A-14340, JUNE 7, 1926, 5 COMP. GEN. 963

A-14340: Jun 7, 1926

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IS NOT AUTHORIZED SIMPLY BECAUSE THE MAKE OF ENGINE DESIRED HAS BEEN USED OVER AN EXTENDED PERIOD OF TIME AND FOUND SATISFACTORY AND THAT IT IS A PATENTED ARTICLE AND CAN NOT BE PURCHASED FROM DEALERS IN GENERAL. WHEN THE FACTS CONNECTED WITH THE TRANSACTION DO NOT DISCLOSE THAT THE PARTICULAR ENGINE DESIRED IS THE ONLY ENGINE THAT WILL IN FACT ANSWER THE PURPOSES FOR WHICH IT IS REQUIRED. THE SPECIFICATIONS ON WHICH BIDS ARE TO BE REQUESTED FOR GASOLINE ENGINES TO BE FURNISHED THE UNITED STATES SHOULD SHOW THE GOVERNMENT'S REQUIREMENTS AS TO PERFORMANCE AND THE SERVICE CONDITIONS UNDER WHICH THE ENGINES ARE TO BE USED RATHER THAN THE MECHANICAL CONSTRUCTION OF THE ENGINE. WHEREIN CREDIT WAS DISALLOWED FOR A PAYMENT IN THE SUM OF $11.

A-14340, JUNE 7, 1926, 5 COMP. GEN. 963

PURCHASES - ADVERTISING - SPECIFICATIONS THE PURCHASE OF A PARTICULAR ENGINE FOR USE OF THE UNITED STATES COAST GUARD WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES, IS NOT AUTHORIZED SIMPLY BECAUSE THE MAKE OF ENGINE DESIRED HAS BEEN USED OVER AN EXTENDED PERIOD OF TIME AND FOUND SATISFACTORY AND THAT IT IS A PATENTED ARTICLE AND CAN NOT BE PURCHASED FROM DEALERS IN GENERAL, WHEN THE FACTS CONNECTED WITH THE TRANSACTION DO NOT DISCLOSE THAT THE PARTICULAR ENGINE DESIRED IS THE ONLY ENGINE THAT WILL IN FACT ANSWER THE PURPOSES FOR WHICH IT IS REQUIRED. EXPERIENCE WITH A PARTICULAR ENGINE DOES NOT JUSTIFY EXCLUDING BIDDERS OFFERING OTHER MAKES OF ENGINES. THE SPECIFICATIONS ON WHICH BIDS ARE TO BE REQUESTED FOR GASOLINE ENGINES TO BE FURNISHED THE UNITED STATES SHOULD SHOW THE GOVERNMENT'S REQUIREMENTS AS TO PERFORMANCE AND THE SERVICE CONDITIONS UNDER WHICH THE ENGINES ARE TO BE USED RATHER THAN THE MECHANICAL CONSTRUCTION OF THE ENGINE, AND THE BID SHOWN TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT MUST BE ACCEPTED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JUNE 7, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 10, 1926, REQUESTING REVIEW OF SETTLEMENT NO. C-37013-T, DATED MARCH 8, 1926, OF THE SEPTEMBER, 1925, ACCOUNTS OF J. L. SUMMERS, DISBURSING CLERK FOR THE TREASURY DEPARTMENT, WHEREIN CREDIT WAS DISALLOWED FOR A PAYMENT IN THE SUM OF $11,060 MADE ON VOUCHER 51, DATED SEPTEMBER 16, 1925, TO THE WISCONSIN MOTOR MANUFACTURING CO. FOR GASOLINE ENGINES FURNISHED THE UNITED STATES COAST GUARD. THE DISALLOWANCE WAS MADE BECAUSE OF FAILURE TO COMPLY WITH SECTION 3709, REVISED STATUTES.

IT APPEARS THAT UNDER DATE OF JUNE 10, 1925, TEN GASOLINE ENGINES AND OUTFITS WERE PURCHASED FROM THE WISCONSIN MOTOR MANUFACTURING CO. FOR THE USE OF THE UNITED STATES COAST GUARD; THAT BIDS WERE NOT REQUESTED AS REQUIRED BY SECTION 3709, REVISED STATUTES; AND THAT PROPOSAL WAS SOLICITED FROM ONLY ONE DEALER, FOR THE REASON THAT THE PARTICULAR ENGINES AND OUTFITS DESIRED WERE PATENTED AND SOLD BY ONE DEALER ONLY (WISCONSIN MOTOR MANUFACTURING CO.).

