A-6876, JANUARY 5, 1925, 4 COMP. GEN. 588

A-6876: Jan 5, 1925

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ARTIFICIAL LIMBS - ADVERTISING THE PURCHASE OF ARTIFICIAL LIMBS FOR EMPLOYEES OF THE PANAMA CANAL WHO ARE ENTITLED TO RECEIVE THE SAME. IS NOT AUTHORIZED WHERE IT IS EVIDENT THAT THERE ARE A NUMBER OF MANUFACTURERS WHO ARE COMPETENT TO FURNISH AND FIT SUITABLE APPLIANCES IN ACCORDANCE WITH THE SPECIFICATIONS. WHERE NO OBLIGATION OF THE UNITED STATES OR ITS INSTRUMENTALITIES IS INCURRED THEREBY. 1925: I HAVE BY YOUR DIRECTIONS A LETTER FROM THE CHIEF OF THE PURCHASING DEPARTMENT. IN WHICH MY DECISION IS REQUESTED AS TO THE EXTENT TO WHICH THE PANAMA CANAL MAY PURCHASE ARTIFICIAL LIMBS FOR THOSE OF ITS EMPLOYEES WHO ARE ENTITLED TO RECEIVE THE SAME. ARTIFICIAL LIMBS ARE STATED TO BE PURCHASED FOR THREE CLASSES OF EMPLOYEES AS FOLLOWS: 1.

A-6876, JANUARY 5, 1925, 4 COMP. GEN. 588

PURCHASES, ARTIFICIAL LIMBS - ADVERTISING THE PURCHASE OF ARTIFICIAL LIMBS FOR EMPLOYEES OF THE PANAMA CANAL WHO ARE ENTITLED TO RECEIVE THE SAME, WITHOUT COMPLIANCE WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, REQUIRING ADVERTISING, IS NOT AUTHORIZED WHERE IT IS EVIDENT THAT THERE ARE A NUMBER OF MANUFACTURERS WHO ARE COMPETENT TO FURNISH AND FIT SUITABLE APPLIANCES IN ACCORDANCE WITH THE SPECIFICATIONS. THE PANAMA CANAL HAS AUTHORITY TO MAKE PROPRIETARY PURCHASES, WITHOUT COMPLIANCE WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, OF ARTIFICIAL LIMBS FOR ACTUAL RESALE TO INDIVIDUALS OR OTHERS, WHERE NO OBLIGATION OF THE UNITED STATES OR ITS INSTRUMENTALITIES IS INCURRED THEREBY.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR, THE PANAMA CANAL, JANUARY 5, 1925:

I HAVE BY YOUR DIRECTIONS A LETTER FROM THE CHIEF OF THE PURCHASING DEPARTMENT, DATED DECEMBER 9, 1924, IN WHICH MY DECISION IS REQUESTED AS TO THE EXTENT TO WHICH THE PANAMA CANAL MAY PURCHASE ARTIFICIAL LIMBS FOR THOSE OF ITS EMPLOYEES WHO ARE ENTITLED TO RECEIVE THE SAME, WITHOUT COMPETITIVE BIDDING AMONG MANUFACTURERS AND DEALERS IN ARTIFICIAL LIMBS.

ARTIFICIAL LIMBS ARE STATED TO BE PURCHASED FOR THREE CLASSES OF EMPLOYEES AS FOLLOWS:

1. INDIGENT EMPLOYEES INJURED PRIOR TO SEPTEMBER 7, 1916, SO CLASSED BY THE HEALTH OFFICER.

2. EMPLOYEES COMING UNDER UNITED STATES EMPLOYEES' COMPENSATION ACT.

3. EMPLOYEES INJURED PRIOR TO SEPTEMBER 7, 1916, AND AT OTHER TIMES NOT IN LINE OF DUTY, PAYING FOR THEIR OWN ARTIFICIAL APPLIANCES.

IT IS FURTHER SAID THAT:

FORMERLY ARTIFICIAL LIMBS WERE PURCHASED BY THE PANAMA CANAL WITHOUT COMPETITIVE BIDDING FOR INDIVIDUAL ORDERS. QUOTATIONS OF PRICES FROM LEADING MANUFACTURERS WERE OBTAINED FROM TIME TO TIME, WITHOUT REFERENCE TO INDIVIDUAL ORDERS, AND INDIVIDUAL ORDERS WERE PLACED FOR THE LIMB DEEMED BY THE HEALTH DEPARTMENT TO BE SUITABLE TO THE PARTICULAR CASE AND SATISFACTORY AS TO PRICE. DOUBT HAVING ARISEN AS TO WHETHER THAT PROCEDURE MEETS THE REQUIREMENTS OF SECTION 3709 OF THE REVISED STATUTES AND DECISIONS THEREUNDER, THE PRACTICE WAS CHANGED AND COMPETITION ON INDIVIDUAL ORDERS WAS INVITED. THE CHANGE HAS RESULTED IN MUCH DISSATISFACTION AND COMPLAINT OF LIMBS PURCHASED FROM THE LOWEST BIDDERS. THE MATTER, THEREFORE, IS SUBMITTED FOR YOUR DECISION.

