act of March 4, 1925, 43 Stat. 1302, 1303. In the absence thereof payment under the converted policy should be made only to the duly appointed administrator of the estate of the insured.

(A-21627)

ARCHITECT OF THE CAPITOL-OPEN-MARKET PURCHASES

The provision in the act of May 13, 1926, 44 Stat. 547, that purchases of supplies and equipment for all branches under the Architect of the Capitol may be made in open market without compliance with sections 3709 and 3744 of the Revised Statutes, in the manner common among business men, when the aggregate amount of the purchase or the service does not exceed $200 in any instance, in no way modifies or repeals the act of June 17, 1910, 36 Stat. 531.

The authority granted the Architect of the Capitol in the act of February 23, 1927, 44 Stat. 1156, to make expenditures under the appropriations for Capitol buildings and grounds, without reference to section 4 of the act of June 17, 1910, 36 Stat. 531, does not apply to expenditures made by said officer under other appropriations, particularly when, as in the case of the District of Columbia appropriations, provision is made that purchases thereunder shall be in accordance with schedules of the General Supply Committee.

Decision by Comptroller General McCarl, February 23, 1928:

J. B. Callahan, chief disbursing clerk, Department of the Interior, requested February 6, 1928, review of the action of this office under date of January 30, 1928, in disallowing credit in his accounts for $1.45 being the difference between the amount paid Hugh Reilly & Co. on voucher No. 40, October, 1927, for a waxing brush and 5 pounds of wax, and the amount at which said articles could have been purchased under the general supply contract.

The purchase was made upon the order of the Architect of the Capitol, as a charge under the appropriation "Repairs and improvements, Courthouse, D. C., 1928," as made in the act of March 2, 1927, 44 Stat. 1322, and hereinafter quoted.

The act of May 13, 1926, 44 Stat. 547, making appropriations for the legislative branch of the Government, under the title "Architect of the Capitol," provides:

Hereafter the purchase of supplies and equipment and the procurement of services for all branches under the Architect of the Capitol may be made in the open market without compliance with sections 3709 and 3744 of the Revised Statutes of the United States in the manner common among business men, when the aggregate amount of the purchase or the service does not exceed $200 in any instance.

The act of February 23, 1927, 44 Stat. 1156, making appropriations for the legislative branch of the Government under the subtitle, "Capitol buildings and grounds," for the fiscal year ending June 30, 1928, provides:

The foregoing appropriations under the Architect of the Capitol may be expended without reference to section 4 of the act approved June 17, 1910, concerning purchases for executive departments.

The act of March 2, 1927, 44 Stat. 1322, making appropriations for the government of the District of Columbia and other activities chargeable in whole or in part against the revenues of the District, for the fiscal year ending June 30, 1928, provides:

For repairs and improvements to the courthouse, including repair and maintenance of the mechanical equipment, and for labor and material and every item incident thereto, $2,500, to be expended under the direction of the Architect of the Capitol.

The same act further provides on page 1333, as follows:

SEC. 6. That the commissioners and other responsible officials, in expending appropriations contained in this act, so far as possible shall purchase material, supplies, including food supplies and equipment, when needed and funds are available, in accordance with the regulations and schedules of the General Supply Committee or from the various services of the Government of the United States possessing material, supplies, passenger-carrying and other motor vehicles, and equipment no longer required because of the cessation of war activities. *

The office of Architect of the Capitol falls under the legislative branch of the Government; and while the act of March 13, 1926, supra, provides that supplies and equipment for all branches under the Architect of the Capitol may be purchased in open market without compliance with sections 3709 and 3744, Revised Statutes, it was held in a decision of this office dated December 14, 1927, A-20734, that the provision in the annual appropriation act for the Interior Department for the fiscal year 1926, 43 Stat. 1143, that purchases of supplies and equipment for that department may be made in open market without compliance with sections 3709 and 3744, Revised Statutes, in the manner common among business men when the aggregate amount of the purchase or service does not exceed $100 in any instance in no way modifies or repeals the act of June 17, 1910, 36 Stat. 531.

