SALES-Coctinned

Auction Continged

bid on third call, but who continued to
bid after another bidder came forward
and started bidding, has waived any
right he may have had to acquire prop-
erty at original bid price by further
bidding without protest and by failure
to offer immediate deposit.....

Bids:

All or nome:

All-or-none bid under sales invitation
which specifically authorized bids on
one or more of four individual lots or
on entire offering is responsive to
invitation.....

Condition in invitation for sale of 6 lots
of surplus property that items were to
be sold on all-or-none basis and that
award will not be made on any 1 item
without scceptable bid also being
made on all remaining items requires
concurrence with administrative ex-
planation that award on aggregate
basis was intended, notwithstanding
that invitation did not require overall
price, and, although invitation could
have been clearer, it is not so ambig-
nous as to require cancellation of award
to highest sggregate bidder made in
good faith some 2 months prior to
protest....

Deposits:

Acceptance or rejection for failure to
submit:

606

253

Proposed provision in timber sales in-
vitations to effect that sward will be
withheld from high bidder who fails
to submit required bid deposit untâ
It is determined whether any of other
bidders, who meet deposit require-
ment, would be willing to sccept
award at high bid price is conditional
rejection depending on actions of
other bidders and is legally invs-
lid under competitive bid pro-
cedures, which require acceptance or
rejection based on bid submission
and on relative standing as to price
st time of opening...
Whether failure of bidder to furnish
bid deposit requires rejection of bid
or is informality which may be
waived depends on facts and cir
cumstances of particular situation
so that no hard and fast rule can be
applied; however, generally, such de
viation may be waived when it is in
interest of Govt. and bidder's failure
to provide bid guarantee does not
involve lack of financial ability..... 293
Deviations-minor r. substantive-high
bid for purchase of surplus scrap on
gross ton rather than pound unit basis as
specifically required by invitation does
not contain deviation which affects

Page

price or substance of bid or does injustice
to other bidders, and, therefore, tech-
nical deviation should have been waived
and contract awarded to high bidder... 190
Late. (See Bids, late)
Mistakes:

Unit price v. extension difference:
Administrative correction-adminis
trative correction of extended price
in bid submitted in response to inve
tation which provides that, in case
of error in extension of price, unit
price will govern should only be
made, without requesting verifica
tion from bidder, where correction
results in relatively minor change in
extended price or where circum-
stances indicate that unit price
actually represents intended price.. 829
Obvious unit price error-purchaser
who, after notice of award, on basis
of substantial correction by contract-
ing officer of extended price to agree
with unit price in accordance with
terms of invitation, alleges that error
was made in unit price and that
extended price was correct may not
be considered to have entered into
valid and binding contract and, in
view of fact that bid in original ex-
tended amount is highest of all bids
received, bid may be modified......
Withdrawal-even though bidder for pur-
chase of surplus Govt. property requests
permission after opening to withdraw
high bid because of changed market con-
ditions, acceptance of bid in accordance
with terms of invitation results in bind-
ing contract which may not be waived
or modified without compensating bene
fit to Govt...---
Cancellation-partial performance-sward
and performance on part of second high
bidder of contract for purchase of surplus
scrap does not warrant volding part per-
formed on determination that contract
should have been awarded to high bidder
whose bid was improperly rejected for
technical deviation in quoting price on
ton rather than pound basis; however, if
some of material has not been removed and
high bidder wants material under terms of
original bid and at price not less than that
offered on pound basis there would be no
objection to such sale, otherwise material
should be readvertised for sale......................
Delivery shortages—withdrawal of material—
notice—receipt evidence where a bidder
submitted high bid for purchase of surplus
property without knowledge that Govt
had issued amendment to invitation ad-
vising bidders that some of equipment
which had been described in detail in
invitation had been withdrawn from sale

