A-13285, APRIL 19, 1926, 5 COMP. GEN. 835

A-13285: Apr 19, 1926

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ADVERTISING - ACCEPTANCE OF OTHER THAN LOWEST BID - SPECIFICATIONS AN OFFICER OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF MAKING PURCHASES FROM PUBLIC FUNDS IS PRESUMED TO KNOW OF THE REQUIREMENTS OF SECTION 3709. WHERE IN THE PREPARATION OF AN ADVERTISEMENT FOR BIDS DIFFICULTY IS EXPERIENCED IN DESCRIBING OR SPECIFYING WHAT IS WANTED AND THERE IS KNOWN A MAKE EMBODYING THE MINIMUM REQUIREMENTS. " THUS INDICATING TO THE DEALER WHAT IS WANTED. IN THE ABSENCE OF A SHOWING THAT NO OTHER MAKE WILL SERVE THE GOVERNMENT'S PURPOSES. IS NOT AUTHORIZED. WHEREIN CREDIT WAS DISALLOWED FOR AMOUNTS AGGREGATING $149.50 REPRESENTING THE DIFFERENCE BETWEEN THE LOWEST AND THE ACCEPTED BID. WHERE OTHER THAN THE LOWEST BID WAS ACCEPTED IN THE PURCHASE OF SUPPLIES.

A-13285, APRIL 19, 1926, 5 COMP. GEN. 835

ADVERTISING - ACCEPTANCE OF OTHER THAN LOWEST BID - SPECIFICATIONS AN OFFICER OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF MAKING PURCHASES FROM PUBLIC FUNDS IS PRESUMED TO KNOW OF THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, REQUIRING ADVERTISING, AND THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT WITH REFERENCE THERETO. AS SECTION 3709, REVISED STATUTES, CONTEMPLATES THE ACCEPTANCE OF THE LOWEST BID FULFILLING OR MEETING THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT, THE ACCEPTANCE OF A HIGHER BID BECAUSE OF AN ALLEGED SUPERIORITY IN THE QUALITY OF THE ARTICLE OFFERED WITHOUT A DETAILED STATEMENT OF THE REASONS FOR ACCEPTING OTHER THAN THE LOWEST BID CAN NOT BE ACCEPTED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS SUFFICIENT TO AUTHORIZE ALLOWING CREDIT FOR THE PAYMENT FOR THE ARTICLE PURCHASED AT A HIGHER PRICE. WHERE IN THE PREPARATION OF AN ADVERTISEMENT FOR BIDS DIFFICULTY IS EXPERIENCED IN DESCRIBING OR SPECIFYING WHAT IS WANTED AND THERE IS KNOWN A MAKE EMBODYING THE MINIMUM REQUIREMENTS, SAID MAKE MAY BE MENTIONED IN THE REQUEST FOR BIDS QUALIFIED BY THE WORDS "OR EQUAL," THUS INDICATING TO THE DEALER WHAT IS WANTED. REQUESTING BIDS ON ARTICLES OF EQUIPMENT OR SUPPLIES BY TRADE NAME, IN THE ABSENCE OF A SHOWING THAT NO OTHER MAKE WILL SERVE THE GOVERNMENT'S PURPOSES, IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, APRIL 19, 1926:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF FEBRUARY 20, 1926, REQUESTING REVIEW OF SETTLEMENT C-35133-T, DATED JANUARY 23, 1926, ACCOUNTS OF M. J. KELLY, SUPERINTENDENT OF THE UNITED STATES MINT AT SAN FRANCISCO, CALIF., FOR THE PERIOD APRIL TO JUNE, 1925, WHEREIN CREDIT WAS DISALLOWED FOR AMOUNTS AGGREGATING $149.50 REPRESENTING THE DIFFERENCE BETWEEN THE LOWEST AND THE ACCEPTED BID, WHERE OTHER THAN THE LOWEST BID WAS ACCEPTED IN THE PURCHASE OF SUPPLIES; AND THE TOTAL COST OF SUPPLIES PURCHASED WITHOUT ADVERTISING AS REQUIRED BY THE PROVISION OF SECTION 3709, REVISED STATUTES.

