A-8773, APRIL 20, 1925, 4 COMP. GEN. 880

A-8773: Apr 20, 1925

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TWO OR MORE BIDS ARE RECEIVED FOR DIFFERENT MODELS ALL MEETING THE SPECIFICATIONS BUT OF VARYING PRICES. 1925: I HAVE YOUR LETTER OF MARCH 28. DETAILED SPECIFICATIONS WERE EMBODIED IN AN INVITATION TO SUBMIT PROPOSALS. PLANS FOR THE CURRENT SEASON'S FIELD WORK ARE DEVELOPING RAPIDLY. THE EXTENT OF THE REQUIREMENTS COULD NOT BE FORESEEN UNTIL PLANS WERE PERFECTED SUBSEQUENT TO THE PASSAGE OF RECENT LEGISLATION. THE INSTRUMENTS ARE OF A SPECIAL TYPE. ARE NOT CARRIED IN STOCK. THE OFFERS ARE FOR DELIVERY OF SIX INSTRUMENTS BY JUNE 1ST. SO THAT THERE WILL BE AN ACTUAL SAVING OF THIRTY DAYS ON SIX INSTRUMENTS BY DIVIDING THE ORDER. BOTH MODELS HAVE GIVEN SATISFACTORY SERVICE IN THE PUBLIC LAND SURVEY.

A-8773, APRIL 20, 1925, 4 COMP. GEN. 880

ADVERTISING - DIVISION OF AWARDS BETWEEN BIDDERS WHERE IN RESPONSE TO ADVERTISEMENTS FOR BIDS FUR SURVEYING TRANSITS, TWO OR MORE BIDS ARE RECEIVED FOR DIFFERENT MODELS ALL MEETING THE SPECIFICATIONS BUT OF VARYING PRICES, THE ENTIRE QUANTITY DESIRED MUST BE ORDERED FROM THE LOWEST RESPONSIBLE BIDDER, THERE BEING NO AUTHORITY TO DIVIDE THE ORDERS BETWEEN THE LOWEST AND THE NEXT HIGHER BIDDER FOR THE ALLEGED PURPOSE OF ENCOURAGING CONTINUED COMPETITION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, APRIL 20, 1925:

I HAVE YOUR LETTER OF MARCH 28, 1925, AS FOLLOWS:

THE COMMISSIONER OF THE GENERAL LAND OFFICE ADVISES ME THAT THE SUPERVISOR OF SURVEYS HAS UNDER CONSIDERATION THE PURCHASE OF EIGHTEEN NEW SOLAR TRANSITS. DETAILED SPECIFICATIONS WERE EMBODIED IN AN INVITATION TO SUBMIT PROPOSALS.

BUFF AND BUFF MANUFACTURING COMPANY OF BOSTON MAKES AN OFFER OF ABOUT $560 PER INSTRUMENT; W. AND L. E. GURLEY OF TROY, NEW YORK, MAKES AN OFFER OF $600 PER INSTRUMENT; THE A. LIETZ COMPANY, OF SAN FRANCISCO, MAKES AN OFFER OF $815 PER INSTRUMENT. THE SUPERVISOR OF SURVEYS DESIRES TO ENTER INTO CONTRACT WITH THE BUFF AND BUFF MANUFACTURING COMPANY TO CONSTRUCT TWELVE INSTRUMENTS, AND WITH W. AND L. E. GURLEY TO CONSTRUCT SIX INSTRUMENTS, FOR REASONS HEREINAFTER STATED, BUT BEFORE DOING SO DESIRES YOUR OPINION ON THE LEGALITY OF DIVIDING HIS PURCHASE REQUIREMENTS.

PLANS FOR THE CURRENT SEASON'S FIELD WORK ARE DEVELOPING RAPIDLY, AND THE REQUIRED NUMBER OF INSTRUMENTS SHOULD BE AVAILABLE AT THE BEGINNING OF, OR EARLY IN THE SEASON. THE EXTENT OF THE REQUIREMENTS COULD NOT BE FORESEEN UNTIL PLANS WERE PERFECTED SUBSEQUENT TO THE PASSAGE OF RECENT LEGISLATION.

THE INSTRUMENTS ARE OF A SPECIAL TYPE, USED ONLY BY THE GENERAL LAND OFFICE, AND ARE NOT CARRIED IN STOCK. THE OFFERS ARE FOR DELIVERY OF SIX INSTRUMENTS BY JUNE 1ST, TWELVE BY JUNE 15TH, AND EIGHTEEN BY JUNE 30TH, SO THAT THERE WILL BE AN ACTUAL SAVING OF THIRTY DAYS ON SIX INSTRUMENTS BY DIVIDING THE ORDER.

BOTH THE BUFF AND GURLEY INSTRUMENTS COME WITHIN THE REQUIRED SPECIFICATIONS, AND BOTH MODELS HAVE GIVEN SATISFACTORY SERVICE IN THE PUBLIC LAND SURVEY, BUT IS MUST NOT BE INFERRED THAT THE INSTRUMENTS ARE IDENTICAL. THE SUPERVISOR OF SURVEYS STATES THAT SOME OF THE ENGINEERS PREFER ONE, AND SOME PREFER THE OTHER OF THE TWO INSTRUMENTS, BUT I UNDERSTAND THAT THERE IS AN ACTUAL PREFERENCE FOR THE GURLEY INSTRUMENT FOR USE IN ALASKA, AS IN SOME RESPECTS IT IS A BETTER CONSTRUCTED INSTRUMENT, NOTABLY THAT IS IS BETTER PROTECTED AGAINST MOISTURE, THAT THE VERTICAL OBSERVING FIELD IS HIGHER, AND THAT THE SPECIAL ONE-PIECE TRUSS STANDARD ON THE GURLEY INSTRUMENT ALLOWS FOR A LONGER NEEDLE, ALL OF WHICH ARE DESIRABLE IN THAT LOCALITY. IN THE OPINION OF THE SUPERVISOR OF SURVEYS, THE LATTER DIFFERENCES FULLY WARRANT THE INCREASED COST.

