B-6001, JULY 2, 1940, 20 COMP. GEN. 4

B-6001: Jul 2, 1940

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ADVERTISING - BIDS - INFORMALITIES AND UNAUTHORIZED CONDITIONS INFORMALITIES IN BIDS WHICH CONTRACTING OFFICERS ARE AUTHORIZED TO WAIVE IN THE INTERESTS OF THE GOVERNMENT ARE THOSE OF FORM AND NOT OF SUBSTANCE. OR DEFECTS IN OR VARIATIONS OF BIDS FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION AND SPECIFICATIONS SUCH AS ARE IMMATERIAL AND INCONSEQUENTIAL. THERE IS NO OBJECTION TO REQUESTING A LOW BIDDER TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID BUT HIS CONSENT TO THE DELETION SHOULD BE REQUIRED IN WRITING BEFORE THE AWARD. BE ATTACHED TO THE CONTRACT WHEN IT IS FORWARDED TO THE GENERAL ACCOUNTING OFFICE. " IS A MATERIAL AND UNAUTHORIZED DEVIATION FROM THE PROVISION OF UNITED STATES STANDARD FORM 33 FOR EXCUSING PERFORMANCE FOR "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.'.

B-6001, JULY 2, 1940, 20 COMP. GEN. 4

ADVERTISING - BIDS - INFORMALITIES AND UNAUTHORIZED CONDITIONS INFORMALITIES IN BIDS WHICH CONTRACTING OFFICERS ARE AUTHORIZED TO WAIVE IN THE INTERESTS OF THE GOVERNMENT ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR DEFECTS IN OR VARIATIONS OF BIDS FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION AND SPECIFICATIONS SUCH AS ARE IMMATERIAL AND INCONSEQUENTIAL. THERE IS NO OBJECTION TO REQUESTING A LOW BIDDER TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID BUT HIS CONSENT TO THE DELETION SHOULD BE REQUIRED IN WRITING BEFORE THE AWARD, AND BE ATTACHED TO THE CONTRACT WHEN IT IS FORWARDED TO THE GENERAL ACCOUNTING OFFICE. A STIPULATION BY A BIDDER AGAINST LIABILITY FOR FAILURE TO PERFORM THE CONTRACT DUE TO ,UNFORESEEN CIRCUMSTANCES, OR CAUSES BEYOND OUR CONTROL," IS A MATERIAL AND UNAUTHORIZED DEVIATION FROM THE PROVISION OF UNITED STATES STANDARD FORM 33 FOR EXCUSING PERFORMANCE FOR "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.' A STIPULATION BY A BIDDER AGAINST LIABILITY FOR FAILURE TO PERFORM THE CONTRACT DUE TO ACTS OF STATES OR MUNICIPAL GOVERNMENTS, IS A MATERIAL AND UNAUTHORIZED DEVIATION FROM THE PROVISIONS OF UNITED STATES STANDARD FORM 33 RELATIVE TO EXCUSABLE CAUSES OF DELAY OR FAILURE TO PERFORM. AN EXPRESS CONDITION IN A BID DELIBERATELY IMPOSED BY THE BIDDER WITH THE MANIFEST PURPOSE OF LIMITING HIS LIABILITY FOR DELAYS OR FAILURE TO PERFORM TO SUCH AN EXTENT AS TO RESTRICT MATERIALLY OR CONCLUDE THE RIGHTS OF REDRESS OF THE GOVERNMENT IN SUCH EVENT, IS NOT AN "INFORMALITY" SUCH AS MAY PROPERLY BE WAIVED BY THE CONTRACTING OFFICER UNDER THE PROVISIONS OF UNITED STATES STANDARD FORM 33, AND THE BID SHOULD BE REJECTED UNLESS THE BIDDER CONSENTS IN WRITING TO DELETE THE OBJECTIONABLE CONDITION AND ABIDE BY THE DELAY PROVISIONS OF THE SAID STANDARD FORM.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JULY 2, 1940:

THERE HAS BEEN BROUGHT TO MY ATTENTION CONTRACT NO. 12R-CIV-445, JANUARY 7, 1939, WITH GENERAL MOTORS CORPORATION, CHEVROLET DIVISION, HEREINAFTER REFERRED TO AS THE CHEVROLET CO., COVERING THE PURCHASE OF AUTOMOBILES.

