A-20788, DECEMBER 13, 1927, 7 COMP. GEN. 383

A-20788: Dec 13, 1927

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ARE INSUFFICIENT FOR MAKING REPAIRS TO PUBLIC BUILDINGS. WHEREIN CREDIT WAS DISALLOWED FOR THE SUM OF $74 PAID ON VOUCHER 94280 OF THE MARCH. PROPOSALS WERE SOLICITED FOR FURNISHING LABOR AND MATERIALS FOR REPAIRING AND PAINTING THE PLASTERED WALLS AND CEILINGS OF THE UNITED STATES CUSTOMHOUSE. " AND THAT IN AWARDING THE CONTRACT THE RIGHT WAS RESERVED TO CONSIDER BOTH TIME OF COMPLETION AND PRICE. IN RESPONSE TO THE INVITATION FOR BIDS THE FOLLOWING PROPOSALS WERE RECEIVED: TABLE NAME OF BIDDER AMOUNT OF TIME TO COMPLETE BID NEPTUNE B. THE CONTRACT WAS AWARDED ON JANUARY 2. WAS MANIFESTLY TO THE INTEREST OF THE GOVERNMENT. IS SET OUT AS FOLLOWS: SECTION 3679 OF THE REVISED STATUTES OF THE UNITED STATES.

A-20788, DECEMBER 13, 1927, 7 COMP. GEN. 383

APPROPRIATIONS, ALLOTMENT OF - ADVERTISING, ACCEPTANCE OF OTHER THAN LOWEST BID WHERE FUNDS APPORTIONED UNDER SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49, FOR A GIVEN PERIOD, ARE INSUFFICIENT FOR MAKING REPAIRS TO PUBLIC BUILDINGS, ALL BIDS SUBMITTED DURING SUCH PERIOD OF INSUFFICIENCY SHOULD BE REJECTED AND THE WORK READVERTISED, OR THERE SHOULD BE A REAPPORTIONMENT OF THE APPROPRIATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, DECEMBER 13, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 11, 1927, REQUESTING REVIEW OF SETTLEMENT K-14385-T, DATED SEPTEMBER 28, 1927, WHEREIN CREDIT WAS DISALLOWED FOR THE SUM OF $74 PAID ON VOUCHER 94280 OF THE MARCH, 1926 ACCOUNT OF J. L. SUMMERS, DISBURSING CLERK FOR THE TREASURY DEPARTMENT, REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT PAID TO HENRY K. TULLEY FOR REPAIRS TO THE UNITED STATES CUSTOMHOUSE, AT NEW YORK CITY, AND THE AMOUNT FOR WHICH NEPTUNE B. SMYTH (INC.), AGREED TO PERFORM THE SERVICE.

IT APPEARS THAT ON NOVEMBER 25, 1925, PROPOSALS WERE SOLICITED FOR FURNISHING LABOR AND MATERIALS FOR REPAIRING AND PAINTING THE PLASTERED WALLS AND CEILINGS OF THE UNITED STATES CUSTOMHOUSE, NEW YORK CITY, THE PROPOSALS TO BE OPENED AT THE OFFICE OF THE SUPERVISING ENGINEER, UNITED STATES PUBLIC BUILDINGS, NEW YORK CITY, AT 2 P.M. ON DECEMBER 9, 1925. THE SPECIFICATIONS ACCOMPANYING THE REQUEST FOR PROPOSALS STATED THAT THE WORK "MUST BE COMPLETED WITHIN 30 CALENDAR DAYS FROM THE DATE OF THE TREASURY DEPARTMENT LETTER OF ACCEPTANCE OF PROPOSAL," AND THAT IN AWARDING THE CONTRACT THE RIGHT WAS RESERVED TO CONSIDER BOTH TIME OF COMPLETION AND PRICE.

IN RESPONSE TO THE INVITATION FOR BIDS THE FOLLOWING PROPOSALS WERE RECEIVED:

TABLE

NAME OF BIDDER AMOUNT OF TIME TO COMPLETE

BID NEPTUNE B. SMYTH (INC.) ------------------ $274.00 20 CALENDAR DAYS. HENRY K. TULLY ------ --------------------- 348.00 30 CALENDAR DAYS. JOHN F. FERGUSON - ------------------------ 349.00 30 CALENDAR DAYS. PETER V. CLOSE ---- ----------------------- 375.00 30 CALENDAR DAYS. WILLIAM HAHN CONTRACTING CO. -------------- 498.00 58 CALENDAR DAYS.

