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ment."

Mauger and addressen for the attention of said procurement officer, wherein it was said:

“Again I would like to point out, as we have done in previous letters, that our interpretation of your addendum was that we were not to include sales tax, and we did advise you that we did not include sales tax before the project was awarded to us, and it has not been the policy of this company as well as the policy of contractors offices to write statements on the bid as there is no place provided for same, and the addendum did not require, as we interpreted it, a written state

Moreover, even though it should be assumed for present purposes that the terms of the above-mentioned addendum to the invitation for bids here involved did not contemplate that the statement by a bidder “that if any tax is levied, the price bid will be increased by such an amount” would be in writing and incorporated in his bid—and such an assumption obviously is contrary to a reasonable interpretation of the language of the addendum-it is to be observed that there is nothing in the record tending to indicate that any oral statement to that effect was made to the procurement officer by your representative prior to the time of the acceptance of your bid. Nor is there anything to suggest that the procurement officer then had any reason to suppose that your representative prepared your bid without a knowledge of the exact contents of the addendum. Hence, it is clear that your bid was accepted on the basis that you were willing to bear the burden of the gross sales tax prescribed by the laws of West Virginia, if it should be levied in connection with the performance of the subject contracts, and absorb it in your estimated profit.

Furthermore, the representative in the affidavit dated May 28, 1943, of R. Paul Mauger with respect to his lack of knowledge as to the exact contents of the addendum does not furnish a sufficient basis for the allowance of the instant claim. The addendum was mailed to your home office at Columbus, Ohio, on May 2, 1941, and, according to the contents of your letter of February 18, 1942, it was received there on May 4, 1941–3 days before the submission of your bid. Thus it is apparent that the alleged lack of knowledge on the part of R. Paul Mauger as to the contents of the addendum at the time of the submission of your bid or at the time of the above-mentioned conference of May 12, 1941, was due, not to any fault on the part of the Government, but to the failure of your home office to forward the addendum to him or otherwise advise him with respect thereto.

It has been held in numerous decisions of the accounting officers of the Government that the formulation, preparation and submission of a bid for Government business is solely the responsbility of a bidder; that it is incumbent upon the bidder to submit his bid in conformity with the invitation for bids and in such substance as to protect himself from the consequences of error; that if, thereafter, it develops that a bidder through inadvertence, negligence, or otherwise has omitted from or included in his bid some provision to his detriment the consequence must be borne by him (19 Comp. Gen. 1021).

Also, it is an established rule that the rights and liabilities of the parties to a contract are limited by its terms and that where a contract contains an express stipulation as to the amount to be paid, such stipulation is conclusive on the parties and measures the amount of recovery for performance. Simpson v. United States (172 U. S. 372, 379); International Contracting Company v. Lamont (155 U. S. 303, 310).

Here there was nothing in your bid to suggest that the United States would be obligated to reimburse you for the amount of the West Virginia gross sales tax if you were required to pay such tax in connection with the performance of the subject contract. In fact, as previously pointed out, the procurement officer who accepted your bid in behalf of the Government was not advised previous to the acceptance that the bid was submitted on that basis, and since you were responsible for the formulation, preparation, and submission of your bid, it was the duty of the individual who prepared and submitted your bid to apprise himself as to all instructions which had been issued concerning such preparation and submission and the legal effect thereof. But he failed to do so and your bid quoted a pricewhich upon acceptance became the total contract price--without any provision for an increase in the amount thereof in the event you should be required to pay the State tax here involved. Consequently, your failure in this respect must be regarded as a unilateral mistake on your part due entirely to your own negligence and for which no relief may be granted. Ellicott Machine Company v. United States (44 C. Cls. 127); United States v. Conti (119 F. 2d. 652).

It is, of course, fundamental that no agent, officer, or representative of the Government is authorized to alter, modify, add to, or subtract from & Govern. ment contract in any way except it be in the interest of the Government. Pacific Hardware Co. v. United States (49 C. Cls. 327; 17 Comp. Gen. 452, 454). Nor is there any authority in any agent or officer of the Government to give away the money or property of the United States. Bausch & Lomb Optical Co. v. United States (78 C. Cls. 584, 607).

In view of the foregoing, the settlement of September 16, 1942, must be, and is, sustained. Respectfully,

LINDSAY C. WARREN, Comptroller General of the United States. O

LEO GOTTLIEB

FEBRUARY 27, 1945.-Committed to the Committee of the Whole House and

ordered to be printed

Mr. JENNINGS, from the Committee on Claims, submitted the

following

REPORT

[To accompany H. R. 259]

do pass.