THE CONTRACT WAS CONSUMMATED ON UNITED STATES STANDARD FORM NO. 33, COMPRISING INVITATION, BID, AND ACCEPTANCE (SHORT-FORM CONTRACT). UPON EXAMINATION OF THE CONTRACT IN THIS OFFICE, IT WAS DISCOVERED THAT THE CHEVROLET CO. HAD APPENDED TO ITS BID UPON WHICH THE CONTRACT WAS AWARDED A LETTER OF DECEMBER 21, 1939, IN PERTINENT PART AS FOLLOWS:

IT IS AGREED THAT IN SUBMITTING THIS BID, WE SHALL NOT BE HELD LIABLE FOR FAILURE TO PERFORM DUE TO UNFORESEEN CIRCUMSTANCES, OR CAUSES BEYOND OUR CONTROL, SUCH AS ACTS OF GOD, OR THE PUBLIC ENEMY; ACTS OF THE UNITED STATES GOVERNMENT, OR STATE OR MUNICIPAL GOVERNMENTS; FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER. ( ITALICS SUPPLIED.)

UNDER DATE OF OCTOBER 27, 1939, THE AUDIT DIVISION OF THIS OFFICE ADDRESSED A LETTER TO THE COMMISSIONER OF RECLAMATION RELATIVE TO THE CONTRACT, IN PERTINENT PART AS FOLLOWS:

PLEASE BE ADVISED THAT WHETHER GOVERNMENT STANDARD FORM 33, INVITATION, BID, AND ACCEPTANCE, AS REVISED JANUARY 17, 1939, OR THE OLDER FORM, IS USED IN ISSUING INVITATION FOR BIDS, AN UNDERTAKING OF THE ABOVE CONTRACTOR OR ANY OTHER BIDDER TO LIMIT ITS LIABILITY FOR DELAYED DELIVERIES BEYOND THE REVISED PROVISION OF SAID FORM AS TO EXCUSABLE DELAYS, IS TO BE CONSIDERED AN UNWARRANTED INTERPOLATION IN SUCH BIDS, AND AS PRECLUDING CONSIDERATION THEREOF FOR THAT REASON. SEE TREASURY DEPARTMENT, PROCUREMENT DIVISION CIRCULAR LETTER NO. 347, FEBRUARY 8, 1939.

BY REPLY OF JANUARY 10, 1940, THERE WAS FORWARDED TO THIS OFFICE THE FOLLOWING MEMORANDUM OF DECEMBER 28, 1939, FROM THE CHIEF ENGINEER, BUREAU OF RECLAMATION, DENVER, COLO., TO THE COMMISSIONER OF RECLAMATION:

1. REFERENCE IS MADE TO YOUR FOOTNOTE DATE NOVEMBER 1, 1939, SUBMITTING TO THIS OFFICE A COPY OF LETTER OF OCTOBER 27 FROM THE GENERAL ACCOUNTING OFFICE TO YOU, REQUESTING THIS OFFICE TO REPLY, WITH REGARD TO A CONDITION IMPOSED BY THE CONTRACTOR IN HIS BID UNDER INVITATION NO. CCC-5783-A, AS FOLLOWS:

"IT IS AGREED THAT IN SUBMITTING THIS BID WE SHALL NOT BE HELD LIABLE FOR FAILURE TO PERFORM DUE TO UNFORESEEN CIRCUMSTANCES, OR CAUSES BEYOND OUR CONTROL, SUCH AS ACTS OF GOD, OR THE PUBLIC ENEMY; ACTS OF THE UNITED STATES GOVERNMENT, OR STATE OR MUNICIPAL GOVERNMENTS; FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER.'

