A-13506, MARCH 26, 1926, 5 COMP. GEN. 771

A-13506: Mar 26, 1926

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THE PURCHASE OF A PARTICULAR MAKE OF MOTOR WITHOUT ADVERTISING FOR THE REASON THAT THAT KIND HAD BEEN USED OVER A PERIOD OF YEARS AND HAD PROVEN SATISFACTORY AND THAT THE HULL AND ENGINE BED OF THE BOAT HAD BEEN CONSTRUCTED SO AS TO ACCOMMODATE THE PARTICULAR MAKE OF MOTOR IS NOT AUTHORIZED. THE SPECIFICATIONS ON WHICH BIDS ARE TO BE REQUESTED FOR MOTORS TO BE INSTALLED IN BOATS SHOULD SHOW THE GOVERNMENT'S REQUIREMENTS AS TO PERFORMANCE AND THE SERVICE CONDITIONS UNDER WHICH THE MOTOR IS TO BE USED RATHER THAN THE MECHANICAL CONSTRUCTION OF THE MOTOR. 1926: I HAVE YOUR LETTER OF MARCH 10. OF WHICH THERE IS ALLOTTED: "NOT EXCEEDING $35. OUR FIRST BOAT WAS BUILT AND EQUIPPED DURING JULY.

A-13506, MARCH 26, 1926, 5 COMP. GEN. 771

PURCHASES - ADVERTISING - SPECIFICATIONS IN THE ABSENCE OF A SHOWING OF A PUBLIC EXIGENCY THAT WOULD NOT PERMIT OF THE DELAY INCIDENT TO ADVERTISING, THE PURCHASE OF A MOTOR TO REPLACE AN OLD ONE IN A MOTOR BOAT ALREADY IN USE MUST BE IN ACCORDANCE WITH SECTION 3709, REVISED STATUTES. THE PURCHASE OF A PARTICULAR MAKE OF MOTOR WITHOUT ADVERTISING FOR THE REASON THAT THAT KIND HAD BEEN USED OVER A PERIOD OF YEARS AND HAD PROVEN SATISFACTORY AND THAT THE HULL AND ENGINE BED OF THE BOAT HAD BEEN CONSTRUCTED SO AS TO ACCOMMODATE THE PARTICULAR MAKE OF MOTOR IS NOT AUTHORIZED. THE SPECIFICATIONS ON WHICH BIDS ARE TO BE REQUESTED FOR MOTORS TO BE INSTALLED IN BOATS SHOULD SHOW THE GOVERNMENT'S REQUIREMENTS AS TO PERFORMANCE AND THE SERVICE CONDITIONS UNDER WHICH THE MOTOR IS TO BE USED RATHER THAN THE MECHANICAL CONSTRUCTION OF THE MOTOR, AND THE BID SHOWN TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT MUST BE ACCEPTED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 26, 1926:

I HAVE YOUR LETTER OF MARCH 10, 1926, AS FOLLOWS:

THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR FOR THE CURRENT FISCAL YEAR PROVIDES, AMONG OTHER ITEMS FOR THE GENERAL LAND OFFICE, THE SUM OF $420,000 FOR PROTECTING PUBLIC LANDS, TIMBER, ETC., OF WHICH THERE IS ALLOTTED: "NOT EXCEEDING $35,000 FOR THE PURCHASE OF MOTOR- PROPELLED PASSENGER-CARRYING VEHICLES * * * AND FOR OPERATION AND MAINTENANCE OF A MOTOR BOAT.'

THIS PROVISION FOR THE MAINTENANCE OF A MOTOR BOAT HAS BEEN INCLUDED IN OUR DEPARTMENTAL APPROPRIATIONS FOR SEVERAL YEARS LAST PAST. OUR FIRST BOAT WAS BUILT AND EQUIPPED DURING JULY, 1917 SINCE WHICH TIME IT HAS BEEN USED EACH SEASON ON THE RIVERS OF ALASKA.

AT THE TIME OF CONSTRUCTION THE BOAT WAS EQUIPPED WITH A SCRIPPS MOTOR, THE HULL AND ENGINE BEING BUILT TO ACCOMMODATE A MOTOR OF THAT MAKE.

THIS MOTOR HAS BEEN IN USE EIGHT YEARS AND REPLACEMENT IS NOW NECESSARY. BECAUSE OF THE UNUSUALLY EXCELLENT SERVICE GIVEN BY THIS MOTOR IT IS DESIRED TO INSTALL A NEW ONE OF THE SAME MAKE, AND IN JUSTIFICATION THEREFOR THE FOLLOWING IS SUBMITTED:

1. PROVEN RELIABILITY, AS ITS LONG SERVICE OF EIGHT CONTINUOUS YEARS SHOWS.

2. ECONOMY OF MAINTENANCE AND OPERATION, AS INDICATED BY ANNUAL EXPENSE FOR REPAIRS AND FUEL.

3. HULL OF BOAT AND ENGINE BED CONSTRUCTED TO RECEIVE SUCH A MOTOR, THUS PERMITTING REPLACEMENT WITHOUT EXPENSE OF REMODELING.

