A-5327, DECEMBER 27, 1924, 4 COMP. GEN. 568

A-5327: Dec 27, 1924

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PURCHASES - BICYCLES - ADVERTISING A BICYCLE USED PRIMARILY FOR THE CARRYING OF MAIL AND PARCELS IS NOT A PASSENGER VEHICLE WITHIN THE INTENT AND MEANING OF SECTION 4 OF THE ACT OF FEBRUARY 3. IS AVAILABLE FOR THE PURCHASE OF A BICYCLE USED PRIMARILY FOR THE CARRYING OF MAIL AND PARCELS OF THE COMMISSION. WHEN THE FACTS PRESENTED SHOW THAT OTHER MEANS OF ADVERTISING WERE NOT PRACTICABLE. WHERE THE ACCEPTED ORAL BID IS OTHER THAN THE LOWEST BID. HEREIN $41 WAS DISALLOWED. DID NOT PROVIDE IN TERMS FOR PASSENGER VEHICLES AND BECAUSE THEIR PURCHASE WAS NOT OTHERWISE SPECIFICALLY AUTHORIZED BY LAW. ALL SUCH CARRIAGES AND VEHICLES SO PROCURED AND USED FOR OFFICIAL PURPOSES SHALL HAVE CONSPICUOUSLY PAINTED THEREON AT ALL TIMES THE FULL NAME OF THE EXECUTIVE DEPARTMENT OR OTHER BRANCH OF THE PUBLIC SERVICE TO WHICH THE DECISION BY COMPTROLLER GENERAL MCCARL.

A-5327, DECEMBER 27, 1924, 4 COMP. GEN. 568

PURCHASES - BICYCLES - ADVERTISING A BICYCLE USED PRIMARILY FOR THE CARRYING OF MAIL AND PARCELS IS NOT A PASSENGER VEHICLE WITHIN THE INTENT AND MEANING OF SECTION 4 OF THE ACT OF FEBRUARY 3, 1905, 33 STAT. 687, PROHIBITING THE PURCHASE OR OPERATION OF ANY CARRIAGE OR VEHICLE FOR THE PERSONAL OR OFFICIAL USE OF ANY OFFICER OR EMPLOYEE OF ANY OF THE EXECUTIVE DEPARTMENTS OR ESTABLISHMENTS AT WASHINGTON, UNLESS SPECIFICALLY AUTHORIZED BY LAW. THE APPROPRIATION "UNITED STATES TARIFF COMMISSION, 1923," ACT OF JUNE 12, 1922, 42 STAT. 646, IS AVAILABLE FOR THE PURCHASE OF A BICYCLE USED PRIMARILY FOR THE CARRYING OF MAIL AND PARCELS OF THE COMMISSION. PURCHASE MADE ON THE BASIS OF ORAL SOLICITATION OF PRICES FROM A REASONABLE NUMBER OF DEALERS MAY BE REGARDED AS SUFFICIENT TO MEET THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, WHEN THE FACTS PRESENTED SHOW THAT OTHER MEANS OF ADVERTISING WERE NOT PRACTICABLE. THE OFFER OF THE MOST SATISFACTORY BIDDER SHOULD, HOWEVER, BE CONFIRMED IN WRITING BY THAT BIDDER AND THE RESULTANT AGREEMENT FILED AS REQUIRED BY SECTION 3743, REVISED STATUTES, AS AMENDED, AND WHERE THE ACCEPTED ORAL BID IS OTHER THAN THE LOWEST BID, THE REASONS FOR ACCEPTING SUCH BID SHOULD BE SHOWN.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 27, 1924:

JOHN F. BETHUNE, DISBURSING OFFICER, UNITED STATES TARIFF COMMISSION, APPLIED SEPTEMBER 5, 1924, FOR REVIEW OF SETTLEMENT NO. C 11910-MS, HEREIN $41 WAS DISALLOWED, THE SAID AMOUNT COVERING THE CHARGES FOR ONE "NEW DAYTON" BICYCLE WITH PARCEL POCKET, VOUCHER NO. 814, FIRST QUARTER, 1924, THE DISALLOWANCE BEING FOR THE REASON THAT THE APPROPRIATION,"UNITED STATES TARIFF COMMISSION, 1923," ACT OF JUNE 12, 1922, 42 STAT. 646, DID NOT PROVIDE IN TERMS FOR PASSENGER VEHICLES AND BECAUSE THEIR PURCHASE WAS NOT OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, AS REQUIRED BY SECTION 4 OF THE ACT OF FEBRUARY 3, 1905, 33 STAT. 687, 688, WHICH PROVIDES:

