A-44067, OCTOBER 12, 1932, 12 COMP. GEN. 395

A-44067: Oct 12, 1932

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PURCHASING OFFICERS HAVE BEEN INSTRUCTED THAT WHEN SUPPLIES ARE PURCHASED IN THE OPEN MARKET A CERTIFICATE. SHALL BE OBTAINED FROM THE VENDOR AND ATTACHED TO THE VOUCHER COVERING THE PURCHASE: "IT IS HEREBY CERTIFIED THAT ALL OF THE ARTICLES OR MATERIALS FURNISHED UNDER PURCHASE ORDER NO. . ARE OF THE GROWTH. IT NOW DEVELOPS THAT CIRCUMSTANCES ARISE WHEN IT IS NECESSARY TO MAKE EMERGENCY PURCHASES OF SUPPLIES IN THE OPEN MARKET AND THE ONLY VENDOR FROM WHOM IT IS PRACTICABLE TO PROCURE THE SUPPLIES NEEDED REFUSES TO EXECUTE THE CERTIFICATE ABOVE BECAUSE OF LACK OF KNOWLEDGE AS TO THE ORIGIN OF THE SUPPLIES HE HAS FOR SALE. IT IS PROPOSED TO ISSUE THE FOLLOWING INSTRUCTIONS TO ALL PURCHASING OFFICERS TO COVER SUCH CASES: "WHEN SUPPLIES ARE PURCHASED IN THE OPEN MARKET AND THE CIRCUMSTANCES ARE SUCH THAT THE PURCHASE MUST BE MADE FROM A VENDOR WHO REFUSES TO EXECUTE A CERTIFICATE THAT THE SUPPLIES FURNISHED ARE OF THE GROWTH.

A-44067, OCTOBER 12, 1932, 12 COMP. GEN. 395

PURCHASES - DOMESTIC ARTICLES - WAR DEPARTMENT IN VIEW OF THE SPECIFIC PROVISIONS IN THE ACT OF MARCH 8, 1932, 47 STAT. 62, REQUIRING THAT IN THE PURCHASE OF SUPPLIES THE WAR DEPARTMENT SHALL GIVE PREFERENCE TO ARTICLES OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, IN CASE OF EMERGENCY PURCHASES THERE SHOULD BE SHOWN THE FACTS IN CONNECTION WITH THE TRANSACTION INCLUDING A STATEMENT AS TO THE EFFORTS MADE BY THE PURCHASING OFFICER TO CARRY OUT THE INTENT AND PURPOSE OF THE ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, OCTOBER 12, 1932:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 12, 1932, AS TO WHICH YOU INQUIRE BY YOUR LETTER OF OCTOBER 5, 1932, AS FOLLOWS:

IN THE ADMINISTRATION OF THE LAW WHICH REQUIRES THAT IN THE PURCHASE OF SUPPLIES, THE WAR DEPARTMENT SHALL GIVE PREFERENCE TO ARTICLES OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES (PUBLIC NO. 53, 72D CONGRESS), PURCHASING OFFICERS HAVE BEEN INSTRUCTED THAT WHEN SUPPLIES ARE PURCHASED IN THE OPEN MARKET A CERTIFICATE, AS FOLLOWS, SHALL BE OBTAINED FROM THE VENDOR AND ATTACHED TO THE VOUCHER COVERING THE PURCHASE:

"IT IS HEREBY CERTIFIED THAT ALL OF THE ARTICLES OR MATERIALS FURNISHED UNDER PURCHASE ORDER NO. -- ARE OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES EXCEPT THE FOLLOWING: ------------ --------- .'

(IF NO EXCEPTIONS, SO STATE.)

IT NOW DEVELOPS THAT CIRCUMSTANCES ARISE WHEN IT IS NECESSARY TO MAKE EMERGENCY PURCHASES OF SUPPLIES IN THE OPEN MARKET AND THE ONLY VENDOR FROM WHOM IT IS PRACTICABLE TO PROCURE THE SUPPLIES NEEDED REFUSES TO EXECUTE THE CERTIFICATE ABOVE BECAUSE OF LACK OF KNOWLEDGE AS TO THE ORIGIN OF THE SUPPLIES HE HAS FOR SALE.

