A-12458, FEBRUARY 5, 1926, 5 COMP. GEN. 586

A-12458: Feb 5, 1926

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WHEN THEY ARE REQUIRED TO WORK IN MUD AND WATER IN THE CONSTRUCTION OF SEA WALLS AND LEVEES ON THE ANACOSTIA RIVER. SUCH WORK NOT BEING CONFINED TO PARTICULAR LABORERS BUT BEING DONE BY THOSE WHO ARE AVAILABLE AT THE TIME AND PLACE. ARE NOT PERSONAL FURNISHINGS SUCH AS THE EMPLOYEES MAY REASONABLY BE REQUIRED TO FURNISH THEMSELVES. THE SPLITTING OF AN AWARD BETWEEN THE LOWEST AND A HIGHER BIDDER SIMPLY BECAUSE THE PARTICULAR ARTICLE FURNISHED BY THE HIGHER BIDDER HAS BEEN USED BEFORE AND FOUND SATISFACTORY IS NOT AUTHORIZED. WHEN THERE IS NO KNOWN OBJECTION TO THE ARTICLE AS OFFERED BY THE LOWEST BIDDER AND IT MEETS THE SPECIFICATIONS IN THE INVITATION FOR PROPOSALS. CREDIT FOR SUCH A PURCHASE IS LIMITED IN THE DISBURSING OFFICER'S ACCOUNTS TO THE AMOUNT OF THE LOWEST BID PRICE.

A-12458, FEBRUARY 5, 1926, 5 COMP. GEN. 586

PERSONAL FURNISHINGS, RUBBER BOOTS - ADVERTISING, ACCEPTANCE OF OTHER THAN LOWEST BID RUBBER BOOTS FOR USE OF TRANSIENT LABORERS, HIRED BY THE ENGINEER CORPS OF THE ARMY, WHEN THEY ARE REQUIRED TO WORK IN MUD AND WATER IN THE CONSTRUCTION OF SEA WALLS AND LEVEES ON THE ANACOSTIA RIVER, SUCH WORK NOT BEING CONFINED TO PARTICULAR LABORERS BUT BEING DONE BY THOSE WHO ARE AVAILABLE AT THE TIME AND PLACE, ARE NOT PERSONAL FURNISHINGS SUCH AS THE EMPLOYEES MAY REASONABLY BE REQUIRED TO FURNISH THEMSELVES. THE SPLITTING OF AN AWARD BETWEEN THE LOWEST AND A HIGHER BIDDER SIMPLY BECAUSE THE PARTICULAR ARTICLE FURNISHED BY THE HIGHER BIDDER HAS BEEN USED BEFORE AND FOUND SATISFACTORY IS NOT AUTHORIZED, WHEN THERE IS NO KNOWN OBJECTION TO THE ARTICLE AS OFFERED BY THE LOWEST BIDDER AND IT MEETS THE SPECIFICATIONS IN THE INVITATION FOR PROPOSALS. CREDIT FOR SUCH A PURCHASE IS LIMITED IN THE DISBURSING OFFICER'S ACCOUNTS TO THE AMOUNT OF THE LOWEST BID PRICE.

DECISION BY ACTING COMPTROLLER GENERAL GINN, FEBRUARY 5, 1926:

MAJ. J. A. O-CONNOR, CORPS OF ENGINEERS, UNITED STATES ARMY, BY LETTER OF DECEMBER 15, 1925, REQUESTED REVIEW OF SETTLEMENT C-239-D.C. OF OCTOBER 26, 1925, DISALLOWING IN HIS APRIL, 1925, ACCOUNTS CREDIT FOR PAYMENTS OF $46 AND $103.29, RESPECTIVELY, TO THE UNITED STATES RUBBER CO. AND THE POTOMAC RUBBER CO. (INC.) FOR RUBBER HIP BOOTS PURCHASED FOR ISSUE TO EMPLOYEES OF THE ENGINEER DEPARTMENT, UNITED STATES ARMY.

THE APPROPRIATION PROPOSED TO BE CHARGED IS THAT FOR THE RECLAMATION OF THE ANACOSTIA RIVER FLATS, D.C., ACT OF JUNE 7, 1924, 43 STAT. 572:

FOR CONTINUING THE RECLAMATION AND DEVELOPMENT OF ANACOSTIA PARK, IN ACCORDANCE WITH THE REVISED PLAN AS SET FORTH IN SENATE DOCUMENT NUMBERED 37, SIXTY-EIGHTH CONGRESS, FIRST SESSION, $150,000, OF WHICH AMOUNT $125,000 SHALL BE AVAILABLE FOR EXPENDITURE BELOW BENNING BRIDGE AND NOT MORE THAN $25,000 MAY BE EXPENDED ABOVE BENNING BRIDGE IN THE ACQUIREMENT OF NECESSARY LAND.