IT IS PECULIARLY WITHIN THE PROVINCE OF THE HEALTH DEPARTMENT TO DETERMINE WHAT MAKE OF LIMB IS SUITABLE TO A PARTICULAR CASE. THE SEVERAL MAKES HAVE SPECIAL FEATURES WHICH THE MEDICAL OFFICERS MAY PROPERLY CONSIDER IN SELECTING LIMBS FOR THE DIFFERENT BENEFICIARIES. FOR THIS REASON AND BECAUSE OF THE ISOLATION OF THE ISTHMUS, WHICH ORDINARILY PRECLUDES THE FITTING OF LIMBS ON THE BENEFICIARIES AND ADDS GREATLY TO DELAY AND INCONVENIENCE IN REPLACING OR ALTERING UNSATISFACTORY LIMBS, IT IS VERY DESIRABLE THAT PROPRIETARY PURCHASES BE MADE OF THE LIMB DEEMED BY THE HEALTH DEPARTMENT TO BE SUITABLE TO THE PARTICULAR CASE, WITHOUT COMPETITIVE BIDDING ON EACH ORDER.

AS REGARDS CLASS 3, THE LIMBS BEING FOR RESALE, IT IS UNDERSTOOD THAT PROPRIETARY PURCHASES MAY BE MADE OF SUCH LIMB AS MAY BE CHOSEN WITHOUT REGARD TO THE PRICE. 1 COMP. GEN. 134.

AS REGARDS PURCHASES OF ARTIFICIAL LIMBS NOT FOR RESALE, DECISION IS REQUESTED WHETHER PROPRIETARY PURCHASES MAY BE MADE WITHOUT COMPETITIVE BIDDING, OTHER THAN THE GENERAL QUOTATION OF PRICES HEREINBEFORE REFERRED TO, UPON REQUISITION FOR A PARTICULAR MAKE OF LIMB DEEMED BY THE HEALTH DEPARTMENT TO BE THE LIMB MOST SUITABLE TO THE CASE.

IF DECISION IS IN THE NEGATIVE, MAY PROPRIETARY PURCHASES BE MADE IN CASES WHERE A LIMB PURCHASED IS TO REPLACE AN UNSERVICEABLE LIMB OF THE SAME MAKE?

THE PURCHASE PRICE OF ARTIFICIAL LIMBS IS PAYABLE IN ANY EVENT OUT OF APPROPRIATIONS OF PUBLIC MONEYS FOR EITHER THE PANAMA CANAL OR TO MEET THE EXPENSES UNDER THE EMPLOYEES' COMPENSATION ACT, REGARDLESS OF THE CLASSES OF EMPLOYEES FOR WHOM SUCH LIMBS ARE PURCHASED, AS DESCRIBED IN THE SUBMISSION.

THE REVISED STATUTES PROVIDE:

SEC. 3709. ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. * * *

IN THE ABSENCE OF SOME EXIGENCY OF FACT OR OF ONE PROPERLY DETERMINABLE BY THE OFFICER CHARGED WITH THE PROCUREMENT, OR OF ONE THAT CAN BE JUDICIALLY INFERRED, THE PROVISION OF THIS SECTION REQUIRING ADVERTISING FOR SUPPLIES IS MANDATORY, AND CONTRACTS MADE IN VIOLATION THEREOF ARE VOID. SCHNEIDER V. UNITED STATES, 19 CT.CLS. 547. THE EFFECT OF THE STATUTE STRIKES AT THE ROOT OF A TRANSACTION AND PERVADES FROM THE INCEPTION EVERY ENGAGEMENT IN ITS ENTIRETY COVERING THE PURCHASE OR CONTRACT FOR SUPPLIES OR SERVICES, AND WHERE THE PROCEDURE IS OTHERWISE THE DISABILITY IMPOSED BY THE STATUTE ATTACHES TO THE APPROPRIATION SOUGHT TO BE CHARGED AND IT MAY NOT BE USED FOR THE LIQUIDATION OF OBLIGATIONS SO INVALIDATED. THAT IT IS APPLICABLE TO THE PANAMA CANAL IS SETTLED--- EXECUTIVE ORDER--- APRIL 1, 1905, 11 COMP. DEC. 39.

THERE IS NO AUTHORITY TO WAIVE THE OPERATION OF THE STATUTE BUT THERE ARE CERTAIN EXCEPTIONS THERETO OTHER THAN THAT PROVIDED IN ITS TERMS, WHICH OCCUR NOT ARBITRARILY BUT RATHER BY FORCE OF CIRCUMSTANCES, SUCH AS IN THE CASE OF PATENTED OR OTHER ARTICLES PROCURABLE ONLY FROM ONE PERSON OR FIRM.

