A-20058, OCTOBER 29, 1927, 7 COMP. GEN. 298

A-20058: Oct 29, 1927

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ADVERTISING - ACCEPTANCE OF OTHER THAN THE LOWEST BID MERE PERSONAL OPINION UNSUPPORTED BY FACTS THAT SUPPLIES OFFERED AT A HIGHER BID ARE OF BETTER QUALITY AND SUPERIOR IN MATERIAL AND WORKMANSHIP TO THOSE OFFERED AT A LOWER BID IS NOT SUFFICIENT JUSTIFICATION FOR REJECTION OF THE LOWER BID. ACCEPTANCE OF OTHER THAN THE LOWEST BID IS NOT AUTHORIZED SIMPLY BECAUSE THE SUPPLIES OR MATERIALS OFFERED ARE OF A BETTER QUALITY THAN THOSE OFFERED BY THE LOWEST BIDDER UNLESS THE PROPOSALS REQUESTING BIDS SPECIFIED THE QUALITY REQUIRED BY THE GOVERNMENT AND ADVISED PROSPECTIVE BIDDERS THAT THE QUESTION OF QUALITY WOULD BE A DETERMINING FACTOR IN THE ACCEPTANCE OR REJECTION OF THE BIDS. WHICH WAS RECEIVED SEPTEMBER 29.

A-20058, OCTOBER 29, 1927, 7 COMP. GEN. 298

ADVERTISING - ACCEPTANCE OF OTHER THAN THE LOWEST BID MERE PERSONAL OPINION UNSUPPORTED BY FACTS THAT SUPPLIES OFFERED AT A HIGHER BID ARE OF BETTER QUALITY AND SUPERIOR IN MATERIAL AND WORKMANSHIP TO THOSE OFFERED AT A LOWER BID IS NOT SUFFICIENT JUSTIFICATION FOR REJECTION OF THE LOWER BID. ACCEPTANCE OF OTHER THAN THE LOWEST BID IS NOT AUTHORIZED SIMPLY BECAUSE THE SUPPLIES OR MATERIALS OFFERED ARE OF A BETTER QUALITY THAN THOSE OFFERED BY THE LOWEST BIDDER UNLESS THE PROPOSALS REQUESTING BIDS SPECIFIED THE QUALITY REQUIRED BY THE GOVERNMENT AND ADVISED PROSPECTIVE BIDDERS THAT THE QUESTION OF QUALITY WOULD BE A DETERMINING FACTOR IN THE ACCEPTANCE OR REJECTION OF THE BIDS.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 29, 1927:

CAPT. HARRY ADAMSON, FINANCE DEPARTMENT, UNITED STATES ARMY, ON BEHALF OF AND AS CUSTODIAN OF THE RETAINED ACCOUNTS OF MAJ. OTTO W. GRALUND, REQUESTED BY LETTER DATED AUGUST 11, 1927, WHICH WAS RECEIVED SEPTEMBER 29, 1927, REVIEW OF SETTLEMENT NO. K-12321-W, DATED FEBRUARY 1-28, 1927, DISALLOWING $16.35 IN THE ACCOUNTS OF MAJOR GRALUND. THE AMOUNT IS THE DIFFERENCE BETWEEN THE LOWEST BID AND THE ACCEPTED BID ON 10 PLATE-GLASS MIRRORS, 20 INCHES BY 60 INCHES, AND 5 GALLONS OF LIQUID BRONZING PURCHASED FROM THE BENNETT GLASS AND PAINT CO., UNDER CIRCULAR PROPOSAL 27 -15, DATED JANUARY 3, 1927 (W-268 Q.M. 30).

IT APPEARS THAT UNDER DATE OF JANUARY 3, 1927, JOSEPH C. KAY, LIEUTENANT COLONEL, QUARTERMASTER CORPS, ACTING AS PURCHASING AND CONTRACTING OFFICER FOR THE QUARTERMASTER CORPS, ADVERTISED FOR BIDS FOR FURNISHING SUPPLIES FOR THE USE OF THE UNITED STATES ARMY AT FORT DOUGLAS, UTAH, AMONG WHICH WERE CERTAIN PLATE-GLASS MIRRORS, 20 INCHES BY 60 INCHES, AND 5 GALLONS OF LIQUID BRONZING. THE BID OF THE BENNETT GLASS AND PAINT CO., THE NEXT HIGHEST OF FIVE BIDS RECEIVED ON THE MIRRORS AND THE NEXT LOWEST OF SEVEN BIDS RECEIVED ON THE LIQUID BRONZING, WAS ACCEPTED.

