A-57644, NOVEMBER 6, 1934, 14 COMP. GEN. 364

A-57644: Nov 6, 1934

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WILL BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE AS A COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709. WHERE THE ONLY FORM OF ADVERTISEMENT FOR BIDS WAS AN INSERTION IN A LOCAL NEWSPAPER. ONLY ONE RESPONSE WAS RECEIVED OUT OF A TOTAL OF 26 PERSONS OR FIRMS IN THE LOCALITY. WHILE THERE IS NO LEGAL REQUIREMENT THAT FORMER BIDDERS BE NOTIFIED OF READVERTISEMENT. AN EMERGENCY MAY NOT BE ADMINISTRATIVELY CREATED AND USED AS A BASIS FOR MAKING AWARD OF A CONTRACT WHERE THE RECORD SHOWS THERE IS LACKING THE COMPETITION CONTEMPLATED AND REQUIRED BY LAW. AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. BIDS FOR WHICH WERE OPENED IN THIS DEPARTMENT ON SEPTEMBER 4. THERE ARE INCLOSED HEREWITH A COPY OF THE SPECIFICATIONS FOR THE WORK.

A-57644, NOVEMBER 6, 1934, 14 COMP. GEN. 364

CONTRACTS - ADEQUACY OF ADVERTISEMENT ANY METHOD OF ADVERTISEMENT, WHETHER IN NEWSPAPERS, DIRECT NOTICE, OR OTHERWISE, THAT GIVES ALL AVAILABLE COMPETITION UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, GENERALLY, WILL BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE AS A COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES. WHERE THE ONLY FORM OF ADVERTISEMENT FOR BIDS WAS AN INSERTION IN A LOCAL NEWSPAPER, AND ONLY ONE RESPONSE WAS RECEIVED OUT OF A TOTAL OF 26 PERSONS OR FIRMS IN THE LOCALITY, THE ADVERTISEMENT MAY NOT BE REGARDED AS ADEQUATE. WHILE THERE IS NO LEGAL REQUIREMENT THAT FORMER BIDDERS BE NOTIFIED OF READVERTISEMENT, IN ORDER TO STIMULATE COMPETITION, IT WOULD CLEARLY BE IN THE INTERESTS OF THE UNITED STATES TO NOTIFY THEM. AN EMERGENCY MAY NOT BE ADMINISTRATIVELY CREATED AND USED AS A BASIS FOR MAKING AWARD OF A CONTRACT WHERE THE RECORD SHOWS THERE IS LACKING THE COMPETITION CONTEMPLATED AND REQUIRED BY LAW.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 6, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 17, 1934, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1934 (A-57644), TRANSMITTING A COMPLAINT OF LEISSLER'S NURSERIES, OF EAST FALLS CHURCH, VIRGINIA, RELATIVE TO THE ADVERTISEMENT FOR PROPOSALS FOR PLANTING IN THE TRIANGLE AREA IN WASHINGTON, D.C., BIDS FOR WHICH WERE OPENED IN THIS DEPARTMENT ON SEPTEMBER 4, 1934.

IN ACCORDANCE WITH YOUR REQUEST, THERE ARE INCLOSED HEREWITH A COPY OF THE SPECIFICATIONS FOR THE WORK, A COPY OF THE ADVERTISEMENT FOR PROPOSALS, AND AN ABSTRACT OF ALL BIDS RECEIVED.

IN RESPONSE TO YOUR REQUEST FOR A REPORT OF THE FACTS WITH REFERENCE TO THE CONTENTIONS OF THE COMPLAINING BIDDER, SHOWING SPECIFICALLY THE REASON WHY THE SAID BIDDER WAS NOT ASKED TO BID ON THE READVERTISEMENT, THE FOLLOWING IS RESPECTFULLY SUBMITTED:

THIS WORK HAS NOW BEEN ON THE MARKET THREE TIMES; ONCE IN DECEMBER 1933, AGAIN IN JULY 1934, AND BECAUSE OF AN ALLEGED AMBIGUITY IN THE SPECIFICATION UPON WHICH THE BIDS OF JULY 25, 1934, WERE BASED, THE WORK WAS AGAIN READVERTISED ON AUGUST 28, 1934, AND BIDS WERE OPENED ON SEPTEMBER 4TH LAST. THE PERIOD OF ADVERTISEMENT WAS LIMITED IN ORDER THAT ACTION MIGHT BE TAKEN ON THE BIDS IN TIME TO PERMIT THE COMPLETION OF THE PLANTING IN THE TRIANGLE AREA DURING THE FALL SEASON.