4. PRESENT WATER-COOLING, STARTING, AND GAS-TANK SYSTEMS CAN BE UTILIZED WITHOUT CHANGE, WHICH WOULD BE NECESSARY IF ANOTHER MAKE WERE SELECTED.

5. SUPPLY OF REPAIRS AND EXTRA PARTS, NOW ON HAND TO MEET EMERGENCIES, CAN BE USED.

FURTHER, BEFORE PURCHASING THIS ORIGINAL MOTOR INQUIRY WAS MADE OF THE EXPERTS OF THE NAVY DEPARTMENT AS TO WHICH MOTOR ON THE MARKET HAD BEST MET THEIR TESTS AND WAS BEST ADAPTED TO THE SERVICE REQUIRED. THE SCRIPPS MOTOR WAS RECOMMENDED AS THE MOST ECONOMICAL AND RELIABLE, ALL THINGS CONSIDERED, AND ON THIS RECOMMENDATION THE PURCHASE WAS MADE.

THIS BOAT TRAVERSES THE RIVERS OF THE INTERIOR OF ALASKA FROM THEIR OPENING, IN LATE MAY OR EARLY JUNE, UNTIL COLD WEATHER PUTS A STOP TO NAVIGATION. FROM THE TIME IT LEAVES ITS BASE IN THE SPRING UNTIL IT RETURNS IT IS ALMOST CONSTANTLY OUT OF TOUCH WITH MACHINE SHOPS AND MECHANICS. HENCE, IT IS VERY NECESSARY THAT IT BE EQUIPPED WITH A THOROUGHLY TESTED AND RELIABLE MOTOR. MACHINISTS' WAGES RANGE FROM $3 TO $3.50 PER HOUR. THEREFORE, WE CAN NOT AFFORD TO EXPERIMENT WITH A NEW AND UNTRIED MOTOR. WITH THE SCRIPPS MOTOR THE OPERATOR OF OUR BOAT IS THOROUGHLY FAMILIAR AND MAKES ALL ORDINARY REPAIRS.

INCIDENTALLY, OBSERVATIONS HAVE SHOWN THAT OTHER MOTOR-DRIVEN BOATS IN ALASKA, EQUIPPED WITH ENGINES OF OTHER MAKES, HAVE BEEN COMPELLED TO REPLACE THEIR MOTORS EVERY TWO OR THREE YEARS, WHILE OUR MOTOR HAS GIVEN EIGHT YEARS OF SERVICE.

BECAUSE OF THE FOREGOING SHOWING, AN OPINION IS REQUESTED AS TO WHETHER OR NOT THIS DEPARTMENT, UNDER THE CIRCUMSTANCES AS SET FORTH, WILL BE WARRANTED IN REPLACING THE OLD SCRIPPS MOTOR WITH A NEW ONE OF THE SAME MAKE.

SECTION 3709, REVISED STATUTES, PROVIDES THAT ALL PURCHASES AND CONTRACTS FOR SUPPLIES IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT EXCEPT FOR PERSONAL SERVICES AND EXCEPT IN CASES OF EMERGENCIES SHALL BE MADE AFTER ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING SAME. IT HAS BEEN FREQUENTLY HELD BY THE COURTS AND BY THE ACCOUNTING OFFICERS OF THE UNITED STATES THAT THE PROVISIONS OF THE STATUTE ARE DESIGNED TO GIVE ALL MANUFACTURERS, ETC., EQUAL RIGHT TO COMPETE FOR GOVERNMENT BUSINESS; SECURE TO THE GOVERNMENT THE BENEFITS WHICH FLOW FROM COMPETITION; TO PREVENT UNJUST FAVORITISM BY REPRESENTATIVES OF THE GOVERNMENT IN MAKING PURCHASES ON PUBLIC ACCOUNT; AND TO PREVENT COLLUSION AND FRAUD IN PROCURING SUPPLIES OR LETTING CONTRACTS. THE PROVISIONS OF THE STATUTE ARE MANDATORY AND ITS REQUIREMENTS ARE TO BE STRICTLY ENFORCED AND NO PROCEDURE AMOUNTING TO NONCOMPLIANCE WITH ITS TERMS IS AUTHORIZED. IT HAS ALSO BEEN HELD, HOWEVER, THAT THE STATUTE DOES NOT REQUIRE ADVERTISING FOR BIDS WHERE ADVERTISING CAN ACCOMPLISH NO USEFUL PURPOSE. 14 COMP. DEC. 328, 330; 1 COMP. GEN. 748; 17 OP.ATTY.GEN. 84. IN CONSIDERING THE QUESTION OF PURCHASES WITHOUT ADVERTISING A FORMER COMPTROLLER OF THE TREASURY IN 22 COMP. DEC. 302, AT PAGE 303, SAID:

IN THE PRESENT CASE NO ADVERTISEMENTS WERE ISSUED NOR WERE ANY PROPOSALS INVITED ON ANY DEFINITE SPECIFICATIONS AS TO REQUIREMENTS OF THE TRUCKS PROPOSED TO BE PURCHASED. THE DEALERS REFERRED TO SIMPLY FURNISHED THEIR PRICE LISTS AND DESCRIPTIONS OF THEIR OWN MAKES OF TRUCKS. FROM THE DATA THUS SECURED THE TWO BUICK TRUCKS IN QUESTION WERE SELECTED AND PURCHASED WITHOUT AFFORDING AN OPPORTUNITY TO THE OTHER DEALERS TO BID IN A COMPETITIVE WAY ON SPECIFICATIONS EMBODYING REQUIREMENTS SIMILAR TO THOSE WHICH WERE TO BE MET BY BUICK TRUCKS. WITHOUT QUESTIONING THE GOOD FAITH OF THE OFFICER WHO MADE THE PURCHASE OR THE VALUE OF THE TRUCKS SECURED IT IS CLEAR THAT THE LAW REQUIRES ADVERTISING, IN SOME FORM, FOR THE ARTICLE NEEDED AND THAT A SELECTION FROM A NUMBER OF TRUCKS OF ONE THAT IS THOUGHT BEST FOR THE PURPOSE FOR WHICH A TRUCK IS NEEDED INDICATES THAT THERE WERE REQUIREMENTS WHICH WERE IN FACT A BASIS FOR INVITATION FOR BIDS.

THE MATTER HERE PRESENTED DOES NOT COME WITHIN THE EXCEPTIONS, SUPRA. THE FACT THAT THE HULL AND ENGINE BED OF THE BOAT ARE SO CONSTRUCTED AS TO ACCOMMODATE A SCRIPPS MOTOR WITHOUT ALTERATIONS IS FOR CONSIDERATION ONLY IN DETERMINING, AFTER RECEIPT OF BIDS, WHICH BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT. THE SAME MAY BE SAID WITH REFERENCE TO THE OTHER FIVE REASONS URGED BY YOU AS TO WHY A PARTICULAR MOTOR SHOULD BE PURCHASED. DOES NOT APPEAR FROM THE FACTS AS STATED IN YOUR LETTER THAT THE SCRIPPS MOTOR IS THE ONLY MOTOR THAT CAN SATISFY THE REQUIREMENTS OF THE GOVERNMENT. IT APPEARS THAT WHAT IS NEEDED IS NOT A MOTOR OF A PARTICULAR MAKE BUT A MOTOR THAT WILL MEET CERTAIN PERFORMANCE REQUIREMENTS UNDER ALASKA RIVER CONDITIONS. THE DESIRE FOR A PARTICULAR MAKE OF MOTOR IS NOT OF ITSELF A SUFFICIENT JUSTIFICATION FOR THE PURCHASE OF SAID MAKE TO THE EXCLUSION OF OTHERS IF THE OTHERS ARE EQUALLY ADAPTED TO NEEDS OF THE SERVICE. IF MOTORS 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. THEREFORE, BIDS SHOULD BE REQUESTED ON SPECIFICATIONS DRAWN, NOT TO COVER THE MECHANICAL CONSTRUCTION OF THE MOTOR, BUT TO SHOW THE DIMENSIONS OF THE BOAT, THE CONDITIONS UNDER WHICH IT IS TO BE OPERATED AND THE PERFORMANCE REQUIREMENTS NECESSARY TO MEET NEEDS OF THE GOVERNMENT, SUCH AS POWER, SPEED, FUEL CONSUMPTION, ETC., AND IT WOULD BE PROPER TO EXACT A GUARANTEE THAT THE MOTOR OFFERED WILL MEET THE REQUIRED PERFORMANCE REQUIREMENTS UNDER ACTUAL SERVICE CONDITIONS. WHEN BIDS ARE RECEIVED AFTER SUCH ADVERTISEMENT THE ONE SHOWN TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT MUST BE ACCEPTED.

IN THE ABSENCE OF ANY SHOWING AS TO A PUBLIC EXIGENCY THAT WILL NOT PERMIT OF THE DELAY INCIDENT TO ADVERTISING, REPLACEMENT OF THE MOTOR NOW IN USE WITH ANOTHER OF THE SAME MAKE WITHOUT COMPLIANCE WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, IS NOT AUTHORIZED.