THE LOWEST BID ON THE MIRRORS WAS THAT OF W. P. FULLER AND CO. AT $11.36 EACH, AS AGAINST THE ACCEPTED BID OF $12.85 EACH, AND THE LOWEST BID ON THE LIQUID BRONZING WAS THAT OF THE MCMURTRY MANUFACTURING CO. AT 88 CENTS PER GALLON, AS AGAINST THE ACCEPTED BID OF $1.35 PER GALLON. THEREFORE THE TOTAL AMOUNT PAID FOR THE TWO ITEMS IN EXCESS OF THE AMOUNT THAT WOULD HAVE BEEN PAID IF THE LOWEST BID IN EACH CASE HAD BEEN ACCEPTED WAS ($14.90 PLUS $2.35) $17.25 INSTEAD OF $16.35, THE AMOUNT FOR WHICH CREDIT WAS DISALLOWED.

THE REASONS FOR ACCEPTANCE OF OTHER THAN THE LOWEST BID AS TO ITEM 8, THE BRONZING LIQUID, ARE STATED ON THE ABSTRACT OF BIDS AS FOLLOWS:

LOWEST BID ON ITEM NO. 8 REJECTED, GOOD MATERIAL CAN NOT BE FURNISHED AT THAT PRICE AND INFERIOR MATERIAL IS NOT SATISFACTORY.

THE REASONS FOR NOT ACCEPTING THE LOWEST BID FOR ITEM NO. 14, THE PLATE- GLASS MIRRORS, AS STATED ON THE ABSTRACT OF BIDS, ARE THAT:

LOWEST BID ON ITEM NO. 14 REJECTED. THE MIRRORS FURNISHED ON THE ACCEPTED BID WILL BE FAR SUPERIOR IN MATERIAL AND WORKMANSHIP TO THOSE OF A LOWER PRICE. THE BENNETT GLASS AND PAINT CO. SELECTS THE GLASS, DOUBLE SILVERS THE MIRRORS, AND PAINTS THEM TWICE, WHEREAS THE ORDINARY MIRROR IS SILVERED ONCE AND PAINTED ONCE.

THERE APPEAR TO HAVE BEEN NO PARTICULAR SPECIFICATIONS PRESCRIBED WITH WHICH BIDDERS WERE TO COMPLY, THE ADVERTISEMENT MERELY REQUESTING BIDS ON "LIQUID BRONZING, 5 GALLONS" AND "MIRRORS, PLATE GLASS, 20 INCHES BY 60 INCHES, 10 EACH.'

IT HAS BEEN HELD IN NUMEROUS DECISIONS OF THIS OFFICE AND THE FORMER COMPTROLLERS OF THE TREASURY THAT THE PURPOSE OF THE STATUTE REQUIRING COMPETITION IS PRIMARILY TO GIVE THE UNITED STATES THE ADVANTAGE OF THE LOWEST AVAILABLE PRICE FOR THE MATERIAL OR THE SERVICE DESIRED AND PRESUPPOSES THE ACCEPTANCE OF THE LOWEST BID CONFORMING TO THE STIPULATED CONDITIONS. WHILE IN SOME CASES THERE MAY BE REASONS SUFFICIENT FOR ACCEPTING OTHER THAN THE LOWEST BID, A HIGHER BID MAY NOT PROPERLY BE ACCEPTED AND HIGHER COST BE THUS PAID UNLESS THE REASONS FOR THE REJECTION OF A LOWER BID ARE OF SUCH MATERIAL CHARACTER AS TO FULLY WARRANT SUCH ACTION AND SUPPORT THE HIGHER AMOUNT TO BE PAID. COMPETITIVE BIDDERS AS WELL AS THE PUBLIC IN GENERAL ARE CONCERNED IN THE ACCEPTANCE OF THE LOWEST BID, AND IF IT APPEARS THAT THE REJECTION IS UPON INSUFFICIENT FACTS THERE ARISES A PROPER QUESTION FOR THE CONSIDERATION OF THIS OFFICE. 5 COMP. GEN. 330.