2. IN THE LAST SENTENCE OF THE LAST PARAGRAPH OF THE ABOVE LETTER, THE GENERAL ACCOUNTING OFFICE DIRECTS YOUR ATTENTION TO TREASURY DEPARTMENT PROCUREMENT DIVISION CIRCULAR LETTER NO. 347, FEBRUARY 8, 1939. THE APPLICABILITY OF SUCH CIRCULAR LETTER TO THE PRESENT CASE IS NOT UNDERSTOOD, AS YOU WILL NOTE FROM A COPY OF THE CONTRACT IN YOUR OFFICE FILES THAT THE SUBJECT INVITATION WAS ISSUED ON DECEMBER 14, 1938, OR PRIOR TO THE TIME OF ISSUANCE OF SAID CIRCULAR LETTER.

3. AS THIS OFFICE IS AUTHORIZED TO WAIVE ANY INFORMALITY IN BIDS BY CONDITION NO. 1 ON THE REVERSE OF FORM 33, A CONDITION SUCH AS THE ONE SUBMITTED BY THE BIDDER ON THE SUBJECT CONTRACT, IN WHICH NO EARLY DELIVERY WAS REQUESTED, IS NOT CONSIDERED A SUBSTANTIAL VARIATION FROM THE TERMS THEREOF, AND IS TREATED AS AN INFORMALITY. YOUR INSTRUCTIONS ON WHETHER OR NOT THIS OFFICE IS JUSTIFIED IN SUCH PROCEDURE WOULD BE APPRECIATED.

4. PLEASE REFER TO THE LAST PARAGRAPH OF SUBJECT LETTER FROM THE GENERAL ACCOUNTING OFFICE WHICH STATES IN PART AS FOLLOWS:

"* * * AN UNDERTAKING OF THE ABOVE CONTRACTOR OR ANY OTHER BIDDER TO LIMIT ITS LIABILITY FOR DELAYED DELIVERIES BEYOND THE REVISED PROVISION OF SAID FORM AS TO EXCUSABLE DELAYS, IS TO BE CONSIDERED AN UNWARRANTED INTERPOLATION IN SUCH BIDS, AND AS PRECLUDING CONSIDERATION THEREOF FOR THAT REASON.'

5. NUMEROUS OCCASIONS HAVE ARISEN IN THIS OFFICE WHEREIN THE BIDDER HAS SUBMITTED WITH ITS BID, ON INVITATIONS REQUESTING EARLY DELIVERY, A CONDITION SUCH AS, OR SIMILAR TO, THE ONE NOTED IN THE GENERAL ACCOUNTING OFFICE LETTER. THE GENERAL PRACTICE IN THIS OFFICE IS TO CONSIDER SUCH CONDITIONS AS CONTRARY TO THE TERMS OF THE INVITATION, BUT IT HAS NEVER CONSIDERED THEM AS BEING SUCH A SUBSTANTIAL VARIATION FROM THE TERMS OF THE CONTRACT AS TO JUSTIFY THEIR REJECTION, OR PRECLUDE THEIR CONSIDERATION. OUR PRACTICE IN SUCH CASES IS TO REQUEST THE CONTRACTOR TO DELETE FROM HIS BID THE CONDITION STATED THEREIN, AND ON HIS COMPLIANCE WITH OUR REQUEST, WE TREAT THE BID JUST AS IF NO OBJECTIONABLE CONDITIONS HAD EVER BEEN INSERTED. UP TO THE PRESENT, NO BIDDER HAS EVER REFUSED TO DELETE FROM HIS INVITATION THE OBJECTIONABLE CONDITIONS.