NO PART OF ANY MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE USED FOR PURCHASING, MAINTAINING, DRIVING, OR OPERATING ANY CARRIAGE OR VEHICLE (OTHER THAN THOSE FOR THE USE OF THE PRESIDENT OF THE UNITED STATES, THE HEADS OF THE EXECUTIVE DEPARTMENTS, AND THE SECRETARY TO THE PRESIDENT, AND OTHER THAN THOSE USED FOR TRANSPORTATION OF PROPERTY BELONGING TO OR IN THE CUSTODY OF THE UNITED STATES), FOR THE PERSONAL OR OFFICIAL USE OF ANY OFFICER OR EMPLOYEE OF ANY OF THE EXECUTIVE DEPARTMENTS OR OTHER GOVERNMENT ESTABLISHMENTS AT WASHINGTON, DISTRICT OF COLUMBIA, UNLESS THE SAME SHALL BE SPECIFICALLY AUTHORIZED BY LAW OR PROVIDED FOR IN TERMS BY APPROPRIATION OF MONEY, AND ALL SUCH CARRIAGES AND VEHICLES SO PROCURED AND USED FOR OFFICIAL PURPOSES SHALL HAVE CONSPICUOUSLY PAINTED THEREON AT ALL TIMES THE FULL NAME OF THE EXECUTIVE DEPARTMENT OR OTHER BRANCH OF THE PUBLIC SERVICE TO WHICH THE

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 27, 1924:

JOHN F. BETHUNE, DISBURSING OFFICER, UNITED STATES TARIFF COMMISSION, APPLIED SEPTEMBER 5, 1924, FOR REVIEW OF SETTLEMENT NO. C 11910-MS, HEREIN $41 WAS DISALLOWED, THE SAID AMOUNT COVERING THE CHARGES FOR ONE "NEW DAYTON" BICYCLE WITH PARCEL POCKET, VOUCHER NO. 814, FIRST QUARTER, 1924, THE DISALLOWANCE BEING FOR THE REASON THAT THE APPROPRIATION,"UNITED STATES TARIFF COMMISSION, 1923," ACT OF JUNE 12, 1922, 42 STAT. 646, DID NOT PROVIDE IN TERMS FOR PASSENGER VEHICLES AND BECAUSE THEIR PURCHASE WAS NOT OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, AS REQUIRED BY SECTION 4 OF THE ACT OF FEBRUARY 3, 1905, 33 STAT. 687, 688, WHICH PROVIDES:

NO PART OF ANY MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE USED FOR PURCHASING, MAINTAINING, DRIVING, OR OPERATING ANY CARRIAGE OR VEHICLE (OTHER THAN THOSE FOR THE USE OF THE PRESIDENT OF THE UNITED STATES, THE HEADS OF THE EXECUTIVE DEPARTMENTS, AND THE SECRETARY TO THE PRESIDENT, AND OTHER THAN THOSE USED FOR TRANSPORTATION OF PROPERTY BELONGING TO OR IN THE CUSTODY OF THE UNITED STATES), FOR THE PERSONAL OR OFFICIAL USE OF ANY OFFICER OR EMPLOYEE OF ANY OF THE EXECUTIVE DEPARTMENTS OR OTHER GOVERNMENT ESTABLISHMENTS AT WASHINGTON, DISTRICT OF COLUMBIA, UNLESS THE SAME SHALL BE SPECIFICALLY AUTHORIZED BY LAW OR PROVIDED FOR IN TERMS BY APPROPRIATION OF MONEY, AND ALL SUCH CARRIAGES AND VEHICLES SO PROCURED AND USED FOR OFFICIAL PURPOSES SHALL HAVE CONSPICUOUSLY PAINTED THEREON AT ALL TIMES THE FULL NAME OF THE EXECUTIVE DEPARTMENT OR OTHER BRANCH OF THE PUBLIC SERVICE TO WHICH THE SAME BELONG AND IN THE SERVICE OF WHICH THE SAME ARE USED.

BY LETTER OF SEPTEMBER 17, 1924, SUPPLEMENTING THE APPLICATION FOR REVIEW, CLAIMANT STATED:

IN REPLY TO YOUR INQUIRY YOU ARE INFORMED THAT THE TARIFF COMMISSION DOES NOT OWN OR MAINTAIN A MOTOR-PROPELLED LIGHT DELIVERY WAGON OR ANY OTHER TYPE OF MOTOR-PROPELLED VEHICLE. MY LETTER WAS INTENDED TO EXPLAIN THAT AS A MEANS OF ECONOMY THE COMMISSION HAD REFRAINED FROM THE PURCHASE OF THE MORE EXPENSIVE TYPE OF VEHICLE EMPLOYED BY MOST DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND HAD BOUGHT INSTEAD THE BICYCLE TO WHICH THIS CORRESPONDENCE RELATES. IT WAS UNDERSTOOD BY THE COMMISSION THAT IT HAD AUTHORITY TO PURCHASE A MOTOR-PROPELLED TRUCK, BUT IT WAS DESIROUS OF AVOIDING THAT MUCH EXPENSE. IT IS HOPED STILL TO AVOID SUCH EXPENSE UNTIL THE INCURRENCE OF IT SEEMS ADVISABLE TO THIS OFFICE.

