURING PERIODS OF HEAVY PURCHASING, AND SUCH REQUESTS ARE COMPLIED WITH IMMEDIATELY, NO RECORD BEING KEPT AS TO THE REQUEST OR THE SPECIFICATIONS FURNISHED. HOWEVER, CONTRACTOR'S REQUEST, IF ANY, FOR SPECIFICATIONS SHOULD NOT BE CONSTRUED AS NOTICE TO THE CONTRACTING OFFICER THAT CONTRACTOR DID NOT HAVE THE SPECIFICATIONS OR THAT THE BID WAS SUBMITTED WITHOUT CONSULTING THE SPECIFICATIONS. MANY BIDDERS REQUIRE MORE THAN ONE COPY OF THE SPECIFICATIONS. MANY BIDDERS REQUIRE MORE THAN ONE COPY OF THE SPECIFICATIONS, AND IN MANY CASES THE SPECIFICATIONS ARE REQUESTED FOR STUDY WITHOUT REFERENCE TO ANY PARTICULAR INVITATION FOR BIDS. ACCORDINGLY, SUCH REQUEST WOULD BE COMPLIED WITH AS A ROUTINE MATTER WITHOUT COMING TO THE PERSONAL ATTENTION OF THE CONTRACTING OFFICER.

13. NOR IS THE ADVICE ALLEGED TO HAVE BEEN OBTAINED FROM CIVILIAN CONSERVATION CORPS HEADQUARTERS CONSIDERED ADEQUATE TO ESTABLISH THAT THE BIDDER WAS MISLED BY THE GOVERNMENT. THE PROPER SOURCE OF INFORMATION AS TO THE GARMENT BEING PURCHASED WAS THE CONTRACTING OFFICER. IN CONSULTING THE CIVILIAN CONSERVATION CORPS HEADQUARTERS, CONTRACTOR, IN EFFECT, TOOK THE ADVICE OF A STRANGER TO THE TRANSACTION, AND IT SHOULD BE POINTED OUT THAT CONTRACTOR COULD HAVE DETERMINED THE CHARACTER OF THE COAT PROMPTLY, AND BEFORE THE BID WAS SUBMITTED, BY TELEGRAPH FROM THE CONTRACTING OFFICER. THE LATTER COURSE WOULD HAVE BEEN THE MORE LOGICAL, THE ONLY ONE TO BE PURSUED IN THE EXERCISE OF ORDINARY CARE BEFORE PREPARING A PROPOSAL FOR THE DELIVERY OF AN ITEM CONCERNING WHICH THE BIDDER LACKED ESSENTIAL INFORMATION.

14. IT SHOULD BE NOTED THAT CONTRACTOR COULD NOT HAVE BEEN MISLED BY ANY STATEMENTS MADE BY INSPECTOR DAVIS WHO DID NOT VISIT CONTRACTOR'S FACTORY UNTIL NOVEMBER 28, 1940, TWO DAYS AFTER THE BIDS WERE OPENED. CONTRACTOR ADMITS THAT THE INSPECTOR STATED AT THAT TIME THAT HE DID NOT KNOW WHAT THE SPECIFICATIONS REQUIRED, AND IT IS THE OPINION OF THIS DEPOT THAT MERE IMPRESSIONS OF THE INSPECTOR COULD NOT REASONABLY SERVE AS A BASIS FOR ANY CONDUCT OF THE CONTRACTOR, AND THAT ANY UNCERTAINTY SHOULD HAVE BEEN RESOLVED BY COMMUNICATING DIRECTLY WITH THE CONTRACTING OFFICER. IT MIGHT BE NOTED INCIDENTALLY THAT BIDS MAY NOT BE WITHDRAWN AFTER OPENING EVEN THOUGH MISTAKES ARE DISCOVERED PRIOR TO AWARD.

15. THE FOREGOING PRESENTS A FULL REPORT RELATIVE TO THE ACCEPTANCE OF CONTRACTOR'S PROPOSAL, THE SUBSEQUENT TERMINATION OF CONTRACTOR'S RIGHT TO DELIVER, AND THE PURCHASE OF THE DEFAULTED SUPPLIES FROM A SUBSTITUTED CONTRACTOR. SUCH REPORT WILL BE SUPPLEMENTED AS REGARDS PAYMENTS TO THE SUBSTITUTED CONTRACTOR, LIQUIDATED DAMAGES CHARGEABLE TO PORTLAND SPORTWEAR MFG. CO., AND THE ACTUAL EXCESS COST OF PURCHASE WHEN FULL INFORMATION BECOMES AVAILABLE.