IT HAS NOT BEEN THE PRACTICE TO NOTIFY FORMER BIDDERS WHEN WORK IS READVERTISED, BUT THE DEPARTMENT ALWAYS NOTIFIES ALL BIDDERS OF ITS INTENTION TO READVERTISE WHEN BIDS WERE REJECTED. THIS WAS DONE IN THIS CASE ON AUGUST 23, 1934, AND LETTERS WERE SENT TO ALL SIX BIDDERS WHO SUBMITTED PROPOSALS UNDER THE COMPETITIVE BIDDING OF JULY 25, 1934. COPY OF THE LETTER OF AUGUST 23D REJECTING ALL BIDS IS INCLOSED.

UNDER THE OPENING OF JULY 25, 1934, BIDS WERE RECEIVED AS FOLLOWS:

CHART NAME: AMOUNT

CHARLES G. BURTON AND SONS, BRENTWOOD, MD. ----------------- $8,969.31

A. GUDE AND SONS CO., INC., WASHINGTON, D.C. ------------- 10,826.50

LEISSLERS NURSERIES, EAST FALLS CHURCH, VA. ---------------- 23,596.00

CASSINELLI AND BRUMME, INC., CINCINNATI, OHIO ------------- 28,377.00

OUTPOST NURSERIES, RIDGEFIELD, CONN. ----------------------- 39,128.00

ROLAND PARK CO., BALTIMORE, MD. --------------------------- 41,000.00

UNDER THE OPENING OF SEPTEMBER 4, 1934, BIDS WERE RECEIVED AS FOLLOWS: NAME:

AMOUNT

A. GUDE AND SONS, INC., WASHINGTON, D.C. ----------------- $21,547.00

GREENBRIER FARMS, INC., NORFOLK, VA. --------------------- 24,866.89

CASSINELLI AND BRUMME, INC., CINCINNATI, OHIO ------------ 28,458.12

OUTPOST NURSERIES, INC., RIDGEFIELD, CONN. --------------- 33,500.00

WHILE THE PERIOD FROM AUGUST 28 TO SEPTEMBER 4 IS SHORTER THAN IS USUAL FOR CONSTRUCTION WORK, THE WORK INVOLVED UNDER THIS SPECIFICATION REQUIRES VERY LITTLE TIME FOR ESTIMATING AND PREPARATION OF BIDS. THE COMPLAINT THAT INSUFFICIENT TIME WAS ALLOWED IS CONSIDERABLY NEGATIVED BY THE FACT THAT OF THE FOUR BIDS RECEIVED, THREE ARE FROM BIDDERS IN OHIO, CONNECTICUT, AND VIRGINIA.

REGARDING THE METHOD OF ADVERTISEMENT, AND THE SELECTION OF THE WASHINGTON POST AS THE ADVERTISEMENT MEDIUM, IT MAY BE STATED THE DEPARTMENT AND PROSPECTIVE BIDDERS DO NOT RELY ENTIRELY ON LOCAL PAPERS FOR PUBLICITY. ADVERTISEMENT IN THE LOCAL PRESS, AND THE LEADING TECHNICAL JOURNALS, IS MORE TO MEET THE REQUIREMENTS OF LAW THAN IN THE HOPE THAT IT WILL REACH THE EYES OF ALL PROSPECTIVE BIDDERS--- IT BEING WELL KNOWN THAT IN RECENT YEARS PUBLICITY OF MATTERS OF THIS KIND IS MUCH MORE EFFECTIVE THROUGH THE INFORMATION BUREAUS OF THE LARGE SURETY COMPANIES, AND THE SERVICES WHICH ARE RENDERED WITHOUT COST TO THE GOVERNMENT BY DODGE SERVICE, BLUE REPORTS, GOVERNMENT ADVERTISER, AND OTHER SIMILAR SERVICE BUREAUS. THIS IS WELL EVIDENCED BY THE FACT THAT THE DEPARTMENT RECORDS SHOW THAT TWO OF THE OUT-OF TOWN BIDDERS RECEIVED INFORMATION AS TO THE READVERTISEMENT OF THE WORK ON THE DAY FOLLOWING THE POSTING OF THE ADVERTISEMENT IN THE ROOM MAINTAINED IN THE PROCUREMENT DIVISION FOR THE CONVENIENCE OF CONTRACTORS.

INASMUCH AS THIS PROJECT HAS ALREADY BEEN ADVERTISED THREE TIMES, AND AS THE LAST ADVERTISEMENT SEEMS TO HAVE BEEN SUFFICIENTLY LONG FOR BIDDERS IN DISTANT STATES TO HAVE SUBMITTED BIDS, THIS DEPARTMENT DOES NOT FEEL JUSTIFIED IN AGAIN ADVERTISING THE WORK BECAUSE ONE BIDDER DID NOT NOTICE THE ADVERTISEMENT IN TIME TO SUBMIT A BID.

A CONTRACT HAS ALREADY BEEN LET FOR WALKS AND SPRINKLER SYSTEM IN THE TRIANGLE AREA, AND IF A PROMPT AWARD IS MADE OF THE TRIANGLE AREA, AND IF A PROMPT AWARD IS MADE OF THE CONTRACT FOR PLANTING, A CONSIDERABLE PART OF THAT WORK CAN BE DONE DURING THE PRESENT FALL SEASON. THE DEPARTMENT WILL THEREFORE BE GLAD TO RECEIVE YOUR APPROVAL OF THE AWARD OF THE LOW BIDDER ON THE PROPOSALS UNDER CONSIDERATION.

THE STATUTE, SECTION 3709, REVISED STATUTES, DOES NOT REQUIRE PUBLICATION IN NEWSPAPERS IN EACH CASE BUT CONTEMPLATES SUCH PUBLICITY AS WILL OFFER PROBABLE BIDDERS NOTICE THEREOF AND PROPER OPPORTUNITY TO BID. HENCE, ANY METHOD OF ADVERTISING THAT GIVES ALL AVAILABLE COMPETITION UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, GENERALLY, WILL BE ACCEPTED BY THE ACCOUNTING OFFICERS AS A COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE.

THE FACT THAT ONLY 6 BIDS WERE RECEIVED UNDER THE JULY 25 OPENING AND 4 BIDS UNDER THE SEPTEMBER 4, 1934, OPENING, WOULD INDICATE THAT THE ADVERTISING IN NEITHER INSTANCE WAS SUCH AS TO MEET THE REQUIREMENTS OF THE PROVISIONS OF SECTION 3709, REVISED STATUTES. AN EXAMINATION OF THE TELEPHONE DIRECTORY OF THE CITY OF WASHINGTON ALONE, DISCLOSES SOME 26 PERSONS AND FIRMS LISTED AS LANDSCAPE GARDENERS--- AND DOING WORK OF A SIMILAR CHARACTER AS HERE INVOLVED--- AND ONLY ONE BID WAS RECEIVED FROM WASHINGTON IN RESPONSE TO THE OPENING OF SEPTEMBER 4, 1934, THAT OF THE LOW BIDDER, AND THERE APPEARS NO REASON WHY STEPS SHOULD NOT HAVE BEEN TAKEN TO SPECIFICALLY NOTIFY AT LEAST THE LOCAL AND NEARBY MARKET WITH RESPECT TO THE CONTEMPLATED WORK. FURTHERMORE, THE INSERTION OF AN ADVERTISEMENT IN A LOCAL NEWSPAPER UNDER THE CIRCUMSTANCES IN THIS CASE MAY NOT BE ACCEPTED AS IN COMPLIANCE WITH THE STATUTES REQUIRING COMPETITION.

THE WORK HERE INVOLVES A SIZABLE AMOUNT, THE LOW BID BEING $21,547. HENCE, THE INTERESTS OF THE UNITED STATES REQUIRE AND DEMAND THAT THERE BE COMPETITION AS REQUIRED BY LAW, THAT IS, THAT THERE BE SUCH PUBLICITY AS WILL OFFER PROBABLE BIDDERS NOTICE AND OPPORTUNITY TO BID. IN THIS CONNECTION, THERE IS NOTED THE STATEMENT IN YOUR LETTER TO THE EFFECT THAT IT HAS NOT BEEN THE PRACTICE TO NOTIFY FORMER BIDDERS WHEN THE WORK IS TO BE READVERTISED. OF COURSE, THERE IS NO LEGAL REQUIREMENT THAT FORMER BIDDERS BE NOTIFIED WHEN THE NEW ADVERTISEMENT HAS BEEN ISSUED, BUT IT WOULD APPEAR THAT TO NOTIFY ALL SUCH BIDDERS WOULD STIMULATE COMPETITION, AND SUCH BEING THE CASE, IT WOULD CLEARLY BE IN THE INTERESTS OF THE UNITED STATES TO SO NOTIFY THEM.

IN THE CIRCUMSTANCES APPEARING, THERE SEEMS NOT TO HAVE BEEN AFFORDED OPPORTUNITY FOR SUCH COMPETITION IN THIS CASE AS IS REQUIRED BY THE PROVISIONS OF SECTION 3709, REVISED STATUTES. SUCH BEING THE CASE, THERE ARE NO FUNDS AVAILABLE FOR PAYMENT UNDER AN AWARD PURSUANT TO THE OPENING OF SEPTEMBER 4, 1934. ON THE OTHER HAND, IT WOULD APPEAR IN THE INTEREST OF THE UNITED STATES TO READVERTISE TO THE END THAT ALL PROSPECTIVE BIDDERS BE PERMITTED OPPORTUNITY TO BID. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

IN REACHING THIS CONCLUSION THERE HAS NOT BEEN OVERLOOKED THE STATED EMERGENCY WITH RESPECT TO THE PLANTING. HOWEVER, WHATEVER EMERGENCY THAT NOW EXISTS WITH REFERENCE THERETO IS NECESSARILY ATTRIBUTABLE TO THOSE CHARGED WITH THE DUTY OF HAVING THE WORK PERFORMED, FOR, AS STATED IN YOUR LETTER, THERE HAVE BEEN AT LEAST THREE ATTEMPTS TO ADVERTISE FOR BIDS FOR THE PERFORMANCE THEREOF DATING AS FAR BACK AS DECEMBER 1933. ASIDE FROM THIS, YOUR REPORT IN THE MATTER WAS REQUESTED UNDER DATE OF SEPTEMBER 14, 1934, BUT WAS NOT RECEIVED UNTIL OCTOBER 19, 1934. AN EMERGENCY MAY NOT BE ADMINISTRATIVELY CREATED AND USED AS A BASIS FOR MAKING AWARD OF A CONTRACT WHERE THE RECORD SHOWS, AS IN THIS CASE, THERE IS LACKING THE COMPETITION CONTEMPLATED AND REQUIRED BY LAW.

THERE IS NOTED THE CONCLUDING PARAGRAPH OF YOUR LETTER, SUPRA, TO THE EFFECT THAT THE CONTRACT FOR THE WALKS AND SPRINKLER SYSTEM IN THE TRIANGLE AREA HAS BEEN LET. THE AWARD AS MADE, HOWEVER, WAS THE SUBJECT OF MY LETTER TO YOU OF OCTOBER 20, 1934, A-58265, INVOLVING THE PROTEST OF THE CORSON AND GRUMAN CO., INC. ..END :