THE CIRCUMSTANCES ATTENDING THE PURCHASE OF THE PARTICULAR ENGINES AND OUTFITS ARE STATED IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT AS FOLLOWS:

THE PRIME FUNCTION OF COAST GUARD STATIONS IS TO RENDER ASSISTANCE TO VESSELS IN DISTRESS AND TO SAVE LIFE AND PROPERTY FROM THE SEA. THIS SERVICE, IN THE VERY NATURE OF THINGS, MUST BE RENDERED UNDER CONDITIONS OF STORM AND HAZARD WHICH CREATE THE NEED THEREFOR. THIS IS A MOST PERILOUS SERVICE AT ALL TIMES, AND CONSIDERATIONS OF HUMANITY ALONE DEMAND THE PROVISION OF THE MOST EFFICIENT AND DEPENDABLE EQUIPMENT OBTAINABLE. THROUGHOUT ITS HISTORY THE UNITED STATES LIFE SAVING SERVICE, NOW EMBRACED IN THE COAST GUARD, HAS HELD A MOST ENVIABLE POSITION AMONG SIMILAR INSTITUTIONS THROUGHOUT THE WORLD. SUCH A POSITION IS TO BE ACHIEVED AND MAINTAINED ONLY BY UNTIRING EFFORT.

UPON THE ADVENT OF THE INTERNAL-COMBUSTION MOTOR THE SERVICE PROMPTLY BEGAN EXPERIMENTS WITH A VIEW TO ITS ADAPTATION TO SERVICE NEEDS, AND HAS ENDEAVORED TO KEEP ABREAST OF DEVELOPMENTS IN THIS AS IN OTHER DIRECTIONS. IN DETERMINING UPON A SUITABLE POWER PLANT FOR "36-FT. IFEBOATS"--- THE STANDARD LIFEBOAT IN USE AT COAST GUARD STATIONS--- THE PRIME CONSIDERATION IS THAT IT SHALL NOT INTERFERE WITH THE FUNCTIONING OF THE BOAT AS A LIFEBOAT. WEIGHT MUST CAUSE NO SACRIFICE OF THE SELF- BAILING AND SELF-RIGHTING FEATURES; SPACE OCCUPIED MUST NOT CROWD THAT ESSENTIAL FOR CREW AND PASSENGERS; MOTOR OPERATION MUST BE SIMPLE, SURE, AND WITH ALL POSSIBLE SAFETY TO CREW IN EVERY POSSIBLE POSITION OF THE BOAT, EVEN WHEN COMPLETELY CAPSIZED; AND THE PRICE MUST BE REASONABLE IN ORDER THAT THE GREATEST NUMBER OF BOATS MAY BE POWERED.

IN THE COURSE OF THESE EXPERIMENTS THREE WISCONSIN MOTORS WERE PURCHASED IN MAY, 1917. THESE WERE FOUND TO MOST NEARLY MEET THE REQUIREMENTS OF ANY TESTED UP TO THAT TIME. HOWEVER, BEFORE ENTERING UPON AN EXTENSIVE CONSTRUCTION PROGRAM IT WAS THOUGHT ADVISABLE TO FURTHER INSURE THE ADOPTION OF THE MOST EFFICIENT MOTORS OBTAINABLE, AND TO THIS END THE COMMANDANT OF THE COAST GUARD, IN JANUARY, 1918, APPOINTED A "BOARD TO CONSIDER MOTIVE POWER OF BOATS.' THIS BOARD MADE AN EXHAUSTIVE INVESTIGATION TO DISCOVER AVAILABLE ENGINES, IN THE COURSE OF WHICH FACTORIES WERE VISITED AND VARIOUS MAKES AND MODELS WHICH APPEARED POSSIBLE WERE OBSERVED "ON TEST.' NOT AN ENGINE WAS FOUND ADAPTABLE TO THE PURPOSE WITHOUT IMPORTANT MODIFICATIONS IN CONSTRUCTION, AND OF THOSE WHICH MIGHT THUS BE MADE ACCEPTABLE DELIVERIES OFFERED WERE INADEQUATE TO MEET PRESENT OR PROSPECTIVE REQUIREMENTS. THE BOARD THEREFORE RECOMMENDED THAT "THE STANDARD 40 H.P. WISCONSIN MOTOR, TYPE J.M., BE ADOPTED FOR USE IN ALL MOTOR LIFEBOATS NOW IN CONSTRUCTION OR ABOUT TO BE CONSTRUCTED. THIS ENGINE IS REASONABLE IN PRICE, HAS BEEN SUCCESSFULLY TRIED OUT IN SEVERAL EXISTING LIFEBOATS, IS OBTAINABLE, SPARE PARTS ARE AVAILABLE, AND THE ENGINE AS A WHOLE POSSESSES MORE NEARLY THE QUALIFICATIONS LAID DOWN BY THIS BOARD IN ITS ORIGINAL REPORT THAN ANY OTHER TYPE OF ENGINE KNOWN TO THE BOARD, AND WHICH IS NOW AVAILABLE.'