THIS BICYCLE HAS BEEN OF GREAT SERVICE AND ECONOMY IN BOTH TIME AND MONEY AND ITS LOSS WOULD NECESSITATE GREATER EXPENSE FOR ITS REPLACEMENT. COMES CLEARLY WITHIN THE TERMS OF THE DECISION OF THE COMPTROLLER OF THE TREASURY (18 COMP. DEC., 13) ON THIS VERY QUESTION, WHEREIN THE COMPTROLLER HELD THAT A BICYCLE USED PRIMARILY FOR TRANSPORTATION OF PROPERTY OF THE UNITED STATES WAS A VEHICLE EXCEPTED FROM THE PROVISIONS OF THE ACT OF FEBRUARY 3, 1905. IT WAS UPON THIS DECISION CONFIRMING OUR UNDERSTANDING OF THE LAW THAT THE BICYCLE IN QUESTION WAS PURCHASED.

IN DECISION OF JULY 12, 1911, 18 COMP. DEC. 13, IT WAS SAID, QUOTING FROM PAGE 15, THAT:

BICYCLES AND MOTOR CYCLES ARE VEHICLES WITHIN THE MEANING OF THE FOREGOING ENACTMENTS, BUT IF THEY ARE PRIMARILY USED FOR TRANSPORTATION OF PROPERTY BELONGING TO OR IN THE CUSTODY OF THE UNITED STATES, THEN THEY WOULD SEEM TO BE EXCEPTED, TO THAT EXTENT, FROM THE OPERATIONS OF THE ACT OF FEBRUARY 3, 1905, SUPRA, AND THEIR PURCHASE AND MAINTENANCE WOULD BE PERMISSIBLE PROVIDED THERE IS AN APPROPRIATION AVAILABLE FOR THAT PURPOSE.

IN THE DECISION JUST QUOTED IT WAS HELD THAT THE MAINTENANCE OF THE BICYCLE THERE IN QUESTION WAS NOT AUTHORIZED, NOT BECAUSE THEY WERE CLASSED AS PASSENGER VEHICLES BUT BECAUSE THE APPROPRIATION SOUGHT TO BE CHARGED WITH THE COST OF SUCH MAINTENANCE WAS NOT AVAILABLE FOR THE PURCHASE OR MAINTENANCE OF BICYCLE WHETHER THEY WERE FOR USE FOR PASSENGER TRANSPORTATION PRIMARILY OR OTHERWISE. THE SUBSTANCE OF THAT DECISION WAS THAT THE SPECIFIC ENUMERATION IN THE APPROPRIATION OF HORSES AND WAGONS NEGATIVED THE PURCHASE AND MAINTENANCE OF OTHER VEHICLES, INCLUDING BICYCLES.

THE INFORMATION FURNISHED THAT THE TARIFF COMMISSION REQUIRES SOME MANNER OF VEHICLES FOR TRANSPORTING MAIL AND PARCELS AND THAT THE BICYCLE IN QUESTION IS USED PRIMARILY FOR THAT PURPOSE WILL BE ACCEPTED AND IT IS ACCORDINGLY HELD THAT SAID BICYCLE IS NOT A PASSENGER VEHICLE WITHIN THE INTENT AND MEANING OF SECTION 4 OF THE ACT OF FEBRUARY 3, 1905, 33 STAT. 687, 688, SO AS TO REQUIRE ITS BEING "SPECIFICALLY AUTHORIZED BY LAW OR PROVIDED FOR IN TERMS BY APPROPRIATION OF MONEY.'

