A-99087, JANUARY 3, 1939, 18 COMP. GEN. 579

A-99087: Jan 3, 1939

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BE MADE AFTER ADVERTISING FOR COMPETITIVE BIDS ON AN EQUAL BASIS AND ON COMMON GROUND IS EQUALLY APPLICABLE TO THE RENTAL OF EQUIPMENT. IT IS NOT THE RESPONSIBILITY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO DETERMINE ADMINISTRATIVE NEEDS. IT IS WITHIN THEIR RESPONSIBILITY TO SEE THAT THE LAW WITH RESPECT TO SUCH NEEDS IS COMPLIED WITH AND THAT APPROPRIATED MONEYS BE NOT EXPENDED IN VIOLATION OF THE APPLICABLE STATUTES. THE CONCLUSION OR OPINION OF A CONTRACTING OFFICER THAT THE ADDING MACHINES OF A PARTICULAR MANUFACTURER ARE THE ONLY ONES THAT WILL SATISFACTORILY MEET THE NEEDS OF THE SERVICE IS NOT CONTROLLING. THE ONLY PRACTICABLE WAY OF DETERMINING THAT A PARTICULAR MANUFACTURER IS THE ONLY ONE THAT CAN FURNISH SUITABLE MACHINES BEING BY ADVERTISING FOR BIDS ON SPECIFICATIONS SO DRAWN AS TO SET FORTH THE ACTUAL NEEDS OF THE UNITED STATES.

A-99087, JANUARY 3, 1939, 18 COMP. GEN. 579

GOVERNMENT PURCHASES AND EQUIPMENT RENTALS - ADVERTISING REQUIREMENTS, GENERAL ACCOUNTING OFFICE JURISDICTION, AND DETERMINATIONS AS TO SUITABILITY OF ARTICLES FOR GOVERNMENT NEEDS THE REQUIREMENT THAT PURCHASES OF SUPPLIES, EQUIPMENT, MATERIALS, ETC., EXCEPT IN THE CASE OF EMERGENCY, BE MADE AFTER ADVERTISING FOR COMPETITIVE BIDS ON AN EQUAL BASIS AND ON COMMON GROUND IS EQUALLY APPLICABLE TO THE RENTAL OF EQUIPMENT. IT IS NOT THE RESPONSIBILITY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO DETERMINE ADMINISTRATIVE NEEDS, BUT IT IS WITHIN THEIR RESPONSIBILITY TO SEE THAT THE LAW WITH RESPECT TO SUCH NEEDS IS COMPLIED WITH AND THAT APPROPRIATED MONEYS BE NOT EXPENDED IN VIOLATION OF THE APPLICABLE STATUTES. THE CONCLUSION OR OPINION OF A CONTRACTING OFFICER THAT THE ADDING MACHINES OF A PARTICULAR MANUFACTURER ARE THE ONLY ONES THAT WILL SATISFACTORILY MEET THE NEEDS OF THE SERVICE IS NOT CONTROLLING, THE ONLY PRACTICABLE WAY OF DETERMINING THAT A PARTICULAR MANUFACTURER IS THE ONLY ONE THAT CAN FURNISH SUITABLE MACHINES BEING BY ADVERTISING FOR BIDS ON SPECIFICATIONS SO DRAWN AS TO SET FORTH THE ACTUAL NEEDS OF THE UNITED STATES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JANUARY 3, 1939:

YOUR ATTENTION IS INVITED TO CONTRACT ER-TPS-51-7889, DATED JULY 1, 1938, WITH THE BURROUGHS ADDING MACHINE CO. AND THE STATE PROCUREMENT OFFICER, LANSING, MICH., COVERING THE RENTAL OF BURROUGHS ADDING MACHINES FOR THE PERIOD ENDING JUNE 30, 1939.