599

190

SALES-Continued

and facts with respect to distribution of
amendment do not establish that copy was
properly addressed and actually mailed to
bidder, no contract was effected, and
refund of purchase price should be made..
Price adjustment for losses-crude oil sales
contracts which were awarded to several
independent refiners and which have
become unprofitable because of change in
market situation may not be modified
gratuitously when head of contracting
agency, under Title II of First War Powers
Act, 50 U. S. C. 611, determined that there
is not sufficient basis to consider that such
action would facilitate national defense;
therefore, established rules of law, that
officers of Govt. have no authority to
modify contracts without consideration
and that supervening events which render
contract performance less profitable do not
Justify excusing performance or adjusting
price, are for application.............
Price determinations-under sealed bid and
auction-type sale of crude oil, bid which
offered price one cent over minimum mar-
ket price and which was interpreted as
bid for market price, plus one cent bonus,
may not be objected to because bonus was
allegedly calculated too high, since invita-
tion permitted bidders to increase their
prices after opening, and bidder by not
objecting at auction may be regarded as
having consented to bonus...----
Resale loss liability-Government activities--
fact that award of contract for purchase of
item from domestic surplus property
stocks was made unprofitable, due to
changed market conditions caused by
another Govt. agency permitting importa-
tion of huge quantity of same item pur-
chased at lower prices from foreign excess
property stocks, does not impose upon
Govt. as contractor any liability for ob-
struction to performance of contract re-
sulting from its public and general acts as
sovereign.----

Page | SALES-Continued

Spot bids-announcement of high bidder-
under spot bid sales invitation which pro-
vides that award of each sale item will be
made to highest acceptable responsive
bidder immediately after consideration of
all bids received for each sale item, an-
nouncement of high bidder on particular
item and progression of sale to next item
constitute award and receipt of late bld
which was mailed on time but not received
prior to announcement may not be con-
sidered in absence of provision in invitation
which would save rights of bidders whose
bids were delayed in mails........................
Title passage-damage to realty after con-
tract of sale but before delivery of deed.

542

622

622

599

75

(See Property, public, damage, loss, etc.,
damage occurring after execution of sale
but before delivery of deed)
SAVINGS DEPOSITS:
Distribution on death of member-desig-
nated beneficiary v. others-savings de-
posits with interest thereon due deceased
member of uniformed services are con-
sidered as part of "the amount found due"
in settlement of deceased member's ac-
count within meaning of act of July 12,
1955, 37 U. S. C. 361, and therefore pay-
ment to member's designated beneficiary
as provided in act is proper, notwithstand-
ing that member had executed will be-
queathing deposits to relative-not desig-
nated beneficiary-in trust for his minor
daughter....
Interest;

Compound--under 10 U. S. C. 1035, which
permits deposit of savings by enlisted
member of uniformed services and auth-
orizes payment of deposits and interest
upon discharge, regulation to permit
compounding of interest as of date of
expiration of each 3-year period in case
of enlistments for longer periods would
not be proper...

Extended enlistments-savings deposits
which are not withdrawn at expiration
of each 3-year enlistment period by
enlisted members of uniformed services
whose enlistments are for periods longer
than 3 years may continue to accrue
interest to extent authorized by regula.
tion.....
Reenlistment-long established rule that
interest does not accrue on savings de-
posits of enlisted member of uniformed
services after date of discharge is for
application under 10 U. S. C. 1035 (c),
even though member reenlists immedi
ately; accordingly, if member wishes to
have deposit continue to draw interest
after discharge and immediate reenlist-
ment or after retirement and immediate
recall to active duty, principal and
interest must be redeposited in which
event both principal and accrued interest
will draw interest......

SET-OFF:

Compensation, etc., due civilian employees—
meals furnished by Government-regula-
tion to preclude deduction from lump-sum
leave payments due food handlers at Navy
installations for excess meals received be-
cause of having used less leave during year
than was contemplated when charges
were established on 11-month basis is
proper under Bur. of Budget Cir. No.
A-29, July 16, 1952, which prescribes gen-
eral policy for furnishing subsistence to
certain employees...............

