A-17325, APRIL 8, 1927, 6 COMP. GEN. 658

A-17325: Apr 8, 1927

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AUTHORIZING THE SECRETARY OF WAR TO HAVE WORK CONNECTED WITH RIVER AND HARBOR IMPROVEMENTS PERFORMED BY CONTRACT OR OTHERWISE AS MAY BE MOST ECONOMICAL AND ADVANTAGEOUS. WHEN THE SECRETARY OF WAR DETERMINES THAT DESIRED WORK IS TO BE PERFORMED BY CONTRACTORS. IT IS NOTED THAT PAYMENTS WERE MADE ON VOUCHERS 76. THE AMOUNT PAID ON EACH OF THE VOUCHERS IS LARGELY IN EXCESS OF $500 AND THE SUPPLIES AND SERVICES PAID FOR THEREON ARE STATED TO HAVE BEEN SECURED "WITHOUT ADVERTISING. APPLIES ONLY TO APPROPRIATIONS MADE FOR FORTIFICATIONS AND OTHER WORKS OF DEFENSE AND HAS NO APPLICATION HERE ALTHOUGH THE LANGUAGE USED IS PRACTICALLY IDENTICAL WITH THE LANGUAGE OF SECTION 3 OF THE ACT OF AUGUST 11.

A-17325, APRIL 8, 1927, 6 COMP. GEN. 658

ADVERTISING - CONTRACTS FOR RIVER AND HARBOR IMPROVEMENTS THE PROVISIONS OF SECTION 3 OF THE ACT OF AUGUST 11, 1888, 25 STAT. 423, AUTHORIZING THE SECRETARY OF WAR TO HAVE WORK CONNECTED WITH RIVER AND HARBOR IMPROVEMENTS PERFORMED BY CONTRACT OR OTHERWISE AS MAY BE MOST ECONOMICAL AND ADVANTAGEOUS, DO NOT AUTHORIZE THE DISPENSING WITH SECTION 3709, REVISED STATUTES, REQUIRING ADVERTISING FOR SUPPLIES AND SERVICES WHEN IN EXCESS OF $500 IN AMOUNT, AS QUALIFIED BY THE ACT OF JUNE 12, 1906, 34 STAT. 258, AND SECTION 3744, REVISED STATUTES, REQUIRING FORMAL CONTRACTS, WHEN THE SECRETARY OF WAR DETERMINES THAT DESIRED WORK IS TO BE PERFORMED BY CONTRACTORS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, APRIL 8, 1927:

IN THE AUDIT OF THE ACCOUNTS OF L. E. ATKINS, MAJOR, CORPS OF ENGINEERS, UNITED STATES ARMY, IT IS NOTED THAT PAYMENTS WERE MADE ON VOUCHERS 76, 77, 124, AND 426, JULY, 1926, FOR SUPPLIES AND SERVICES PROCURED IN CONNECTION WITH RIVER AND HARBOR WORKS IN THE OPEN MARKET WITHOUT REGARD TO THE REQUIREMENTS OF SECTIONS 3709 AND 3744, REVISED STATUTES.

THE AMOUNT PAID ON EACH OF THE VOUCHERS IS LARGELY IN EXCESS OF $500 AND THE SUPPLIES AND SERVICES PAID FOR THEREON ARE STATED TO HAVE BEEN SECURED "WITHOUT ADVERTISING, THAT METHOD BEING MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT. (APPLICABLE TO R. AND H. AND FORT-N APPROPRIATIONS ONLY, ACTS OF AUGUST 11, 1888, AND JUNE 12, 1906.)

THE ACT OF JUNE 25, 1906, 34 STAT. 463, APPLIES ONLY TO APPROPRIATIONS MADE FOR FORTIFICATIONS AND OTHER WORKS OF DEFENSE AND HAS NO APPLICATION HERE ALTHOUGH THE LANGUAGE USED IS PRACTICALLY IDENTICAL WITH THE LANGUAGE OF SECTION 3 OF THE ACT OF AUGUST 11, 1888, 25 STAT. 423, WHICH EADS:

THAT IT SHALL BE THE DUTY OF THE SECRETARY OF WAR TO APPLY THE MONEY HEREIN AND HEREAFTER APPROPRIATED FOR IMPROVEMENTS OF RIVERS AND HARBORS, OTHER THAN SURVEYS, ESTIMATES, AND GAUGINGS, IN CARRYING ON THE VARIOUS WORKS, BY CONTRACT OR OTHERWISE, AS MAY BE MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT. WHERE SAID WORKS ARE DONE BY CONTRACT, SUCH CONTRACT SHALL BE MADE AFTER SUFFICIENT PUBLIC ADVERTISEMENT FOR PROPOSALS, IN SUCH MANNER AND FORM AS THE SECRETARY OF WAR SHALL PRESCRIBE; AND SUCH CONTRACTS SHALL BE MADE WITH THE LOWEST RESPONSIBLE BIDDERS, ACCOMPANIED BY SUCH SECURITIES AS THE SECRETARY OF WAR SHALL REQUIRE; CONDITIONED FOR THE FAITHFUL PROSECUTION AND COMPLETION OF THE WORK ACCORDING TO SUCH CONTRACT.