THE STANDARD FORM 1036 FILED WITH THE CONTRACT STATES THAT THE AWARD WAS MADE WITHOUT ADVERTISING, IT BEING IMPRACTICABLE TO SECURE COMPETITION BECAUSE THE MACHINES ARE PROPRIETARY TO THE BURROUGHS ADDING MACHINE CO. AND NO OTHER WILL MEET THE REQUIREMENTS OF THE SERVICE; ALSO, THAT THIS TYPE OF MACHINE HAS PROVEN TO BE THE MOST SATISFACTORY AND MORE ADAPTABLE TO THE WORK FOR WHICH IT IS USED. IN LETTER OF THIS OFFICE DATED OCTOBER 10, 1938, INFORMATION WAS REQUESTED AS TO HOW IT WAS DETERMINED THAT THE SAID COMPANY WAS THE ONLY ONE THAT COULD FURNISH ADDING MACHINES AND WHY THE MACHINES OF OTHER MANUFACTURERS WOULD NOT MEET THE NEEDS OF THE SERVICE. THE STATE PROCUREMENT OFFICER, LANSING, MICH., REPLIED THERETO BY LETTER OF OCTOBER 27, 1938, TRANSMITTING COPY OF A LETTER DATED OCTOBER 20, 1938, FROM THE OFFICE MANAGER, MICHIGAN WORKS PROGRESS ADMINISTRATION, AS FOLLOWS:

REPLYING TO YOUR LETTER OF OCTOBER 12TH RELATIVE TO CONTRACT ER-TPS 51- 7889 CONCERNING WHICH THE EXAMINING SECTION OF THE GENERAL ACCOUNTING OFFICE WROTE YOU ON OCTOBER 10TH. THIS REFERS TO OUR REQUISITION 9-9004 DATED JULY 1, 1938, ON WHICH WE REQUEST THE RENTAL OF FOUR BURROUGHS ELECTRIC ADDING MACHINES AND ON WHICH WE MADE A PROPRIETARY STATEMENT REQUESTING BURROUGHS MACHINES AND NO OTHER.

SUPPLEMENTING OUR REASON GIVEN ON THE PROPRIETY STATEMENT: FIRST, WE HAVE THIRTY-TWO OPERATORS TRAINED IN THE USE OF THIS PARTICULAR MODEL; SECOND, THESE MACHINES ARE SMALL AND COMPACT AND TAKE UP LESS DESK SPACE THAN ANY MODEL WE ARE FAMILIAR WITH; THIRD, WORK CAN BE TURNED OUT ON THEM IN A GIVEN LENGTH OF TIME; FOURTH, THE BURROUGHS ADDING MACHINE CO. HAVE A VERY EFFICIENT AND PROMPT REPAIR SERVICE WHENEVER ANY OF THESE MACHINES NEED ATTENTION AND WE CAN GET SERVICE IN A FEW HOURS INSTEAD OF HAVING TO WAIT TWO OR THREE DAYS AS WE HAVE HAD TO DO WITH OTHER MAKES OF MACHINES.

WE BELIEVE THESE WILL BE SUFFICIENT REASONS FOR OUR REQUESTING THE BURROUGHS ADDING MACHINES FOR OUR WORK IN THIS LOCALITY.

THE LAW, SECTION 3709, REVISED STATUTES, REQUIRES THAT ALL PURCHASES OF SUPPLIES, EQUIPMENT, MATERIALS, ETC., EXCEPT IN THE CASE OF EMERGENCY, BE MADE AFTER ADVERTISING FOR COMPETITIVE BIDS. THE NUMEROUS DECISIONS OF THE COURTS AND OF THIS OFFICE HAVE BEEN TO THE EFFECT THAT COMPETITION MUST BE ON AN EQUAL BASIS AND ON COMMON GROUND. SEE, PARTICULARLY, UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; UNITED STATES V. PAN AMERICAN PETROLEUM COMPANY, 6 FED./2D) 43, 8; 16 COMP. GEN. 171.

IN THE PRESENT CASE, THERE IS INVOLVED THE RENTAL OF EQUIPMENT AS DISTINGUISHED FROM THE PURCHASE OF EQUIPMENT, SUPPLIES, ETC., HOWEVER, THE PRINCIPLES, SUPRA, ARE EQUALLY APPLICABLE.