SET-OFF-Continued
Contract payments:
Assignments:

Tax debts:

Payment of tax debt of Govt. con-
tractor who assigned contract con»
taining a “no-set-off clause" to bank
as collateral security, first for indi-
vidual loan and later for loan as
member of joint venture, was prop
erly made from final proceeds due
under contract in absence of showing
that contractor at time of set-off
action was indebted to bank in
either his own right or in capacity as
member of joint venture..........
Contractor's tax debt which accrued

prior to execution of Govt, contract,
which contained "no-set-off” clause
and which was subsequently as
signed to bank for loan, does not
become lien on amounts due on con-
tract under no-set-off provisions of
Assignment of Claims Act of 1940,
31 U. S. C. 203, which not only
nullify tax lien provisions in 26
U. S. C. 6321, but also operate to
reduce Govt.'s common-law right
of set-off against assignee, and, there-
fore, contract payments may be
made to bank in amount not to
exceed amount owed by contractor
and any balance should be paid to
Internal Revenue Service for reduc
tion of tax debt.-------
Contractor's debt for withholding
taxes and Federal Insurance Contri-
butions Act taxes, penalty and
interest for third quarter 1953, which
did not have to be paid by con-
tractor until Oct. 31, 1963, last day
of month following close of tax
quarter, which was several weeks
after notice of assignment of con-
tract pursuant to Assignment of
Claims Act of 1940, 31 U. S. C. 203,
is to be regarded as debt in existence
prior to notice of assignment and
matured claim at time of set-off so
that set-off of taxes, penalty and
interest from amounts due assignee
was proper..------
Amount due to contractor who is
indebted to Govt. for various Federal
taxes is considered property or right
to property to which tax lien at-
taches, under sec. 6321 of Internal
Revenue Code......................
Assignment of contract, which did not
contain "no-set-off" clause, to bank
pursuant to Assignment of Claims
Act of 1940, 41 U. 8. C. 15, for se-
curity for periodle loans which had
been fully repaid to bank at time
several tax liens were outstanding
against contractor has no effect on

Contract payments-Continued
Assignments-Continued
Tax debts-Continued

priority of tax liens for satisfaction
from amounts due under contract
over bank's right to receive amounts
as assignee on behalf of contractor
and loan for remainder of contract
balance made by bank after tax
liens attached and with notice of tax
debts does not make bank purchaser
of contract balance within exemp-
tion of sec. 6323 of Internal Revenue
Code to preclude set-off of tax debts
from contract balance...------------..
Time for set-off action-interest and
penalties for failure of contractor to pay
withholding taxes and Federal Insurance
Contributions Act taxes which were
computed to period subsequent to date
work under contract was completed
and which were set off against amounts
due under assigned contract should be
recomputed since set-off action, which is
essentially an equitable action, requires
simultaneous adjustment between
parties of mutual debts so that set-off for
delinquent tax interest and penalties
should be made as of date of completion
of contract.......

SMALL BUSINESS ADMINISTRA-
TION:

Contracts-awards to small business con-

cerns. (See Contracts, awards, small busi-
ness concerns)

STATE DEPARTMENT:
Disbursing officer losses-losses which are
incurred by overseas disbursing officers
performing disbursing functions for Dept.
of State as well as for other agencies pur-
suant to authority delegated from Dept.
of Treasury under sec. 4 of E. O. No. 6166,
⚫ but which cannot be related to function of
any particular one or more of agencies for
which disbursements are made, are re-
quired to be adjusted from current appro-
priation of Dept. of State available for
disbursing function st time adjustment is
made, in absence of more specific appro-
priation for such adjustments; however, in
future disbursing losses may be considered
as part of cost of disbursing function and
considered in determination of reimburse-
ment charges assessed agencies using
disbursing service......................
Jurisdiction-reporting for other agencies—
use of Dept. of Interior appropriations for
promotion of mineral resources in U. S.,
its territories and possessions to pay ex-
penses incident to assignment of solid fuels
technologist to American Embassy in
Europe would not only be improper in
view of specific area limitation in appro-
priation but, even more significant, would
be contrary to intent of Congress and

