A-53341, FEBRUARY 20, 1934, 13 COMP. GEN. 226

A-53341: Feb 20, 1934

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INSOFAR AS WEIGHT IS CONCERNED. THE LOWEST BIDDER OFFERING SUCH A LIGHT-WEIGHT CAR OTHERWISE MEETING THE SPECIFICATIONS MAY NOT HAVE HIS BID REJECTED AND AN AWARD MADE TO A HIGHER BIDDER BECAUSE A HEAVIER CAR IS DESIRED. WHEN ORIGINALLY SUBMITTED FOR PREAUDIT THE VOUCHER WAS RETURNED WITHOUT CERTIFICATION FOR THE REASON THAT IN THE ABSENCE OF A SPECIFIC PROVISION IN THE APPROPRIATION FOR THE PURCHASE OF A PASSENGER CARRYING VEHICLE. WHEN RESUBMITTED THE VOUCHER WAS ACCOMPANIED BY A STATEMENT DATED JANUARY 17. AS FOLLOWS: THIS OFFICE SUBMITS THAT THE MONEY TO BE EXPENDED IN THE PURCHASE OF THE PASSENGER-CARRYING MOTOR VEHICLE FOR THE DIVISION OF INVESTIGATIONS IS PAYABLE OUT OF AN ALLOTMENT OF FUNDS FOR THE ENFORCEMENT OF THE OIL REGULATIONS UNDER AN APPROPRIATION OF $3.

A-53341, FEBRUARY 20, 1934, 13 COMP. GEN. 226

VEHICLES - PASSENGER-CARRYING - CONTRACTS - AWARDS THE ACT OF JULY 16, 1914, 38 STAT. 508, PROHIBITS THE PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF PASSENGER-CARRYING VEHICLES UNLESS SPECIFICALLY AUTHORIZED BY LAW, AND WHILE THE NATIONAL INDUSTRIAL RECOVERY ACT SPECIFICALLY AUTHORIZES CERTAIN EXPENDITURES OTHERWISE PROHIBITED BY LAW, THERE CAN BE FOUND IN THAT ACT NOTHING WHICH COULD BE CONSTRUED AS SPECIFICALLY AUTHORIZING THE PURCHASE, MAINTENANCE, OR OPERATION OF PASSENGER-CARRYING VEHICLES, OR AS AUTHORIZING THE PAYMENT FOR SUCH A VEHICLE IN EXCESS OF THE $750 LIMITATION FIXED BY SECTION 3 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1513. SPECIFICATIONS IN INVITATIONS FOR BIDS TO FURNISH A "LIGHT-WEIGHT" FIVE- PASSENGER SEDAN MAY BE MET, INSOFAR AS WEIGHT IS CONCERNED, BY ANY OF THE WELL-KNOWN LIGHT-WEIGHT SEDANS, AND THE LOWEST BIDDER OFFERING SUCH A LIGHT-WEIGHT CAR OTHERWISE MEETING THE SPECIFICATIONS MAY NOT HAVE HIS BID REJECTED AND AN AWARD MADE TO A HIGHER BIDDER BECAUSE A HEAVIER CAR IS DESIRED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 20, 1934:

THERE HAS BEEN RESUBMITTED TO THIS OFFICE FOR PREAUDIT, VOUCHER NO. 1 IN FAVOR OF THE CADILLAC MOTOR CAR CO. FOR $845 FOR ONE OLDSMOBILE SEDAN DELIVERED OCTOBER 20, 1933, TO THE DIVISION OF INVESTIGATIONS, DEPARTMENT OF THE INTERIOR, AT NEW YORK CITY. THE VOUCHER PROPOSES TO CHARGE THIS AMOUNT TO THE ALLOTMENT FROM THE NATIONAL INDUSTRIAL RECOVERY FUNDS TO COVER THE EXPENSES OF OIL REGULATION. WHEN ORIGINALLY SUBMITTED FOR PREAUDIT THE VOUCHER WAS RETURNED WITHOUT CERTIFICATION FOR THE REASON THAT IN THE ABSENCE OF A SPECIFIC PROVISION IN THE APPROPRIATION FOR THE PURCHASE OF A PASSENGER CARRYING VEHICLE, THERE APPEARED TO BE NO AUTHORITY FOR SUCH PURCHASE. WHEN RESUBMITTED THE VOUCHER WAS ACCOMPANIED BY A STATEMENT DATED JANUARY 17, 1934, FROM THE DIRECTOR, DIVISION OF INVESTIGATIONS, AS FOLLOWS:

THIS OFFICE SUBMITS THAT THE MONEY TO BE EXPENDED IN THE PURCHASE OF THE PASSENGER-CARRYING MOTOR VEHICLE FOR THE DIVISION OF INVESTIGATIONS IS PAYABLE OUT OF AN ALLOTMENT OF FUNDS FOR THE ENFORCEMENT OF THE OIL REGULATIONS UNDER AN APPROPRIATION OF $3,300,000,000, AUTHORIZED TO BE EXPENDED BY THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933. THIS ACT DOES NOT SPECIFICALLY PROVIDE FOR THE PURCHASE OF A PASSENGER-CARRYING MOTOR VEHICLE AND A PURCHASE OF SUCH A VEHICLE UNDER THIS APPROPRIATION MAY ONLY BE JUSTIFIED BY THE FACT THAT THE ACT IS AN EMERGENCY MEASURE AND SHOULD BE LIBERALLY CONSTRUED.

THE DRAFTERS OF THE EMERGENCY LEGISLATION, THE NATIONAL INDUSTRIAL RECOVERY ACT, DID NOT INCLUDE THEREIN THE LIMITATIONS OF EXISTING LAW BINDING ON THE REGULAR ESTABLISHMENT RELATIVE TO THE PURCHASE OF PASSENGER -CARRYING VEHICLES.

IT IS MY BELIEF THAT JUSTIFICATION EXISTS FOR THE PURCHASE OF THIS PASSENGER-CARRYING MOTOR VEHICLE TO MEET THE URGENT NECESSITIES OF THE WORK OF THIS DIVISION AND THAT THE PROVISIONS OF THE RELIEF ACT ARE UNDOUBTEDLY BROAD ENOUGH TO CARRY BY NECESSARY IMPLICATION THE AUTHORITY FOR THIS DIVISION TO MAKE AN EXPENDITURE FOR SUCH A PURPOSE. IF IT BE CONSTRUED THAT AUTHORITY EXISTED FOR THE PURCHASE OF THE CAR, THE LIMITATIONS CONTAINED IN EXISTING APPROPRIATION LAW AS TO THE AMOUNT THAT MAY BE EXPENDED BY THE REGULAR GOVERNMENTAL ESTABLISHMENTS SHOULD BE REGARDED AS INAPPLICABLE TO THE INSTANT CASE.

SECTION 2 (B) AND SECTION 9, TITLE I, OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, AND 200, PROVIDE:

SEC. 2 * * *

(B) THE PRESIDENT MAY DELEGATE ANY OF HIS FUNCTIONS AND POWERS UNDER THIS TITLE TO SUCH OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DESIGNATE OR APPOINT, AND MAY ESTABLISH AN INDUSTRIAL PLANNING AND RESEARCH AGENCY TO AID IN CARRYING OUT HIS FUNCTIONS UNDER THIS TITLE.

SEC. 9. (A) THE PRESIDENT IS FURTHER AUTHORIZED TO INITIATE BEFORE THE INTERSTATE COMMERCE COMMISSION PROCEEDINGS NECESSARY TO PRESCRIBE REGULATIONS TO CONTROL THE OPERATIONS OF OIL PIPE LINES AND TO FIX REASONABLE, COMPENSATORY RATES FOR THE TRANSPORTATION OF PETROLEUM AND ITS PRODUCTS BY PIPE LINES, AND THE INTERSTATE COMMERCE COMMISSION SHALL GRANT PREFERENCE TO THE HEARINGS AND DETERMINATION OF SUCH CASES.