THE CONTRACT WAS AWARDED ON JANUARY 2, 1926, TO HENRY K. TULLY, THE SECOND LOWEST BIDDER. THE REASON FOR NOT ACCEPTING THE BID OF NEPTUNE B. SMYTH, WHOSE PROPOSAL, DATED DECEMBER 9, 1925, TO PERFORM THE SERVICE BOTH AT THE LOWEST PRICE AND IN THE SHORTEST TIME, WAS MANIFESTLY TO THE INTEREST OF THE GOVERNMENT, IS SET OUT AS FOLLOWS:

SECTION 3679 OF THE REVISED STATUTES OF THE UNITED STATES, AS AMENDED (34 STAT., P. 49), PROVIDES, IN PART, AS FOLLOWS:

"ALL APPROPRIATIONS MADE FOR CONTINGENT EXPENSES OR OTHER GENERAL PURPOSES, EXCEPT APPROPRIATIONS MADE IN FULFILLMENT OF CONTRACT OBLIGATIONS EXPRESSLY AUTHORIZED BY LAW, OR FOR OBJECTS REQUIRED OR AUTHORIZED BY LAW WITHOUT REFERENCE TO THE AMOUNTS ANNUALLY APPROPRIATED THEREFOR, SHALL, ON OR BEFORE THE BEGINNING OF EACH FISCAL YEAR, BE SO APPORTIONED BY MONTHLY OR OTHER ALLOTMENTS AS TO PREVENT EXPENDITURES IN ONE PORTION OF THE YEAR WHICH MAY NECESSITATE DEFICIENCY OR ADDITIONAL APPROPRIATIONS TO COMPLETE THE SERVICE OF THE FISCAL YEAR FOR WHICH SAID APPROPRIATIONS ARE MADE; AND ALL SUCH APPORTIONMENTS SHALL BE ADHERED TO AND SHALL NOT BE WAIVED OR MODIFIED EXCEPT UPON THE HAPPENING OF SOME EXTRAORDINARY EMERGENCY OR UNUSUAL CIRCUMSTANCE WHICH COULD NOT BE ANTICIPATED AT THE TIME OF MAKING SUCH APPORTIONMENT.'

IN ACCORDANCE WITH THE TERMS OF THE STATUTE CITED, THE DEPARTMENT MADE A QUARTERLY APPORTIONMENT OF THE ANNUAL APPROPRIATIONS WHICH WERE FOR ADMINISTRATION BY THE OFFICE OF THE SUPERVISING ARCHITECT DURING THE FISCAL YEAR 1926, INCLUDED IN WHICH WAS THE APPROPRIATION ,REPAIRS AND PRESERVATION OF PUBLIC BUILDINGS, 1926.'

THE APPROPRIATION "REPAIRS AND PRESERVATION," WHICH IS ANNUALLY PROVIDED FOR THE REPAIR OF PUBLIC BUILDINGS, IS NOT LARGE WHEN THE PURPOSES FOR WHICH IT IS MADE AND THE GREAT DEMANDS UPON IT ARE TAKEN INTO CONSIDERATION. THE DANGER OF SPENDING TOO CLOSELY BEFORE NEARING THE END OF THE APPORTIONMENT PERIOD IS READILY APPARENT, AND EXPERIENCE HAS SHOWN THE NECESSITY FOR HOLDING IN RESERVE AND UNENCUMBERED A REASONABLE AMOUNT OF THE AVAILABLE ALLOTMENT TO MEET EMERGENCIES WHICH THOUGH SERIOUS MAY NOT BE CONSIDERED "EXTRAORDINARY," AND, THEREFORE, NOT JUSTIFYING REAPPORTIONMENT OF THE FUNDS ALREADY APPORTIONED. ACCORDINGLY, ON DECEMBER 5, 1925, THE EXTREME CONSERVATION POINT WAS THOUGH TO HAVE BEEN REACHED, AND THEREAFTER NUMEROUS PROJECTS NOT CONSIDERED URGENT WERE CARRIED OVER INTO THE NEXT QUARTER.