Federal aid, grants, etc.:

Agricultural extension service:

Availability for State taxes:

Federal funds which are granted to
States for cooperative agricultural
experiment work become State funds
subject only to State restrictions and
States in disbursing grants may not
be considered agents of U. S.; there-
fore, no objection is made to pay-
ment from such Federal grant funds
of nondiscriminatory State sales
taxes on services and supplies pro-
cured by States, as purchasers, to
carry out purposes of grant. 14
Comp. Gen. 747, overruled...........
Payment of State sales taxes on pur-
chases made by States for agricul-
tural extension and experiment work
for which State receives Federal
grants is not to be regarded as diver-
sion of funds for purpose not auth
orized in grant but rather is to be
regarded as incident to purpose of
grant. 14 Comp. Gen. 747, over-
ruled......

Federal payments in lieu of taxes:
Reconstruction Finance Corporation prop-

erty transferred to other Government
agencies:

Effective date-real property which was
declared surplus by RFC and accepted
by War Assets Admin. in 1946, al-
though title was not transferred to
U. 8. until 1952, but, which during
period 1947 to 1952, was not on city
tax rolls by reason of cancellation of
taxes, may be regarded as having been
transferred to U. 8. in 1946 at time it
was declared surplus and accepted by
disposal agency so that fact that prop-
erty was not on rolls in 1952 does not
preclude payments by Fed. Govt. in
Meu of taxes pursuant to act of Aug. 12,

Federal payments in lieu of taxes-Con.
Reconstruction Finance Corporation prop-
erty transferred to other Government
agencies-Continued

1955, which added secs. 701-704 to
Fed. Property and Admin. Services
Act of 1949.................................
Property use:

Property in Los Angeles which con-
sists of 13.8 acres of land and 6 1
story buildings, known as Plancor
890, Douglas Aircraft Corp., when
it was transferred by Reconstruction
Finance Corp. to Fed. Govt., and
which is used by Civil Aeronautics
Adm. and Air Procurement Dist.,
USAF, whose employees occupy
48% of usable space and devote 55%
of time to local public service is not
industrial-type property for which
payments in lieu of taxes are re-
quired to be paid by Fed. Govt. to
Los Angeles but rather may be re-
garded as property primarily used
for rendition of service to local public
or office buildings used for purposes
incidental thereto within meaning
of 40 U. 8. C. 524 (b) (3) and (4) ex-
empting such property from pay-
ments in lieu of taxes.....
Federal building in which one-third of
floor space is used by Veterans
Admin, for services to or on behalf
of public and two-thirds is used by
two private corporations for light
manufacturing and industrial pur-
poses may not be regarded as held
primarily for public service to come
within tax exemption provisions in
sec. 704 (b) (3) of act of Aug. 12, 1955,
40 U.S. C. 524 (b) (3) and to preclude
Federal payments in lieu of taxes to
city.....

Federal-State conflict:

License, permit, etc., fees-liability of
Federal agencies. (See District of
Columbia, license, permit, etc., fees,
Federal agency liability)

STATUTES OF LIMITATION:
Military service suspension-mustering-out
pay claims-specific time limitation-July
16, 1956-for filing mustering-out pay
claims prescribed in act of July 16, 1952, as
amended, 38 U. 8. C. 1013, for members of
uniformed services who were discharged or
released prior to date of enactment must,
under established rules of statutory con-
struction, prevail over general time limita-
tion for filing claims against U. S. in 31
U. 8. C. 71a, and such specific time limita-
tion for previously discharged or released
members may not be extended by sec. 205
of Soldiers' and Sailors' Civil Relief Act
of 1940, 50 U. 8. C. App. 525.....