IT IS PROVIDED IN THE ACT OF JUNE 12, 1906, 34 STAT. 258, THAT---

HEREAFTER THE PURCHASE OF SUPPLIES AND THE PROCUREMENT OF SERVICES FOR ALL BRANCHES OF THE ARMY SERVICE MAY BE MADE IN OPEN MARKET, IN THE MANNER COMMON AMONG BUSINESS MEN, WHEN THE AGGREGATE OF THE AMOUNT REQUIRED DOES NOT EXCEED FIVE HUNDRED DOLLARS; * * *

THE CONSTRUCTION THAT HAS APPARENTLY BEEN PLACED BY OFFICERS OF THE CORPS OF ENGINEERS OF THE ARMY CHARGED WITH ADMINISTERING THE FUNDS PROVIDED FOR RIVER AND HARBOR WORKS UPON THE WORDS "AS MAY BE MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT," APPEARING IN SECTION 3 OF THE 1888 LAW, WOULD HAVE THE EFFECT OF DISPENSING ENTIRELY WITH THE REQUIREMENTS OF SECTIONS 3709 AND 3744, REVISED STATUTES, WHETHER THE AMOUNT INVOLVED BE MORE OR LESS THAN $500, THE LIMIT ESTABLISHED BY THE ACT OF JUNE 12, 1906, FOR MAKING PURCHASES IN THE OPEN MARKET. THERE APPEARS NOTHING IN THE SAID SECTION 3 TO WARRANT SUCH A CONSTRUCTION. THAT PROVISION MERELY MAKES IT THE DUTY OF THE SECRETARY OF WAR TO APPLY MONEYS APPROPRIATED FOR IMPROVEMENTS OF RIVERS AND HARBORS IN CARRYING ON THE VARIOUS WORKS, BY CONTRACT OR OTHERWISE, AS MAY BE MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT; THAT IS, THE SECRETARY OF WAR IS GIVEN THE AUTHORITY TO DETERMINE WHETHER IT WOULD BE MORE ECONOMICAL AND ADVANTAGEOUS TO HAVE WORK PERFORMED UNDER CONTRACT OR BY SOME OTHER MEANS, BUT AUTHORITY IS NOT GIVEN TO PROCURE SUPPLIES OR SERVICES OTHER THAN IN ACCORDANCE WITH LAW.

THE COMPTROLLER OF THE TREASURY IN DECISION OF AUGUST 16, 1905, 12 COMP. DEC. 83, HELD THAT SECTION 3 OF THE 1888 LAW DID NOT IN ANY WAY AFFECT OR REPEAL SECTION 3744, REVISED STATUTES, AND SAID IN THAT CONNECTION THAT---

* * * IT MERELY AUTHORIZES HIM (SECRETARY OF WAR) IN HIS DISCRETION TO HAVE THE IMPROVEMENTS MADE UNDER HIS OWN EMPLOYMENT OR ENGAGEMENT OR BY CONTRACT, BUT I DO NOT THINK IT AUTHORIZES THE MAKING OF CONTRACTS OTHERWISE THAN IN THE MANNER PRESCRIBED BY SAID SECTION 3744.

THE REQUIREMENTS OF LAW AS RESPECTS ADVERTISING IN CONNECTION WITH THE PAYMENT FOR PURCHASES MADE OR SERVICES RENDERED UNDER RIVER AND HARBOR APPROPRIATIONS ARE EQUALLY FOR OBSERVANCE WITH THOSE GOING TO THE FORM OF CONTRACTS WHEN THE SECRETARY OF WAR DETERMINES THAT DESIRED WORK IS TO BE PERFORMED BY CONTRACTS.

THAT BRANCH OF THE CORPS OF ENGINEERS OF THE ARMY ENGAGED UPON RIVER AND HARBOR WORKS IS A BRANCH "OF THE ARMY SERVICE" WITHIN THE MEANING OF THE ACT OF JUNE 12, 1906, AND THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE FOR APPLICATION IN THE PROCUREMENT OF SUPPLIES OR SERVICES-- - OTHER THAN PERSONAL SERVICES SUCH AS ARE EXCEPTED UNDER THE PROVISIONS OF SAID SECTION--- IN FURTHERANCE OF RIVER AND HARBOR IMPROVEMENTS IN THE SAME MANNER AS OTHER BRANCHES OF THE ARMY SERVICE ARE SUBJECT THERETO, WHEN IN EXCESS OF $500 IN AMOUNT, AND THE PROVISIONS OF SECTION 3744, REVISED STATUTES, ARE ALSO APPLICABLE TO SUCH PURCHASES. THAT IS TO SAY, WHEN THE SECRETARY OF WAR UNDER THE AUTHORITY VESTED IN HIM UNDER THE ACT OF AUGUST 11, 1888, ELECTS TO HAVE A CERTAIN PIECE OF RIVER AND HARBOR WORK PERFORMED BY THE EMPLOYMENT OF LABOR AND THE PURCHASE OF SUPPLIES AND MATERIALS INSTEAD OF HAVING IT PERFORMED UNDER A CONTRACT THE NECESSARY SUPPLIES AND MATERIALS ARE AUTHORIZED TO BE PROCURED ONLY IN THE MANNER PROVIDED BY OTHER LAWS APPLICABLE THERETO.

CREDIT FOR PAYMENTS FOR PURCHASES HERETOFORE MADE IN ACCORDANCE WITH THE EXISTING PRACTICE WILL BE ALLOWED, IF OTHERWISE CORRECT AND LEGAL, BUT THE REQUIREMENTS OF SECTIONS 3709, AND 3744, REVISED STATUTES, AS QUALIFIED BY THE ACT OF JUNE 12, 1906, SUPRA, SHOULD BE COMPLIED WITH IN THE MATTER OF ALL SUCH PURCHASES HEREAFTER MADE.