A-5966, NOVEMBER 6, 1924, 4 COMP. GEN. 429

A-5966: Nov 6, 1924

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IS BUT DECLARATORY OF THE REQUIREMENTS APPLICABLE TO OTHER BRANCHES OF THE GOVERNMENT INVOLVING PURCHASES IN CONFORMITY WITH SECTION 3709. THAT IT BE SO STATED IF THE LOWEST BID WAS ACCEPTED. WHICH IS APPLICABLE GENERALLY TO ALL BRANCHES OF THE GOVERNMENT. IS EQUALLY APPLICABLE TO CONTRACTS AND PURCHASES BY THE QUARTERMASTER'S DEPARTMENT. TO THE EXTENT THAT SUCH PURCHASES OTHERWISE HAVE NOT BEEN EXCEPTED FROM THE REQUIREMENTS AS TO ADVERTISING. 1924: I HAVE LETTER OF OCTOBER 24. EACH OF SAID CONTRACTS CONTAINING A CERTIFICATE TO THE EFFECT THAT "THE AWARD OF THE CONTRACT WAS MADE TO THE LOWEST RESPONSIBLE BIDDER.'. YOU WERE ADVISED THAT ALTHOUGH THE CERTIFICATES STATE THAT THE AWARDS WERE MADE TO THE LOWEST RESPONSIBLE BIDDER.

A-5966, NOVEMBER 6, 1924, 4 COMP. GEN. 429

PURCHASES - EVIDENCE OF LOWEST BID - QUARTERMASTER'S DEPARTMENT, UNITED STATES ARMY THE ACT OF JULY 5, 1884, 23 STAT. 109, RELATING TO THE PURCHASE OF SUPPLIES BY THE QUARTERMASTER'S DEPARTMENT, UNITED STATES ARMY, AND REQUIRING THAT THE AWARDS BE MADE TO THE LOWEST RESPONSIBLE BIDDER, IS BUT DECLARATORY OF THE REQUIREMENTS APPLICABLE TO OTHER BRANCHES OF THE GOVERNMENT INVOLVING PURCHASES IN CONFORMITY WITH SECTION 3709, REVISED STATUTES. THE REQUIREMENTS OF DECISION OF MARCH 8, 1924, 3 COMP. GEN. 604, THAT IT BE SO STATED IF THE LOWEST BID WAS ACCEPTED, AND EXPLAINED IF OTHERWISE, WHICH IS APPLICABLE GENERALLY TO ALL BRANCHES OF THE GOVERNMENT, IS EQUALLY APPLICABLE TO CONTRACTS AND PURCHASES BY THE QUARTERMASTER'S DEPARTMENT, TO THE EXTENT THAT SUCH PURCHASES OTHERWISE HAVE NOT BEEN EXCEPTED FROM THE REQUIREMENTS AS TO ADVERTISING, ETC.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, NOVEMBER 6, 1924:

I HAVE LETTER OF OCTOBER 24, 1924, FROM THE ACTING QUARTERMASTER GENERAL, IN RESPONSE TO LETTERS OF OCTOBER 11, 13, AND 16, RELATIVE TO CERTAIN CONTRACTS FILED IN THIS OFFICE, EACH OF SAID CONTRACTS CONTAINING A CERTIFICATE TO THE EFFECT THAT "THE AWARD OF THE CONTRACT WAS MADE TO THE LOWEST RESPONSIBLE BIDDER.'

IN THE LETTERS OF OCTOBER 11, 13, AND 16, YOU WERE ADVISED THAT ALTHOUGH THE CERTIFICATES STATE THAT THE AWARDS WERE MADE TO THE LOWEST RESPONSIBLE BIDDER, THERE IS NO SHOWING THAT THE LOWEST BIDS WERE ACTUALLY ACCEPTED, ATTENTION BEING INVITED TO THE REQUIREMENTS IN THAT RESPECT AS STATED IN DECISION OF MARCH 8, 1924, 3 COMP. GEN. 604, AT PAGE 605, AS FOLLOWS:

THE ACCEPTANCE BY AN ADMINISTRATIVE OFFICER OF OTHER THAN THE LOWEST BID WOULD ORDINARILY NOT BE QUESTIONED IF THE REASONS ASSIGNED FOR THAT ACTION APPEARED SATISFACTORY, BUT THE ACTION IN THAT RESPECT BY ADMINISTRATIVE OFFICERS IS NOT CONCLUSIVE ON THE ACCOUNTING OFFICE. IT APPEARS, THEREFORE, THAT A SATISFACTORY AUDIT OF EXPENDITURES, WHETHER PURSUANT TO FORMAL OR INFORMAL CONTRACTS, REQUIRES AT LEAST AN AFFIRMATIVE SHOWING THAT THE LOWEST BID WAS ACCEPTED, OR, IF OTHERWISE, A DETAILED STATEMENT OF THE REASONS FOR ACCEPTING OTHER THAN THE LOWEST BID.

IN RESPONSE TO SUCH NOTICES AND REQUESTS FOR PROMPT COMPLIANCE WITH THE REQUIREMENTS AS THEREIN OUTLINED, THE ACTING QUARTERMASTER GENERAL ADVISED THAT THE INFORMATION FURNISHED TO THE EFFECT THAT THE AWARDS WERE MADE TO THE LOWEST RESPONSIBLE BIDDER WAS ALL THAT THE LAW REQUIRED AND ALL THAT HAD EVER BEEN REQUIRED IN CONNECTION WITH CONTRACTS OF THE QUARTERMASTER'S DEPARTMENT OF THE ARMY, CITING IN SUPPORT THEREOF CERTAIN ORDERS AND REGULATIONS OF THE SECRETARY OF WAR AND A PROVISION OF THE ACT OF JULY 5, 1884, 23 STAT. 109, PURSUANT TO WHICH SUCH ORDERS, REGULATIONS, ETC., WERE ISSUED, THE SAID ACT PROVIDING AS FOLLOWS:

* * * PROVIDED, THAT HEREAFTER ALL PURCHASES OF REGULAR AND MISCELLANEOUS SUPPLIES FOR THE ARMY FURNISHED BY THE QUARTERMASTER'S DEPARTMENT AND BY THE COMMISSARY DEPARTMENT FOR IMMEDIATE USE, SHALL BE MADE BY THE OFFICERS OF SUCH DEPARTMENT, UNDER DIRECTION OF THE SECRETARY OF WAR, AT THE PLACES NEAREST THE POINTS WHERE THEY ARE NEEDED, THE CONDITIONS OF COST AND QUALITY BEING EQUAL: PROVIDED ALSO, THAT ALL PURCHASES OF SAID SUPPLIES, EXCEPT IN CASES OF EMERGENCY, WHICH MUST BE AT ONCE REPORTED TO THE SECRETARY OF WAR FOR HIS APPROVAL, SHALL BE MADE BY CONTRACT AFTER PUBLIC NOTICE OF NOT LESS THAN TEN DAYS FOR SMALL AMOUNTS FOR IMMEDIATE USE, AND OF NOT LESS THAN FROM THIRTY TO SIXTY DAYS WHENEVER, IN THE OPINION OF THE SECRETARY OF WAR, THE CIRCUMSTANCES OF THE CASE AND CONDITIONS OF THE SERVICE SHALL WARRANT SUCH EXTENSION OF TIME. THE AWARD IN EVERY CASE SHALL BE MADE TO THE LOWEST RESPONSIBLE BIDDER FOR THE BEST AND MOST SUITABLE ARTICLE, THE RIGHT BEING RESERVED TO REJECT ANY AND ALL BIDS.

IN THE LETTER OF OCTOBER 24, 1924, IT IS STATED:

FURTHERMORE, IT IS SUGGESTED THAT THE COMPTROLLER GENERAL'S DECISION CITED IN YOUR LETTERS HAS NO CONSISTENT APPLICATION TO THIS BRANCH. THAT CASE WAS WITH REGARD TO BUSINESS UNDER LAWS DIFFERENT FROM THOSE PERTAINING TO THE QUARTERMASTER CORPS, AND IT IS UNDERSTOOD THAT AT THE TIME OF THE DECISION THERE WAS NOT AT HAND ANY CONTRACT, COPY OF PROPOSAL, OR CERTIFICATE AS TO AWARD. IT IS NOT APPRECIATED HOW THE DECISION, UNDER THE CIRCUMSTANCES RENDERED, CAN OR SHOULD HAVE GENERAL APPLICATION, AND PARTICULARLY IN MATTERS WHERE THE REQUIREMENTS ARE SO MARKEDLY DIFFERENT.

IT IS THE POLICY OF THIS OFFICE TO COOPERATE WITH THE GENERAL ACCOUNTING OFFICE, AND IN VIEW OF THE EXPLANATION SET FORTH ABOVE REQUEST IS MADE THAT SUCH EXCEPTIONS AS YOU HAVE TAKEN TO THE CONTRACTS IN QUESTION, AS WELL AS ANY SIMILAR ONES NOTED BEFORE CONSIDERATION OF THIS LETTER, BE WITHDRAWN.

THE PROVISION OF LAW GENERALLY APPLICABLE TO PURCHASES OF OTHER BRANCHES OF THE GOVERNMENT SERVICE IS SECTION 3709, REVISED STATUTES. SUCH OTHER BRANCHES OF THE GOVERNMENT SERVICE ARE NOT AUTHORIZED TO MAKE AWARDS TO IRRESPONSIBLE BIDDERS ANY MORE SO THAN THE QUARTERMASTER GENERAL; IN OTHER WORDS, THE PROVISION IN THE ACT QUOTED, SUPRA, THAT THE AWARD BE MADE TO THE LOWEST RESPONSIBLE BIDDER IS BUT DECLARATORY OF THE GENERAL REQUIREMENT APPLICABLE ALIKE TO ALL, THOUGH NOT EXPRESSLY REQUIRED OF ALL.

THE FACT THAT A SHOWING AS TO THE ACCEPTANCE OF THE LOWEST BID, OR A STATEMENT OF THE REASONS FOR ACCEPTING A HIGHER BID, WAS REQUIRED ONLY IN SPECIFIC CASES IS NO REASON WHY THE ACCOUNTING OFFICERS COULD NOT HAVE MADE THAT A GENERAL REQUIREMENT AS TO ALL PURCHASES. I BELIEVE THAT THE REQUIREMENTS AS ANNOUNCED IN 3 COMP. GEN. 604, IS A SALUTORY ONE, IN THE INTERESTS OF THE UNITED STATES, REASONABLE, AND WITH FULL WARRANT IN LAW; AND MUST BE ADHERED TO.

YOU ARE ADVISED, HOWEVER, IN VIEW OF THE PAST PRACTICE, THE TIME WILL BE EXTENDED SO THAT THE REQUIREMENTS GENERALLY WILL BE INSISTED UPON ONLY AS TO CONTRACTS EXECUTED ON AND AFTER NOVEMBER 15, 1924, UNLESS A PARTICULAR NEED THEREFOR ARISES IN SPECIFIC CASES.