A-66806, JANUARY 16, 1936, 15 COMP. GEN. 618

A-66806: Jan 16, 1936

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IT WAS IN ITS INCEPTION ILLEGAL. WAS RECEIVED IN THIS OFFICE. AN EXAMINATION THEREOF DISCLOSED THAT WHILE THE SPARK PLUGS WERE REQUIRED TO BE DELIVERED IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS 95-28017E AND DRAWING 1046-S. AN INQUIRY WAS MADE IN OFFICE LETTER OF AUGUST 2. AS TO THE REASON WHY THERE WAS NOT COMPLIANCE WITH LAW IN ENTERING INTO THE CONTRACT. TO THE EFFECT THAT THROUGH A CLERICAL ERROR THE ABSTRACT OF AGREEMENT STATED THAT AWARD WAS MADE UNDER THE PROVISIONS OF PARAGRAPH 4 G 4 AR 5-240. THAT IS. THE ADMINISTRATIVE STATEMENT WAS ERRONEOUS THAT IT WAS IMPRACTICABLE TO SECURE COMPETITION BECAUSE OF "SOLE MANUFACTURER" AND THAT. THE SPARK PLUGS WERE ACQUIRED FOR EXPERIMENTAL PURPOSES AS A PROCUREMENT UNDER THE AUTHORITY OF SECTION 10 (K) OF THE ACT OF JULY 2.

A-66806, JANUARY 16, 1936, 15 COMP. GEN. 618

APPROPRIATIONS - NONAVAILABILITY - PURCHASES WITHOUT ADVERTISING PAYMENT MAY NOT LEGALLY BE MADE FROM APPROPRIATED MONEYS FOR SUPPLIES PURCHASED UNDER STANDARD SPECIFICATIONS AND DRAWINGS WITHOUT ADVERTISING, ORIGINALLY EXPLAINED ON THE BASIS OF "SOLE MANUFACTURER" BUT LATER APPROVED BY ADMINISTRATIVE CERTIFICATE AS BEING FOR EXPERIMENTAL PURPOSES UNDER AUTHORITY OF SECTION 10 (K) OF THE AIR CORPS ACT OF JULY 2, 1926, 44 STAT. 787, THE ATTEMPTED RATIFICATION MONTHS LATER NOT BEING SUFFICIENT TO MAKE THE PURCHASE LEGAL IF, IN FACT, IT WAS IN ITS INCEPTION ILLEGAL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JANUARY 16, 1936:

WHEN CONTRACT NO. W-535-AC-7574, DATED APRIL 16, 1935, WITH THE HURLEY- TOWNSEND CORPORATION FOR THE DELIVERY OF 1,400 SPARK PLUGS AT $2.97 EACH, OR FOR $4,158, WAS RECEIVED IN THIS OFFICE, AN EXAMINATION THEREOF DISCLOSED THAT WHILE THE SPARK PLUGS WERE REQUIRED TO BE DELIVERED IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS 95-28017E AND DRAWING 1046-S, THERE HAD BEEN NO ADVERTISING FOR THE SPARK PLUGS AS REQUIRED BY LAW, AND AN INQUIRY WAS MADE IN OFFICE LETTER OF AUGUST 2, 1935, OF THE CONTRACTING OFFICER, J. P. KIRKENDALL, FIRST LIEUTENANT, AIR CORPS, AS TO THE REASON WHY THERE WAS NOT COMPLIANCE WITH LAW IN ENTERING INTO THE CONTRACT.

A REPLY HAS BEEN RECEIVED IN LETTER OF SEPTEMBER 9, 1935, SIGNED BY MAJ. R. W. PROPST, AIR CORPS, TO THE EFFECT THAT THROUGH A CLERICAL ERROR THE ABSTRACT OF AGREEMENT STATED THAT AWARD WAS MADE UNDER THE PROVISIONS OF PARAGRAPH 4 G 4 AR 5-240; THAT IS, THE ADMINISTRATIVE STATEMENT WAS ERRONEOUS THAT IT WAS IMPRACTICABLE TO SECURE COMPETITION BECAUSE OF "SOLE MANUFACTURER" AND THAT, IN FACT, THE SPARK PLUGS WERE ACQUIRED FOR EXPERIMENTAL PURPOSES AS A PROCUREMENT UNDER THE AUTHORITY OF SECTION 10 (K) OF THE ACT OF JULY 2, 1926, 44 STAT. 787. THERE HAS BEEN FORWARDED A CERTIFICATE SIGNED ON OR ABOUT AUGUST 9, 1935, BY THE ASSISTANT SECRETARY OF WAR, ON THE RECOMMENDATION OF MAJ. GEN. B. D. FOULOIS, THAT SUCH A PURCHASE WITHOUT COMPETITION AND FOR EXPERIMENTAL PURPOSES "IS HEREBY APPROVED BY DIRECTION OF THE SECRETARY OF WAR UNDER THE PROVISIONS OF SECTION 10 (K) OF THE AIR CORPS ACT OF JULY 2, 1926.'

IN THE FIRST PLACE, IT IS NOT UNDERSTOOD WHY IT SHOULD BE NECESSARY TO PURCHASE 1,400 SPARK PLUGS AT A COST OF $2.97 EACH, OR A TOTAL COST OF $4,158, FOR "EXPERIMENTAL PURPOSES; " THAT IS, WHY A MUCH SMALLER NUMBER OF SUCH SPARK PLUGS WOULD NOT HAVE BEEN SUFFICIENT FOR EXPERIMENTAL PURPOSES. FURTHERMORE, IT IS NOT UNDERSTOOD WHY SPARK PLUGS IN ACCORDANCE WITH STANDARD GOVERNMENT SPECIFICATIONS AND DRAWINGS MAY BE CONSIDERED AS EXPERIMENTAL; AND WHY "THE EXPERIMENT" HAD NOT BEEN CONDUCTED AND COMPLETED BEFORE THE STANDARD SPECIFICATIONS AND DRAWINGS HAD BEEN PREPARED AND ISSUED--- WITH ALL THAT NECESSARILY REMAINS BEING TO TEST THE SPARK PLUGS TO SEE WHETHER THEY COMPLY WITH THE TERMS OF THE SPECIFICATIONS. THE ATTEMPTED RATIFICATION SOME 4 MONTHS AFTER THE DATE OF THE CONTRACT IS NOT SUFFICIENT TO MAKE IT LEGAL IF, IN FACT, IT WAS ILLEGAL AT THE INCEPTION THEREOF.

UPON THE RECORD AS IT NOW APPEARS, APPROPRIATED MONEYS MAY NOT LEGALLY BE CHARGED WITH THE PURCHASE PRICE OF THE SPARK PLUGS IN QUESTION, AND YOU ARE ADVISED ACCORDINGLY.