(B) THE PRESIDENT IS AUTHORIZED TO INSTITUTE PROCEEDINGS TO DIVORCE FROM ANY HOLDING COMPANY ANY PIPE-LINE COMPANY CONTROLLED BY SUCH HOLDING COMPANY WHICH PIPE-LINE COMPANY BY UNFAIR PRACTICES OR BY EXORBITANT RATES IN THE TRANSPORTATION OF PETROLEUM OR ITS PRODUCTS TENDS TO CREATE A MONOPOLY.

(C) THE PRESIDENT IS AUTHORIZED TO PROHIBIT THE TRANSPORTATION IN INTERSTATE AND FOREIGN COMMERCE OF PETROLEUM AND THE PRODUCTS THEREOF PRODUCED OR WITHDRAWN FROM STORAGE IN EXCESS OF THE AMOUNT PERMITTED TO BE PRODUCED OR WITHDRAWN FROM STORAGE BY ANY STATE LAW OR VALID REGULATION OR ORDER PRESCRIBED THEREUNDER, BY ANY BOARD, COMMISSION, OFFICER, OR OTHER DULY AUTHORIZED AGENCY OF A STATE. ANY VIOLATION OF ANY ORDER OF THE PRESIDENT ISSUED UNDER THE PROVISIONS OF THIS SUBSECTION SHALL BE PUNISHABLE BY FINE OF NOT TO EXCEED $1,000, OR IMPRISONMENT FOR NOT TO EXCEED 6 MONTHS, OR BOTH.

EXECUTIVE ORDER NO. 6260-A OF AUGUST 28, 1933, PROVIDED:

PURSUANT TO THE AUTHORITY VESTED IN ME BY SECTION 2 (B) OF TITLE I OF THE ACT OF JUNE 16, 1933, KNOWN AS THE "NATIONAL INDUSTRIAL RECOVERY ACT" (PUBLIC, NO. 67, 73D CONG.), AND IN ACCORDANCE WITH SECTION 2 OF ARTICLE I AND SECTION 1 (B) OF ARTICLE VII OF THE CODE OF FAIR COMPETITION ADOPTED BY THE PETROLEUM INDUSTRY AND APPROVED BY ME AUGUST 19, 1933, I HEREBY DESIGNATE AND APPOINT, FOR THE PETROLEUM INDUSTRY, THE SECRETARY OF THE INTERIOR TO BE ADMINISTRATOR AND THE DEPARTMENT OF THE INTERIOR TO BE THE FEDERAL AGENCY, AS PROVIDED BY THE AFORESAID ACT AND CODE OF FAIR COMPETITION, TO EXERCISE ON MY BEHALF AND IN MY STEAD ALL THE FUNCTIONS AND POWERS VESTED IN ME, OR IN ANY FEDERAL AGENCY, BY SUCH ACT AND SUCH CODE OF FAIR COMPETITION.

WITH RESPECT TO THE PURCHASE OF PASSENGER-CARRYING VEHICLES, SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, PROVIDES:

* * * THERE SHALL NOT BE EXPENDED OUT OF ANY APPROPRIATION MADE BY CONGRESS ANY SUM FOR PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF MOTOR- PROPELLED OR HORSE-DRAWN PASSENGER-CARRYING VEHICLES FOR ANY BRANCH OF THE PUBLIC SERVICE OF THE UNITED STATES UNLESS THE SAME IS SPECIFICALLY AUTHORIZED BY LAW * * *.

IT IS TO BE NOTED THE PURCHASE, REPAIR, OR OPERATION MUST BE SPECIFICALLY AUTHORIZED BY LAW.

