A-86627, JUNE 23, 1937, 16 COMP. GEN. 1105

A-86627: Jun 23, 1937

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PAYMENT IS NOT AUTHORIZED FOR A MOTOR OF FOREIGN MANUFACTURE DELIVERED UNDER INVITATIONS FOR BIDS. EXPRESSLY STIPULATING THAT IT WAS TO BE UNDERSTOOD DOMESTIC ARTICLES WERE TO BE DELIVERED UNLESS SPECIFIED OTHERWISE BY THE BIDDER. THE BID WAS ACCEPTED DECEMBER 18. PURCHASE ORDER WAS ISSUED THE SAME DATE. YOU WERE THUS ON NOTICE OF ALL CONDITIONS EMBODIED IN THE CONTRACT FORM. - WAS CONDITION NO. 6. IT WAS UNDERSTOOD AND AGREED THAT ONLY SUCH MANUFACTURED ARTICLES. OR OTHERWISE SPECIFY THAT THE MOTOR YOU PROPOSED TO FURNISH WAS EITHER OF FOREIGN MANUFACTURE. YOU WERE OBLIGATED TO FURNISH A MOTOR MANUFACTURED IN THIS COUNTRY FROM MATERIALS. DELIVERING A MOTOR OF FOREIGN MANUFACTURE WAS A BREACH OF THE CONTRACT.

A-86627, JUNE 23, 1937, 16 COMP. GEN. 1105

CONTRACTS - TERMINATION - DELIVERY OF FOREIGN INSTEAD OF DOMESTIC PRODUCT - GOVERNMENT LIABILITY THE PURCHASE OF ARTICLES, MATERIALS, OR SUPPLIES OF FOREIGN MANUFACTURE BEING EXPRESSLY PROHIBITED BY STATUTE UNLESS THE HEAD OF THE GOVERNMENT ESTABLISHMENT CONCERNED DETERMINES THAT THE PURCHASE OF DOMESTIC ARTICLES, ETC., WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST, PAYMENT IS NOT AUTHORIZED FOR A MOTOR OF FOREIGN MANUFACTURE DELIVERED UNDER INVITATIONS FOR BIDS, MADE A PART OF THE SUBSEQUENTLY CANCELED CONTRACT, EXPRESSLY STIPULATING THAT IT WAS TO BE UNDERSTOOD DOMESTIC ARTICLES WERE TO BE DELIVERED UNLESS SPECIFIED OTHERWISE BY THE BIDDER, WHERE THE BIDDER NEITHER DELETED THIS STIPULATION NOR MADE SPECIFICATION OTHERWISE AS TO THE PLACE OF MANUFACTURE.

ACTING COMPTROLLER GENERAL ELLIOTT TO ANDRE DEBRIE, INC., JUNE 23, 1937:

YOUR LETTER OF APRIL 7, 1937, REQUESTED REVIEW OF SETTLEMENT OF APRIL 5, 1937, WHICH DISALLOWED YOUR CLAIM FOR $225, AS THE PRICE OF ONE UNIVERSAL MOTOR DELIVERED TO THE WORKS PROGRESS ADMINISTRATION UNDER CONTRACT CONSISTING OF INVITATION OF DECEMBER 14, YOUR PROPOSAL OF DECEMBER 16, AND ACCEPTANCE OF DECEMBER 18, 1935, ON UNITED STATES STANDARD FORM NO. 33, SHORT FORM CONTRACT.

THE INVITATION CALLED FOR SEALED BIDS "SUBJECT TO THE CONDITIONS ON THE REVERSE HEREOF" FOR FURNISHING A UNIVERSAL MOTOR FOR DEBRIE PARVO L OR INTERVIEW MOTION PICTURE CAMERA, 110-VOLT (MOTOR WITH FORWARD AND BACKWARD MOVEMENT AND ADJUSTABLE CONTROL). YOUR BID OFFERED "IN COMPLIANCE WITH THE ABOVE INVITATION FOR BIDS AND SUBJECT TO ALL THE CONDITIONS THEREOF" TO FURNISH SUCH A MOTOR FOR $225. THE BID WAS ACCEPTED DECEMBER 18, 1935, AND PURCHASE ORDER WAS ISSUED THE SAME DATE.