SECTION 3709, REVISED STATUTES, PROVIDES:

ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC EXIGENCY, THE ARTICLES OR SERVICE REQUIRED MAY BE PROCURED BY OPEN PURCHASE OR CONTRACT, AT THE PLACES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH SERVICES ENGAGED, BETWEEN INDIVIDUALS.

IT APPEARS THAT BIDS WERE REQUESTED FOR THE FURNISHING OF BONE ASH, BABBIT METAL, AND GRAPHITE CRUCIBLES FOR USE IN THE MINT AT SAN FRANCISCO. BIDS WERE SUBMITTED BY VARIOUS DEALERS AND IN EACH CASE OTHER THAN THE LOWEST BID WAS ACCEPTED, NO REASONS OR FACTS BEING PRESENTED SUPPORTING SUCH ACTION OR TENDING TO SHOW WHEREIN THE ARTICLES UPON WHICH BIDS WERE MADE AT A LOWER PRICE WERE UNSATISFACTORY OR THE DEALERS IRRESPONSIBLE, OTHER THAN THE CONCLUSION STATED ON THE VOUCHERS THAT THE QUALITY OFFERED WAS UNSUITED FOR THE REQUIREMENTS OF THE MINT.

WITH RESPECT TO THE DISALLOWANCES COVERING PAYMENTS FOR ARTICLES PURCHASED BY TRADE NAME RATHER THAN BY SPECIFICATIONS OR GENERAL DESCRIPTION, THUS EXCLUDING BIDS BY DEALERS WHO DID NOT HANDLE THE PARTICULAR BRAND STIPULATED, IT DOES NOT APPEAR THAT THE PARTICULAR BRAND OF ARTICLES, BIDS ON WHICH WERE REQUESTED, WERE ABSOLUTELY ESSENTIAL TO THE USE FOR WHICH THEY WERE TO BE PURCHASED, BUT ON THE CONTRARY THE ACCEPTANCE OF SUCH PROPOSALS EVIDENCES A MANIFEST PREDILECTION ON THE PART OF THE PURCHASING OFFICER IN FAVOR OF THE PARTICULAR ARTICLES OR BRANDS. SUCH PURCHASES ARE NOT IN ACCORDANCE WITH THE INTENT AND PURPOSE OF THE PROVISIONS OF SECTION 3709, REVISED STATUTES. NO EXPLANATION OR OTHER STATEMENT AS TO THE REASON FOR SPECIFYING THE PARTICULAR BRANDS IN THE REQUEST FOR BIDS ACCOMPANIED THE VOUCHERS IN PAYMENT THEREOF WHEN SUBMITTED TO THIS OFFICE.

AN OFFICER OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF MAKING PURCHASES FROM PUBLIC FUNDS IS PRESUMED TO KNOW OF THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, SUPRA, AND OF THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT WITH REFERENCE THERETO. IT HAS BEEN HELD REPEATEDLY THAT THIS SECTION CONTEMPLATES THE ACCEPTANCE OF THE LOWEST BID FULFILLING OR MEETING THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT.

THE ACCEPTANCE BY AN ADMINISTRATIVE OFFICER OF OTHER THAN THE LOWEST BID WOULD ORDINARILY NOT BE QUESTIONED IF THE REASONS ASSIGNED FOR THAT ACTION APPEARED SATISFACTORY, BUT THE ACTION IN THAT RESPECT BY ADMINISTRATIVE OFFICERS IS NOT CONCLUSIVE ON THE ACCOUNTING OFFICERS. TO AUTHORIZE ALLOWANCE OF CREDIT FOR PAYMENTS MADE ON PURCHASES, WHETHER PURSUANT TO FORMAL OR INFORMAL CONTRACTS, THERE SHOULD BE AT LEAST AN AFFIRMATIVE SHOWING THAT THE LOWEST BID WAS ACCEPTED OR, IN CASES IN WHICH THE LOWEST BID IS NOT ACCEPTED, A DETAILED STATEMENT OF THE REASONS FOR ACCEPTING OTHER THAN THE LOWEST BID.