AS THIS APPROPRIATION DOES NOT SPECIFICALLY PROVIDE FOR PERSONAL FURNISHINGS THERE ARE, AS STATED IN 3 COMP. GEN. 433, TWO MAIN QUESTIONS FOR CONSIDERATION. FIRST, CAN THE OBJECT FOR WHICH THE APPROPRIATION INVOLVED WAS MADE BE ACCOMPLISHED AS EXPEDITIOUSLY AND SATISFACTORILY FROM THE GOVERNMENT'S STANDPOINT WITHOUT SUCH EQUIPMENT? SECOND, IS THE EQUIPMENT SUCH AS THE EMPLOYEE REASONABLY COULD BE REQUIRED TO FURNISH AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE HIM TO PERFORM THE REGULAR DUTIES OF THE POSITION TO WHICH HE WAS APPOINTED OR FOR WHICH HIS SERVICES WERE ENGAGED?

THE FOLLOWING EXPLANATION OF THE NECESSITY FOR THE BOOTS IS SUBMITTED IN SUPPORT OF THE REQUEST FOR REVIEW:

3. THE PURPOSE TO WHICH THE BOOTS WERE APPLIED WAS THE CONSTRUCTION BY HIRED LABOR WITH GOVERNMENT PLANT OF SEA WALLS AND LEVEES ON THE ANACOSTIA RIVER, AND THE FILLING IN OF THE MARSHES ON THE BORDERS THEREOF AS PART OF THE PROJECT FOR THE RECLAMATION OF THE ANACOSTIA RIVER FLATS. IN THE PROSECUTION OF THESE OPERATIONS PART OF THE WORK MUST BE PERFORMED BY LABORERS WORKING IN MUD AND WATER. MEN CAN NOT BE OBTAINED IN THIS LOCALITY WHO WILL WORK IN MUD AND WATER WITHOUT RUBBER BOOTS. THE OBJECT FOR WHICH THE APPROPRIATION INVOLVED WAS MADE COULD THEREFORE NOT BE ACCOMPLISHED AS EXPEDITIOUSLY AND SATISFACTORILY FROM THE GOVERNMENT STANDPOINT WITHOUT RUBBER BOOTS. MEN TO WHOM THE BOOTS ARE FURNISHED ARE PRINCIPALLY WORKMEN PERFORMING ROUGH LABOR WORK SUCH AS LOADING AND UNLOADING MATERIALS, EXCAVATING EARTH, MIXING, PLACING, AND TAMPING CONCRETE, LAYING STONE, ETC. THEY ARE ASSIGNED TO DIFFERENT DUTIES FROM DAY TO DAY DEPENDENT ON THE PROGRESS AND STATE OF ADVANCEMENT OF THE WORK, THE GREATER PART OF THEIR WORK BEING IN THE DRY AND ONLY OCCASIONALLY IN MUD AND WATER. THE WORK OF THIS CLASS OF EMPLOYEES IS FREQUENTLY INTERMITTENT AND MAY LAST FROM A FEW DAYS TO A FEW WEEKS AND THE CLASS OF WORKMEN OBTAINABLE FOR THIS KIND OF WORK IS LARGELY OF THE "FLOATING" VARIETY, WHO COME ON A JOB WITHOUT FUNDS AND REMAIN BUT A SHORT TIME. A RULE THEY HAVE BEEN PREVIOUSLY IN THE EMPLOYMENT OF CONTRACTORS IN BUILDING CONSTRUCTION, FOUNDATION WORK, TRENCH DIGGING, RIVER WORK, ETC., ON WHICH WORK RUBBER BOOTS ARE INVARIABLY FURNISHED WORKMEN WHEN WORKING IN MUD AND WATER. IT WOULD NOT PAY SUCH MEN TO PROVIDE THEMSELVES WITH RUBBER BOOTS FOR THE RELATIVELY SMALL AMOUNT OF WET WORK THEY HAVE TO DO, AND THE RELATIVELY SHORT PERIODS OF EMPLOYMENT THEY MAY EXPECT AND THEY WILL NOT DO SO. IN THIS DISTRICT LABOR WORK IS ORDINARILY PLENTIFUL AND IT WOULD BE CHEAPER FOR THESE MEN TO TAKE OTHER JOBS THAN TO PROVIDE THEMSELVES WITH BOOTS. UNDER THESE CONDITIONS THE EMPLOYEE COULD NOT REASONABLY BE REQUIRED TO FURNISH BOOTS AS PART OF THE PERSONAL EQUIPMENT NECESSARY TO ENABLE HIM TO PERFORM THE REGULAR DUTIES OF THE POSITION TO WHICH APPOINTED OR FOR WHICH HIS SERVICES WERE ENGAGED. THE GOVERNMENT COULD NOT OBTAIN THE SERVICE WITHOUT FURNISHING THE BOOTS. THE BOOTS ARE NOT ISSUED FOR INDIVIDUAL USE OF PARTICULAR EMPLOYEES, BUT ARE HELD IN STOCK AND ISSUED WITH TOOLS FROM TIME TO TIME TO DIFFERENT WORKMEN, WHO AT THE TIME OF ISSUE ARE REQUIRED TO WORK IN MUD AND WATER, AND ARE COLLECTED WITH TOOLS EACH NIGHT AND RETURNED TO STOCK. THE EXPERIENCE OF THIS OFFICE HAS BEEN THAT IT IS PRACTICALLY IMPOSSIBLE TO OBTAIN LABORERS FOR WORK IN MUD AND WATER WITHOUT FURNISHING THEM WITH RUBBER BOOTS WHILE SO EMPLOYED. THAT PRACTICE HAS BEEN FOLLOWED IN THIS DISTRICT FOR MANY YEARS AND IS THE ORDINARY, CUSTOMARY, AND USUAL PRACTICE OF ALL EXTENSIVE EMPLOYERS OF LABOR IN THIS LOCALITY. THE FURNISHING OF RUBBER BOOTS UNDER THE CONDITIONS STATED IS A PRACTICAL NECESSITY. THE WORK COULD NOT BE CARRIED ON OTHERWISE EXCEPT AT A COST IN INCREASED WAGES FAR IN EXCESS OF THE COST OF THE BOOTS, AND WITH MUCH ATTENDANT DELAY AND INCONVENIENCE.