YOU WERE THUS ON NOTICE OF ALL CONDITIONS EMBODIED IN THE CONTRACT FORM. ONE OF SUCH CONDITIONS--- EXPRESSLY MADE A PART OF THE CONTRACT BY THE INVITATION, YOUR BID, AND THE ACCEPTANCE, AS SHOWN ABOVE--- WAS CONDITION NO. 6, QUOTED VERBATIM IN THE SETTLEMENT CERTIFICATE OF APRIL 5, 1937, SUPRA, THAT UNLESS OTHERWISE SPECIFIED BY THE BIDDER, IT WAS UNDERSTOOD AND AGREED THAT ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAD BEEN MANUFACTURED IN THE UNITED STATES, SUBSTANTIALLY FROM ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MIGHT BE, IN THE UNITED STATES, SHOULD BE DELIVERED UNDER THE CONTRACT. YOUR BID DID NOT DELETE THE CONDITION, OR OTHERWISE SPECIFY THAT THE MOTOR YOU PROPOSED TO FURNISH WAS EITHER OF FOREIGN MANUFACTURE,OR MANUFACTURED FROM ARTICLES, MATERIALS, OR SUPPLIES PRODUCED IN A FOREIGN COUNTRY. THEREFORE, UNDER THE EXPRESS PROVISIONS OF THE CONTRACT, YOU WERE OBLIGATED TO FURNISH A MOTOR MANUFACTURED IN THIS COUNTRY FROM MATERIALS, ETC., PRODUCED IN THIS COUNTRY; AND HENCE, DELIVERING A MOTOR OF FOREIGN MANUFACTURE WAS A BREACH OF THE CONTRACT, REQUIRING ITS CANCELATION BY THE GOVERNMENT.

YOUR REQUEST FOR REVIEW OF THE DISALLOWANCE OF YOUR CLAIM STATES, IN SUBSTANCE, THAT THE WORKS PROGRESS ADMINISTRATION WAS WELL AWARE THAT THE MOTOR WAS OF FOREIGN MAKE; THAT THE MOTOR DELIVERED HAS BEEN USED BY THE WORKS PROGRESS ADMINISTRATION AND HAS BEEN IN ITS POSSESSION FOR OVER A YEAR. THE ADMINISTRATIVE REPORT IS TO THE EFFECT, HOWEVER, THAT THE MOTOR WAS ACCEPTED IN GOOD FAITH BY THE WORKS PROGRESS ADMINISTRATION SINCE YOU HAD MADE NO NOTATION OF EXCEPTION TAKEN TO PARAGRAPH 6 OF THE CONDITIONS ON THE REVERSE OF THE CONTRACT; THAT AFTER IT WAS ASCERTAINED THAT THE MOTOR WAS OF FOREIGN MAKE, YOU WERE INFORMED THAT THE WORKS PROGRESS ADMINISTRATION WAS PROHIBITED BY LAW FROM PURCHASING FOREIGN-MADE EQUIPMENT, FOR WHICH REASON IT WAS NECESSARY TO RETURN THE MOTOR AND CANCEL THE PURCHASE ORDER; THAT THE MOTOR WAS TWICE RETURNED TO YOU BY REGISTERED PARCEL POST AND YOU TWICE REFUSED ITS ACCEPTANCE, AND THAT IT IS HELD AT YOUR DISPOSAL BY THE WORKS PROGRESS ADMINISTRATION. AS FOR YOUR STATEMENT THAT THE MOTOR HAS BEEN USED, ADMINISTRATIVE REPORT TO THIS OFFICE IS THAT THE MOTOR IS IN THE SAME CONDITION AS WHEN DELIVERED TO THE WORKS PROGRESS ADMINISTRATION AND THAT IT HAS NOT BEEN REMOVED FROM THE ORIGINAL INSIDE PACKING.