THERE IS ONE OTHER REASON FOR DIVIDING THE ORDER. THE SUPERVISOR OF SURVEYS DESIRES TO ENCOURAGE THE MAKERS OF BOTH THE BUFF AND GURLEY SOLAR TRANSITS TO CONTINUE THE MANUFACTURE OF THESE INSTRUMENTS FOR THE GENERAL LAND OFFICE, EVEN THOUGH THERE MAY BE A SLIGHT DIFFERENCE IN COST, AS IN THIS WAY COMPETITION IS STIMULATED, AND THE SURVEYING SERVICE IS NOT LEFT ENTIRELY DEPENDENT UPON ANY ONE MAKER.

THE TOTAL DIFFERENCE IN COST HEREIN REFERRED TO AMOUNTS IN ALL TO ONLY $240, ON AN ORDER TOTALING A LITTLE MORE THAN $10,000.

YOUR CONCURRENCE IN THE DIVISION OF THE ORDER AS PROPOSED IS ASKED, AND I WILL APPRECIATE A REPLY AT AN EARLY DATE.

IT THUS APPEARS THAT A DECISION IS DESIRED AS TO WHETHER THERE IS AUTHORITY, IN ORDER TO SECURE THE ADVANTAGE OF 30 DAYS' TIME IN DELIVERY, TO ENTER INTO A CONTRACT WITH THE LOWEST BIDDER FOR 12 OF THE SURVEYING INSTRUMENTS, AT THE BID PRICE OF $560 EACH, AND WITH THE NEXT LOWEST BIDDER FOR THE REMAINING 6 SUCH INSTRUMENTS, AT THE BID PRICE OF $600 EACH, OF THE TOTAL OF 18 INSTRUMENTS ADVERTISED FOR, BOTH TYPES OF INSTRUMENTS PROPOSED TO BE CONTRACTED FOR COMING WITHIN THE REQUIRED SPECIFICATIONS BUT NOT BEING IDENTICAL IN CONSTRUCTION.

SECTION 3709, REVISED STATUTES, REQUIRES, EXCEPT WHEN THE PUBLIC EXIGENCIES REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES OR PERFORMANCE OF SERVICE, THAT 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. THE QUESTION PRESENTED INVOLVES THE PROCEDURE THAT IS TO BE FOLLOWED IN AWARDING CONTRACTS AFTER BIDS THEREFOR HAVE BEEN SECURED IN CONFORMITY WITH THIS LAW. THE CONTROLLING PURPOSES OF THE PROVISIONS OF SAID ENACTMENT ARE PRIMARILY THE SECURING OF COMPETITION FROM RESPONSIBLE BIDDERS AND THE SAFEGUARDING OF THE GOVERNMENT FROM THE POSSIBILITY OF HAVING TO PAY EXORBITANT PRICES FOR NEEDED SUPPLIES OR SERVICES. THE PROCEDURE THAT WOULD RESULT FROM ACCEPTING TWO OR MORE BIDS AND ENTERING INTO CONTRACTS WITH DIFFERENT PARTIES TO SUPPLY SPECIFIED ARTICLES ADVERTISED FOR WOULD BE FAR DIFFERENT FROM THE CONTEMPLATED PURCHASE FROM THE SUCCESSFUL BIDDER UNDER COMPETITIVE BIDDING AND, AS TO THE HIGHER BIDDER, WOULD ENTIRELY VOID THE PROCEDURE CONTEMPLATED BY LAW.

IN DECISION OF SEPTEMBER 16, 1914, 21 COMP. DEC. 155, A FORMER COMPTROLLER OF THE TREASURY, WITH RESPECT TO A SOMEWHAT SIMILAR QUESTION, SAID:

THE PURPOSE OF THE ADVERTISING REQUIRED BY SECTION 3709 OF THE REVISED STATUTES IS TO ENABLE THE GOVERNMENT, THROUGH COMPETITION, TO GET THE LOWEST OBTAINABLE PRICES IN THE PURCHASE OF ITS SUPPLIES. AND SAID SECTION CONTEMPLATES THAT, WHEN SUCH PRICES HAVE BEEN OBTAINED, A MUTUAL CONTRACT WILL BE ENTERED INTO WHEREBY THE SUCCESSFUL BIDDER IS LEGALLY BOUND TO FURNISH THE REQUIRED SUPPLIES AT SUCH PRICES, AND THE GOVERNMENT IS LIKEWISE BOUND TO PURCHASE SUCH SUPPLIES FROM SAID BIDDER AT SUCH PRICES. NO AGREEMENT OR ARRANGEMENT FOR THE PURCHASE OF SUPPLIES THAT IS LACKING IN EITHER OF THESE TWO OBLIGATIONS CAN BE REGARDED AS A COMPLIANCE WITH THE PROVISIONS OF SAID SECTION.

ANSWERING YOUR QUESTIONS SPECIFICALLY, YOU ARE ADVISED, IN VIEW OF THE FOREGOING, THAT CONTRACTS WITH ANYONE OTHER THAN THE ACCEPTED BIDDER, AND FOR ALL THE INSTRUMENTS DESIRED, CALLED FOR IN THE ADVERTISEMENT, AND PROPOSED TO BE FURNISHED BY SUCH BIDDER, WOULD NOT BE AUTHORIZED.