The Committee on Claims, to whom was referred the bill (H. R. 259) for the relief of Leo Gottlieb, having considered the same, report favorably thereon without amendment and recommend that the bill

The purpose of the proposed legislation is to pay the sum of $5,709.50 to Leo Gottlieb, of Cedarhurst, N. Y., in full settlement of all claims against the United States for personal injuries, medical and hospital expenses incurred as a result of being struck by a United States Army truck on Hempstead Avenue, Elmont, N. Y., on May 29, 1943.

а

STATEMENT OF FACTS

It appears that on May 29, 1943, a United States Army car was proceeding east on Hempstead Avenue, near the entrance to the Belmont Park race track. There were two lanes of traffic on this street and a traffic policeman was directing traffic and had the two lanes of traffic stopped. The Army driver pulled out of line of traffic and proceeded to drive out of place and was on the wrong side of the street when the accident occurred. Mr. Gottlieb was three-quarters across the street when he was struck by the Army car.

Under the law of the State of New York when a situation like this exists, the pedestrian is not chargeable with contributory negligence where the party who injures him is in violation of the law. Here the Army driver was not in the proper lane of traffic and refused to stop when all other traffic had stopped at the entrance of the park. He was not only violating the command of the traffic policeman, but was violating the law of the State of New York.

Mr. Gottlieb received severe injuries from the accident. Pelvis: Marked comminuted fracture through the left ilium extending from the anterior superior spine downward and inward through the medial border of the pelvis, involving the ischium and extending into the acetabulum. One large outer fragment was displaced outward and downward. There was a gap between the upper and lower fragments due to inward and downward displacement of part of the body of the ischium. There were fractures through the ascending ramus of the left pubic bone where it joins the ramus of the ischium with some overriding. In fact, he had lacerations and body injuries all over his body, and is permanently injured.

The War Department is opposed to the enactment of this legislation due to contributory negligence in that Mr. Gottlieb was crossing the street other than at a regular crossing: Your committee disagrees

. with the War Department in view of the fact that the Army driver was not in his proper line of traffic and should not have pulled out of line and on the wrong side of the street. Therefore, your committee recommends that Mr. Gottlieb be compensated in the sum of $5,709.50, and the bill is so amended. Appended hereto is report of the War Department, together with other pertinent evidence.

WAR DEPARTMENT,

Washington, D. C., April 24, 1944. Hon. Dan R. McGEHEE, Chairman, Committee on Claims,

House of Representatives. DEAR MR. McGEHEE: The War Department is opposed to the enactment of H. R. 4046, Seventy-eighth Congress, which would authorize the Secretary of the Treasury to pay to Leo Gottlieb, of Cedarhurst, N. Y., the sum of $16,010.54, in full settlement of all claims against the United States for personal injuries and expenses as a result of being struck by a vehicle of the United States Army on Hempstead Avenue, Elmont, N. Y., on May 29, 1943.

On May 29, 1943, at about 12:55 p. m., an Ármy staff car operated by a noncommissioned officer on official busines, with a warrant officer as passenger, was slowly proceeding east on Hempstead Turnpike, Long Island, N. Y., past and to the left of two lines of automobiles which had been stopped to await a signal to turn left into the entrance to the Belmont Park race track. Leo Gottlieb, 57 years of age, of 376 Summit Avenue, Cedarhurst, Long Island, suddenly stepped from between two of the stopped cars and, failing to observe the approach of the Army vehicle, walked into the right front fender thereof and fell on the pavement. It appears that as a result of the accident Mr. Gottlieb sustained a comminuted fracture of the pelvic bones and a scalp laceration. On June 1, 1943, the Army driver made the following affidavit:

On May 29, 1943, at about 12:55 p. m. I was driving United States Government vehicle W-17851, a five-passenger Chevrolet sedan, east on Hempstead Turnpike near the entrance to the Belmont race track. To my right were two lanes of automobiles, both of which lanes of cars were stopped on account of a traffic jam. I was traveling from 4 to 8 miles per hour when suddenly a man stepped from between two of the stopped automobiles in the lane of traffic to my right directly into my right front fender. He then either stepped or fell back between the two parked cars.

"I waited until the man received first aid from a doctor who was nearby and filled out the proper accident reports and proceeded on my way."

