A-13659, MAY 7, 1926, 5 COMP. GEN. 898

A-13659: May 7, 1926

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IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED BY SECTION 3709. 1926: I HAVE YOUR LETTER OF APRIL 27. WHICH WAS BROUGHT TO YOUR ATTENTION IN MY LETTER OF MARCH 30. THE COMMISSIONER GENERAL STATES: THERE WAS NO INTENTION ON THE PART OF THE BUREAU TO VIOLATE THE PROVISIONS OF THE STATUTE IN CONNECTION WITH THE PURCHASE OF THE TWO TRUCKS ABOVE REFERRED TO. THE PURCHASE WAS MADE WITH A VIEW TO REDUCING THE EXPENSE INCIDENT TO THE APPREHENSION AND TRANSPORTATION OF ALIENS ARRESTED UNDER WARRANTS ISSUED BY THE SECRETARY OF LABOR AND IT WAS ASCERTAINED THAT THE CAR BEST SUITED FOR THE WORK IN THE SOUTHERN CALIFORNIA DISTRICT WAS A SCREENED-IN TRUCK WITH BACK STEP AND SIDE SEATS.

A-13659, MAY 7, 1926, 5 COMP. GEN. 898

ADVERTISING, ACCEPTANCE OF OTHER THAN THE LOWEST BID - SPECIFICATIONS THE QUESTION AS TO WHETHER ONLY ONE DEALER OR MANUFACTURER COULD FURNISH A TRUCK THAT WOULD MEET THE GOVERNMENT'S REQUIREMENTS, OR WHETHER ONE DEALER COULD FURNISH SUCH A TRUCK AT A LOWER PRICE THAN ANY OTHER, IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED BY SECTION 3709, REVISED STATUTES, AND MAY NOT BE LEFT TO THE DECISION OF AN ADMINISTRATIVE OFFICER WITHOUT COMPLIANCE WITH THE PROVISIONS OF SAID STATUTE. IN ADVERTISING FOR BIDS FOR THE FURNISHING OF TRUCKS TO THE GOVERNMENT, THE SPECIFICATIONS SHOULD BE DRAWN NOT WITH REFERENCE TO ANY PARTICULAR MAKE OR TO COVER THE MECHANICAL CONSTRUCTION OF ANY PARTICULAR MAKE, BUT SHOULD BE DRAWN TO SHOW THE GOVERNMENT'S NEEDS IN THE MATTER OF SERVICE REQUIREMENTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, MAY 7, 1926:

I HAVE YOUR LETTER OF APRIL 27, 1926, INCLOSING A STATEMENT DATED APRIL 23, 1926, OF THE COMMISSIONER GENERAL OF IMMIGRATION RELATIVE TO THE PURCHASE OF TWO DODGE TRUCKS FOR $1,600 FROM THE ALBERTSON MOTOR CO., LOS ANGELES, CALIFORNIA, WITHOUT COMPLYING WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, WHICH WAS BROUGHT TO YOUR ATTENTION IN MY LETTER OF MARCH 30, 1926.

THE COMMISSIONER GENERAL STATES:

THERE WAS NO INTENTION ON THE PART OF THE BUREAU TO VIOLATE THE PROVISIONS OF THE STATUTE IN CONNECTION WITH THE PURCHASE OF THE TWO TRUCKS ABOVE REFERRED TO. THE PURCHASE WAS MADE WITH A VIEW TO REDUCING THE EXPENSE INCIDENT TO THE APPREHENSION AND TRANSPORTATION OF ALIENS ARRESTED UNDER WARRANTS ISSUED BY THE SECRETARY OF LABOR AND IT WAS ASCERTAINED THAT THE CAR BEST SUITED FOR THE WORK IN THE SOUTHERN CALIFORNIA DISTRICT WAS A SCREENED-IN TRUCK WITH BACK STEP AND SIDE SEATS. THIS TRUCK WAS MANUFACTURED BY THE DODGE MOTOR COMPANY AND NO OTHER MANUFACTURERS OF TRUCKS WITHIN THE SAME RANGE MADE A SIMILAR TRUCK.

THE COMMISSIONER GENERAL OF IMMIGRATION BY TELEGRAM OF AUGUST 31, 1925, TO THE DISTRICT DIRECTOR OF THE LOS ANGELES OFFICE OF THE IMMIGRATION SERVICE AUTHORIZED THE DIRECTOR TO "PURCHASE FROM ALBERTSON MOTOR CO., DODGE DEALER, TWO DODGE AUTOMOBILES COMPLETELY EQUIPPED FOR ELEVEN HUNDRED DOLLARS EACH WITH ALLOWANCE OF THREE HUNDRED DOLLARS EACH FOR TWO OLD MACHINES, MAKING NET COST EIGHT HUNDRED DOLLARS EACH.'

THE FACTS SET FORTH SHOW NO CLEAR REASON FOR THE PURCHASE NOT BEING MADE PURSUANT TO SECTION 3709, REVISED STATUTES, WHICH 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 PRICES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH SERVICES ENGAGED, BETWEEN INDIVIDUALS.

THE TELEGRAM AUTHORIZATION SHOWS THE PURCHASE WAS AUTHORIZED OF A PARTICULAR DEALER WITHOUT ANY ATTEMPT TO ASCERTAIN WHETHER OTHER DEALERS COULD FURNISH TRUCKS EQUIPPED FOR THIS SERVICE AT A LESSER PRICE THAN THE ALBERTSON MOTOR CO. AGREED TO FURNISH DODGE TRUCKS AND SUCH AN INQUIRY MIGHT ALSO HAVE DISCLOSED A LARGER ALLOWANCE THAN $600 FOR THE TWO OLD DODGE CARS. THE APPARENT PROBABILITY THAT ONLY ONE DEALER OR MANUFACTURER COULD FURNISH A TRUCK THAT WOULD MEET THE GOVERNMENT'S REQUIREMENTS, OR THAT NO OTHER DEALER OR MANUFACTURER COULD FURNISH SUCH A TRUCK AT AS LOW A PRICE AS THE DEALER FROM WHOM IT IS PROPOSED TO MAKE THE PURCHASE OFFERS TO FURNISH IT, IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709 ARE FOR APPLICATION. WHETHER A PARTICULAR DEALER IS THE ONLY ONE WHO CAN FURNISH WHAT IS REQUIRED OR CAN FURNISH IT AT A LOWER PRICE THAN CAN ANY OTHER DEALER IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED UNDER SAID SECTION. SEE 5 COMP. GEN. 508. AND IN ADVERTISING FOR BIDS THE SPECIFICATIONS SHOULD BE DRAWN, NOT WITH REFERENCE TO ANY PARTICULAR MAKE OR TO COVER THE MECHANICAL CONSTRUCTION OF ANY PARTICULAR MAKE, BUT TO SHOW THE GOVERNMENT'S NEEDS IN THE MATTER OF SERVICE REQUIREMENTS. THE SUBORDINATE ADMINISTRATIVE EXPLANATION SHOWS THE REQUIREMENTS OF THE LAW WERE KNOWN AND IMPROPER EXCEPTIONS THERETO MADE. THIS MAY LEAD TO MORE SERIOUS RESULTS IN OTHER PURCHASES AND IS FOR YOUR CONSIDERATION.