A-12660, JANUARY 28, 1926, 5 COMP. GEN. 546

A-12660: Jan 28, 1926

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ADVERTISING - ACCEPTANCE OF OTHER THAN THE LOWEST BID THE ACCEPTANCE OF OTHER THAN THE LOWEST BID IS NOT AUTHORIZED SIMPLY BECAUSE IT IS STATED THAT A CERTAIN MAKE OF INSTRUMENT IS UNKNOWN AND THAT THERE IS A POSSIBILITY OF ITS BECOMING UNSERVICEABLE. WHERE ARTICLES OFFERED BY A BIDDER IN RESPONSE TO PROPOSALS ARE IN ACCORDANCE WITH THE SPECIFICATIONS. THEY ARE TO BE CONSIDERED AS MEETING THE REQUIREMENTS OF THE SERVICE AND THE LOWEST BID. 1926: I HAVE YOUR LETTER OF JANUARY 11. AS FOLLOWS: INCLOSED IS A COPY OF PROPOSAL SENT OUT REQUESTING PRICES FOR TWO THEODOLITES BUILT IN ACCORDANCE WITH ATTACHED SPECIFICATIONS. THE FOLLOWING IS A LIST OF BIDS RECEIVED: GUSTAVE HEYDE. PERMISSION IS REQUESTED TO ACCEPT THE BID OF OTTO FENNEL SOHNE AT $720.00 WITH DELIVERY WITHIN SIXTY DAYS.

A-12660, JANUARY 28, 1926, 5 COMP. GEN. 546

ADVERTISING - ACCEPTANCE OF OTHER THAN THE LOWEST BID THE ACCEPTANCE OF OTHER THAN THE LOWEST BID IS NOT AUTHORIZED SIMPLY BECAUSE IT IS STATED THAT A CERTAIN MAKE OF INSTRUMENT IS UNKNOWN AND THAT THERE IS A POSSIBILITY OF ITS BECOMING UNSERVICEABLE, ETC., IF PURCHASED. SUCH AN ASSERTION, IN THE ABSENCE OF ANY KNOWN FACT AS TO THE QUALITY, ETC., WOULD INDICATE ONLY A PREFERENCE FOR A PARTICULAR INSTRUMENT TO THE EXCLUSION OF ALL OTHERS OF EQUAL QUALITY. WHERE ARTICLES OFFERED BY A BIDDER IN RESPONSE TO PROPOSALS ARE IN ACCORDANCE WITH THE SPECIFICATIONS, THEY ARE TO BE CONSIDERED AS MEETING THE REQUIREMENTS OF THE SERVICE AND THE LOWEST BID, ALL CONDITIONS CONSIDERED, SHOULD BE ACCEPTED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JANUARY 28, 1926:

I HAVE YOUR LETTER OF JANUARY 11, 1926, AS FOLLOWS:

INCLOSED IS A COPY OF PROPOSAL SENT OUT REQUESTING PRICES FOR TWO THEODOLITES BUILT IN ACCORDANCE WITH ATTACHED SPECIFICATIONS. THE FOLLOWING IS A LIST OF BIDS RECEIVED:

GUSTAVE HEYDE, $710.00, DELIVERY 90 DAYS.

OTTO FENNEL SOHNE, $720.00, DELIVERY 60 DAYS.

MAX HILDEBRAND, $954.00, DELIVERY 90 DAYS.

PERMISSION IS REQUESTED TO ACCEPT THE BID OF OTTO FENNEL SOHNE AT $720.00 WITH DELIVERY WITHIN SIXTY DAYS.

THESE INSTRUMENTS ARE FOR THE COAST AND GEODETIC SURVEY AND THEY ARE GREATLY DESIRED FOR USE DURING THE COMING FIELD SEASON. WHILE IT IS THOUGHT THAT THE EARLIER DELIVERY OF THE FENNEL INSTRUMENT WILL MORE THAN OFFSET THE $10.00 DIFFERENCE BETWEEN THE TWO LOWER BIDS, THE TIME ELEMENT IS NOT THE PRINCIPAL REASON FOR DESIRING THESE PARTICULAR THEODOLITES. THE COAST AND GEODETIC SURVEY HAD TWO SIMILAR INSTRUMENTS IN USE IN THE FIELD DURING ALL OF LAST SUMMER AND THEY WERE FOUND TO BE FAR SUPERIOR TO ANY INSTRUMENTS OF THE SAME TYPE THAT THE BUREAU HAS LEARNED OF OR HAD EXPERIENCE WITH FOR YEARS. THE INSTRUMENTS MADE BY MR. HEYDE ARE UNKNOWN HERE AND SHOULD THEY BE ORDERED AT THIS TIME THERE WOULD BE THE POSSIBILITY OF THEIR BECOMING UNSERVICEABLE IN THE MIDDLE OF THE FIELD SEASON, CAUSING A SERIOUS DELAY AND COSTING FAR MORE IN OVERHEAD COSTS OF A PARTY IN THE FIELD WITHOUT PROPER INSTRUMENTAL EQUIPMENT THAN THE SMALL DIFFERENCE IN PRICE. IT IS MUCH PREFERRED TO OBTAIN THE TRIED ARTICLE THAN ONE WHICH IS UNKNOWN, AND ON THIS GROUND, AS WELL AS THE DIFFERENCE IN DELIVERY DATES, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THE BID OF OTTO FENNEL SOHNE AT $720.00 MAY BE ACCEPTED.

