A-39238, NOVEMBER 14, 1931, 11 COMP. GEN. 183

A-39238: Nov 14, 1931

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THERE IS NO AUTHORITY TO MAKE PURCHASES IN EXCESS THEREOF. WHEN SUPPLIES IN EXCESS OF A STATED QUANTITY ARE NEEDED. IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709. ARE FOR APPLICATION. 1931: YOUR ATTENTION IS INVITED TO CONTRACT W-431-QM-923. BIDS WERE REQUESTED ON VARIOUS KINDS OF LEATHER TO BE DELIVERED F.O.B. AMONG WHICH WAS ITEM NO. 22 "LEATHER. WITH A PROVISION FOR VARIATIONS AS FOLLOWS: "QUANTITIES LISTED HEREON ARE SUBJECT TO 5 PERCENT INCREASE OR DECREASE.'. THE AMOUNT OF LEATHER UNDER SAID ITEM WAS INCREASED FROM 3. INFORMATION WAS REQUESTED AS TO WHETHER THE ADDITIONAL QUANTITY WAS PURCHASED AFTER ADVERTISEMENT. THERE WAS FORWARDED SECOND INDORSEMENT DATED SEPTEMBER 24.

A-39238, NOVEMBER 14, 1931, 11 COMP. GEN. 183

CONTRACTS - EXCESS PURCHASES - ADVERTISING WHERE THE ADVERTISEMENT FOR BIDS ADVISED PROSPECTIVE BIDDERS OF THE AMOUNT OF LEATHER REQUIRED WITH THE RIGHT RESERVED TO INCREASE OR DECREASE THE AMOUNT FIVE PERCENT, THERE IS NO AUTHORITY TO MAKE PURCHASES IN EXCESS THEREOF. WHEN SUPPLIES IN EXCESS OF A STATED QUANTITY ARE NEEDED, SUCH EXCESS SHOULD BE SEPARATELY CONTRACTED FOR IN CONFORMITY WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES. THE APPARENT PROBABILITY THAT THE ADDITIONAL SUPPLIES MAY BE FURNISHED AT LESS EXPENSE BY THE ORIGINAL CONTRACTOR BECAUSE OF BEING ENGAGED UPON THE ORIGINAL WORK, OR OTHERWISE, IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE FOR APPLICATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, NOVEMBER 14, 1931:

YOUR ATTENTION IS INVITED TO CONTRACT W-431-QM-923, DATED JUNE 9, 1931, WITH HANS REES' SONS FOR THE FURNISHING OF A QUANTITY OF LEATHER TO THE WAR DEPARTMENT.

IT APPEARS THAT UNDER DATE OF MAY 20, 1931, BIDS WERE REQUESTED ON VARIOUS KINDS OF LEATHER TO BE DELIVERED F.O.B. JEFFERSONVILLE, IND., AND FORT SAM HOUSTON, TEX., AMONG WHICH WAS ITEM NO. 22 "LEATHER, STRAP, RUSSET, BACKS, 7 TO 8 OZ., 50 PERCENT "A" AND 50 PERCENT "B" SELECTION, PER SPEC. NO. 9-20-3,690 SQ.FT.' WITH A PROVISION FOR VARIATIONS AS FOLLOWS: "QUANTITIES LISTED HEREON ARE SUBJECT TO 5 PERCENT INCREASE OR DECREASE.' IT APPEARS THAT BY ORDER 2028 DATED JUNE 9, 1931, THE AMOUNT OF LEATHER UNDER SAID ITEM WAS INCREASED FROM 3,690 SQUARE FEET TO 6,346 SQUARE FEET AN INCREASE IN THE TOTAL CONTRACT PRICE OF APPROXIMATELY $929.60.

IN LETTER IF THIS OFFICE DATED SEPTEMBER 9, 1931, INFORMATION WAS REQUESTED AS TO WHETHER THE ADDITIONAL QUANTITY WAS PURCHASED AFTER ADVERTISEMENT, AND BY THIRD INDORSEMENT QM-161-S-P-CON (REES-, HANS, SONS), DATED OCTOBER 5, 1931, FROM THE WAR DEPARTMENT, OFFICE OF THE QUARTERMASTER GENERAL, THERE WAS FORWARDED SECOND INDORSEMENT DATED SEPTEMBER 24, 1931, QM-423-S-P (REES-, SONS, HANS), FROM THE OFFICE OF THE COMMANDING OFFICER, JEFFERSONVILLE QUARTERMASTER DEPOT, JEFFERSONVILLE, IND., PARAGRAPH 3 OF WHICH CONTAINS THE FOLLOWING EXPLANATION:

NO FURTHER ADVERTISING WAS CONSIDERED NECESSARY IN VIEW OF THE ACCEPTANCE IN WRITING OF THE LOW BIDDER FOR THE INCREASED QUANTITY AND IN VIEW OF THE LIMITED TIME REMAINING BEFORE THE CLOSE OF THE F.Y. 1931, TO EFFECT PROMPT DELIVERY OF THE LEATHER.

AS NOTED, SUPRA, THE ADVERTISEMENT FOR BIDS IN THIS CASE DEFINITELY ADVISED PROSPECTIVE BIDDERS OF THE AMOUNT OF LEATHER REQUIRED WITH THE RIGHT RESERVED TO INCREASE OR DECREASE THE AMOUNT 5 PERCENT. HAVING ASKED AND RECEIVED BIDS ON SUCH A BASIS THERE WAS NO AUTHORITY TO MAKE PURCHASE IN EXCESS THEREOF. AS THE CONTRACTOR COULD FORM NO BASIS FOR THE DELIVERY AND ACCEPTANCE OF OR PAYMENT FOR EXCESS QUANTITY THE PURCHASE AS TO SAID EXCESS WITHOUT ADVERTISING WAS ILLEGAL AND UNAUTHORIZED, BEING IN CONTRAVENTION OF THE PROVISIONS OF SECTION 3709, REVISED STATUTES. THE RULE WITH RESPECT TO SUCH MATTER, AS TO WHICH YOU HAD BEEN ADVISED ON SEVERAL OCCASIONS BEFORE THIS PURCHASE WAS MADE, IS THAT WHEN SUPPLIES IN EXCESS OF A STATED QUANTITY ARE NEEDED SUCH EXCESS SHOULD BE SEPARATELY CONTRACTED FOR IN CONFORMITY WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES. THE APPARENT PROBABILITY THAT THE ADDITIONAL SUPPLIES MAY BE FURNISHED AT LESS EXPENSE BY THE ORIGINAL CONTRACTOR BECAUSE OF BEING ENGAGED UPON THE ORIGINAL WORK OR OTHERWISE IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709 ARE FOR APPLICATION. WHETHER THE ORIGINAL CONTRACTOR CAN FURNISH THE SUPPLIES AT LESS EXPENSE TO THE GOVERNMENT THAN ANY OTHER CONTRACTOR IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED UNDER SAID SECTION. SEE 5 COMP. GEN. 508.

THE PROCEDURE FOLLOWED IN THIS CASE BEING CONFLICT WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, AND THE DECISIONS OF THIS OFFICE WITH RESPECT TO SUCH MATTERS, THE AMOUNT PAID FOR DELIVERY IN EXCESS OF THE ORIGINAL AMOUNT CALLED FOR IN THE ADVERTISEMENT, SUPRA, WILL BE DISALLOWED IN THE SETTLEMENT OF THE DISBURSING OFFICER'S ACCOUNTS.