16. ATTACHED ARE ONE SIGNED NUMBER OF CONTRACTOR'S PROPOSAL, THE CERTIFICATE OF LT. JOHN LAMON, JR., Q.M.C., AND PERTINENT CORRESPONDENCE.

17. IN VIEW OF THE FOREGOING AND THE ATTACHED RECORD, IT IS THE OPINION OF THIS DEPOT THAT THERE IS NO LEGAL BASIS FOR THE RELIEF OF CONTRACTOR AND ACCORDINGLY IT IS RECOMMENDED THAT THE CLAIM BE DISALLOWED. IT IS ALSO RECOMMENDED THAT ACTION BE TAKEN TO COLLECT FROM CONTRACTOR AND HIS SURETY, SUCH DAMAGES AS MAY BE FINALLY DETERMINED WHEN THE SUBSTITUTED CONTRACT FOR THE DELIVERY OF THE DEFAULTED SUPPLIES IS COMPLETED.

THE INVITATION ISSUED BY THE QUARTERMASTER DEPOT, PHILADELPHIA, PA., REQUESTING BIDS ON COATS OF VARIOUS SPECIFIED SIZES IS, IN PART, AS FOLLOWS:

FOR THE MANUFACTURE AND DELIVERY F.O.B. THE FOLLOWING DEPOTS, WHERE FINAL INSPECTION AND ACCEPTANCE WILL BE MADE, FROM CLOTH AND FINDINGS, IN PART, TO BE FURNISHED BY THE GOVERNMENT AS PER UNIT ALLOWANCES HEREIN, OF THE FOLLOWING:

COATS, WOOL, SPRUCE GREEN, C.C.C.

TO CONFORM IN ALL RESPECTS TO REQUIREMENTS OF QUARTERMASTER CORPS TENTATIVE SPECIFICATION DATED APRIL 26, 1940.

1. DELIVERED F.O.B. PHILADELPHIA Q.M. DEPOT--- 42,794--- EACH.

2. DELIVERED F.O.B. JEFFERSONVILLE Q.M. DEPOT--- 43,535--- EACH.

BIDDING ON TOTAL OF ------------------------- ( ITEMS 1 AND 2).

( BIDDER INSERT QUANTITY)

THUS THE INVITATION DID NOT DESCRIBE IN DETAIL THE TYPE OF COATS REQUIRED BY THE GOVERNMENT BUT REFERRED PROSPECTIVE BIDDERS TO CERTAIN SPECIFICATIONS FOR SUCH DETAILS. CONSEQUENTLY, IN ORDER TO HAVE MADE A PROPER BID ON THE COATS IT WAS ESSENTIAL THAT THE SPECIFICATIONS WITH RESPECT THERETO BE EXAMINED PRIOR TO SUBMITTING A BID. HOWEVER, THE PORTLAND SPORTWEAR MANUFACTURING CO. ELECTED TO SUBMIT A BID WITHOUT OBTAINING A COPY OF THE SPECIFICATIONS. ALTHOUGH THE COMPANY CONTENDS THAT ITS BID WAS SUBMITTED ON THE BASIS OF FURNISHING MACKINAW TYPE OF COATS, NOTHING WAS INSERTED IN THE BID, OR OTHERWISE SHOWN AT TIME THE BID WAS SUBMITTED, TO INDICATE SUCH AN INTENTION. CONSEQUENTLY, IT WAS TO BE ASSUMED THAT THE BID WAS SUBMITTED ON THE BASIS OF FURNISHING COATS CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS REFERRED TO THEREIN AND IT APPEARS THAT THE BID WAS ACCEPTED ON THAT BASIS.

