A-9157, JULY 15, 1925, 5 COMP. GEN. 30

A-9157: Jul 15, 1925

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FOR THE SOLE REASON THAT TRUCKS OF THE PARTICULAR MAKE WERE DEEMED TO BE THE MOST SUITABLE FOR THE PURPOSES FOR WHICH REQUIRED. IS IN CONTRAVENTION OF SECTION 3709. AS THE TRUCKS HAVE BEEN DELIVERED AND ACCEPTED BY THE DEPARTMENT. OTHERWISE THE CLAIM WILL BE DENIED. SEALED PROPOSALS WERE CALLED FOR BY THE PURCHASING AGENT NOVEMBER 20. FIVE BIDS WERE RECEIVED AS FOLLOWS: TABLE PIERCE ARROW COMPANY. ARE THAT FOR THE PARTICULAR USE DESIRED. 000 WAS KEPT ON HAND. THAT THE PURCHASE OF OTHER TRUCKS WOULD OF NECESSITY OCCASION A NEW OUTLAY FOR REPAIR STOCK AND THAT THE EMPLOYEES WOULD HAVE TO BE INSTRUCTED AND TRAINED IN THE USE OF AND REPAIR OF THE NEW TYPE OF EQUIPMENT. THE MISCHIEF RESULTING FROM THE ACTION IN THE INSTANT CASE IS WELL STATED IN 22 COMP.

A-9157, JULY 15, 1925, 5 COMP. GEN. 30

PURCHASE OF AUTO TRUCKS - ACCEPTANCE OF OTHER THAN LOWEST BID THE ACCEPTANCE BY THE POST OFFICE DEPARTMENT OF OTHER THAN THE LOWEST BID FOR AUTO TRUCK CHASSIS, AND THE SUBSEQUENT PURCHASE OF SAME BY INFORMAL AGREEMENT, FOR THE SOLE REASON THAT TRUCKS OF THE PARTICULAR MAKE WERE DEEMED TO BE THE MOST SUITABLE FOR THE PURPOSES FOR WHICH REQUIRED, IS IN CONTRAVENTION OF SECTION 3709, REVISED STATUTES, AND THE ACT OF APRIL 28, 1904, 33 STAT. 440. HOWEVER, AS THE TRUCKS HAVE BEEN DELIVERED AND ACCEPTED BY THE DEPARTMENT, PAYMENT FOR SAME MAY BE MADE ON THE BASIS OF THE AVERAGE OF ALL THE BIDS SUBMITTED, IF ACCEPTABLE TO THE VENDOR, OTHERWISE THE CLAIM WILL BE DENIED.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 15, 1925:

THERE HAS BEEN SUBMITTED FOR CONSIDERATION THE CLAIM OF THE WHITE CO. FOR FIVE MODEL 20/45 WHITE TRUCK CHASSIS, 2-TON CAPACITY, AT $3,424.75 EACH, TOTAL $17,123.75, FURNISHED THE POST OFFICE DEPARTMENT.

SEALED PROPOSALS WERE CALLED FOR BY THE PURCHASING AGENT NOVEMBER 20, 1924, TO BE OPENED DECEMBER 5, 1924, FOR FIVE MOTOR TRUCK CHASSIS AND EQUIPMENT. FIVE BIDS WERE RECEIVED AS FOLLOWS:

TABLE PIERCE ARROW COMPANY, $3,720 LESS 20 PERCENT, NET -------- $2,976.80 WHITE COMPANY -------------------------------------------- 3,424.75 GENERAL MOTOR TRUCK CO., STANDARD SPECIFICATIONS -------- 2,622.46 INTERNATIONAL MOTOR CO., DUAL DRIVE --------------------- 3,400.80 UNITED STATES MOTOR TRUCK CO ----------------------------- 1,993.00

THE REASONS ADVANCED BY THE PURCHASING AGENT AND THE PURCHASING COMMITTEE OF THE POST OFFICE DEPARTMENT FOR ACCEPTING THE PROPOSAL OF THE WHITE CO. ARE THAT FOR THE PARTICULAR USE DESIRED, AFTER SEVERAL YEARS' EXPERIENCE, NONE EXCEPT WHITE TRUCKS HAD PROVED ENTIRELY SATISFACTORY OVER THE PARTICULAR ROUTE FROM PRICE TO VERNAL, UTAH; THAT A STOCK OF REPAIR PARTS OF ABOUT $4,000 WAS KEPT ON HAND; THAT THE PURCHASE OF OTHER TRUCKS WOULD OF NECESSITY OCCASION A NEW OUTLAY FOR REPAIR STOCK AND THAT THE EMPLOYEES WOULD HAVE TO BE INSTRUCTED AND TRAINED IN THE USE OF AND REPAIR OF THE NEW TYPE OF EQUIPMENT.