IT IS TO BE UNDERSTOOD, OF COURSE, THAT IT IS NOT THE RESPONSIBILITY OF THIS OFFICE TO DETERMINE THE NEEDS WITH RESPECT TO THE RENTAL OF ADDING MACHINES. IT IS, HOWEVER, THE RESPONSIBILITY OF THIS OFFICE TO SEE THAT THE LAW WITH RESPECT TO SUCH NEEDS IS COMPLIED WITH AND THAT CREDIT BE NOT ALLOWED FOR APPROPRIATED MONEYS EXPENDED IN THE RENTAL OF EQUIPMENT, ETC., IN VIOLATION OF THE STATUTES APPLICABLE THERETO.

THE CONCLUSION OR THE OPINION OF THE CONTRACTING OFFICER IN THIS CASE THAT THE ADDING MACHINES MANUFACTURED BY THE BURROUGHS ADDING MACHINE CO. ARE THE ONLY ONES THAT WILL SATISFACTORILY MEET THE NEEDS OF THE SERVICE MAY NOT BE ACCEPTED AS CONTROLLING NOR IS IT JUSTIFICATION FOR SO CONTRACTING IN DISREGARD OF EXISTING LAWS. THERE MUST OF NECESSITY BE A SHOWING AS TO HOW IT WAS DETERMINED THAT A PARTICULAR MANUFACTURER IS THE ONLY CONCERN THAT CAN FURNISH SUITABLE ADDING MACHINES. THE ONLY PRACTICABLE WAY OF DETERMINING THIS IS BY ADVERTISING FOR BIDS ON SPECIFICATIONS SO DRAWN AS TO SET FORTH THE ACTUAL NEEDS OF THE UNITED STATES. IT IS TOO WELL KNOWN FOR SERIOUS ARGUMENT THAT THERE ARE OTHER MAKES OF ADDING MACHINES ON THE MARKET THAT HAVE THE SAME GENERAL CHARACTERISTICS AND ARE CAPABLE OF PERFORMING THE SAME SERVICE AS THE BURROUGHS ADDING MACHINE; THAT THEY ARE IN USE BY THE TRADE IN GENERAL; AND THAT THERE IS SO LITTLE DIFFERENCE THAT PERSONAL PREFERENCE ONLY IS THE CONTROLLING ELEMENT IN THE PROCUREMENT THEREOF.

IT IS APPRECIATED THAT THE MATTER OF THE RENTAL OF SUCH EQUIPMENT AS HERE INVOLVED IS NOT FREE FROM ADMINISTRATIVE DIFFICULTIES AND THAT THERE IS A RESPONSIBILITY ON THE ADMINISTRATIVE AND CONTRACTING OFFICER TO SECURE EQUIPMENT SUCH AS HERE INVOLVED THAT WILL REASONABLY SERVE THE NEED. BUT THIS RESPONSIBILITY MUST BE DISCHARGED WITHIN THE LAW. IT HAS LONG BEEN THE ESTABLISHED RULE THAT APPROPRIATED MONEYS ARE AVAILABLE ONLY TO ACQUIRE THAT WHICH IS NEEDED AS DISTINGUISHED FROM THAT WHICH MAY BE DESIRED AND THAT SECTION 3709, REVISED STATUTES, REQUIRES SUCH NEEDS BE SO DESCRIBED AS TO PERMIT FULL AND UNRESTRICTED COMPETITION IN BIDDING THEREON WITH AWARD TO THE LOWEST RESPONSIBLE BIDDER. 16 COMP. GEN. 171.

THE FACTS OF RECORD CLEARLY SHOW THAT THERE WAS NO COMPLIANCE WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, IN THE RENTAL OF THE EQUIPMENT. ACCORDINGLY, I HAVE TO ADVISE THAT CREDIT MAY NOT BE ALLOWED FOR PAYMENTS FROM APPROPRIATED MONEYS ON ACCOUNT OF THE RENTAL OF THE ADDING MACHINES COVERED BY THE CONTRACT IN QUESTION ON AND AFTER FEBRUARY 1, 1939. IN THIS CONNECTION IT IS OBSERVED THAT UNDER THE TERMS OF THE CONTRACT THE RIGHT IS SPECIFICALLY RESERVED IN THE UNITED STATES TO CANCEL SAME UPON 30 DAYS' WRITTEN NOTICE.