ON DECEMBER 9, 1925, THE SUPERVISING CHIEF ENGINEER OF PUBLIC BUILDINGS IN NEW YORK SUBMITTED TO THE OFFICE OF THE SUPERVISING ARCHITECT OF THIS DEPARTMENT SIX PROPOSALS FOR INTERIOR PAINTING AT THE CUSTOMHOUSE, NEW YORK, N.Y., RANGING IN AMOUNTS FROM $274.00 TO $498.00 THE LOWEST, OR THE $274.00 BID, WAS BY NEPTUNE B. SMYTH, AND THE SECOND WAS BY HENRY K. TULLY FOR $348.00. THE WORK, WHILE NECESSARY, WAS NOT OF AN URGENT NATURE, AND SINCE THE AVAILABLE FUNDS WERE THEN RUNNING LAW, FOR REASONS HERETOFORE EXPLAINED ACCEPTANCE WAS DEFERRED TO THE NEXT QUARTER AND THE LOW BIDDER WAS SO ADVISED.

IN VIEW OF THE CIRCUMSTANCES THEN PREVAILING MR. SMYTH, THE LOW BIDDER, WAS ASKED "WILL YOU AGREE TO STAND BY YOUR PROPOSAL UNTIL AFTER JANUARY 1, 1926," TO WHICH INQUIRY HE REPLIED THAT HE WOULD NOT. ACCORDINGLY, ON JANUARY 2, 1926, IN LINE WITH SIMILAR ACTION ON OTHER DEFERRED ACCEPTANCES, THE BID OF MR. TULLY WAS ACCEPTED, IT THEN BEING THE LOWEST OF FIVE PROPOSALS PROPERLY SUBJECT FOR CONSIDERATION AT THAT TIME. THE WORK WAS SATISFACTORILY COMPLETED BY HIM, AND PAYMENT WAS MADE IN ACCORDANCE WITH THE CONTRACT REQUIREMENTS.

IT MAY BE STATED THAT DESPITE THE UTMOST CONSERVATION OF THAT PORTION OF THE APPROPRIATION AVAILABLE TO DECEMBER 31, 1925, AND THE CARRYING OVER INTO THE SUBSEQUENT QUARTER OF MANY DEFERRED ACCEPTANCES, THE AVAILABLE FUNDS AT THAT DATE HAD BEEN PRACTICALLY EXHAUSTED.

THE PRIMARY PURPOSE OF SECTION 3679, REVISED STATUTES, AS AMENDED, IS TO REQUIRE THE APPORTIONMENT OF FISCAL YEAR APPROPRIATIONS BY MONTHLY OR OTHER ALLOTMENTS SO THAT EXCEPT IN CASES OF EMERGENCY ONLY THE ALLOTMENT FOR THE PERIOD WILL BE CURRENTLY USED AND A DEFICIENCY THEREBY PREVENTED.

THE UNEXPENDED BALANCE OF THE APPORTIONMENT FOR DECEMBER, 1925, SHOULD HAVE BEEN ASCERTAINED BEFORE ADVERTISING FOR BIDS TO DO THE WORK IN THE CUSTOMHOUSE BUILDING, AND IF, AS APPEARS TO HAVE BEEN THE CASE, THE REPAIRS WERE NOT URGENT, BIDS SHOULD HAVE BEEN REQUESTED AND RECEIVED DURING THE PERIOD WHEN THE APPORTIONED FUNDS WERE SUFFICIENT TO DO THE WORK WITHOUT EXCEEDING THE APPORTIONMENT FOR SAID PERIOD. THE QUESTION OF WHETHER DELAY FROM DECEMBER 9, 1925, THE DATE OF OPENING OF THE BIDS, TO JANUARY 1, 1926, WAS AN UNREASONABLE PERIOD, IS PRIMARILY ONE OF FACT, AND THE ACTION OF THE TREASURY DEPARTMENT IN COMMUNICATING WITH THE LOWEST BIDDER RELATIVE TO HOLDING HIS BID OPEN TO JANUARY 1, 1926, APPEARS TO CONCEDE THAT SUCH DELAY WAS UNREASONABLE. THEREFORE, THERE SHOULD HAVE BEEN READVERTISEMENT FOR THE WORK AND THE LOWEST BID OBTAINED IN RESPONSE THERETO ACCEPTED. THERE WAS NO AUTHORITY FOR THE ACCEPTANCE OF THE TULLY BID OPENED ON DECEMBER 9, 1925, EITHER AS HAVING BEEN SUBMITTED IN RESPONSE TO THE ADVERTISEMENT AND THE LOWEST BID LEFT AFTER THE WITHDRAWAL OF THE LOW BIDDER, OR WITHOUT ADVERTISING.

HOWEVER, SINCE THE MATTER APPEARS TO HAVE BEEN MISUNDERSTOOD IN THE TREASURY DEPARTMENT, THE ITEM OF $74 WILL BE CREDITED IN THIS INSTANCE IN THE ACCOUNTS OF THE DISBURSING OFFICER.