THE MISCHIEF RESULTING FROM THE ACTION IN THE INSTANT CASE IS WELL STATED IN 22 COMP. DEC. 302, QUOTING FROM 79 MS. COMP. DEC. 1544, AS FOLLOWS:

* * * SUFFICE IT TO SAY THAT THE DESIRE FOR A PARTICULAR MAKE OF TRUCK CAN NOT BE USED TO AVOID THE STATUTORY REQUIREMENT AS TO ADVERTISING. SUCH A THEORY IS WRONG AND CAN NOT BE COUNTENANCED. ITS APPLICATION GENERALLY WOULD FURNISH A BASIS FOR EVASION OF THE REQUIREMENTS OF THE LAW AT PLEASURE.

IT THUS APPEARS THAT NOTHING WAS ACCOMPLISHED IN CALLING FOR BIDS IN THE PRESENT CASE SO FAR AS THE FINAL ACTION OF THE DEPARTMENT WAS CONCERNED. IF THE LOWER BIDS OFFERED FOR STANDARD MAKES OF TRUCKS WITH AN ESTABLISHED REPUTATION ARE TO BE REJECTED AND A BID ACCEPTED AT A GREATLY INCREASED PRICE BECAUSE A PARTICULAR BRANCH OF THE SERVICE PREFERS A CERTAIN MAKE OF TRUCK, ADVERTISING FOR BIDS WAS A USELESS CEREMONY, AND SECTION 3709, REVISED STATUTES, IS PLAINLY EVADED.

ATTENTION IS ALSO INVITED TO THE ACT OF APRIL 28, 1904, 33 STAT. 440, WHICH, AMONG OTHER THINGS, PROVIDES:

THE PURCHASING AGENT, IN MAKING PURCHASES FOR SUPPLIES NECESSARY FOR THE POST OFFICE DEPARTMENT, SHALL ADVERTISE, AS NOW PROVIDED BY LAW, AND AWARD CONTRACTS FOR SUCH SUPPLIES TO THE LOWEST RESPONSIBLE BIDDER IN PURSUANCE OF EXISTING LAW. * * * ALL PURCHASES, ADVERTISEMENTS, AND CONTRACTS FOR SUPPLIES FOR THE POST OFFICE DEPARTMENT SHALL BE MADE BY THE PURCHASING AGENT IN THE NAME OF THE POSTMASTER GENERAL, SUBJECT TO HIS APPROVAL * *

THE ACT OF 1904 AND SECTION 3709, REVISED STATUTES, ARE, OF COURSE, PRIMARILY INTENDED TO PROTECT THE UNITED STATES BY SECURING COMPETITION IN THE BUSINESS WORLD, BUT INCIDENTALLY ARE ALSO FOR THE PROTECTION OF THE BIDDERS WHO PREPARE THEMSELVES TO OFFER BIDS AND STAND READY TO CARRY OUT THEIR PROPOSALS. IT WOULD APPEAR, THEREFORE, TO BE UNJUST NOT ONLY TO THE UNITED STATES BUT TO THE OTHER BIDDERS FOR A DEPARTMENT OF THE GOVERNMENT TO CALL FOR AND RECEIVE BIDS FROM ESTABLISHED AND RESPONSIBLE DEALERS AND FOR THE REASONS HERE APPEARING REJECT THE LOWER AND ACCEPT HIGHER BID. WHILE THE REASONS NOW GIVEN BY THE AGENTS OF THE DEPARTMENT WERE FOR CONSIDERATION PRELIMINARY TO DETERMINATION OF THE NEEDS OF THE DEPARTMENT IN THE PARTICULAR CASE, THEY ARE NOT DECISIVE OF THE MATTER IN ITS PRESENT STATUS, NOR DO THEY ENTITLE TO RESTRICT PURCHASES TO A PARTICULAR MAKE, OTHERWISE THERE WOULD BE VOIDED THE PLAIN MEANING AND INTENT OF THE STATUTORY REQUIREMENT FOR ADVERTISING AND THE LEGAL DUTY RESTING UPON THE DEPARTMENT REPRESENTATIVES TO ACCEPT THE LOWEST RESPONSIBLE BID. LIKEWISE, THE SUGGESTION OF THE NECESSITY FOR A STOCK OF PARTS IS UNTENABLE IF THE RESULT MUST BE TO LIMIT THEREAFTER TO A PARTICULAR MAKE OF EQUIPMENT. ANY OTHER VIEW DESTROYS AND NULLIFIES THE LAW. SEE 27 COMP. DEC. 896.