ACCORDING TO THE STATEMENT, AN ORDER FOR AN ARTIFICIAL LIMB FOR AN INDIVIDUAL WAS FORMERLY PLACED DISCRIMINATELY WITH SOME MANUFACTURER BASED UPON NONCOMPETITIVE QUOTATIONS BUT THE LEGALITY OF SUCH PROCEDURE BEING CONSIDERED DOUBTFUL, ORDERS WERE SUBSEQUENTLY PLACED UPON COMPETITIVE BIDS. NOW, HOWEVER, ON THE ASSERTION THAT THE RESULTS ARE NOT AS SATISFACTORY, IT IS DESIRED TO REVERT TO THE FORMER PRACTICE OF PURCHASING WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, AND THE REASONS GIVEN ARE THAT THE SEVERAL MAKES HAVE SPECIAL FEATURES WHICH THE MEDICAL OFFICERS MAY PROPERLY CONSIDER IN SELECTING LIMBS FOR THE DIFFERENT BENEFICIARIES, AND BECAUSE OF THE ISOLATION OF THE ISTHMUS, WHICH ORDINARILY PRECLUDES THE FITTING OF LIMBS ON THE BENEFICIARIES AND ADDS GREATLY TO DELAY AND INCONVENIENCE IN REPLACING OR ALTERING UNSATISFACTORY LIMBS. THE QUESTION IS WHETHER THESE REASONS CONSTITUTE SUCH CONDITIONS AS WOULD EXCEPT THE CONTEMPLATED PROCEDURE FROM COMPLIANCE WITH THE ACT BY FORCE OF CIRCUMSTANCES.

IT MAY BE SAID THAT ALL ARTIFICIAL LIMBS CONFORM IN A GENERAL WAY TO ESSENTIAL BASIC FEATURES. THE QUESTION OF A SATISFACTORY FIT WOULD APPEAR TO BE ONE THAT IS PECULIAR TO THE INDIVIDUAL AND PRESENTS ONLY THE USUAL DIFFICULTIES WHICH ALL MANUFACTURERS OF SUCH APPLIANCES COMMONLY MEET. ELIMINATING, THEREFORE, THE MATTER OF FITTING WHICH MUST, FROM THE NATURE OF SUCH ARTICLES, BE AN INSEPARABLE CONDITION TO THE FURNISHING OF SUCH APPLIANCES BY ANY CONTRACTOR, THERE REMAINS TO BE CONSIDERED WHETHER THE DETERMINATION OF THE MEDICAL OFFICER THAT ONLY A CERTAIN MAKE OF APPLIANCE IS SUITABLE TO A PARTICULAR CASE WILL SUFFICIENTLY ESTABLISH A CONDITION WHICH PRECLUDES THE OPERATION OF THE STATUTE.

THERE APPEARS TO BE NO REASON WHY IN THE PRESENT ADVANCED STATE OF PERFECTION IN SUCH APPLIANCES THAT PROPER SPECIFICATIONS CAN NOT OBTAIN PROPOSALS FROM RELIABLE PARTIES TO CONSTRUCT A SATISFACTORY LIMB. SUCH PROPOSALS ARE SUBJECT TO CONSIDERATION BY THE PROPER OFFICER AS TO THE MERITS OF THE VARIOUS DEVICES PROPOSED TO BE FURNISHED, WITH THE RIGHT OF REJECTION OF ANY THAT ARE INHERENTLY UNSUITABLE, AND ACCEPTANCE OF THE LOWEST BID OF THOSE APPROVED WOULD IMPOSE THE OBLIGATION TO FURNISH A WELL -CONSTRUCTED AND SATISFACTORILY FITTED DEVICE.

CONSIDERING THE SITUATION AS PRESENTED AND HAVING IN VIEW THE FACT THAT SUCH ARTICLES HAVE BEEN AND ARE NOW GENERALLY PURCHASED BY AND FOR THE GOVERNMENT THROUGH THE MEDIUM OF COMPETITIVE BIDS, THE CIRCUMSTANCES DO NOT SHOW SUCH CONDITIONS AS WOULD OF THEMSELVES EXEMPT SUCH PURCHASES FROM BEING MADE WITHOUT COMPLIANCE WITH THE PROVISIONS OF SECTION 3709 OF THE REVISED STATUTES, AND YOU ARE ADVISED ACCORDINGLY.

REGARDING THE QUESTION WHETHER PROPRIETARY PURCHASES MAY BE MADE IN CASES WHERE A LIMB IS TO BE PURCHASED TO REPLACE AN UNSERVICEABLE ONE, IT IS NOT SEEN HOW THE NEED OF SUCH PURCHASE PRESENTS ANY DIFFERENT SITUATION FROM THAT EXISTING AS TO OTHER PURCHASES, PROVIDED OTHER EQUALLY SUITABLE LIMBS ARE PROCURABLE. AS TO THE PURCHASE OF ARTIFICIAL LIMBS FOR RESALE, THERE BEING INVOLVED NO QUESTION OF ECONOMY SUCH AS SECTION 3709 OF THE REVISED STATUTES CONTEMPLATES, PROPRIETARY PURCHASES OF ARTIFICIAL LIMBS FOR ACTUAL RESALE TO INDIVIDUALS OR OTHERS, AS TO THE FURNISHING OF WHICH THERE ARISES NO OBLIGATION OF THE UNITED STATES OR ITS INSTRUMENTALITIES, MAY BE MADE AS CONTEMPLATED BY THE AUTHORIZATION IN THE FORMER DECISION. 1 COMP. GEN. 134.