IN APRIL, 1921, THE FIELD WAS AGAIN CANVASSED BY A COAST GUARD BOARD FOR MOTORS TO MEET THE SEVERAL NEEDS FOR POWER BOATS OF DIFFERENT SIZES AND VARYING USES. IN THE CASE OF THE LIFEBOAT THIS BOARD WAS CONFRONTED BY THE ADDITIONAL PROBLEM OF THE SELECTION OF AN ENGINE WORTHY TO COMPETE WITH THOSE THEN IN USE, WHICH HAD PROVEN VERY SATISFACTORY. NO MOTOR WAS FOUND SO WELL SUITED OR SO REASONABLY PRICED AND NOT ONE THAT DID NOT ENTAIL UNDESIRABLE MODIFICATION OF THE BOATS AND SACRIFICE OF STANDARDIZATION GAINED TO DATE. THIS BOARD FOUND THAT 42 WISCONSIN MOTORS WERE THEN IN USE AND STATED THAT "IN WHATEVER TYPE OF BOAT INSTALLED THE WISCONSIN ENGINE HAS SHOWN RELIABILITY IN A HIGH DEGREE, COMBINED WITH A VERY LOW UPKEEP AND REPAIR COST.'

IT WILL BE SEEN FROM THE FOREGOING THAT EVERY POSSIBLE EFFORT HAS BEEN MADE TO SECURE THE BEST MOTOR AVAILABLE FOR THE PURPOSE DESIRED, THAT COMPETITION HAS BEEN SECURED BOTH ON A QUALITY AND PRICE BASIS, AND THAT PURCHASE ON A PRICE BASIS ALONE, AND THE CONSTANT CHANGE IN HULL DESIGN AND CONSTRUCTION WHICH WOULD BE NECESSARY TO ACCOMMODATE ENGINES OF VARYING WEIGHTS, SIZES, POWER, AND EQUIPMENT, IS UTTERLY IMPRACTICABLE. AT THE PRESENT TIME THERE ARE OVER 90 WISCONSIN MOTORS IN USE IN THE COAST GUARD. THE ENGINE AND BOAT ARE SO COORDINATED AND STANDARDIZED THAT ANY ENGINE PART, SHAFT, PROPELLER, OR FITTING, OR ANY ITEM OF THE BOAT'S OUTFIT, IS AVAILABLE FOR PROMPT SHIPMENT, TO BE INSTALLED USUALLY BY THE STATION CREW OR A DISTRICT BOAT REPAIRMAN, THEREBY AVOIDING HEAVY EXPENSE OF CONTRACTUAL REPAIRS AND REDUCING THE TIME A BOAT MAY BE OUT OF COMMISSION TO THE MINIMUM. THIS HIGHLY DESIRABLE CONDITION CAN BE ATTAINED ONLY BY STANDARDIZATION, AND MOTORS ARE THEREFORE PURCHASED FROM THE ONLY KNOWN MANUFACTURER WHO CAN MEET THE REQUIREMENTS. EVEN IN THE CASE OF THIS MANUFACTURER THE ENGINE IS NO LONGER PRODUCED AS A COMMERCIAL ARTICLE, BUT ITS MANUFACTURE IS CONTINUED TO SUPPLY THE NEEDS OF THE COAST GUARD IN ORDER THAT THE HIGH STANDARD OF THE PRESENT LIFEBOAT, RECOGNIZED AS THE MOST EFFICIENT BOAT OF ITS KIND IN EXISTENCE, MAY BE MAINTAINED; AND YET THE PRICE IS LOWER THAN ORIGINALLY CHARGED.

