A-68691, MAY 2, 1936, 15 COMP. GEN. 949

A-68691: May 2, 1936

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NOTWITHSTANDING CLEARANCE GRANTED BY THE PROCUREMENT DIVISION FOR PURCHASE ELSEWHERE IF COMPETITION WERE OBTAINED. THE REQUEST FOR BIDS WAS SENT TO THREE PROSPECTIVE BIDDERS. THE SAID BID WAS ACCEPTED. CLEARANCE WAS GRANTED FOR THE PURCHASE OF THE FURNITURE WITH THE UNDERSTANDING THAT PROPER COMPETITION WOULD BE OBTAINED IN ORDER TO COMPLY WITH THE PROVISIONS OF EXISTING LAWS. THE INVITATION WAS SENT TO THREE BIDDERS AND ONLY ONE BID WAS RECEIVED. WHILE IT HAS NOT BEEN SPECIFICALLY ASSERTED THAT SUCH FACT WAS KNOWN BY THE FEDERAL ALCOHOL CONTROL ADMINISTRATION AT THE TIME THE INVITATIONS TO BID WERE SENT OUT. THE PROCEDURE FOLLOWED DOES NOT APPEAR TO HAVE COMPLIED WITH THE SPIRIT AND INTENT OF THE PROVISIONS OF SECTION 3709.

A-68691, MAY 2, 1936, 15 COMP. GEN. 949

PURCHASES FROM OTHER THAN GENERAL SUPPLY SCHEDULE CONTRACTORS - FEDERAL ALCOHOL CONTROL ADMINISTRATION FURNITURE NOT OF THE EXACT KIND BUT OF A CLASS OR TYPE SHOWN ON THE GENERAL SCHEDULE OF SUPPLIES AS SUITABLE FOR THE NEEDS OF THE GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS MAY NOT BE PURCHASED ELSEWHERE,"TO HARMONIZE WITH THE PRESENT ARCHITECTURAL CHARACTERISTICS OF THE ROOMS," IN THE ABSENCE OF A SHOWING THAT THE SCHEDULED FURNITURE WOULD NOT SATISFACTORILY MEET THE NEEDS OF THE AGENCY CONCERNED, AND APPROPRIATED MONEYS MAY NOT BE CHARGED WITH PURCHASES ELSEWHERE ON SOLICITATION OF BIDS FROM ONLY THREE DEALERS, TWO OF WHICH DID NOT HANDLE FURNITURE OF THE CLASS DESIRED, NOTWITHSTANDING CLEARANCE GRANTED BY THE PROCUREMENT DIVISION FOR PURCHASE ELSEWHERE IF COMPETITION WERE OBTAINED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MAY 2, 1936:

THERE HAS BEEN RECEIVED IN THIS OFFICE PREAUDIT VOUCHER, ADMINISTRATIVE NO. 102, SUBMITTED BY THE FEDERAL ALCOHOL CONTROL ADMINISTRATION IN FAVOR OF THE W. D. CAMBELL CO. IN THE SUM OF $2,218.50 FOR FURNITURE FURNISHED THE SAID ADMINISTRATION.

IT APPEARS THAT UNDER DATE OF AUGUST 28, 1935, THE FEDERAL ALCOHOL CONTROL ADMINISTRATION REQUESTED BIDS FOR THE FURNISHING OF CERTAIN ITEMS OF WALNUT FURNITURE DESCRIBED IN THE ADVERTISED SPECIFICATIONS. THE REQUEST FOR BIDS WAS SENT TO THREE PROSPECTIVE BIDDERS, THE GENERAL FIREPROOFING CO., THE ART METAL CONSTRUCTION CO., AND THE W. D. CAMPBELL CO. THE W. D. CAMPBELL CO. SUBMITTED THE ONLY BID RECEIVED IN RESPONSE TO THE ADVERTISEMENT, AND THE SAID BID WAS ACCEPTED.

IT APPEARS THAT PRIOR TO SENDING OUT THE ADVERTISEMENT FOR BIDS THE SAID ADMINISTRATION, BY LETTER DATED AUGUST 27, 1935, REQUESTED THE PROCUREMENT DIVISION TO GRANT A CLEARANCE FOR THE PURCHASE OF THE FURNITURE IN QUESTION "TO HARMONIZE WITH THE PRESENT ARCHITECTURAL CHARACTERISTICS OF THE ROOMS" AND THAT BY LETTER DATED AUGUST 28, 1935, FROM THE ASSISTANT TO THE ASSISTANT DIRECTOR OF THE PROCUREMENT DIVISION, CLEARANCE WAS GRANTED FOR THE PURCHASE OF THE FURNITURE WITH THE UNDERSTANDING THAT PROPER COMPETITION WOULD BE OBTAINED IN ORDER TO COMPLY WITH THE PROVISIONS OF EXISTING LAWS.

AS NOTED, SUPRA, THE INVITATION WAS SENT TO THREE BIDDERS AND ONLY ONE BID WAS RECEIVED, THAT OF THE W. D. CAMPBELL CO. UPON INVESTIGATION IT HAS BEEN ASCERTAINED THAT THE OTHER TWO PROSPECTIVE BIDDERS DID NOT HANDLE FURNITURE OF THE CLASS COVERED BY THE ADVERTISEMENT FOR BIDS. WHILE IT HAS NOT BEEN SPECIFICALLY ASSERTED THAT SUCH FACT WAS KNOWN BY THE FEDERAL ALCOHOL CONTROL ADMINISTRATION AT THE TIME THE INVITATIONS TO BID WERE SENT OUT, THE SITUATION PRESENTED HERE WARRANTS THE ASSUMPTION THAT THE PARTICULAR FURNITURE DESIRED HAD BEEN DETERMINED UPON PRIOR TO THE REQUEST FOR BIDS AND SELECTED FROM THE SUCCESSFUL BIDDER PRIOR TO THE ISSUING OF THE ADVERTISEMENT. IN ANY EVENT, THE PROCEDURE FOLLOWED DOES NOT APPEAR TO HAVE COMPLIED WITH THE SPIRIT AND INTENT OF THE PROVISIONS OF SECTION 3709, REVISED STATUTES, AND THE APPLICABLE DECISIONS OF THIS OFFICE.

IN DECISION OF FEBRUARY 27, 1912 (18 COMP. DEC. 642), QUOTING FROM THE SECOND PARAGRAPH OF THE SYLLABUS, IT WAS SAID---

WHEN ARTICLES ARE NEEDED BY A GOVERNMENT DEPARTMENT OR ESTABLISHMENT WHICH ARE NOT OF THE EXACT KIND SCHEDULED BY THE GENERAL SUPPLY COMMITTEE AS BEING SUITABLE FOR THE COMMON NEEDS OF THE DIFFERENT GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS, BUT ARE OF A CLASS OR TYPE SO SCHEDULED, SUCH ARTICLES CAN NOT BE PURCHASED IN THE OPEN MARKET OR OTHERWISE (THAN FROM THE REGULAR CONTRACTOR THEREFOR).

AND IN DECISION OF APRIL 9, 1912 (18 ID. 765), COMMENTING ON THE ABOVE RULE, IT WAS SAID, AT PAGE 770:

* * * IF SUCH WERE NOT THE RULE, IT WOULD BE NUGATORY FOR THE SECRETARY TO ATTEMPT TO ELIMINATE UNNECESSARY GRADES AND VARIETIES, AS HE IS DIRECTED TO DO IN THE ACT PROVIDING FOR THE OPERATIONS OF THIS SUPPLY COMMITTEE. IT WOULD BE LEFT ENTIRELY TO THE WHIM OF THE PARTICULAR DEPARTMENT OR GOVERNMENT ESTABLISHMENT AS TO WHAT PARTICULAR GRADE OR VARIETY OF AN ARTICLE IT SHOULD PURCHASE * * *.

IN DECISION OF MARCH 31, 1913 (19 ID. 617), IT WAS HELD, ALSO, THAT- -

EQUIPMENT, SUCH AS DESKS, TABLES, SECTIONAL FILING CABINETS, ETC., WHEN SCHEDULED AND CONTRACTED FOR BY THE SECRETARY OF THE TREASURY UNDER THE PROVISIONS OF THE ACT OF JUNE 17, 1910 (36 STAT. 531), SHOULD BE PURCHASED FROM THE REGULAR CONTRACTOR FOR SUCH SUPPLIES.

IN A RECENT DECISION OF THIS OFFICE, REPORTED IN 14 COMP. GEN. 837, IT WAS FURTHER HELD THAT (QUOTING FROM THE SYLLABUS):

GENERAL ORDER NO. 4, FEDERAL HOUSING ADMINISTRATION, ORDERS THAT IN THE INCURRING OF OBLIGATIONS AND THE PAYMENT OF EXPENDITURES THE ESTABLISHED GOVERNMENT PROCEDURE BE FOLLOWED. THE ESTABLISHED PROCEDURE OF ACQUIRING OFFICE SUPPLIES IS AS PROVIDED BY EXECUTIVE ORDER NO. 6166, FROM THE PROCUREMENT DIVISION, EXCEPT IN CASES OF PUBLIC EXIGENCY. THE DESIRE FOR DIFFERENT OR MORE EXPENSIVE ARTICLES OF OFFICE SUPPLIES OFFERS NO JUSTIFICATION FOR PURCHASES OTHER THAN PURSUANT TO LAW.

AN EXAMINATION OF THE GENERAL SCHEDULE OF SUPPLIES, CLASS 26, FURNITURE, DISCLOSES THAT THERE WERE CONTRACTED FOR AND SCHEDULED QUARTERED OAK, MAHOGANY, GENUINE WALNUT, AND BIRCH DESKS, AND SUCH ARTICLES OF EQUIPMENT MAY NOT OTHERWISE BE CONTRACTED FOR EXCEPT IN CASE OF SUCH EXIGENCY REQUIRING SUCH IMMEDIATE DELIVERY AS COULD NOT BE EFFECTED BY PURCHASES FROM THE SCHEDULED CONTRACTOR (5 COMP. GEN. 755). NO SUCH EXIGENCY HAS BEEN ESTABLISHED HERE. A CLEARANCE BY THE PROCUREMENT DIVISION UNDER SUCH CIRCUMSTANCES AS APPEARS IN THIS CASE "TO HARMONIZE WITH THE PRESENT ARCHITECTURAL CHARACTERISTICS OF THE ROOMS" MAY NOT BE ACCEPTED AS AUTHORIZING THE PURCHASE OF SUCH EQUIPMENT IN THE OPEN MARKET. IN OTHER WORDS, THERE IS NO SHOWING THAT THE EQUIPMENT CONTRACTED FOR AND SCHEDULED ON THE GENERAL SCHEDULE OF SUPPLIES WOULD NOT SATISFACTORILY MEET THE NEEDS OF THE FEDERAL ALCOHOL CONTROL ADMINISTRATION. AS STATED IN THE DECISION OF APRIL 9, 1912, SUPRA, THE NEEDS CANNOT BE LEFT TO THE WHIM OF THE PARTICULAR DEPARTMENT OR AGENCY DESIRING SUCH EQUIPMENT.

ACCORDINGLY, ON THE PRESENT RECORD, IT APPEARING THAT THE PURCHASES MADE WERE CONTRARY TO EXISTING LAWS, REGULATIONS, AND DECISIONS OF THIS OFFICE, THERE IS NO LEGAL BASIS FOR CHARGING APPROPRIATED MONEYS FOR THE PURCHASE COVERED BY THE VOUCHER.

THE VOUCHER WILL BE RETAINED AS PART OF THE PERMANENT RECORDS OF THIS OFFICE.