THEREFORE, IT MUST BE HELD ON THE FACTS PRESENTED, NO EMERGENCY APPEARING, THAT THE AWARD MADE IN THE INSTANT CASE TO THE CLAIMANT WAS UNAUTHORIZED AND NOT BINDING ON THE UNITED STATES, IT NOT BEING IN COMPLIANCE WITH SECTION 3709, REVISED STATUTES, AND THE ACT OF APRIL 28, 1904, 33 STAT. 440. SEE DECISION OF NOVEMBER 18, 1924, A-5714.

IT IS ALSO NOTED THAT NO CONTRACT IN WRITING WAS ENTERED INTO AND THAT WHILE SECTION 3744, REVISED STATUTES, DOES NOT INCLUDE THE POST OFFICE DEPARTMENT, THE ACT OF APRIL 28, 1904, DOES REQUIRE THE PURCHASING AGENT TO "AWARD CONTRACTS FOR SUCH SUPPLIES TO THE LOWEST RESPONSIBLE BIDDER IN PURSUANCE OF EXISTING LAW.'

SECTION 3741, REVISED STATUTES, REQUIRES THAT THERE SHALL BE INSERTED "IN EVERY SUCH CONTRACT OR AGREEMENT * * * AN EXPRESS CONDITION THAT NO MEMBER OF (OR DELEGATE TO) CONGRESS SHALL BE ADMITTED TO ANY SHARE OR PART OF SUCH CONTRACT OR AGREEMENT, OR TO ANY BENEFIT TO ARISE REUPON.'

SECTION 3743, REVISED STATUTES, REQUIRES "ALL CONTRACTS TO BE MADE, BY VIRTUE OF ANY LAW * * * BE DEPOSITED IN THE OFFICE OF THE FIRST COMPTROLLER OF THE TREASURY OF THE UNITED STATES," ETC., WHICH NOW MEANS THAT THE CONTRACTS MUST BE DEPOSITED WITH THE GENERAL ACCOUNTING OFFICE.

IT THUS SEEMS CLEAR IN VIEW OF THE PROVISIONS OF THE STATUTES REFERRED TO THAT THE ACT OF APRIL 28, 1904, 33 STAT. 440, REQUIRING THE PURCHASING AGENT TO ADVERTISE AS NOW PROVIDED BY LAW, AND AWARD CONTRACTS IN PURSUANCE OF EXISTING LAW, MEANS A CONTRACT IN WRITING SIGNED BY THE PARTIES WHICH EXPRESSES THE TERMS OF THE AGREEMENT. SUCH INTERPRETATION IS IN HARMONY WITH EXISTING LAW, AND IN FACT IT WOULD APPEAR THAT THE REQUIREMENTS OF THE STATUTES CITED CAN NOT BE COMPLIED WITH IN ANY OTHER MANNER.

IT APPEARING THAT THE TRUCKS PURCHASED UNDER THE INFORMAL AWARD HAVE BEEN DELIVERED TO AND ACCEPTED BY THE DEPARTMENT, PAYMENT MAY NOW BE MADE ONLY UPON A QUANTUM MERUIT BASIS FOR THE FAIR MARKET VALUE OF THE ARTICLES SO DELIVERED. THE AVERAGE BID PRICE WAS $2,883.40, PLUS, WHICH IS $541.35 PER TRUCK LESS THAN THE ACCEPTED BID, OR A TOTAL OF $2,706.75 LESS THAN THE AVERAGE BID PRICE FOR THE COMPLETE ORDER. THE AVERAGE PRICE OF THE FIVE BIDS, $2,883.40 MAY BE ACCEPTED AS THE UNIT BASIS OF FAIR MARKET VALUE AND PAYMENT MADE CLAIMANT IN THE AGGREGATE SUM OF $14,417 AS SETTLEMENT IN FULL OF ITS CLAIM, OTHERWISE THE CLAIM WILL BE DISALLOWED.