THE PURPOSE OF THE STATUTES REQUIRING COMPETITION IS PRIMARILY TO GIVE THE UNITED STATES THE ADVANTAGE OF THE LOWEST AVAILABLE PRICE FOR THE MATERIAL OR THE SERVICE DESIRED AND PRESUPPOSES THE ACCEPTANCE OF THE LOWEST BID CONFORMING TO THE STIPULATED CONDITIONS. THERE MAY BE REASONS IN PARTICULAR INSTANCES WHY ACCEPTANCE OF THE LOWEST BID IS NOT IN THE INTEREST OF THE GOVERNMENT. HOWEVER, A HIGHER BID MAY NOT PROPERLY BE ACCEPTED AND HIGHER COST BE THUS PAID UNLESS THE REASONS FOR THE REJECTION OF A LOWER BID ARE OF SUCH MATERIAL CHARACTER AS TO FULLY WARRANT SUCH ACTION AS IN THE PUBLIC INTEREST. COMPETITIVE BIDDERS AS WELL AS THE PUBLIC IN GENERAL ARE CONCERNED IN THE ACCEPTANCE OF THE LOWEST BID AND IF IT APPEARS THAT THE REJECTION IS UPON INSUFFICIENT FACTS, THERE ARISES A PROPER QUESTION FOR THE CONSIDERATION OF THIS OFFICE OF THE ADMINISTRATIVE ACTION IN ACCEPTING THE HIGHER BID. 5 COMP. GEN. 330.

IN THE ABSENCE OF ANY SPECIFIC KNOWLEDGE AS TO THE QUALITY, ETC., OF THE INSTRUMENTS OFFERED AT THE LOWER BID, THERE WOULD APPEAR TO BE NO JUSTIFICATION FOR AN ASSUMPTION THAT THERE IS A POSSIBILITY THAT THEY WILL BECOME UNSERVICEABLE IN THE MIDDLE OF A FIELD SEASON. SUCH AN ASSUMPTION UPON THE FACTS APPEARING WOULD INDICATE THAT THE DESIRE TO ACCEPT OTHER THAN THE LOWEST BID IS BASED SOLELY ON A PREFERENCE FOR A PARTICULAR INSTRUMENT TO THE EXCLUSION OF ALL OTHERS OF EQUAL QUALITY. IF THE INSTRUMENTS OFFERED BY ANY BIDDER ARE IN ACCORDANCE WITH THE SPECIFICATIONS, IT MUST BE ASSUMED, IN THE ABSENCE OF ESTABLISHED FACTS TO THE CONTRARY, THAT THEY WILL MEET THE REQUIREMENTS OF THE SERVICE AND THE LOWEST BID, ALL CONDITIONS CONSIDERED, SHOULD ACCORDINGLY BE ACCEPTED. SO FAR AS YOUR SUBMISSION DISCLOSES, THERE IS A POSSIBILITY THAT THE INSTRUMENTS OFFERED AT THE LOWER BID MAY BE EVEN BETTER THAN THE ONES OFFERED AT THE HIGHER PRICE WHICH YOU PROPOSE TO PURCHASE.

IF TIME IS TO BE A CONTROLLING ELEMENT IN THE ACCEPTANCE OR REJECTION OF A PARTICULAR BID, IT SHOULD BE SO STATED IN ORDER THAT ALL BIDDERS MAY HAVE EQUAL OPPORTUNITY TO OFFER SUPPLIES, ETC., WITHIN THE TIME SO STATED. IN THE MATTER HERE PRESENTED, THE INSTRUCTIONS TO BIDDERS STATED THAT TIME OF PROPOSED DELIVERY WOULD BE TAKEN INTO ACCOUNT IN MAKING THE AWARD. THEREFORE, IF IT CAN BE SHOWN THAT THE DIFFERENCE IN TIME OF DELIVERY IS OF MORE VALUE TO THE GOVERNMENT THAN THE DIFFERENCE IN PRICE, ACCEPTANCE OF THE HIGHER BID IS AUTHORIZED, OTHERWISE THE AWARD SHOULD BE MADE TO THE LOWEST BIDDER. IN DETERMINING THE VALUE TO THE GOVERNMENT OF THE DIFFERENCE IN TIME OF DELIVERY THERE WOULD BE FOR CONSIDERATION THE RATE OF LIQUIDATED DAMAGES TO BE STIPULATED IN THE CONTRACT FOR DELAY IN DELIVERY.