6. THIS OFFICE IS RELUCTANT TO ACCEPT THE STATEMENT IN THE LAST PARAGRAPH OF THE SUBJECT LETTER AS A PRECEDENT FOR ACTION IN FUTURE CASES, IF THE STATEMENT MEANS THAT ANY CONDITIONS SUBMITTED BY THE BIDDER WHICH MAY VARY IN ANY MINOR FORM FROM THE CONDITION OF DELIVERY STATED IN OUR INVITATION FOR BIDS WOULD SUBJECT SUCH BID TO REJECTION, AND PRECLUDE ITS CONSIDERATION BY THIS OFFICE. IT SEEMS TO US THAT THIS CONCLUSION OF THE GENERAL ACCOUNTING OFFICE DEPRIVES CONTRACTING OFFICERS OF ADMINISTRATIVE DISCRETION TO BE APPLIED IN ACCEPTANCE OF BIDS AND AWARD OF CONTRACTS. THIS OFFICE CONSIDERS SUCH CONDITION IMPOSED IN A BID AS A MINOR MATTER, AND IT IS NOT SEEN WHY SUCH CONDITION CANNOT BE WAIVED AS AN INFORMALITY, OR IN ANY EVENT, WHY THIS OFFICE CANNOT ASK THE BIDDER TO DELETE THE OBJECTIONABLE CONDITION FROM ITS BID. WHEN, AND IF, A BIDDER REFUSES TO COMPLY WITH OUR REQUEST, A QUESTION WOULD BE RAISED WHICH WOULD PERHAPS JUSTIFY A SUBMISSION TO THE GENERAL ACCOUNTING OFFICE FOR AN ADVANCE DECISION. IT IS ALSO BELIEVED THAT THIS STATEMENT OF THE GENERAL ACCOUNTING OFFICE ALONE IS INSUFFICIENT AS A PRECEDENT FOR FUTURE ACTION BY THIS OFFICE ON SIMILAR CASES, IN VIEW OF THE FACT THAT THE REJECTION OF LOW BIDS, WHICH ARE DEFINITELY ADVANTAGEOUS TO THE GOVERNMENT, BECAUSE OF THE INCLUSION OF SUCH CONDITIONS BY THE BIDDER, WOULD SUBJECT THIS OFFICE TO CRITICISM.

7. IF, HOWEVER, THE STATEMENT ABOVE DISCUSSED IS TO BE CONSTRUED BY THIS OFFICE AS A PRECEDENT GOVERNING OUR ACTION IN FUTURE CASES OF THIS NATURE, IT IS RESPECTFULLY REQUESTED THAT A FORMAL DECISION BY THE PROPER AUTHORITY BE ISSUED TO THAT EFFECT. UNLESS WE HEAR FROM YOUR OFFICE TO THE CONTRARY, THIS OFFICE WILL CONTINUE ITS PRACTICE OF MAKING AWARDS AS HERETOFORE.

OF COURSE, TREASURY DEPARTMENT, PROCUREMENT DIVISION CIRCULAR LETTER NO. 347, FEBRUARY 8, 1939, HAD NO APPLICATION TO THE SUBJECT CONTRACT WHICH WAS ENTERED INTO AND POSSIBLY PERFORMED PRIOR TO ITS ISSUANCE. CITATION OF SAID LETTER WAS MERELY FOR THE INFORMATION AND FUTURE GUIDANCE OF THE PURCHASING AGENCY IN ISSUING INVITATIONS AND IN CONSIDERING BIDS RECEIVED.