WITH RESPECT TO THE COMMENT OF THE GENERAL ACCOUNTING OFFICE THAT "THERE IS NOTHING IN THE SPECIFICATIONS TO INDICATE THAT THE ENGINE MIGHT NOT HAVE BEEN BUILT BY ANY REPUTABLE BUILDER OF MOTOR ENGINES," IT IS SUFFICIENT TO STATE THAT THE PRODUCT OF EACH MANUFACTURER IS COVERED BY PATENT AND CAN NOT BE REPRODUCED BY ANY OTHER WITHOUT INCURRING LIABILITY FOR INFRINGEMENT; NOR IS IT REASONABLE TO ASSUME, IF SUCH WERE POSSIBLE, THAT A LOWER PRICE COULD BE OBTAINED.

IN VIEW OF THESE CONSIDERATIONS IT IS URGED THAT THE ACTION OF THE COAST GUARD IN PURCHASING THIS MOTOR FROM THE ONLY POSSIBLE SOURCE BE APPROVED.

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 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 FOR 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 AND LETTING CONTRACTS. 22 COMP. DEC. 302; 5 COMP. GEN. 712. IT HAS ALSO BEEN HELD, HOWEVER, THAT THE STATUTE DOES NOT REQUIRE ADVERTISING WHERE ADVERTISING CAN ACCOMPLISH NO USEFUL PURPOSE. 1 COMP. GEN. 748; 17 OP.ATTY.GEN. 84.

IN CONSIDERING THE QUESTION OF PURCHASES OF PATENTED OR COPYRIGHTED ARTICLES WITHOUT ADVERTISING, A FORMER COMPTROLLER OF THE TREASURY, IN 2 COMP. DEC. 632, AT PAGE 634, SAID:

* * * WHEN PATENTED OR COPYRIGHTED ARTICLES CAN NOT BE PURCHASED FROM THE TRADE GENERALLY, BUT ONLY FROM THE MANUFACTURER OR THE OWNER OF THE PATENT OR OF THE COPYRIGHT, IT IS CLEAR THAT NO COMPETITION IN FURNISHING SUCH ARTICLES CAN EXIST, AND THEREFORE THE PURCHASE OF SUCH ARTICLES IS NOT WITHIN THE PROVISIONS OF SECTION 3709, (REVISED STATUTES) * * *

IN DECISION OF NOVEMBER 29, 1907, 14 COMP. DEC. 328, 330, IT WAS SAID:

IT APPEARS THEY WERE PURCHASED WITHOUT ADVERTISING FOR PROPOSALS ON THE GROUND THAT IT WAS IMPRACTICABLE TO SECURE COMPETITION, FOR THE REASON, IT IS STATED, THAT THE FIRM FROM WHICH PURCHASED WAS THE ONLY ONE WHICH HAD THE PATTERN WANTED BY THE GOVERNMENT. IN 17 MS. COMP. DEC., 1535, DATED JUNE 25, 1901, IT WAS HELD THAT WHERE ARTICLES OF FURNITURE IN ORDINARY USE ARE REQUIRED THE SELECTION OF PARTICULAR PATTERNS WHICH CAN BE SUPPLIED BY ONE MANUFACTURER ONLY DOES NOT AUTHORIZE THEIR PURCHASE WITHOUT ADVERTISING FOR PROPOSALS ON THE GROUND THAT THERE COULD BE NO COMPETITION.

IF THE PATTERN OF LAMP STANDARDS PURCHASED WAS SELECTED MERELY BECAUSE THAT PATTERN WAS PREFERRED TO OTHERS WHICH WERE OBTAINABLE, I DO NOT THINK IT WOULD BE A SUFFICIENT REASON FOR NOT ADVERTISING FOR PROPOSALS THAT THE FIRM OF WHICH PURCHASED WAS THE ONLY ONE WHICH HAD THAT PATTERN. BUT IF THIS PARTICULAR PATTERN WAS THE ONLY ONE THAT WAS IN FACT SUITABLE FOR THE PURPOSE FOR WHICH IT WAS REQUIRED, AND THERE WAS ONLY ONE DEALER WHO COULD FURNISH IT, I THINK THIS STATE OF FACTS WOULD JUSTIFY ITS PURCHASE WITHOUT ADVERTISING.

