The clear intent of the act of February 24, 1919, was not only to fix definite annual appropriations, but also to place claims authorized for payment under judgment of a court, including interest and costs, on exactly the same basis as claims certified for payment by the Commissioner of Internal Revenue, with respect to availability of appropriations, thus obviating the necessity of submission to Congress and appropriation for individual judgments. It is now immaterial whether final adjudication of claim be by the Commissioner of Internal Revenue or by a court so far as the availability of appropriation is concerned. Answering your question specifically, you are advised that claims for refund of internal-revenue taxes illegally collected authorized for payment under judgment of court are properly payable from the annual appropriation provided for the fiscal year in which the tax is collected. CONTRACTS-MISTAKES. Where the minds of the contracting parties do not meet, the one intending the price stated to be the price per hundred while the other treats it as the price for the entire lot consisting of several hundred, no contract results, but if the supplies are furnished and accepted, payment may be made on a quantum valebat basis, the lowest bid submitted being proper for consideration for the purpose. 26 Comp. Dec., 286, affirmed. Decision by Acting Comptroller General Ginn, February 14, 1923: Philadelphia Electric & Manufacturing Co. applied October 13, 1922, for a review of settlement W-No. 572,317 of September 21, 1922, wherein only $195.45 was allowed on its claim for $514.65 on account of crossarms furnished for the Signal Corps, United States Army, under purchase order No. 101801, dated April 14, 1922, an error in its price as bid being alleged by claimant. The purchase order of April 14, 1922, in so far as material to the question here involved, reads: The Chief Signal Officer of the Army directs that in accordance with your quotation dated April 3, 1922, (19CP-9-10170-A-11-2B) order for the articles listed below is hereby placed with you and if accepted by you will be subject to the conditions printed on the reverse side hereof. SHIPPING INSTRUCTIONS AND MARKINGS: Ship 200 of Item 11 to Officer in Charge Signal Section, New York General Intermediate Depot, Army Base. South Brooklyn, New York. Marked: "Order No. 101801 S. C., for S. S. Stock, Requisition W-16." Ship 300 of Item 11 to Officer in Charge, Signal Section, San Francisco General Intermediate Depot, Fort Mason, California. Marked: "Order No. 101801 S. C., for S. S. Stock." ITEM 11: 500 crossarms, wood, 6 pin, S. C. type PF-23, per S. C. Spec. 71-62-A, for the lot, $195.85. The "quotation" referred to in the purchase order was made on a form prepared by the War Department and submitted to the bidder with only the price to be filled in by the bidder. Clainant's bid or quotation as it appeared on the said form was as follows: Item. 10 11 Quotations in quadruplicate. Unit. Total. 200 crossarms, wood, 4 pin, S. C. Type PF-21 per S. C. Spec. 500 crossarms, wood, 6 pin, S. C. Type PF-23, per S. C. Spec. NOTE 1. Quotation must be F. O. B. destination as follows: Date of delivery. Bids had been solicited on two items designated as items 10 and 11 Item 10 was for 200 crossarms 3 inch by 4 inch by 4 feet long, and item 11 was for 500 like crossarms, 6 feet long. Of the 4-foot crossarms 100 were to be delivered at South Brooklyn, N. Y., and 100 at San Francisco, Calif. Of the 6-foot crossarms 200 were to be delivered at South Brooklyn and 300 at San Francisco. Claimant alleges that the prices inserted by it in the prepared form as hereinbefore quoted were prices per hundred and that it had neglected to add the letter "C" after each of said prices. But the purchasing officer assumed that the prices were prices per lot and, in the purchase order accepting claimant's proposal on 6-foot crossarms, specifically stated the price as "for the lot, $195.85." Claimant alleges that it did not notice this particular statement in the purchase order and, assuming that the purchase order was an unqualified acceptance of its bid on the 500 6-foot crossarms, proceeded to make shipment and thereafter presented its bill for $514.65, which would be the price of 200 crossarms at $72.90 per hundred and 300 crossarms at $122.95 per hundred. Claimant was not given the award on the 4-foot crossarms. Of the eight other bids submitted on the two items, one was identical in form with claimant's except that the letter "C" appeared after each of the four prices quoted; one quoted the price per hundred for each of the two items with no difference between South Brooklyn and San Francisco deliveries; two gave prices per hundred and also extended totals; and four gave the price per each with extended totals. Not one of the eight bids specified a price for the lot, four quoting prices per hundred and four quoting prices per each. With respect to the 4-foot crossarms, there would be no difference between a price per hundred and a price per lot, as the requirement was for delivery of 100 only at each of the two places designated. A comparison of claimant's bids on these, concerning which there could be no doubt or mistake, with its bids on the 6-foot cross arms would seem to indicate clearly that each of its prices was per hundred. It would be unreasonable to assume that claimant while quoting a price of $47 for 100 4-foot crossarms delivered at South Brooklyn would quote a price of $72.90 for 200 ($36.45 per hundred) like crossarms 50 per cent longer delivered at the same place and that it would offer to deliver 300 6-foot crossarms at San Francisco for $122.95 ($40.98 per hundred) while its price for 4-foot crossarms delivered at the same time and place was $82 per hundred. That claimant could not have intended its prices to be for the lots and must have intended them to be "by the hundred" is further indicated by a comparison of its prices with the prices quoted by the eight other bidders. The total prices quoted on the 4-foot crossarms range from $96 to $348, claimant's total price thereon being $129. There were three bids lower than claimant's and five bids higher than claimant's on this item. With reference to the 6-foot crossarms and assuming that claimant's bids were per hundred and not for the lot it is found again that three of the other bids were lower and five were higher than claimant's, said bids ranging from $360 to $1,290, claimant's bid being $514.65. From the facts herein set forth it is clear that claimant did not offer to furnish and deliver the 500 crossarms for $195.85, and that the purchasing officer did not accept claimant's offer to furnish and deliver them for $514.65. Therefore, there was no contract in regard to the matter. This case is parallel in all essential features with the case decided in 26 Comp. Dec., 286. Claimant's mistake or negligence in the first instance gave rise to the situation now existing in this case and it can not be permitted to profit by said mistake or negligence to the extent of receiving