STATUTORY CONSTRUCTION:
Code titles enacted into positive law:
Administrative construction adoption—
adoption of well-established adminis-
trative interpretation of sec. 202 (d) (1)
of Officer Personnel Act of 1947, that only
staff corps service was for consideration
in determining eligibility of Navy
officers for continuation on active list or
for involuntary retirement, by Congress
when it enacted into positive law 10
U.S. C. 6388 and substituted words" any
staff corps of the Navy" for words
"Regular Navy" precludes Department
from disregarding plain language of
section and reversing former interpreta-
tion to include line service as well as
staff corps service..................
Changes from derivative statutes—express
exclusion of aviation cadets from disa-
bility retirement benefits by 10 U. S. C.
1217 precludes payment of physical dis-
ability retired pay or severance pay to
aviation cadets subsequent to Aug. 10,
1956 effective date of enactment into
positive law of Title 10 of U. 8. Code-
and decision of Comptroller General in
30 Comp. Gen. 431, based on statute
which was substantially changed by
codification of Title 10, may not be re-
garded as precedent with respect to
aviation cadets not retired or placed on
temporary disability retired list prior to
Aug. 10, 1956...
Contemporaneous events-authority to sell
utility services to purchasers in Atomic
Energy Commission-owned communities
that was granted at time Commission was
engaged in disposing of 2 of 3 communities
was not intended to terminate when com-
munities were no longer Commission-
owned......

Repeals:

Inconsistent laws-certification authorized
to be made by Secretaries of Army and
Navy under 40 U. S. C. 278b to exempt
leases for national emergency purposes
from rent limitations in 40 U. S. C. 2789
may not be regarded as inconsistent with
right to acquire space in buildings by
lease vested in Adm. of General Services
by subsequently adopted Reorganization
Plan No. 18 of 1950 so as to be construed
as function of Adm of General Services... 443
Policy declarations-declaration of Con-
gressional policy with respect to small
business contained in various procure-
ment statutes without specific imple-
mentation similar to that provided in
sec. 214 of Small Business Act of 1953, 15
U. S. C. 643, for set asides may not be
construed as repealing or making inap-
plicable statutory restrictions otherwise
applicable to advertised procurements so
as to justify issuance of procurement
directive under which larger progress

CONSTRUCTION—

Page

payments are offered to small business
concerns in formally advertised competi
tive procurement....

Specific v. general-specific time limita-
tion-July 16, 1956-for filing mustering-
out pay claims prescribed in act of July 16,
1952, as amended, 38 U. S. C. 1013, for mem-
bers of uniformed services who were dis-
charged or released prior to date of enact-
ment must, under established rules of stat-
utory construction, prevail over general
time limitation for filing claims against U.S.
in 31 U. S. C. 71a, and such specific time
limitation for previously discharged or re-
leased members may not be extended by
sec. 205 of Soldiers' and Sailors' Civil Re-
lief Act of 1940, 50 U. 8. C. App. 525..... 475
SUBSISTENCE:

Per diem:

Interruption of temporary duty for military
duty:

Civilian employee who was member of
Arkansas National Guard when it was
federalized pursuant to E. O. No.
10730 and who traveled between per-
manent civilian duty stations during
first part of day after which he was
placed in military furlough status and
departed for Little Rock for induction
is entitled to reimbursement for travel
performed between civilian stations... 655
Civilian employees who were on tem-
porary duty away from their perms-
nent station, which was also military
duty station for members of Arkansas
National Guard when it was federal-
ized pursuant to E. O. No. 10730, and
who continued to perform temporary
duty on or before date of actual indue-
tion are entitled to civilian per diem
and to travel expenses for authorized
travel in returning to their official
station.....

Meetings. (See Meetings, travel, etc.
expenses)

Military personnel:

Amendment or revocation of orders:
Amendatory orders which purport to
retroactively eliminate prohibition
against per diem to Navy officers and
enlisted men ordered to temporary
field duty in "Operation Deepfreeze"
on Antarctic Continent may not be
recognized to permit payment of per
diem in absence of showing that
assignment is not within mesning
of "other similar activities" in par.
4250-3 of Jt. Travel Regs, which pre-
cludes payment of per diem for field
exercises, maneuvers and other
similar activities. Modified by 37
Comp. Gen. 683...

655

120