THE BID OF THE PORTLAND SPORTWEAR MANUFACTURING CO. WAS ACCOMPANIED BY A BID BOND IN THE AMOUNT OF $1,585, CONDITIONED AS FOLLOWS:

NOW, THEREFORE, IF THE PRINCIPAL SHALL NOT WITHDRAW SAID BID WITHIN THE PERIOD SPECIFIED THEREIN AFTER THE OPENING OF THE SAME, OR, IF NO PERIOD BE SPECIFIED, WITHIN SIXTY (60) DAYS AFTER SAID OPENING, AND SHALL WITHIN THE PERIOD SPECIFIED THEREFOR, OR, IF NO PERIOD BE SPECIFIED, WITHIN TEN (10) DAYS AFTER THE PRESCRIBED FORMS ARE PRESENTED TO HIM FOR SIGNATURE, ENTER INTO A WRITTEN CONTRACT WITH THE GOVERNMENT, IN ACCORDANCE WITH THE BID AS ACCEPTED, AND GIVE BOND WITH GOOD AND SUFFICIENT SURETY OR SURETIES, AS MAY BE REQUIRED, FOR THE FAITHFUL PERFORMANCE AND PROPER FULFILLMENT OF SUCH CONTRACT, OR IN THE EVENT OF THE WITHDRAWAL OF SAID BID WITHIN THE PERIOD SPECIFIED, OR THE FAILURE TO ENTER INTO SUCH CONTRACT AND GIVE SUCH BOND WITHIN THE TIME SPECIFIED, IF THE PRINCIPAL SHALL PAY THE GOVERNMENT THE DIFFERENCE BETWEEN THE AMOUNT SPECIFIED IN SAID BID AND THE AMOUNT FOR WHICH THE GOVERNMENT MAY PROCURE THE REQUIRED WORK AND/OR SUPPLIES, IF THE LATTER AMOUNT BE IN EXCESS OF THE FORMER, THEN THE ABOVE OBLIGATION SHALL BE VOID AND OF NO EFFECT, OTHERWISE TO REMAIN IN FULL FORCE AND VIRTUE.

THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362.

THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF GRYMES V. SANDERS ET AL., 93 U.S. 55, 61, STATED THAT,"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE "WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.'"

IN THE CASE OF LEONARD V. HOWARD ET. AL., 67 ORE. 203; 135 PAC. 549, THE DEFENDANT IN COMPUTING ITS BID ON PLUMBING WORK IN A BUILDING FROM THE PLANS AND SPECIFICATIONS OVERLOOKED SOME OF THE DETAILS AND BID TOO LOW. THE BID WAS ACCEPTED AND UPON THE FAILURE OF THE DEFENDANT TO PERFORM THE WORK, THE CONTRACT WAS RELET AT A PRICE HIGHER THAN THAT SPECIFIED BY THE DEFENDANT. THE PLAINTIFF BROUGHT AN ACTION FOR DAMAGE AND RECOVERED. THE COURT STATED ON PAGE 552 THAT "THE EVIDENCE SHOWS THAT THE LOW BID MADE BY THEM WAS THE RESULT OF A MISTAKE, AND THIS MISTAKE THE RESULT OF HOWARD'S CARELESS EXAMINATION OF THE PLANS. UNDER SUCH CIRCUMSTANCES NEITHER LAW NOR EQUITY WILL HELP EM.' BROWN V. LEVY, 29 TEX. CIV. APP. 389, 69 S.W. 255; STEINMEYER V. SCHROEPPEL, 226 ILL. 9, 80 N.E. 564, 10 L.R.A. ( N.S.) 114, 117 AM. ST. REP. 224; CRILLY V. BOARD OF EDUCATION, 54 ILL. APP. 371.