The authority granted the Architect of the Capitol in the legislative act of February 23, 1927, supra, to make expenditures under the appropriations for Capitol buildings and grounds, without reference to section 4 of the act approved June 17, 1910, supra, does not apply to expenditures made by him under other appropriations, particularly where, as in the case of the District of Columbia appropriations, provision is specifically made that purchases thereunder shall be in accordance with schedules of the General Supply Committee. Consequently the purchases made in this instance should have been made under the general supply contracts. However, in view of the apparent confusion arising from the different provisions of statutes hereinbefore quoted as to the architect's authority in this connection, credit will be allowed for these two items, but hereafter purchases made under the appropriation "Repairs and improvements, Courthouse, D. C., 1928," must be made through the General Supply Committee.

6752°-28- -33

Upon review credit will be allowed in the disbursing officers account in the sum of $1.45.

(A-21689)

ADVERTISING-BIDS-MISTAKE-WITHDRAWAL

Where bids were requested, for the furnishing of a quantity of long-time burning kerosene oil, and the specifications provided that the oil must be packed in special export cases, with a further provision that "proposals may be withdrawn only on written request received by the officer holding them prior to the time fixed for opening same," a bidder may not withdraw its bid after the bids have been opened, but before award is made, on the ground of alleged mistake in that, in submitting its bid, it figured the price on the basis of commercial export cans and cases instead of special export cans and cases as called for in the specifications.

Comptroller General McCarl to the Secretary of Commerce, February 23, 1928:

I have your letter of February 10, 1928, requesting decision as to whether the Tide Water Oil Sales Corporation may be allowed to withdraw its bid submitted in response to circular advertisement No. 26011, issued by the Superintendent of Lighthouses, Staten Island, N. Y., January 11, 1928, on the ground of alleged mistake in the submission thereof.

It appears that under date of January 11, 1928, the Superintendent of Lighthouse, Staten Island, N. Y., third district, advertised for bids for the furnishing of a quantity of long-time burning kerosene oil in special export cases to be strictly in accordance with certain specifications attached to and made a part of the said advertisement, delivery to be made as follows:

fob and secured on cars or other carrier at place of mfg.

Oil must not be loaded or shipped until contractor receives complete shipping instructions and Government bill of lading.

Bids were to be opened at 2 p. m., January 26, 1928. Four bids were received as follows: Explosive Chemical Co., $3,827.20; Tide Water Oil Sales Corporation, $2,900.80; West India Oil Co., $3,136; Atlantic Refining Co., $3,750.

It appears that after the bids had been opened the Superintendent of Lighthouses addressed a letter to the Tide Water Oil Sales Corporation, under date of January 26, 1928, as follows:

1. At time of opening of proposal noted above calling for 16,000 gallons long-time burning kerosene oil in special export cases upon which you quoted a price of .1813¢ per gallon, your representative stated that he assumed your quotation covered delivery f. o. b. Bayonne, N. J. Information is requested as to whether the quotation as submitted by you would cover delivery f. o. b. steamer, New York Harbor, as this kerosene is intended for the Superintendent of Lighthouses, San Juan, Porto Rico, and will probably leave New York via the New York and Porto Rico Steamship Company, Pier 35 Atlantic Basin, Brooklyn.

2. Your prompt attention in this matter would be appreciated.

In reply to said letter the Tide Water Oil Sales Corporation, under date of January 28, 1928, advised the Superintendent of Lighthouses as follows:

Replying to yours of the 26th you are advised that we can make delivery of the 16,000 gallons of long-time burning kerosene oil in special export cases at .1813 f. o. b. steamer New York Harbor, as you state the steamer will probably leave from Pier 35 Atlantic Basin, Brooklyn.

Thereafter, or on February 2, 1928, said Tide Water Oil Sales Corporation requested that its bid be disregarded in making award of the contract for the reason that in submitting its bid it had made a mistake in that it had figured the price on the basis of commercial export cans and cases instead of on special export cans and cases as called for in the specifications.