WHILE THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195 (SEE SEC. 201 (B) (, SPECIFICALLY AUTHORIZES CERTAIN EXPENDITURES OTHERWISE PROHIBITED BY LAW--- SUCH AS FOR EMPLOYMENTS WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT, FOR LAW BOOKS AND BOOKS OF REFERENCE AND FOR RENT IN THE DISTRICT OF COLUMBIA, THIS OFFICE HAS BEEN UNABLE TO FIND IN THE SAID ACT, OR THE ACT OF THE SAME DATE MAKING APPROPRIATION TO CARRY INTO EFFECT ITS PROVISIONS, ANYTHING WHICH COULD BE CONSTRUED AS REPEALING, SUPERSEDING, OR OTHERWISE RENDERING INOPERATIVE THE PROVISIONS OF SAID SECTION 5 OF THE ACT OF JULY 16, 1914, SUPRA. SEE IN THIS CONNECTION WASHINGTON V. MILLER, 235 U.S. 422; RODGERS V. UNITED STATES, 185 U.S. 83; AND EX PARTE CROWE DOG, 109 U.S. 556.

WHILE THE APPROPRIATION WAS MADE IN BROAD TERMS FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND FOR EACH AND EVERY OBJECT THEREOF, TO BE EXPENDED IN THE DISCRETION AND UNDER THE DIRECTION OF THE PRESIDENT, IT IS NOT TO BEASSUMED IT WAS INTENDED TO BE USED FOR EXPENDITURES SPECIFICALLY PROHIBITED BY LAW.

THE ACT OF JULY 16, 1914, SUPRA, VESTS NO DISCRETION IN EITHER ADMINISTRATIVE OR ACCOUNTING OFFICERS AND, NECESSARILY, MUST BE GIVEN EFFECT EVEN THOUGH IT MAY NOT BE CONSIDERED CONDUCIVE TO THE BEST RESULTS.

IF MORE LATITUDE IN SUCH MATTERS IS ADMINISTRATIVELY CONSIDERED NECESSARY THERE WOULD SEEM FOR CONSIDERATION THE DESIRABILITY OF PLACING THE PROBLEM BEFORE THE CONGRESS NOW IN SESSION.

BUT EVEN IF THE PURCHASE WERE AUTHORIZED BY LAW IT APPEARS THE AUTOMOBILE IN THIS CASE WAS NOT PURCHASED FROM THE LOWEST BIDDER MEETING THE SPECIFICATIONS, AS THE FARGO MOTOR CO. SUBMITTED A BID OF $565.31 FOR A PLYMOUTH SEDAN, THE SPECIFICATIONS DESCRIBING THE VEHICLE DESIRED, AS FOLLOWS:

NEW AND LATEST IMPROVED MODEL, CLOSED TYPE, FOUR-DOOR, LIGHT WEIGHT, FIVE -PASSENGER SEDAN, COMPLETE WITH STANDARD EQUIPMENT, INCLUDING BUMPERS, FRONT AND REAR; 5 FIRST-LINE HEAVY-DUTY 6-PLY BALLOON TIRES AND 5 FIRST- LINE HEAVY-DUTY TUBES, ONE TIRE AND TUBE ON SPARE RIM OR WHEEL MOUNTED ON SUITABLE CARRIER SO PLACED THAT IT WILL NOT IN ANY DEGREE INTERFERE WITH THE FULL OR SAFE OPERATION OF THE VEHICLE; MECHANICAL WINDSHIELD WIPER; REAR VISION MIRROR, INSTRUMENT PANEL, SUITABLY LIGHTED, WITH GASOLINE GAGE; AMMETER AND SPEEDOMETER THEREON; ELECTRIC STARTER, ELECTRIC HEAD, DASH, TAIL, AND STOP LIGHTS; SHOCK ABSORBERS; IGNITION OR GEAR LOCK; DOOR LOCK; FOUR-WHEEL BRAKES OF STURDY CONSTRUCTION MEETING THE REQUIREMENTS OF THE TRAFFIC CODE OF THE STATE IN WHICH TO BE USED; AND THE USUAL EQUIPMENT OF TOOLS.