IT IS TRUE THAT CONTRACTING OFFICERS ARE AUTHORIZED TO WAIVE INFORMALITIES IN BIDS WHEN IN THE INTEREST OF THE GOVERNMENT, AND STANDARD FORM NO. 33, AS WELL AS STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS ( STANDARD FORM NO. 22) SO PROVIDES. BUT THE INFORMALITIES WHICH A CONTRACTING OFFICER PROPERLY MAY WAIVE ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN OR VARIATION OF A BID FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION AND SPECIFICATIONS SUCH AS WOULD NOT AFFECT EITHER THE SUFFICIENCY OF THE EQUIPMENT--- WHICH IT DID NOT IN THIS INSTANCE--- OR THE ACCOUNTABILITY OR LIABILITY OF A CONTRACTOR TO THE GOVERNMENT IN THE EVENT OF DELAYS OR FAILURE TO PERFORM--- WHICH THE BID QUALIFICATION IN QUESTION DID IN THIS CASE. THERE WOULD APPEAR TO BE NO AUTHORITY FOR A CONTRACTING OFFICER TO WAIVE AS AN "INFORMALITY" A CONDITION DELIBERATELY IMPOSED BY A BIDDER WITH THE MANIFEST PURPOSE OF LIMITING LIABILITY OR SAVING HIM OR ITSELF HARMLESS IN THE EVENT OF DELAY OR FAILURE TO PERFORM TO SUCH AN EXTENT AS TO RESTRICT MATERIALLY IF NOT TO CONCLUDE THE RIGHTS OF REDRESS OF THE GOVERNMENT IN SUCH EVENT. SUCH AN EXPRESS CONDITION ATTACHED TO A BID WITH SUCH DEFINITE PURPOSE CANNOT REASONABLY BE CONSIDERED AS AN "INFORMALITY" WITHIN ANY LEGAL ACCEPTATION OF THE WORD. THE WORD "INFORMAL" IS DEFINED AS ,DEFICIENT IN LEGAL FORM; INARTIFICIALLY DRAWN UP," WHILE "INFORMALITY" IS "AN IRREGULARITY; NOT IN ACCORDANCE WITH THE USUAL METHOD," 31 CORPUS JURIS, 1187. ALSO, SEE WEBSTER'S NEW INTERNATIONAL DICTIONARY DEFINING INFORMAL AS BEING NOT IN THE REGULAR, USUAL, OR ESTABLISHED FORM; NOT ACCORDING TO OFFICIAL, CONVENTIONAL, PRESCRIBED, OR CUSTOMARY FORMS OR RULES; IRREGULAR; AND DEFINING INFORMALITY AS THE STATE OR QUALITY OF BEING INFORMAL, WANT OF REGULAR, PRESCRIBED, OR CUSTOMARY FORM. IT WOULD APPEAR TO BE OBVIOUS WITHOUT ARGUMENT THAT AN EXPRESS AND POSITIVE CONDITION IMPOSED BY A BIDDER WHICH DOES OR MAY MATERIALLY AFFECT THE RIGHTS OF THE PARTIES UNDER AN ENSUING CONTRACT DOES NOT FALL WITHIN THE DEFINITIONS.

REFERRING TO NUMBERED PARAGRAPH 5 OF THE QUOTED MEMORANDUM, THE FACT THAT IN A GIVEN INSTANCE EARLY DELIVERY IS REQUESTED WHILE IN ANOTHER NO SUCH REQUEST IS MADE IN THE INVITATION, WOULD APPEAR TO BE IMMATERIAL. THE EFFECT OF THE CONDITION IMPOSED BY THE BIDDER WOULD BE THE SAME IN EITHER EVENT AND THERE WOULD APPEAR TO BE NO LOGICAL REASON FOR TREATING THE CONDITION AS AN INFORMALITY IN ONE INSTANCE AND AS A MATERIAL VARIATION FROM THE INVITATION IN THE OTHER. IN THE PRESENT INSTANCE THE CHEVROLET CO. UNDERTOOK TO MAKE SHIPMENT WITHIN 15 CALENDAR DAYS OF DATE OF RECEIPT OF NOTICE OF AWARD OF CONTRACT. UPON ACCEPTANCE THE SPECIFIED DELIVERY TIME WAS INTEGRAL TO THE CONTRACT.