THE CASE OF DADDARIO V. TOWN OF MILFORD, 5 N.E. (2D) 23, 107, A.L.R. 1447 ( MASS.), WAS A SUIT IN EQUITY TO COMPEL THE RETURN OF A CERTIFIED CHECK FOR $5,000 DEPOSITED WITH THE DEFENDANT TO ACCOMPANY A PROPOSAL FOR CONSTRUCTING A PUBLIC IMPROVEMENT FINANCED IN PART BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS. THE PLAINTIFF HAD ATTEMPTED TO WITHDRAW HIS PROPOSAL ON THE DAY FOLLOWING THE OPENING OF BIDS, ON THE GROUND OF SERIOUS ERRORS IN TWO ITEMS, CONTRARY TO THE REQUIREMENTS OF THE INVITATION WHICH PROVIDED THAT NO BIDDER MIGHT WITHDRAW HIS BID FOR 30 DAYS AFTER THE DAY SET FOR THE OPENING THEREOF, AND HAD LATER FAILED TO EXECUTE CONTRACT AND BOND WITHIN 10 DAYS AFTER NOTICE OF AWARD, IN ACCORDANCE WITH THE TERMS OF THE PROPOSAL. THE COURT HELD THAT IN SO VIOLATING THE TERMS OF THE PROPOSAL HE HAD FORFEITED THE DEPOSIT, AND REFUSED TO GRANT THE RELIEF REQUESTED, DESPITE THE FACT THAT THE BOARD OF SEWER COMMISSIONERS OF THE TOWN HAD MADE AN UNAUTHORIZED AWARD TO THE NEXT HIGHER BIDDER BEFORE MAKING THE AWARD TO THE PLAINTIFF. SEE, ALSO, SCOTT V. UNITED (STATES, 44 CT.1CLS. 524; BALTIMORE V. J. L. ROBINSON CONSTRUCTION CO., 123 MD. 660, 91 ALT. 682, L.R.A. 1915A, 225; AND 18 COMP. GEN. 942. THE SUBMISSION OF A BID IN RESPONSE TO THE INVITATION IN THIS CASE WAS, OF COURSE, VOLUNTARY. THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID WAS UPON THE BIDDER. IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF THE PORTLAND SPORTWEAR MANUFACTURING CO. WAS DUE TO ITS FAILURE TO ASCERTAIN WHAT THE SPECIFICATIONS CALLED FOR PRIOR TO SUBMITTING ITS BID. THE ERROR WAS DUE SOLELY TO THE NEGLIGENCE OF THE BIDDER AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. THE ERROR WAS UNILATERAL AND NOT MUTUAL AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 CT.1CLS. 127; AND AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 CT.1CLS. 209.

THE DIFFERENCE IN THE BID OF THE PORTLAND SPORTWEAR MANUFACTURING CO. AND THE OTHER BIDS RECEIVED--- TAKING INTO CONSIDERATION THE FREIGHT CHARGES TO BE PAID BY THE GOVERNMENT IN DELIVERING MATERIALS FOR THE COATS TO PORTLAND, OREG.--- IS NOT SO GREAT AS TO JUSTIFY A CONCLUSION THAT THE ACCEPTANCE OF THE BID WAS NOT IN GOOD FAITH. THE ALLEGATION OF ERROR BY THE BIDDER WAS NOT RECEIVED UNTIL AFTER ITS BID HAD BEEN ACCEPTED IN GOOD FAITH. THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES HERE INVOLVED GAVE RISE TO A VALID AND BINDING CONTRACT ( UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88; UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75) AND VESTED IN THE UNITED STATES THE RIGHT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH THE TERMS OF THE CONTRACT; AND NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO DIVEST THE GOVERNMENT OF SUCH VESTED RIGHT OR TO ALLOW COMPENSATION FOR PERFORMANCE IN AN AMOUNT GREATER THAN THAT AGREED UPON IN THE CONTRACT. BRAWLEY V. UNITED STATES, 96 U.S. 168; SIMPSON V. UNITED STATES, 172 U.S. 372, 379; UNITED STATES V. AMERICAN SALES COMPANY, 27 FED. (2D) 389, AFFIRMED IN 32 FED. (2D) 141, AND CERTIORARI DENIED, 280 U.S. 574. AS STATED BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF THE PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 CT.1CLS. 327, 335: " IT IS UNQUESTIONABLY TRUE THAT AN OFFICIAL OF THE GOVERNMENT IS NOT AUTHORIZED TO GIVE AWAY OR REMIT A CLAIM DUE THE GOVERNMENT. THIS RULE IS GROUNDED IN A SOUND PUBLIC POLICY AND IS NOT TO BE WEAKENED.'

IN VIEW OF THE FACTS IN THIS CASE AND THE AUTHORITIES HEREIN CITED, I AM CONSTRAINED TO HOLD THAT THERE IS NO LEGAL BASIS FOR RELEASING THE PORTLAND SPORTWEAR MANUFACTURING COMPANY FROM OBLIGATION UNDER ITS ACCEPTED BID.