On June 2, 1943, the warrant officer who was riding with the Army driver at the time of the accident, made the following affidavit:

"On May 29, 1943 I was sitting in the front of Government vehicle W-17851 next to the driver, Sgt.

We were driving east on Hempstead Turnpike near the entrance to the Belmont race track. I

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“There was a traffic jam and Sgt.

* pulled around to the left of the two lanes of traffic which were stopped. While proceeding very slowly, after we passed approximately the third vehicle, a man suddenly stepped from between the front of the third and the rear of the fourth vehicle into the path of our car. He was walking in a diagonal direction facing east. I yelled 'look out' to Sgt.

and he swerved to the left. The pedestrian continued walking into the right front fender of our car. He was thrown back and his head hit either the pavement or the front bumper of the third vehicle in the lane to the right. Sgt.

brought our car to a stop, after traveling about 8 feet. Our car did not run over the pedestrian, I immediately jumped out and rushed to the victim's aid. Sgt.

also ran back and helped me to carry the man to the right side of the road off the pavement. In the meantime the cars in the stopped lanes from which the man stepped had moved forward and were entering the race track.and we could not obtain the names of the occupants as witnesses. The two police officers directing the traffic did not see the accident and after we had carried the man over to safety, Sgt.

went forward and brought one of the police officers back with him.

“The victim of the accident was Leo Gottlieb of 376 Summit Avenue, Cedarhurst, Long Island. Mr. Hass, who was accompanying him at the time of the accident, admitted Mr. Gottlieb was in the fault because he did not look to see if there were any approaching cars before he stepped out."

The police report covering the accident bears the following notation:

“Vehicle No. 1 a Plymouth sedan staff courier car Reg. H. Q. 9, from Mitchel Field which was east-bound on west-bound lane. When injured person crossing street from south to north side stepped out from between a line of cars that was standing still waiting to make a left turn. First aid by Dr. Steward of Elmont.

Cause: Aided person crossing not at intersection. Responsibility: Aided person.”

No statement has been received by the War Department from Mr. Gottlieb concerning either the accident or the injuries sustained by him therein. In a letter dated July 10, 1943, it was requested that he submit to the Department a statement from his physician and the hospital describing his injuries and indicating the amount of the expenses incurred by him incident thereto. No reply has been received to that letter. A letter from Mr. Gottlieb's attorney, James I. Cuff, 99 John Street, New York, N. Y., dated July 13, 1943, reads as follows:

I have just received from the Nassau Hospital an abstract of the clinical report, which shows that he (Mr. Gottlieb] was admitted to the hospital on May 29, 1943, and that tentative diagnosis of the left femur and laceration of the scalp was made. X-rays were taken on May 29, 30, and 31, June 6 and 23, and July 3. The findings show the following condition:

“ 'May 29, 30, and 31. Pelvis: Markedly comminuted fracture through the left illium extending from the anterior superior spine downward and inward through the medial border of the pelvis, involving the ischium and extending into the acetabulum. One large outer fragment was displaced outward and downward. There was a gap between the upper and lower fragments due to inward and downward displacement of part of the body of the ischium. There were fractures through the ascending ramus of the left pubic bone where it joins the ramus of the ischium with some overriding. Fracture through the inferior part of the body of the left pubic bone.

'Reexamination after application of traction. Multiple fractures of the left illium and ischium. General alinement of fragments was much better. However, there was a widening of the hip joint apparently due to traction on the femur.

“ 'Chest: Examination made at the bedside showed some haziness of the right upper lobe. There was a zone of increased density in the left lower lobe just above the diaphragm. Findings may possibly represent atelectasis.

“June 6, 1943. Left hip: Comminuted fractures of pelvic bones as previously reported. Relative position of fragments essentially the same. Traction had pulled down the ischium slightly in relation to the horizontal ramus of the pubic bone. Joint space still considerably widened due to downward pull of the femur.'

“I am informed that Mr. Gottlieb will necessarily be confined to the hospital for a very long period of time and the prognosis is not very favorable.

“I should appreciate it if you will be good enough to advise me whether you wish to take the matter up with a view to making an adjustment, providing that is in accordance with the policy of the Department. Otherwise, the only thing left for Mr. Gottlieb to do will be to take steps to have an act passed to confer jurisdiction upon the Court of Claims to hear and determine his claim.

“You have written to Mr. Gottlieb and Mr. Haas for sworn statements as to the occurrence of the accident, and, at this time, I wish to advise you that they

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