IN EXPLANATION OF THE REJECTION OF THE LOWEST BID, IT WAS STATED:

THIS VOUCHER COVERS THE PURCHASE OF AN AUTOMOBILE AT A PRICE HIGHER THAN THAT OFFERED BY THE LOWEST BIDDER. THE HIGHER PRICED CAR WAS PURCHASED BECAUSE THE LOWER PRICED ONE IS NOT CONSIDERED SATISFACTORY FOR THE HEAVY DUTY REQUIRED OF IT AND IS NOT WITHIN THE CLASS OF CARS CONTEMPLATED WHEN BIDS WERE INVITED. THE FIRM SUBMITTING THE LOW BID WAS VERBALLY ADVISED BEFORE BIDDING THAT A BID WAS WANTED ON THE HEAVIER CAR SOLD BY THEM RATHER THAN THE ONE ON WHICH THEY BID.

THE TERM "LIGHT WEIGHT" AS USED IN THE SPECIFICATIONS, CONTEMPLATED A LIGHT-WEIGHT CAR IN THE MEDIUM-WEIGHT FIELD, SUCH AS A LIGHT BUICK, CHRYSLER, NASH, OLDSMOBILE, STUDEBAKER, ETC., AND THE BIDDERS WERE SO ADVISED.

THE ACCEPTED BID IS THE LOWEST ONE RECEIVED FOR AN AUTOMOBILE HEAVY AND STURDY ENOUGH TO STAND UP UNDER THE HEAVY WORK REQUIRED OF IT. IF A LIGHTER CAR WERE USED IT WOULD BE OUT OF COMMISSION OFTENER--- SOMETIMES WHEN MOST NEEDED, AND THE ADDITIONAL EXPENSE FOR OVERHAULING AND REPAIRS WOULD MORE THAN OFFSET THE DIFFERENCE IN THE ORIGINAL COST.

THE AUTOMOBILE PURCHASED IS BELIEVED TO BE THE MOST ECONOMICAL, ALL THINGS CONSIDERED.

SPECIFICATIONS FOR A "LIGHTWEIGHT" 5-PASSENGER SEDAN MAY BE MET BY ANY OF THE LIGHT-WEIGHT CARS, EVEN INCLUDING FORD, CHEVROLET, OR PLYMOUTH. ACCORDINGLY, IN FUTURE REQUESTS FOR BIDS, IN CASES WHERE THE PURCHASE OF PASSENGER-CARRYING VEHICLES IS AUTHORIZED BY LAW, IF THE NEEDS OF THE SERVICE REQUIRE A HEAVIER CAR THAN THE LIGHTEST-WEIGHT CAR THE SPECIFICATIONS SHOULD BE MORE SPECIFIC AS TO THE USE TO WHICH THE CAR IS TO BE PUT AND THE NEED FOR A CAR OF GREATER WEIGHT THAN CARS OF THE LIGHTWEIGHT CLASS.

FURTHERMORE, SECTION 3 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1513, PROVIDES:

NO APPROPRIATION AVAILABLE FOR THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1934, WHETHER CONTAINED IN THIS ACT OR ANY OTHER ACT, SHALL BE EXPENDED---

(A) TO PURCHASE ANY MOTOR-PROPELLED PASSENGER-CARRYING VEHICLE (EXCLUSIVE OF BUSES, AMBULANCES, AND STATION WAGONS), AT A COST, COMPLETELY EQUIPPED FOR OPERATION, AND INCLUDING THE VALUE OF ANY VEHICLE EXCHANGED, IN EXCESS OF $750, UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR IN THE APPROPRIATION.

PAYMENT ON THE VOUCHER NOT BEING AUTHORIZED, IT WILL BE RETAINED IN THE FILES OF THIS OFFICE.