IT APPEARS THAT THE LOWEST BID FOR LIQUID BRONZING WAS REJECTED ON THE MERE OPINION OF THE PURCHASING OFFICER THAT GOOD MATERIAL COULD NOT BE FURNISHED AT THAT PRICE. SOMETHING MORE IS REQUIRED THAN MERE PERSONAL OPINION UNSUPPORTED BY FACTS. THE MERE FACT THAT LIQUID BRONZING OFFERED BY A PARTICULAR COMPANY IS QUOTED AT A HIGHER PRICE DOES NOT JUSTIFY THE ASSUMPTION THAT IT IS OF BETTER QUALITY THAN THE BRONZING OFFERED AT A LOWER PRICE. FURTHERMORE, THERE IS NO SHOWING THAT THE CHEAPER BRONZING, EVEN IF INFERIOR TO THAT PURCHASED, WOULD NOT HAVE MET THE PARTICULAR REQUIREMENT FOR WHICH THE PURCHASE WAS MADE.

THE LOWEST BID FOR PLATE-GLASS MIRRORS WAS REJECTED APPARENTLY UPON A MERE ASSUMPTION THAT THE MIRRORS OFFERED AT THE HIGHEST BID WOULD BE SUPERIOR IN MATERIAL AND WORKMANSHIP. NOTHING IS SUBMITTED TO JUSTIFY SUCH ASSUMPTION. NEITHER IS THERE ANY SHOWING THAT THE GOVERNMENT'S NEEDS REQUIRED A BETTER MIRROR THAN THAT OFFERED AT THE LOWER PRICE.

IT IS TO BE NOTED THAT IN NEITHER CASE WERE BIDDERS REQUIRED TO FURNISH SAMPLES, NOR WAS IT OTHERWISE INDICATED THAT QUALITY OF THE ARTICLES OR SUPPLIES WOULD BE MADE A DETERMINING FACTOR IN THE ACCEPTANCE OR REJECTION OF THE BIDS.

IN THIS CONNECTION ATTENTION IS INVITED TO DECISION OF THIS OFFICE DATED NOVEMBER 5, 1925, 5 COMP. GEN. 330, 331, WHEREIN IT WAS SAID:

THERE IS NO DOUBT THAT IT WOULD NOT BE IN THE INTEREST OF THE UNITED STATES TO PURCHASE SUPPLIES OF AN INFERIOR GRADE OR SUPPLIES AS TO WHICH THERE IS DOUBT AS TO THEIR QUALITY OR DURABILITY. BUT THERE MUST BE EQUALITY OF BIDDING--- ALL BIDS MUST BE ASKED UPON THE SAME CONDITIONS TO AFFORD PROPER COMPARISON OF BIDS. THE QUALITY REQUIRED FOR GOVERNMENT NEEDS SHOULD BE SPECIFIED IN ORDER THAT ALL BIDDERS MAY HAVE EQUAL OPPORTUNITY TO OFFER SUPPLIES OR MATERIALS WHICH MEET THE REQUIREMENTS SO SPECIFIED. THAT IS, IF QUALITY IS TO BE A DETERMINING FACTOR IN THE ACCEPTANCE OR REJECTION OF A PARTICULAR BID, IT MUST BE SO STATED AND BIDS NOT FULLY OFFERING THE QUALITY SPECIFIED ARE NOT REQUIRED TO BE ACCEPTED, BUT IF THE QUALITY SPECIFIED IS OFFERED, A HIGHER BID MAY NOT BE ACCEPTED ON THE GROUND THAT IT OFFERS A BETTER QUALITY THAN THAT SPECIFIED.

AS IT APPEARS FROM THE RECORD THAT THE AWARD, AS TO THE TWO ITEMS HERE IN QUESTION, WAS MADE IN DIRECT CONTRAVENTION OF THE DECISIONS OF THIS OFFICE, CREDIT MAY NOT BE ALLOWED FOR ANY PART OF THE PAYMENTS MADE ON ACCOUNT OF SAID ITEMS. ACCORDINGLY, THE AMOUNT OF $135.25, INSTEAD OF $16.35, WILL BE DISALLOWED IN THE SETTLEMENT OF THE DISBURSING OFFICER'S ACCOUNTS.