TITLE VII, SECTION 700, OF THE ACT OF SEPTEMBER 8, 1916, 39 STAT. 795, ENTITLED "AN ACT TO INCREASE THE REVENUE, AND FOR OTHER PURPOSES," CREATED AND ESTABLISHED A COMMISSION TO BE KNOWN AS THE UNITED STATES TARIFF COMMISSION. SECTION 701 OF THE ACT, SAME TITLE, FIXED THE SALARIES OF THE TARIFF COMMISSIONERS AND ITS SECRETARY, AUTHORIZED THE EMPLOYMENT OF CLERICAL AND OTHER EMPLOYEES, AND PROVIDED WITH RESPECT TO THE PAYMENT OF EXPENSES THAT:

ALL OF THE EXPENSES OF THE COMMISSION, INCLUDING ALL NECESSARY EXPENSES FOR TRANSPORTATION INCURRED BY THE COMMISSIONERS OR BY THEIR EMPLOYEES UNDER THEIR ORDERS IN MAKING ANY INVESTIGATION OR UPON OFFICIAL BUSINESS IN ANY OTHER PLACES THAN AT THEIR RESPECTIVE HEADQUARTERS, SHALL BE ALLOWED AND PAID ON THE PRESENTATION OF ITEMIZED VOUCHERS THEREFOR APPROVED BY THE COMMISSION.

UNLESS OTHERWISE PROVIDED BY LAW, THE COMMISSION MAY RENT SUITABLE OFFICES FOR ITS USE, AND PURCHASE SUCH FURNITURE, EQUIPMENT, AND SUPPLIES AS MAY BE NECESSARY.

THE APPROPRIATION UNDER WHICH THE COST OF THE BICYCLE HERE IN QUESTION WAS CHARGED, TO T,"UNITED STATES TARIFF COMMISSION, 1923," ACT OF JUNE 12, 1922, 42 STAT. 646, PROVIDED:

FOR SALARIES AND EXPENSES OF THE UNITED STATES TARIFF COMMISSION, INCLUDING PURCHASE AND EXCHANGE OF LABOR-SAVING DEVICES, THE PURCHASE OF PROFESSIONAL AND SCIENTIFIC BOOKS, LAW BOOKS, BOOKS OF REFERENCE, AND PERIODICALS AS MAY BE NECESSARY, AS AUTHORIZED UNDER TITLE VII OF THE ACT ENTITLED "AN ACT TO INCREASE THE REVENUE, AND FOR OTHER PURPOSES," APPROVED SEPTEMBER 8, 1916, $325,000.

THERE IS NO GENERAL INHIBITION AGAINST THE PURCHASE OF FREIGHT CARRYING VEHICLES, OR BICYCLES USED PRIMARILY FOR THE TRANSPORTATION OF MAIL AND PARCELS AS DISTINGUISHED FROM THOSE PURCHASED AND USED PRIMARILY FOR PERSONAL TRANSPORTATION SUCH AS, FOR INSTANCE, THE BICYCLES INVOLVED IN THE DECISION OF AUGUST 13, 1912, 19 COMP. DEC. 82, AND APRIL 28, 1913, 19 COMP. DEC. 679. THE ACT CREATING THE TARIFF COMMISSION, QUOTED, SUPRA, PROVIDED THAT THE COMMISSION MAY PURCHASE "SUCH * * * EQUIPMENT, AND SUPPLIES AS MAY BE NECESSARY," AND THE APPROPRIATION CHARGED IS NOT RESTRICTED BY IMPLICATION TO THE PURCHASE OF ANY PARTICULAR CLASS OF VEHICLES, SUCH APPROPRIATION PROVIDING GENERALLY FOR SUCH EXPENSES OF THE TARIFF COMMISSION AS MAY BE NECESSARY,"AS AUTHORIZED UNDER TITLE VII OF THE ACT ENTITLED "AN ACT TO INCREASE THE REVENUE, AND FOR OTHER PURPOSES," APPROVED SEPTEMBER 8, 1916.' IT IS ACCORDINGLY HELD THAT THE APPROPRIATION CHARGED WAS AVAILABLE FOR THE PURCHASE AND MAINTENANCE OF A BICYCLE USED PRIMARILY FOR OTHER THAN PASSENGER TRANSPORTATION.

IT IS STATED ON THE VOUCHER SUPPORTING THE PAYMENT MADE THAT THE BICYCLE WAS "SECURED IN ACCORDANCE WITH NO. 2 OF THE METHOD OF ADVERTISING AND UNDER THE FORM OF AGREEMENT LETTERED C, AS SHOWN ON THE REVERSE HEREOF.' ON THE REVERSE OF THE VOUCHER THE SYMBOLS "2" AND "C" ARE EXPLAINED AS FOLLOWS:

2. AFTER ADVERTISING BY TELEPHONING TO 3 DEALERS.

BASKET, EXIGENCY PURCHASE.

