failing to respond to the requests for presentation of worksheets and supporting data to either substantiate its price, or confirm that an error was made, is attempting to take advantage of the situation at the expense of other bidders, citing 35 Comp. Gen. 33. Accordingly, you state that since it would not, for reasons which you point out, be practicable to readvertise the procurement this late in the year, you are of the opinion that the contract should be awarded to the second low bidder.

The abstract of bids in the present instance shows that the unit prices stated by the other bidders for the excavation work designated as item No. 1 ranged from $0.22 to $0.55 per cubic yard, the average being $0.29. The Government engineer's estimate was $0.27. Moreover, a tabulation of the results of bidding during the past 12 months on the major drain construction work in connection with the Columbia Basin Project shows that Duncan Construction Company submitted bids on 6 previous jobs in which the unit prices stated by the company for excavation work of the type here involved ranged from $0.20 to $0.56 per cubic yard, the average being $0.35. Also, the tabulation shows that in connection with the 13 previous jobs advertised during this period the average price quoted for excavation work by the concerns submitting the low bids was $0.264 per cubic yard.

Thus, there would appear to be no doubt but that Duncan Construction Company made a mistake in respect to the price included in its bid for item No. 1, and that the unit price intended to be quoted was $0.21, instead of $0.12, as stated by Mr. Duncan at the opening of bids. But correction of this mistake would have the effect of making Duncan Construction Company's bid $20,030.38, thereby removing it from consideration as the low bid. Mr. Duncan apparently realized this after he had made the oral declaration with respect to the mistake and preferred not to substantiate the mistake lest his company be eliminated from the competition.

In view of the notice which the Government had, both actual and constructive, as to the fact of error, it seems apparent that the acceptance of Duncan Construction Company's bid without further agreement or understanding would not have given rise to the formation of a contract. See Moffett Hodgkins & Clarke Co. v. Rochester, 178 U. S. 373. However, the bidder now would waive the right which it otherwise has to have its bid rejected on the ground of mistake and would have it considered a valid bid. Were the Government to acquiesce, it would be tantamount to allowing the ostensible low bidder to elect, after bid opening, whether to stand on the bid, or withdraw it, on the ground of mistake, depending upon which course of action appeared to be in its best interest. Obviously, this would not be fair to the other bidders, whose bids had been disclosed, and it would be detrimental to the purposes sought to be accomplished by the

statutes relating to competitive bidding. See our decision B-124066, dated June 7, 1955, to the Secretary of the Interior, relative to the propriety of awarding a contract to Denali Construction Co., Inc., and McCray Marine Construction Co., as co-adventurers, for construction of a Marine Terminal at Seward, Alaska.

Accordingly, you are advised that the bid of Duncan Construction Company should be disregarded in making the award.

The papers transmitted with your letter are returned herewith.

[B-134791]

Property-Public-Damage, Loss, Etc.-Carrier's Liability-Burden of Proof

Where the Government bill of lading, under which a Government-owned automobile was shipped overseas, indicates receipt of the automobile in good condition at origin by the carrier and delivery to the consignee at destination damaged, there is a presumption that the damage and pilferage occurred during transportation, and where this presumption is supported by inspection report of the agent of the consignee and consignee and the only evidence offered by the carrier is a delivery record, which is not identified with the particular shipment and is not signed by either the agents of the consignee or the agents of the carrier, deduction from the carrier's bill to cover the loss was proper.

To the American President Lines, March 6, 1958:

We have carefully considered the matter of damage to a Government-owned automobile transported by your company, which was the subject of your letter of December 30, 1957, file Manila Claim 426–6 SS PRESIDENT ARTHUR V/18.

The record so far made in this case shows that one unboxed Chevrolet station wagon, weighing 3,660 pounds and measuring 667.1 cubic feet, was tendered to your company in Jersey City, New Jersey, on July 3, 1956, for transportation and delivery to the Veterans Administration, in care of the American Embassy, at Manila, Republic of the Philippines, on bill of lading GS 739434. The bill of lading was signed by an agent of your company to acknowledge receipt of the automobile in "apparent good order and condition" for delivery "in like good order and condition" in Manila. After the vehicle had been discharged from the vessel at destination, the bill of lading was accomplished to show that the front rubber floor matting, valued at $13.05, and the gas cap, valued at $1.225, were missing. In addition, there were various scratches and dents on the fenders and body of the car. A copy of an "OVER, SHORT, AND DAMAGE REPORT," dated December 14, 1956, prepared by the consignee, evidences that the shipment was received on August 23, 1956; the damage, visible upon receipt, and loss were discovered August 23, 1956; they were reported to the carrier August 23, 1956; and the carrier waived its right of inspection. This report also states that the loss and damage were

covered by Bad Order Inspection Report, Arrastre Service Port of Manila, No. 4947, dated August 23, 1956. By letter of September 10, 1956, the Manila Port Service informed the Veterans Administration received the motor vehicle from the vessel in the t was delivered to the consignee.

at Manila that it be condition in whic Based upon an imate made by Northern Motors, Inc., at Manila, the repair of the vehicle cost $105.575. This cost, together with replacement of the missing accessories, resulted in a total cost of $119.85 to the Government to restore the vehicle to the same good order and condition in which it was delivered to the American President Lines at Jersey City and in which the carrier contracted to deliver it to the consignee at Manila. Upon your refusal to accept responsibility for any damage other than to the left front fender, $119.85 was deducted from the freight charges claimed, and the balance of the charges were paid on voucher No. 9364 in the April 1957 accounts of disbursing officer J. F. Cannon. Thereafter, on July 19, 1957, you wrote to the consignee, transmitting your supplemental bill Aud-35A-PR for $91.51, the difference between the amount deducted and the amount for which you admitted liability, $28.34. This bill was transmitted here by the administrative office and was disallowed on December 4, 1957, by our settlement in claim TK-569095. Your letter of December 30, 1957, followed, asserting that exceptions were taken at the time of delivery only to the damage for which the repair costs total $28.34, and that conclusive evidence in support of your position had been furnished in connection with your supplemental

bill.

Your supplemental bill was supported with a copy of the repair estimate made by Northern Motors, Inc., which also served as the basis for the Government's claim for repairs, and with the reproduction of an "UNCRATED AUTO. AND TRUCK RECEIVING AND/OR DELIVERY RECORD," which purported to be the delivery record on the motor vehicle shipped. This document, dated August 21, 1956, two days before the date of the bad order inspection report, No. 4947, prepared by the Manila Port Service, presumably relates to the vehicle in question, although the document contains nothing relating it to the shipping documents covering the Chevrolet station wagon. The space for insertion of the bill of lading number on the delivery record is blank. The document, by means of diagrams, shows damage to the left front fender of a vehicle, as described by code letters A and F, and damage to the left rear fender, as shown in code letter F. In the space containing the key to the code used, the explanation of these particular code letters has been indecipherably overwritten. There are spaces on this report for the signature of the party receiving or delivering the goods and at the end of the document is the recital "the above exceptions covering the condition of the car,"

with appropriate spaces for the signatures of the parties either shipping or receiving the vehicle. All of the spaces so provided for signatures are blank.

It is fundamental that upon proof of goods loaded in good condition and outturned damaged, the shipper is entitled to recover unless the carrier succeeds in exculpating itself by proving the damage resulted from a cause for which it was not liable or that it had exercised due diligence to avoid damage. 46 U. S. C. A. 1304; American Tobacco Company v. Katingo Hadjipatera, 81 F. Supp. 438; General Foods Corporation v. The Troubadour, 98 F. Supp. 207; Universal Leaf Tobacco Company of China v. Bank Line, Limited, 115 F. Supp. 353. The Government bill of lading, evidencing receipt of the automobile in good condition at origin by the carrier and delivery to the consignee at destination damaged, created a presumption that the damage and pilferage occurred in the course of transportation. This presumption is supported by the inspection reports of the Manila Port Service and the consignee. The only evidence you have offered to rebut the presumption is the reproduction of an "UNCRATED AUTO AND TRUCK RECEIVING AND/OR DELIVERY RECORD," which is of no probative evidentiary value, since it is insufficiently identified with the vehicle in the instant case, and is signed by neither the agents of the consignee, the Manila Port Service, nor agents of your line.

Under the circumstances, the settlement disallowing your claim was correct and is sustained.

[B-123643]

Military Personnel-Pay-Disability Retirement-Grade at Time of Retirement-Tracy v. United States

In the computation of retired pay of members of the uniformed services retired for physical disability who hold permanent Reserve grades which are higher than the temporary grades in which they are serving on active duty at the time of retirement, the rule established in the case of Tracy v. United States, 136 C. Cls. 211, and related cases, which authorized computation of retired pay on the basis of the higher Reserve grade, will be followed by the General Accounting Office not only with respect to the applicability of the fourth paragraph of section 15, Pay Readjustment Act of 1942, to Reserve officers retired for disability but also with respect to disability retirement pay under section 402 (d), Career Compensation Act of 1949 or under 10 U. S. C. 1372. 36 Comp. Gen. 628, modified. To the Secretary of Defense, March 7, 1958:

Reference is made to our decision to you of March 5, 1957, B-123643, 36 Comp. Gen. 628, concerning the effect of the decision rendered on June 5, 1956, by the Court of Claims in the case of Louis Standish Tracy v. United States, 136 C. Cls. 211, on the retirement pay status of

officers of the uniformed services retired for physical disability who hold a permanent Reserve grade which is higher than the temporary grade in which they are serving on active duty at the time of their retirement.

The court in the opinion of June 5, 1956, held that under the authority of 37 U. S. C. 1952 Ed. 115 (fourth paragraph, section 15, Pay Readjustment Act of 1942, 56 Stat. 368), the percentage to be used in computing Tracy's disability retirement pay was "75" and that Tracy was further entitled, under the provisions of section 402 (d), Career Compensation Act of 1949, 63 Stat. 818, 37 U. S. C. 272 (d), to have his retired pay computed on the basis of his permanent grade of colonel in the Officers' Reserve Corps, rather than on the basis of the grade of lieutenant colonel in the Army of the United States in which he was serving on active duty at the time of his retirement (May 1, 1950).

You were advised in the decision of March 5, 1957, of the reasons why we disagreed with that part of the court's opinion in the Tracy case which authorized the computation of retired pay on the basis of a Reserve grade higher than the active-duty grade at the time of retirement. You were further advised that in view of several similar cases then pending before the Court of Claims involving the same statutory provisions and raising the same issues-the determination of which would require the court to reconsider its conclusion in the Tracy caseno proper basis then existed for following as a precedent in other cases the rule established in the Tracy case with respect to grade for retired pay purposes. See the answer to question 1 in the decision of March 5, 1957.

On January 15, 1958, the Court of Claims rendered decisions in two similar cases-Clarence Timothy Lowell v. United States, C. Cls. No. 361-56, and Charles C. Budd v. United States, C. Cls. No. 467-56. In the Lowell case the plaintiff had served in the military forces of the United States prior to November 12, 1918; was called to active duty in February 1942 in a temporary commissioned grade in the Army of the United States; was retired on August 31, 1950, while serving in the temporary grade of major, Army of the United States, for physical disability as provided by section 402, Career Compensation Act of 1949, 63 Stat. 816, 37 U. S. C. 272; and held the permanent grade of lieutenant colonel in the Officers' Reserve Corps on August 31, 1950, the date of his retirment for physical disability. On those facts and under authority of 37 U. S. C. 115 and the provisions of section 402 (d), Career Compensation Act of 1949, 63 Stat. 818, it was held that the plaintiff, Lowell, was entitled to receive disability retirement pay computed at the rate of 75 per centum of the pay of a lieutenant colonel. The court further implied in the Lowell case that its conclusion would have been the same under the provisions of section 1372, Title 10, U. S. Code, 70A Stat. 105, relating