IT IS APPARENT THAT THESE CONFLICTING STATEMENTS CONSTITUTE A DISPUTE BETWEEN YOU AND THE ADMINISTRATIVE AGENCY CONCERNED UPON QUESTIONS OF FACT. IN SUCH A CASE IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICERS OF THE UNITED STATES. 11 COMP. GEN. 476; 3 ID. 51.

AS TO THE LEGAL ASPECTS OF YOUR CLAIM, THE ACT OF MARCH 3, 1933, 47 STAT. 1520, EXPRESSLY PROHIBITS THE ACQUISITION FOR PUBLIC USE OF ARTICLES, MATERIALS, OR SUPPLIES OF FOREIGN MANUFACTURE, SUBJECT TO SPECIFIED EXCEPTIONS, UNLESS THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED SHALL DETERMINE IT TO BE INCONSISTENT WITH THE PUBLIC INTEREST TO ACQUIRE ARTICLES, MATERIALS, OR SUPPLIES OF DOMESTIC PRODUCTION, OF THE CLASS OR KIND TO BE USED. SUCH A DETERMINATION IS A CONDITION PRECEDENT TO THE MAKING OF A VALID CONTRACT FOR THE PURCHASE OF FOREIGN-MADE EQUIPMENT, AND THERE WAS NO SUCH DETERMINATION IN THIS INSTANCE BY THE HEAD OF THE WORKS PROGRESS ADMINISTRATION WHO WAS THE ONLY REPRESENTATIVE OF THE GOVERNMENT AUTHORIZED BY STATUTE TO MAKE SUCH A DETERMINATION IN THE MATTER.

IT IS FUNDAMENTAL, OF COURSE, THAT STATUTORY PROVISIONS ARE CONTROLLING IN THE MAKING OF CONTRACTS FOR THE NEEDS OF THE GOVERNMENT; THAT NO CONTRACT MADE OR UNDERTAKEN IN VIOLATION OF A STATUTORY PROHIBITION CAN LEGALLY OBLIGATE THE GOVERNMENT OR CHARGE APPROPRIATED MONEYS, AND THAT ALL PERSONS DEALING WITH THE GOVERNMENT ARE CHARGED WITH A KNOWLEDGE OF THE STATUTES OF THE UNITED STATES, AND THE LIMITATIONS UPON THE AUTHORITY OF ITS AGENTS. KNOWING THAT THE MOTOR YOU PROPOSED TO FURNISH WAS OF FOREIGN MANUFACTURE, IT WAS INCUMBENT UPON YOU, TO SATISFY YOURSELF PRIOR TO DELIVERY, THAT THE PURCHASE WAS AUTHORIZED IN CONFORMITY WITH THE STATUTE, AND DELIVERY WITHOUT SUCH AUTHORIZATION WAS YOUR RESPONSIBILITY.

SINCE IT APPEARS THAT THE PURCHASE HERE INVOLVED WAS CONTRARY TO THE STATUTE, THE ATTEMPTED CONTRACT DID NOT BIND THE GOVERNMENT, AND, UPON THE FACTS PRESENTED AND THE PRINCIPLES OF LAW APPLICABLE THERETO, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. THE DISALLOWANCE OF APRIL 5, 1937, MUST BE AND IS SUSTAINED.

AS STATED ABOVE, THE REPORT TO THIS OFFICE IS THAT THE WORKS PROGRESS ADMINISTRATION IS HOLDING THE MOTOR DELIVERED SUBJECT TO YOUR INSTRUCTION, AND IF YOU DESIRE TO REPOSSESS IT, DOUBTLESS WILL DELIVER IT TO YOU UPON YOUR DEMAND. AS TWO UNSUCCESSFUL EFFORTS HAVE BEEN MADE TO RETURN THE MOTOR TO YOU, IT WOULD APPEAR THAT THE RESPONSIBILITY OF THE GOVERNMENT IN THE MATTER HAS BEEN DISCHARGED.