IT IS PROPOSED TO ISSUE THE FOLLOWING INSTRUCTIONS TO ALL PURCHASING OFFICERS TO COVER SUCH CASES:

"WHEN SUPPLIES ARE PURCHASED IN THE OPEN MARKET AND THE CIRCUMSTANCES ARE SUCH THAT THE PURCHASE MUST BE MADE FROM A VENDOR WHO REFUSES TO EXECUTE A CERTIFICATE THAT THE SUPPLIES FURNISHED ARE OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, BECAUSE OF LACK OF KNOWLEDGE AS TO THE SOURCE OF THE SUPPLIES, THE PURCHASING OFFICER WILL FURNISH THE FOLLOWING STATEMENT WITH THE VOUCHER COVERING THE PURCHASE:

" "THE VENDOR REFUSED TO EXECUTE A CERTIFICATE THAT THE SUPPLIES FURNISHED WERE OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES CLAIMING LACK OF KNOWLEDGE AS TO THE SOURCE OF THE SUPPLIES. THE SUPPLIES WERE URGENTLY NEEDED IT WAS IMPRACTICAL TO SEEK A VENDOR WHO WOULD EXECUTE THE REQUIRED CERTIFICATE.'"

YOUR APPROVAL OF THE PROPOSED PROCEDURE IS REQUESTED.

THE TERMS OF THE ACT OF MARCH 8, 1932, ARE SPECIFIC IN REQUIRING THAT IN THE USES OF APPROPRIATIONS FOR THE SUPPORT OF THE WAR DEPARTMENT "THE SECRETARY OF WAR SHALL, UNLESS IN HIS DISCRETION THE INTERESTS OF THE GOVERNMENT WILL NOT PERMIT, PURCHASE OR CONTRACT FOR, * * * ONLY ARTICLES OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES" WITH CERTAIN QUALIFICATIONS AND LIMITATIONS NOT HERE MATERIAL, THE INTENT BEING TO REQUIRE A PREFERENCE BEING GIVEN DOMESTIC INDUSTRIES IN SO FAR AS THE INTERESTS OF THE GOVERNMENT WILL PERMIT.

NORMALLY AND IN CASES WHERE THE SECRETARY OF WAR HAS NOT DETERMINED IT TO BE IN THE INTEREST OF THE GOVERNMENT TO PURCHASE OR CONTRACT FOR ARTICLES OF FOREIGN GROWTH, PRODUCTION, OR MANUFACTURE, THE FACT OF GROWTH, PRODUCTION, OR MANUFACTURE IN THE UNITED STATES IS FOR ADMINISTRATIVE ASCERTAINMENT AND ESTABLISHMENT.

IN CASES OF EMERGENCY AND NECESSITY FOR IMMEDIATE OPEN-MARKET PURCHASES, AND ESPECIALLY WHERE IN THE CIRCUMSTANCES THE NEED CAN BE ACQUIRED ONLY FROM A SINGLE SOURCE, THE END INTENDED BY THE ENACTMENT TO BE ACCOMPLISHED DOES NOT REQUIRE UNDULY DELAYING SUCH PURCHASE BECAUSE OF THE REFUSAL OR INABILITY OF THE VENDOR TO SUPPLY INFORMATION SHOWING THE ARTICLE OR ARTICLES TO HAVE BEEN GROWN, PRODUCED, OR MANUFACTURED IN THE UNITED STATES.

IN THE EVENT OF THERE BEING ONLY ONE SOURCE OF SUPPLY AVAILABLE IT WOULD APPEAR SUFFICIENT, TO SUPPORT PAYMENT, TO SHOW THE EMERGENCY CONDITION, THE REFUSAL OR INABILITY OF VENDOR TO SUPPLY THE NEEDED FACTS AS TO ORIGIN, AND THAT THERE WAS BUT ONE SOURCE OF SUPPLY AVAILABLE; BUT WHEN THERE IS MORE THAN ONE SOURCE OF SUPPLY AVAILABLE TO THE PURCHASING OFFICER, IT WOULD BE NECESSARY AND IN KEEPING WITH THE INTENT OF THE LAW TO SHOW IN ADDITION, WHAT EFFORT, INDEPENDENT OF THE VENDOR, WAS MADE BY THE PURCHASING OFFICER TO ASCERTAIN THE FACTS.

ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION SUBMITTED, I WOULD SUGGEST THAT THE INSTRUCTIONS TO THE PURCHASING OFFICERS BE A REQUIREMENT FOR A SHOWING OF THE FACTS INVOLVED AS HEREIN INDICATED.