letter from the State Tax Commission of West Virginia relative to the amount of taxes paid by you to that State to cover the period May 24 to November 30, 1941.

The affidavit of the said R. Paul Mauger, executed on May 28, 1943, reads, so far as here material, as follows:

"3. Affiant says that with the assistance of Mr. H. R. Anderson of the West Virginia Tractor & Equipment Co. he prepared the Mauger Construction Co. bid at the Lord Baltimore Hotel, Baltimore, Md., and that a photostatic copy of the recap bid sheet is hereto attached, marked ‘Exhibit A' and made a part hereof.

"4. Affiant says the last item, to wit: 'Sales tax, $8,000,' deducted from said bid, was deducted by this affiant after Mr. T. R. Kuhns of the United States Fidelity & Guaranty Co. informed this affiant that the Government had issued an addendum requesting the sales tax not be included in the bid. The addendum Mr. Kuhns referred to was the fourth paragraph of a letter issued by the Treasury Department dated May 2, 1941. The following is, a true copy:

"Tax: Bidder is not to include any sales tax or other tax in his bid. However, the statement may be made, that if any tax is levied, the price bid will be increased by such an amount."

"5. Affiant says that a copy of this letter was mailed to the Mauger Construction Co. at its home office at Columbus, Ohio, but this affiant did not receive said letter or see a copy thereof until his return home. The reason this occurred is as follows: Mr. Mauger left Columbus, Ohio, on Sunday, May 4, for Charleston, W. Va.; left Charleston on Monday, May 5, and arrived in Baltimore late Monday night. May 6 was spent estimating the job in Mr. Mauger's room at the Lord Baltimore Hotel. The letter reached Mr. Mauger's office after he had left the same and he had no knowledge of said letter until his return to Columbus. "6. Affiant says Mr. T. R. Kuhns came to his room at the hotel on the morning of May 12 at approximately 10 a. m., bringing with him a bid bond that was to be used, and was used, as the bond submitted with the Mauger Construction Co. bid, and it was at this time Mr. Kuhns advised Mr. H. R. Anderson and this affiant that the sales tax was not to be included, and due to the lateness of the hour it was impossible for this affiant to go to the Work Projects Administration office and personally check the addendum; but relying upon Mr. Kuhn's information this affiant deducted the sales tax from the bid.

"7. Affiant says the Mauger Construction Co. bid was filed and on May 12, 1941, at 11 a. m., Mr. Mauger was in Mr. Williar's office relative to said bid. The following gentlemen were also present at said conference: H. O. Grimes, procurement officer; C. F. Bornefeld, director or operations; E. F. Hovermill, area manager; J. H. Seibert, assistant area manager; and H. R. Anderson, sales manager of the West Virginia Tractor & Equipment Co., Charleston, W. Va. And during that conference Mr. Mauger informed the gentlemen present that the Mauger Construction Co. bid of $373,910 did not include the gross sales tax that might possibly be levied by the State of West Virginia. Mr. Grimes thereupon stated that the sales tax would not be levied by the State of West Virginia-and all of this conversation took place prior to the acceptance of the bid.

"Affiant says that the Mauger Construction Co. was compelled to and did pay a tax to the State of West Virginia by virtue of this contract, on the dates and in the amounts as follows: Check No. 438, dated October 31, 1941, $3,577.04; check No. 749, dated December 29, 1941, $3,746.79."

Also, it appears that the references made in the above-quoted affidavit to H. R. Anderson and T. Ray Kuhns are supported by the averments contained in the affidavits executed by them and that H. S. Grimes, the procurement officer who acted as the representative of Government in accepting your bid, has reported that R. Paul Mauger stated at a conference held on May 12, 1941, that the bid submitted by you did not include the gross sales tax that might possibly be levied by the State of West Virginia. But there is no corroboration on the part of said procurement officer of the statement alleged to have been made by him at that conference to the effect that no sales tax would be levied by the State of West Virginia in connection with the performance of the subject contract. And, aside from the unimportance from a legal standpoint of the question as to whether such remark was, in fact, made, it is apparent that any inference that the failure on your part to stipulate for the payment by the United States of an amount representing the tax in addition to the price quoted in your bid was due to the alleged remark of the procurement officer obviously would be inconsistent with the statement contained in your letter of February 27, 1942, signed by R. Paul

Mauger and addressed 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 statement."

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 a 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. Čls. 584, 607).

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

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]

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 do pass.

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.

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.

Hon. DAN R. McGEHEE,

Chairman, Committee on Claims,

WAR DEPARTMENT, Washington, D. C., April 24, 1944.

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. /