THE SHOWING MADE BRINGS THE PURCHASES IN THIS CASE WITHIN THE RULE LAID DOWN IN 3 COMP. GEN. 433, AND CREDIT THEREFOR MIGHT BE ALLOWED EXCEPT FOR THE ADDITIONAL OBJECTION HEREAFTER NOTED.

THE VOUCHER FOR THE PAYMENT TO THE POTOMAC RUBBER CO. (INC.), IS NOTED "AWARD NOT MADE TO THE LOWEST BIDDER.' FROM A SCHEDULE OF BIDS ATTACHED TO THE VOUCHER IT APPEARS THAT THREE BIDS WERE RECEIVED, THE LOWEST BEING THAT OF THE UNITED STATES RUBBER CO. AT $4.60 PER PAIR. BIDS WERE ALSO RECEIVED FROM WILLIAM HAHN AND CO. AT $5.25 AND $6 PER PAIR, THE BID OF THE POTOMAC RUBBER CO. (INC.) BEING $5.27 PER PAIR. INDORSED ON THE SCHEDULE OF BIDS IS THE FOLLOWING:

ORDER 10 PRS. FROM U.S. RUBBER CO. NO EXPERIENCE WITH THESE BOOTS. WILL USE AS A TRIAL ORDER.

ORDER 20 PRS. FROM POTOMAC RUBBER CO. THIS BRAND AND QUALITY HAVE BEEN USED AND PROVED SATISFACTORY.

THERE IS NO AUTHORITY TO SPLIT AN AWARD BETWEEN TWO BIDDERS IN THIS MANNER. 4 COMP. GEN. 880. NOR IS THE EXPLANATION THAT THE BOOTS TO BE FURNISHED BY THE POTOMAC RUBBER CO. (INC.) HAD BEEN USED AND FOUND SATISFACTORY SUFFICIENT TO WARRANT REJECTING THE LOWEST BID AS TO A PORTION OF THE AWARD IN THE ABSENCE OF EVIDENCE THAT THE BOOTS TO BE FURNISHED ON THE LOWEST BID WERE NOT UP TO THE SPECIFICATIONS. UNDER THE CIRCUMSTANCES, THE CONTRACTING OFFICER WAS WITHOUT AUTHORITY TO OBLIGATE THE GOVERNMENT TO PAY OTHER THAN THE PRICE STIPULATED IN THE LOWEST BID AND CREDIT COULD NOT BE ALLOWED FOR PAYMENTS IN EXCESS OF THAT PRICE--- I.E., $4.60 PER PAIR, OR $92 FOR THE 20 PAIRS. 5 COMP. GEN. 124.

UPON REVIEW, THERE IS CERTIFIED FOR CREDIT IN THE FISCAL OFFICER'S ACCOUNTS, $138 ($46 PLUS $92).