RELATIVE TO THE "GENERAL PRACTICE" OUTLINED IN SAID PARAGRAPH OF REQUESTING A LOW BIDDER TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID, THERE WOULD APPEAR TO BE NO OBJECTION TO SUCH A COURSE, PROVIDED THAT IN EVERY SUCH CASE CONSENT OF THE BIDDER TO THE DELETION SHOULD BE REQUIRED IN WRITING BEFORE AWARD, AND BE ATTACHED TO THE CONTRACT WHEN FORWARDED HERE.

OFFICE LETTER OF OCTOBER 27, 1939, WAS NOT INTENDED TO MEAN THAT "ANY CONDITIONS SUBMITTED BY THE BIDDER WHICH MAY VARY IN ANY MINOR FORM FROM THE CONDITION OF DELIVERY" (ITALICS SUPPLIED) STATED IN THE INVITATION FOR BIDS WOULD SUBJECT SUCH BID TO REJECTION AND PRECLUDE ITS CONSIDERATION. IT HAS BEEN HELD CONSISTENTLY THAT A MINOR VARIATION OF THE BID FROM THE INVITATION WHICH AFFECTS NEITHER THE SUITABILITY OF THE EQUIPMENT OFFERED NOR THE POSSIBLE RIGHTS OF THE PARTIES UNDER THE CONTRACT IF AWARDED DOES NOT REQUIRE OR JUSTIFY REJECTION OF AN OTHERWISE ACCEPTABLE LOW BID. BUT A CONDITION IMPOSED BY A BIDDER, SUCH AS HERE INVOLVED, CANNOT BE LOOKED UPON AS SUCH A MINOR VARIATION, FOR IT GOES NOT MERELY TO THE FORM BUT TO THE SUBSTANCE OF THE CONTRACT.