C. UNDER LESS FORMAL AGREEMENT.

IN DECISION OF APRIL 8, 1924, WHICH IS EQUALLY APPLICABLE HERE, IT WAS SAID:

SECTION 3743 OF THE REVISED STATUTES, AS AMENDED BY SECTION 18 OF THE ACT OF JULY 31, 1894, 28 STAT. 210, AND SECTION 304 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24, REQUIRES THAT ALL CONTRACTS TO BE MADE, BY VIRTUE OF ANY LAW AND REQUIRING THE ADVANCE OF MONEY, OR IN ANY MANNER CONNECTED WITH THE SETTLEMENT OF PUBLIC ACCOUNTS, SHALL BE DEPOSITED PROMPTLY IN THIS OFFICE.

ALL CONTRACTS MADE ARE NOT NECESSARILY REQUIRED TO BE FORMALLY EXECUTED; HOWEVER, CONTRACTS FOR CONTINUING NONPERSONAL SERVICES, SUCH AS LEASINGS FOR EXTENDED PERIODS, OR AGREEMENTS BINDING THE UNITED STATES TO EXPEND LARGE SUMS OF MONEY SHOULD BE SO EXECUTED; THE LESS FORMAL AGREEMENTS--- PROPOSAL AND ACCEPTANCE--- WHETHER COMBINED IN ONE OR SEVERAL WRITINGS, MAY ANSWER FOR THE SMALLER PURCHASES OR PROCUREMENTS. * * * HOWEVER, WHATEVER THE FORM, THE AGREEMENTS ARE REQUIRED TO BE IN WRITING AND SUCH WRITTEN AGREEMENTS ARE REQUIRED TO BE DEPOSITED PROMPTLY IN THIS OFFICE.

IN DECISION OF MAY 16, 1924, 3 COMP. GEN. 862, QUOTING FROM PAGE 864, IT WAS SAID:

SECTION 3709, REVISED STATUTES, WAS INTENDED TO PROTECT THE INTERESTS OF THE UNITED STATES AS WELL AS THE PUBLIC, AND THE MEASURE OF ITS EFFECTIVENESS IN THOSE RESPECTS IS LARGELY CONTROLLED BY THE ADMINISTRATIVE OFFICE, WHICH FREQUENTLY IS IN THE POSSESSION OF CONTROVERTING FACTS, OR THE MEANS OF OBTAINING THE SAME, NOT APPARENT IN SUCH OF THE PAPERS AS ACCOMPANY THE ACCOUNTS FOR SETTLEMENT. SAID SECTION PRESCRIBES NO PARTICULAR METHOD OF ADVERTISING; SEE 1 COMP. GEN. 232, DECISIONS THEREIN CITED, AND OTHERS THAT HAVE BEEN PUBLISHED FROM TIME TO TIME. HENCE ANY ADVERTISING THAT GIVES REASONABLE PUBLICITY TO THE NEEDS OF THE GOVERNMENT AND RESULTS IN OBTAINING THE BENEFIT OF ALL AVAILABLE COMPETITION UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE GENERALLY WILL BE ACCEPTED BY THE ACCOUNTING OFFICES AS A COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE. EVEN ORAL SOLICITATION OF PRICES MAY BE REGARDED AS SUFFICIENT WHEN THE FACTS PRESENTED SHOW THAT OTHER MEANS OF ADVERTISING WERE NOT PRACTICABLE.

IN THIS CONNECTION YOUR ATTENTION IS INVITED TO DECISION OF MARCH 8, 1924, 3 COMP. GEN. 606, AS TO THE REQUIREMENT FOR ACCEPTING THE LOWEST BID, ETC., OR FURNISHING A DETAILED STATEMENT OF THE REASONS FOR ACCEPTING OTHER THAN THE LOWEST BID.

ORAL ADVERTISING FOR BIDS SHOULD NOT BE RESORTED TO UNLESS "OTHER MEANS OF ADVERTISING WERE NOT PRACTICABLE" AND IN THOSE INSTANCES WHERE ORAL ADVERTISING IS NECESSARY AND PROPER, THE OFFER OF THE MOST SATISFACTORY BIDDER SHOULD BE CONFIRMED IN WRITING BY THAT BIDDER SO THAT THE RESULTANT AGREEMENT MAY BE FILED AS REQUIRED BY SECTION 3743, REVISED STATUTES, AS AMENDED. IN ADDITION, IF THE ACCEPTED ORAL BID IS OTHER THAN THE LOWEST BID, THE REASONS FOR ACCEPTING SUCH BID SHOULD BE SHOWN. THESE REQUIREMENTS SHOULD BE OBSERVED AS TO ALL TRANSACTIONS.

UPON REVIEW OF THE SETTLEMENT, $41 IS CERTIFIED FOR CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS.