A-54898, MAY 16, 1934, 13 COMP. GEN. 357

A-54898: May 16, 1934

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ADVERTISING - SPECIFICATIONS - PARTICULAR MAKE WHEN IT IS NECESSARY TO NAME A PARTICULAR MAKE OF ARTICLE IN AN ADVERTISEMENT FOR PROPOSALS PURSUANT TO SECTION 3709. THE FACT THAT A PARTICULAR MATERIAL HAS BEEN USED FOR 40 YEARS AND PROVED SATISFACTORY IS NO JUSTIFICATION FOR THE CONTINUED PURCHASE THEREOF TO THE EXCLUSION OF ALL OTHERS OF SIMILAR OR EQUAL QUALITY. NOR IS THE PERSONAL PREFERENCE OR THE PERSONAL OPINION OF CERTAIN ADMINISTRATIVE EMPLOYEES SUFFICIENT TO AUTHORIZE SPECIFYING A PARTICULAR MATERIAL TO THE EXCLUSION OF OTHERS THAT WOULD SERVE THE PURPOSE. 1934: I HAVE YOUR LETTER OF MAY 8. AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTER OF APRIL 13. - WHERE STONE OR SOAPSTONE IS CALLED FOR IT SHALL BE VIRGINIA ALBERENE STONE.

A-54898, MAY 16, 1934, 13 COMP. GEN. 357

ADVERTISING - SPECIFICATIONS - PARTICULAR MAKE WHEN IT IS NECESSARY TO NAME A PARTICULAR MAKE OF ARTICLE IN AN ADVERTISEMENT FOR PROPOSALS PURSUANT TO SECTION 3709, REVISED STATUTES, IT SHOULD BE FOLLOWED BY THE QUALIFYING PHRASE "OR EQUAL.' THE FACT THAT A PARTICULAR MATERIAL HAS BEEN USED FOR 40 YEARS AND PROVED SATISFACTORY IS NO JUSTIFICATION FOR THE CONTINUED PURCHASE THEREOF TO THE EXCLUSION OF ALL OTHERS OF SIMILAR OR EQUAL QUALITY, NOR IS THE PERSONAL PREFERENCE OR THE PERSONAL OPINION OF CERTAIN ADMINISTRATIVE EMPLOYEES SUFFICIENT TO AUTHORIZE SPECIFYING A PARTICULAR MATERIAL TO THE EXCLUSION OF OTHERS THAT WOULD SERVE THE PURPOSE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MAY 16, 1934:

I HAVE YOUR LETTER OF MAY 8, 1934, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1934 (A-54898), RELATIVE TO A COMPLAINT OF THE VIRGINIA GREENSTONE COMPANY, INC., REGARDING THE SPECIFICATIONS FOR STONE FOR THE SCIENTIFIC LABORATORY, AGRICULTURE EXTENSIBLE BUILDING.

THE SPECIFICATION IN QUESTION, PARAGRAPH 96, READS AS FOLLOWS:

"SOAPSTONE.--- WHERE STONE OR SOAPSTONE IS CALLED FOR IT SHALL BE VIRGINIA ALBERENE STONE. SOAPSTONE SHALL BE SELECTED GRADE, BLUE-GRAY IN COLOR, CLOSE GRAINED, NONPORUOUS, OF UNIFORM DENSITY AND HARDNESS AND FREE FROM STRATIFICATION. IT SHALL BE SUITABLE FOR THE PURPOSE FOR WHICH USED, FREE FROM CALCITE VEINS AND FROM ANY OTHER DEFECTS THAT MAY IMPAIR ITS STRENGTH OR USE. IT SHALL BE NONMICACEOUS IN CHARACTER AND CAPABLE OF TAKING A SMOOTH HONED FINISH. ONLY A MINIMUM OF VEINING SHALL BE ALLOWED AND SUCH VEINING AS MAY BE PRESENT SHALL BE BOTH ACID AND ALKALINE RESISTANT.'

ADDENDUM NO. 2, PARAGRAPH 96, READS:

"STONE FOR TOPS, HOODS, ETC., SHALL BE AS THEREIN SPECIFIED "SUITABLE FOR THE PURPOSE FOR WHICH USED," I.E., HARDER MATERIAL USED FOR SUPERSTRUCTURE OF FUME HOODS AND FOR SHELVES, ETC., AND THE SOFTER FOR LOCATIONS WHERE HEAT CONDITIONS ARE TO BE MET BUT IN NO CASE SHALL MATERIAL BE USED HAVING AN ABRASIVE HARDNESS OF LESS THAN 5.00, AS DETERMINED BY THE METHODS USED BY THE U.S. BUREAU OF STANDARDS.'

THERE ARE ATTACHED COPIES OF A LETTER FROM THE SECRETARY OF AGRICULTURE TO THE ASSISTANT SECRETARY OF THE TREASURY, AND A MEMORANDUM FROM THE SUPERVISING ARCHITECT TO THE ASSISTANT DIRECTOR OF PROCUREMENT REGARDING THE RELATIVE MERITS OF VIRGINIA ALBERENE STONE AND VIRGINIA GREENSTONE FOR THIS TYPE OF WORK.

THE MATTERS SET FORTH IN YOUR LETTER DO NOT ANSWER THE CONTENTIONS OF THE COMPLAINING BIDDER--- THE VIRGINIA GREESTONE CO.--- TO THE EFFECT THAT ITS MATERIAL HAS BEEN USED AND IS NOW SATISFACTORILY BEING USED BY THE UNITED STATES IN VARIOUS GOVERNMENT BUILDINGS, AS FOLLOWS:

U.S. VETERANS' BUREAU, VETERANS' HOSPITALS AT INDIANAPOLIS, IND., AND CANANDAIGUA, N.Y.

DEPARTMENT OF THE INTERIOR, HOWARD UNIVERSITY, DEPARTMENT OF COMMERCE, NEW COMMERCE BUILDING, DEPARTMENT OF AGRICULTURE, BUREAU OF ECONOMICS AND THE BUREAU OF PLANT INDUSTRY, WASHINGTON, D.C.

U.S. TREASURY DEPARTMENT, NATIONAL INSTITUTE OF HEALTH; U.S. NAVY DEPARTMENT, ANNAPOLIS, MD.

THERE IS NOTED THE LETTER OF FEBRUARY 12, 1934, FROM THE SECRETARY OF AGRICULTURE TO THE EFFECT THAT IT IS THE CONSENSUS OF OPINION AMONG THE LABORATORY WORKERS OF THE AGRICULTURE DEPARTMENT THAT VIRGINIA SOAPSTONE KNOWN UNDER THE TRADE NAME OF "ALBERENE" IS DESIRED IN PREFERENCE TO OTHER MATERIALS WHICH, THOUGH SIMILAR IN CHARACTERISTICS, ARE REGARDED AS UNSUITABLE AND UNSAFE FOR "USE IN OUR LABORATORIES WHERE STONE HAS BEEN INDICATED.' THERE HAS BEEN NOTED, ALSO, MEMORANDUM OF MARCH 16, 1934, FROM THE SUPERVISING ARCHITECT, PROCUREMENT DIVISION, PUBLIC WORKS BRANCH, TO THE EFFECT THAT---

THE ALBERENE STONE HAS GIVEN SATISFACTORY SERVICE AND HAS BEEN REGULARLY USED IN LABORATORY WORK FOR AT LEAST FORTY YEARS AND IS CONSIDERED THE BEST PRODUCT AVAILABLE FOR LABORATORY WORK. BECAUSE OF THE SIZE OF THE CONTRACT, AND BECAUSE THE SECRETARY OF AGRICULTURE UNDER DATE OF FEBRUARY 12, 1934, EXPRESSED A DECIDED PREFERENCE FOR THE ALBERENE STONE (LETTER ATTACHED) IT IS NOT CONSIDERED GOOD POLICY TO EXPERIMENT WITH THE GREENSTONE, AND THE SPECIFICATION LIMITS THE MATERIAL TO VIRGINIA ALBERENE STONE.

THE CONTRACT HERE INVOLVES THE EXPENDITURE OF SOME $350,000 FOR SOAPSTONE BUT THE SPECIFICATIONS ARE SO DRAWN THAT THERE IS UNDERSTOOD TO BE ONLY ONE SOURCE OF SUPPLY.

IT HAS BEEN HELD BY THE ACCOUNTING OFFICERS THAT THE NAMING OF A PARTICULAR BRAND OF MATERIAL, ETC., IN AN ADVERTISEMENT FOR PROPOSALS TO THE EXCLUSION OF ALL OTHERS OF SIMILAR OR EQUAL MAKE OR QUALITY, IS NOT A COMPLIANCE WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES. GENERALLY, WHEN, IN ORDER TO DESCRIBE AN ARTICLE, ETC., NEEDED, IT IS NECESSARY TO NAME THE MAKE, IT SHOULD BE FOLLOWED BY THE QUALIFYING PHRASE "OR EQUAL.'

IN CONSIDERING THE MATTER OF ADVERTISING, AS REQUIRED BY THE PROVISIONS OF SECTION 3709, REVISED STATUTES, THE COURT OF CLAIMS, IN THE CASE OF PURCELL ENVELOPE CO. V. THE UNITED STATES, 51 CT.CLS. 211, 214, SAID:

* * * THIS COURT HAS HELD, EXCEPT IN CERTAIN CASES OF EMERGENCY, THAT ALL CONTRACTS BETWEEN INDIVIDUALS AND THE GOVERNMENT ARE VOID UNLESS THEY ARE MADE UPON ADVERTISEMENTS FOR PROPOSALS PREVIOUSLY PUBLISHED, AND THAT A COMPLIANCE WITH SUCH STATUTES IS A CONDITION PRECEDENT, UPON THE PERFORMANCE OF WHICH ONLY CAN A BINDING CONTRACT WITH THE GOVERNMENT BE MADE BY ITS OFFICERS. IT ACTS BY ITS PUBLIC OFFICERS, AND THEIR POWERS AND DUTIES ARE PRESCRIBED AND LIMITED BY LAWS WHICH THEY MUST FOLLOW.

IN CONSIDERING THE SAME CASE ON APPEAL, THE UNITED STATES SUPREME COURT IN UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313, SAID:

* * * THERE MUST BE A POINT OF TIME AT WHICH DISCRETION IS EXHAUSTED. THE PROCEDURE FOR THE ADVERTISING FOR BIDS FOR SUPPLIES OR SERVICES TO THE GOVERNMENT WOULD ELSE BE A MOCKERY--- A PROCEDURE, WE MAY SAY, THAT IS NOT PERMISSIVE BUT REQUIRED (SEC. 3709, REV.STATS.). BY IT THE GOVERNMENT IS GIVEN THE BENEFIT OF THE COMPETITION OF THE MARKET AND EACH BIDDER IS GIVEN THE CHANCE FOR A BARGAIN. IT IS A PROVISION, THEREFORE, IN THE INTEREST OF BOTH GOVERNMENT AND BIDDER, NECESSARILY GIVING RIGHTS TO BOTH AND PLACING OBLIGATIONS ON BOTH. AND IT IS NOT OUT OF PLACE TO SAY THAT THE GOVERNMENT SHOULD BE ANIMATED BY A JUSTICE AS ANXIOUS TO CONSIDER THE RIGHTS OF THE BIDDER AS TO INSIST UPON ITS OWN.

THE ADVERTISED SPECIFICATIONS IN THIS CASE LIMITED COMPETITION TO THE PRODUCT OF A PARTICULAR CONCERN, OR SECTION, IT BEING PROVIDED IN PARAGRAPH 96 THAT "SOAPSTONE: WHERE STONE OR SOAPSTONE IS CALLED FOR IT SHALL BE VIRGINIA ALBERENE STONE.' THERE WAS NO QUALIFYING PHRASE "OR EQUAL" NOR DOES THE RECORD BEFORE THIS OFFICE DISCLOSE ANY PROVISION WHEREBY BIDDERS WERE ALLOWED TO BID ON ANY OTHER SOAPSTONE OR THAT CONSIDERATION WOULD BE GIVEN ANY OTHER MATERIAL THAN THAT SO SPECIFIED. THE FACT THAT A PARTICULAR MATERIAL HAS BEEN USED FOR 40 YEARS AND PROVED SATISFACTORY IS NO JUSTIFICATION FOR THE CONTINUED PURCHASE THEREOF TO THE EXCLUSION OF ALL OTHERS OF SIMILAR OR EQUAL QUALITY. NOR IS THE PERSONAL PREFERENCE OR THE PERSONAL OPINION OF CERTAIN ADMINISTRATIVE EMPLOYEES SUFFICIENT TO AUTHORIZE SPECIFYING A PARTICULAR MATERIAL TO THE EXCLUSION OF OTHERS THAT WOULD SERVE THE PURPOSE.

THE PRESENT RECORD DOES NOT SHOW THAT NO SOAPSTONE OTHER THAN VIRGINIA ALBERENE WOULD SERVE THE PURPOSE IN THIS INSTANCE AND, IN THE ABSENCE OF SUCH A SHOWING, I FIND AND DECIDE THAT THE FUNDS IN QUESTION MAY NOT BE CHARGED WITH PAYMENTS UNDER A CONTRACT AWARDED ON THESE SPECIFICATIONS.