The advertisement provided, among other things, that:

A guaranty is required with this proposal, and must be in the form of a certified check for 10% of the bid payable to the Commissioner of Lighthouses. Successful bidder will be required to submit an additional certified check for 15% of bid. Performance bond will not be required with this contract, as checks of successful bidder will be held as security for the satisfactory completion of the contract.

Paragraph 4 of the instructions to bidders provides:

Withdrawal or failure to bid.-If a prospective bidder is not prepared to submit a proposal, the fact should be so stated over the firm's signature and the blank proposal returned, so that it may be known that the matter received consideration. Proposals may be withdrawn only on written requests received by the officer holding them prior to the time fixed for opening the same. If the bidder to whom an award is made fails or refuses to proceed with the delivery of the articles, supplies, or materials as herein provided, the contract will be annulled, and an award may be made to the next most desirable bidder in the opinion of the Government.

It is to be noted that both the request for bids and accompanying proposals stipulated in plain terms "long time burning kerosene oil in special export cases." The specifications also set forth in detail. the requirements with reference to the packing of the oil in the particular export cases. It is also to be observed that the bidder does not seek to modify or reform its bid to correspond with a price or prices that it might have intended to submit on the item in question but asks that its bid be disregarded in making award of the contract.

Proposals that have been submitted in response to an advertisement for bids may not be withdrawn after they have been opened, even before award is made, and the bidder is bound to accept the award. 24 Comp. Dec. 534; 6 Comp. Gen. 504; decision of June 4, 1927, A-18696; 21 Op. Atty. Gen. 56. The only exception to this rule is where there is conclusive evidence of a mutual mistake or where there was a mistake by the bidder that is so apparent that the contracting officer must be presumed to have known that the bid was not as intended by the bidder. The mere statement by a bidder, after the bids have been opened, that a mistake had been made in the submission of its bid is not sufficient justification to allow with

drawal thereof. Especially is this true in this case in view of the provisions of the instructions to bidders, paragraph 4, quoted, supra. The bid was plain, there was nothing in the bid itself or when compared with the other bids received to put the contracting officer on notice that a mistake had been made, and the circumstances now appearing disclose that such mistake as may have been made was due solely to a lack of proper care on the part of the said company. Accordingly, it must be held that there is no authority for allowing the Tide Water Oil Sales Corporation to withdraw its bid and the contract may not be awarded to the next lowest bidder. In event of the refusal of the said Tide Water Oil Sales Corporation to accept award of the contract, any increased costs incurred by the United States in the procurement of said oil, packed in special export cases, should be charged to the said company and it would be proper to apply the amount of the certified checks deposited by the said company in accordance with the requirements of the advertisement quoted, supra, in liquidation of any excess costs over and above the bid price occasioned by its default.

(A-14666)

TRANSPORTATION-PROVOST GUARD-NATIONAL GUARD

Transportation of a provost guard from and to the camp site of a National Guard encampment for duty at a place near the camp for the maintenance of order among members of the National Guard while not on duty, is not authorized at Government expense.

Comptroller General McCarl to J. R. Lusby, United States property and disbursing officer, District of Columbia National Guard, February 24, 1928: There has been received your letter of February 7, 1928, requesting decision whether you are authorized to make payment on a voucher transmitted therewith in favor of the Norfolk Railroad Co. in the amount of $22.44 for 17 special-rate tickets at $1.32 each, obtained without transportation request, August 27, 1925, for use of the provost guard maintained at Virginia Beach proper during an encampment, August 16 to 30, 1925, attended by the Twenty-ninth Division Staff, State Staff Corps and Departments, One hundred and twenty-first Engineers, and Twenty-ninth Police Company, District of Columbia National Guard.

Authority for the payment of this voucher was denied in the decision to you of June 22, 1926, A-14666, for the reason that the evidence submitted was not sufficient to warrant payment. There is now attached to the voucher a statement, dated Washington, D. C., January 24, 1928, by Maj. Edward H. Grove, Infantry, N. G. D. C., as follows:

The seventeen tickets furnished by the Norfolk and Southern Railroad, each of which entitled the holder to fifteen round trips, were purchased for, and