THE FACTS OF RECORD DO NOT DISCLOSE, AND YOU DO NOT STATE, THAT THE PARTICULAR ENGINES MADE BY THE WISCONSIN MOTOR MANUFACTURING CO. ARE THE ONLY ENGINES THAT WILL IN FACT ANSWER THE PURPOSES FOR WHICH THEY ARE REQUIRED. THERE IS NO AUTHORITY OF LAW FOR THE STANDARDIZATION OF SUCH EQUIPMENT BY THE COAST GUARD, AND THE FACT THAT NUMEROUS TESTS HAVE BEEN MADE BY BOARDS APPOINTED FOR THE PURPOSE OF MAKING INVESTIGATIONS WITH A VIEW OF STANDARDIZATION DOES NOT OPERATE TO TAKE THE MATTER FROM UNDER THE PROVISIONS OF SECTION 3709, REVISED STATUTES, SUPRA. IT MAY ALSO BE STATED THAT EXPERIENCE WITH A PARTICULAR ENGINE DOES NOT JUSTIFY EXCLUDING BIDDERS OFFERING OTHER MAKES OF ENGINES. SUCH A COURSE WOULD RESULT IN ESTABLISHING PERMANENTLY BUT ONE MAKE OF MACHINERY OR EQUIPMENT WITHOUT GIVING TRIAL TO POSSIBLE IMPROVEMENTS THROUGH OTHER MAKES. IT APPEARS THAT WHAT IS NEEDED IS NOT AN ENGINE OF A PARTICULAR MAKE BUT AN ENGINE THAT WILL MEET CERTAIN PERFORMANCE REQUIREMENTS OF THE UNITED STATES COAST GUARD SERVICE. THE DESIRE FOR A PARTICULAR MAKE OF ENGINE IS NOT OF ITSELF SUFFICIENT JUSTIFICATION FOR THE PURCHASE OF SAID MAKE TO THE EXCLUSION OF OTHERS IF THE OTHERS ARE EQUALLY ADAPTABLE TO THE NEEDS OF THE SERVICE. 5 COMP. GEN. 546.

FOR ALL ORDINARY USES ALL MAKES AND GRADES OF ENGINES ARE FOR CONSIDERATION IN DETERMINING WHICH WILL BEST MEET THE NEEDS OF THE SERVICE. IF THEY ARE FOR OTHER THAN ORDINARY USE, THE SPECIFICATIONS ACCOMPANYING THE PROPOSALS SHOULD STATE THE EXTRAORDINARY USE TO WHICH THEY ARE TO BE PUT. IN OTHER WORDS, IT CAN NOT BE SAID, EXCEPT IN CERTAIN RARE INSTANCES, THAT ONLY A PARTICULAR MAKE OF EQUIPMENT, ETC., WILL ANSWER THE NEEDS OF THE GOVERNMENT AND SPECIFICATIONS MAY NOT BE SO DRAFTED OR BIDS ACCEPTED ON SUCH A BASIS. 5 COMP. GEN. 776. THEREFORE, IN THE PURCHASE OF SUCH EQUIPMENT, BIDS SHOULD BE REQUESTED ON SPECIFICATIONS DRAWN NOT BY DESIGNATION OF A PARTICULAR MAKE, NOR TO COVER MECHANICAL CONSTRUCTION OF THE ENGINE, BUT TO SHOW THE DIMENSIONS OF THE BOAT, THE SPACE AVAILABLE FOR INSTALLATION, THE CONDITIONS UNDER WHICH IT IS TO BE OPERATED, AND THE PERFORMANCE REQUIREMENTS NECESSARY TO MEET THE NEEDS OF THE GOVERNMENT, ETC. IT WOULD ALSO BE PROPER TO EXACT A GUARANTY THAT THE ENGINE OFFERED WILL MEET THE REQUIRED PERFORMANCE REQUIREMENTS UNDER ACTUAL SERVICE CONDITIONS. WHEN BIDS ARE RECEIVED AFTER SUCH ADVERTISEMENT, THE ONE MOST ADVANTAGEOUS TO THE GOVERNMENT SHOULD BE ACCEPTED.

THE PURCHASES IN QUESTION WERE NOT MADE IN COMPLIANCE WITH SECTION 3709, REVISED STATUTES. HOWEVER, IN VIEW OF THE EXPLANATIONS AND REPRESENTATIONS MADE IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT, CREDIT WILL BE ALLOWED FOR THE ITEM IN QUESTION, BUT CREDIT WILL NOT BE ALLOWED FOR PAYMENTS FOR SUCH PURCHASES HEREAFTER MADE UNLESS THE REQUIREMENTS OF THE STATUTE, SUPRA, ARE COMPLIED WITH.

UPON REVIEW THE SUM OF $11,060 IS CERTIFIED FOR CREDIT IN THE ACCOUNTS OF J. L. SUMMERS.