a price which the Government did not agree to pay and would not have been required to pay if the mistake or negligence had not occurred. On the other hand the mistake or negligence was so apparent that the purchasing officer must have known of it. Under such circumstances, the Government can not take advantage of the contractor by holding it to a contract which it had no intention. of making. The Government received 499 of the 500 crossarms ordered and, there being no binding contract covering the transaction, should pay a fair and reasonable price therefor. The lowest bid submitted on this lot was 72 cents each or $360 for the entire lot. This may be accepted as a fair and reasonable price. Accordingly claimant was entitled to $359.28 for the 499 crossarms delivered. Upon a review of the matter a difference of $163.83 is certified due claimant. ALTERATIONS IN PUBLIC BUILDINGS. The Installation of partitions in the post-office building at Kalispell, Mont., several years after its completion, is an alteration of the building and not a part of its construction, and the unexpended balance of the original appropriation for the construction of the building is not applicable to the expense of said installation. Acting Comptroller General Ginn, to the Secretary of the Treasury, February 14, 1923: I have your letter of February 5, 1923, requesting decision of a question presented by you, as follows: There are forwarded herewith photostatic copies of a communication from the acting custodian of the post office building at Kalispell, Mont., and inclosures thereto from the acting forest supervisor requesting certain par tition work in the quarters occupied by him in the building. This building was authorized in the public building act of March 4, 1913, at a limit of cost of $100.000.00. Its construction was practically completed on September 10, 1917, and the building occupied on September 22, 1917, final payment for the work being made on February 15, 1918. Since that date certain work plainly chargeable to the completion of the building, such as the supplying of bulletin boards, painting of plaster etc., has been done and paid for from the appropriation for its construction. On March 15, 1922, the Forest Service was assigned quarters in the building, the room given to them being the one previously occupied by officials of the Land Office. This is the room that, as shown by the papers herewith, the Forest Service desires to have divided by partitions. There is a balance remaining from the appropriation for the building of $7,600.00, and the department requests your decision as to whether this expense of installing said partitions may properly be paid therefrom. The construction of the public building at Kalispell, Mont., for the use and accommodation of the United States post office and other Government offices was authorized at a maximum cost of $100,000 by the act of March 4, 1913, 37 Stat. 870, 872. Under such act the Secretary of the Treasury was directed to "contract for the erection and completion of a suitable building, including fireproof vaults, heating and ventilating apparatus, and approaches, complete." It is shown that the building has been completed and that final payment was made to the contractor therefor on February 15, 1918, and it has been occupied by the Government since September 22, 1917. It seems evident that the proposed changes are not a part of the original construction of the building, but are alterations in the building as it was constructed several years ago. It is new work deemed necessary by a proposal to change the building to meet the convenience of the forest supervisor who has recently been assigned quarters in the building. You are advised that the balance of $7,600 of the appropriation for the construction of the public building at Kalispell, Mont., is not available for the payment of the expense of installing the proposed partitions. RETIREMENT DEDUCTIONS. Where owing to error or inadvertence of the administrative officers an employee subject to the civil retirement law has been paid his salary with out retirement deductions he should be required to deposit the net amount of deductions that would have accrued to date, without interest; proper notations should be made on the records, and in the event of subsequent refunding to the employee no interest should be computed thereon prior to date of deposit. Deposits by a civilian employee to cover retirement deductions which had not been deducted from his salary due to administrative error should be credited to the appropriation available for such salary, unless his salary Iwas not included in the estimated deduction transferred to the retirement fund, in which case the deposit should be to the retirement fund. Acting Comptroller General Ginn to the Secretary of Labor, February 14, 1923: I have your letter of January 18, 1923, requesting decision as to the procedure to be followed in adjusting the retirement fund account with Mr. Homer J. Brown, who was appointed a commissioner of conciliation under your department at a compensation of $8 per diem, when actually employed, and who has been paid his compensation without deduction on account of the retirement fund. Also as to what additional amount, if any, is due from him as interest on the amounts not deducted. It appears that through a misapprehension of your department as to the retirement status of Mr. Brown no retirement fund deductions from his compensation were made. Your submission does not disclose whether Mr. Brown has been authoritatively and finally held to be entitled to the benefit of the retirement law, and upon the facts submitted no conclusion upon that point can be reached by this office. Assuming that he is so entitled the question for decision is what disposition shall be made of the proceeds of a check for $170.76 which Mr. Brown has tendered to your department in refund of amounts paid to him from time to time which should have been deducted from his compensation on account of the retirement fund. It appears that your department forwarded the check to the Commissioner of Pensions, who returned it upon the ground that his office had no authority under the retirement act of May 22, 1920, 41 Stat., 614, to collect this money. Under the retirement act and the practice established thereunder it is the duty of the administrative offices to estimate in advance at the beginning of the year the amount to be deducted from salary rolls for a fiscal year and transferred to the retirement fund and to make proper deductions from salary payments throughout the year. Failure to make proper deductions is an error of the administrative office, and the duty of correcting any such error is upon that office. If the estimates and transfers to the retirement fund for the several fiscal years involved in this case included the estimated compensation to be paid to Mr. Brown the retirement fund has received its full credit, and the money refunded by him should be deposited to the credit of the several appropriations under which it was errone |