THE PROVISION RELATIVE TO EXCUSABLE CAUSES OF DELAY, NOW A PART OF STANDARD FORM NO. 33, PROVIDES THAT A CONTRACTOR SHALL NOT BE HELD LIABLE FOR, NOR CHARGED WITH, EXCESS COST OCCASIONED BY DELAY OR FAILURE TO PERFORM DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, SUCH AS CERTAIN SPECIFIC CAUSES SET OUT THEREIN AND--- BY APPLICATION OF THE RULE OF EJUSDEM GENERIS--- OTHER CAUSES SIMILAR THERETO. AN UNFORSEEABLE CAUSE OR CONDITION IS ONE THAT IS "INCAPABLE OF BEING FORESEEN," MARYLAND DREDGING COMPANY V. UNITED STATES, 47 CT.CLS. 557, 563, AND UNDER THE APPROVED PROVISION OF STANDARD FORM NO. 33 SUCH CAUSE NOT ONLY MUST BE INCAPABLE OF BEING FORESEEN BUT IT MUST BE BEYOND THE CONTROL AND, ALSO, WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. ALL THESE CONDITIONS MUST CONCUR TO AFFORD A CONTRACTOR IMMUNITY FROM LIABILITY FOR DELAY OR FAILURE TO PERFORM HIS CONTRACT. BUT UNDER THE CONDITION ATTACHED TO THE BID OF THE CHEVROLET CO. IT WAS NOT NECESSARY THAT THE "CIRCUMSTANCE" BE INCAPABLE OF BEING FORESEEN, BUT MERELY THAT IT WAS "UNFORESEEN" AT THE TIME OF CONTRACTING, NO MATTER HOW READILY FORESEEABLE IT MIGHT HAVE BEEN BY THE EXERCISE OF REASONABLE BUSINESS FORESIGHT AND CARE ON THE PART OF AN INTELLIGENT CONTRACTOR. MOREOVER, IT WAS NOT NECESSARY THAT THE CAUSE BE WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THUS ANY INTERVENING CAUSE RENDERING PERFORMANCE MORE DIFFICULT OR BURDENSOME MIGHT BE INVOKED AS AN EXCUSE FOR DELAY OR FAILURE OR REFUSAL TO PERFORM SO LONG AS IT WAS UNFORESEEN IN THE BEGINNING, OR BEYOND THE CONTROL OF THE CONTRACTOR IN ITS DURATION, ALTHOUGH IT MIGHT BE DIRECTLY ATTRIBUTABLE TO THE CONTRACTOR'S OWN FAULT OR NEGLIGENCE IN ITS INCEPTION. THE CONDITION FURTHER PROVIDED THAT FAILURE TO PERFORM SHOULD BE EXCUSED IF DUE TO THE ACTS OF STATE OR MUNICIPAL GOVERNMENTS. STATE AND MUNICIPAL GOVERNMENTS ARE NOT PARTIES TO CONTRACTS OF THE UNITED STATES SUCH AS THIS, AND WHILE IT IS NOT TO BE PRESUMED THAT EITHER OF SUCH GOVERNMENTS WOULD UNDERTAKE TO BURDEN A GOVERNMENT CONTRACT DIRECTLY IN ANY WAY, NO CONSIDERED ACT, ORDINANCE, OR REGULATION OF STATE OR MUNICIPAL GOVERNMENTS IMPOSING A BURDEN ON THE GENERAL BUSINESS OF A CONTRACTOR WHICH RENDERS PERFORMANCE OF A GOVERNMENT CONTRACT MORE ONEROUS MAY ORDINARILY BE ACCEPTED AS RELIEVING A CONTRACTOR WITH THE UNITED STATES FROM PERFORMANCE OF HIS CONTRACT OR LIABILITY FOR DELAY OR NONPERFORMANCE THEREOF. FURTHER, IT MAY BE POINTED OUT THAT IN ANNOUNCING STANDARD FORM NO. 33, INTER ALIA, FOR GENERAL USE, BUREAU OF THE BUDGET CIRCULAR LETTER NO. 207, JUNE 29, 1927, PROVIDED THAT " ON AND AFTER SEPTEMBER 1, 1927, THESE FORMS WILL BE USED WITHOUT DEVIATION, EXCEPT AS PROVIDED IN PARAGRAPH 6, IN CONNECTION WITH EVERY FORMAL CONTRACT FOR THE PROCUREMENT OF SUPPLIES * * *.' ( ITALICS SUPPLIED.) PARAGRAPH 6 OF THE SAID CIRCULAR LETTER IS NOT MATERIAL HERE. IF THE CONTRACTING AGENCIES OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO DEVIATE FROM PRESCRIBED STANDARD FORMS, IT WOULD APPEAR TO BE SELF-EVIDENT THAT THEY ARE EQUALLY WITHOUT AUTHORITY TO ACCEPT A BID SO CONDITIONED BY A BIDDER AS TO EFFECT A MATERIAL DEVIATION FROM THE STANDARD GOVERNMENT FORM. FURTHERMORE, IT IS A RECOGNIZED RULE THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. IT IS MANIFEST THAT A CONTRACT WHICH AFFORDS THE CONTRACTOR A MEASURE OF IMMUNITY FROM LIABILITY IN CASE OF DELAY OR FAILURE TO PERFORM WHICH IS NEITHER OFFERED BY THE INVITATION NOR SOUGHT BY OTHER BIDDERS IS NOT THE CONTRACT OFFERED TO ALL.

IT FOLLOWS THAT A BID QUALIFIED AS IN THIS INSTANCE SHOULD BE DISREGARDED AS UNRESPONSIVE TO THE INVITATION, UNLESS AN OTHERWISE ACCEPTABLE LOW BIDDER SHOULD CONSENT IN WRITING BEFORE AWARD OF CONTRACT TO DELETE SUCH CONDITION AND ABIDE BY THE PROVISION RELATIVE TO DELAY OR FAILURE TO PERFORM NOW PRESCRIBED FOR INCLUSION IN ALL CONTRACTS CONSUMMATED ON UNITED STATES STANDARD FORM NO. 33, AND THE CHIEF ENGINEER, DENVER, COLO., SHOULD BE SO INSTRUCTED. SEE 19 COMP. GEN. 450 AND DECISIONS THERE CITED.