IT IS CLEAR THAT IT IS NOT IN THE INTEREST OF THE UNITED STATES TO ACCEPT ARTICLES OR SUPPLIES THAT ARE INFERIOR OR WILL NOT FULFILL THE REQUIREMENTS FOR WHICH PURCHASED. HOWEVER, THE MERE STATEMENT OF AN ADMINISTRATIVE OFFICER THAT SUCH ARTICLES ARE UNSUITED TO THE PARTICULAR NEEDS FOR WHICH DESIRED, UNSUPPORTED BY A SHOWING AS TO THE FACTS ON WHICH SUCH CONCLUSION IS BASED, CAN NOT BE ACCEPTED BY THE ACCOUNTING OFFICERS AS SUFFICIENT TO AUTHORIZE ALLOWING CREDIT FOR THE PAYMENT FOR THE ARTICLE PURCHASED AT A HIGHER PRICE.

THE PURCHASES FIRST HEREIN MENTIONED INVOLVE THE ACCEPTANCE OF A HIGHER BID BECAUSE OF AN ALLEGED SUPERIORITY IN THE QUALITY OF THE ARTICLE OFFERED. THE SPECIFICATIONS OR REQUIREMENTS PRESCRIBED IN THE SOLICITATION OF BIDS SHOULD, WHENEVER POSSIBLE, BE SUCH THAT ANY BID COMPLYING THEREWITH MAY BE CONSIDERED IN COMPARISON WITH OTHER BIDS ON THE BASIS OF PRICE ALONE. THE ACCEPTANCE OF A HIGHER BID FOR THE PURPOSE OF OBTAINING AN ARTICLE SUPERIOR IN QUALITY TO THAT OFFERED AT A LOWER PRICE IS NOT JUSTIFIED IN THE ABSENCE OF A SHOWING THAT THE PURPOSE FOR WHICH THE PURCHASE IS BEING MADE REQUIRES THE SUPERIOR QUALITY OR THAT THE VALUE OF THE ADVANTAGES OR BENEFITS ACTUALLY TO ACCRUE TO THE GOVERNMENT BY THE USE OF THE HIGHER-PRICED ARTICLE WILL EXCEED THE DIFFERENCE IN PURCHASE PRICE.

IT HAS BEEN HELD REPEATEDLY THAT THE REQUESTING OF BIDS ON ARTICLES OF EQUIPMENT OR SUPPLIES BY TRADE NAME, IN THE ABSENCE OF A SHOWING THAT NO OTHER MAKE WILL SERVE THE GOVERNMENT'S PURPOSE, IS NOT AUTHORIZED. THERE IS DIFFICULTY IN DESCRIBING OR SPECIFYING WHAT IS WANTED IN THE ADVERTISEMENT FOR BIDS AND THERE IS KNOWN A MAKE EMBODYING THE MINIMUM REQUIREMENTS, SAID MAKE MAY BE MENTIONED IN THE REQUEST FOR BIDS QUALIFIED BY WORDS SUCH AS "OR EQUAL," THUS INDICATING TO THE DEALER WHAT IS REQUIRED.

IN VIEW OF THE EXPLANATIONS AND REPRESENTATIONS NOW MADE, CREDIT WILL BE ALLOWED FOR THE ITEMS IN QUESTION; BUT HEREAFTER, UNLESS THE STATUTES AND THE DECISIONS OF THIS OFFICE ARE STRICTLY OBSERVED IN THE MATTER OF PURCHASES FOR THE MINT, CREDIT WILL NOT BE ALLOWED FOR PAYMENTS THEREFOR.

UPON REVIEW THE AMOUNT OF $149.50 IS CERTIFIED FOR CREDIT IN THE ACCOUNTS OF M. J. KELLY.