B-127007, FEB. 24, 1956

B-127007, FEB. 24, 1956

TO MR. GLEN E. GORDON, AUTHORIZED CERTIFYING OFFICER, COMMISSION ON GOVERNMENT SECURITY:

REFERENCE IS MADE TO YOUR MEMORANDUM OF FEBRUARY 15, 1956, TRANSMITTING THE INVOICE OF W AND J SLOANE IN THE AMOUNT OF $1,192.96, LESS 2 PERCENT FOR PAYMENT WITHIN 20 DAYS, FOR RUGS PURCHASED BY THE COMMISSION ON GOVERNMENT SECURITY. AN ADVANCE DECISION IS REQUESTED AS TO THE PROPRIETY OF MAKING PAYMENT THEREON.

YOU STATE THAT OWING TO THE EXIGENCY OF TIME THE RUGS WERE PURCHASED ON THE OPEN MARKET AT A COST IN EXCESS OF THE LIMITATION ON SUCH PURCHASES IN SECTION 302 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. HOWEVER, THE RUGS APPARENTLY WERE AVAILABLE UNDER THE GENERAL SERVICES ADMINISTRATION FEDERAL SUPPLY SCHEDULE, CLASS 27, PART I, FLOOR COVERING.

THE COMMISSION WAS ESTABLISHED BY PUBLIC LAW 304, 84TH CONGRESS, 69 STAT. 595, FOR THE PURPOSE OF INVESTIGATING AND REPORTING UPON THE SECURITY MEASURES EMPLOYED IN THE FEDERAL AGENCIES FOR THE PROTECTION OF DEFENSE SECRETS. THIS OPERATION IS TO BE COMPLETED BY DECEMBER 31, 1956. THE COMMISSION HELD ITS FIRST MEETING ON DECEMBER 14, 1955, AND SCHEDULED ITS SECOND MEETING FOR FEBRUARY 9, 1956, BY WHICH TIME OFFICES HAD TO BE ESTABLISHED AND READY FOR OCCUPANCY. FOR THAT PURPOSE DOUGLAS R. PRICE WAS APPOINTED ACTING EXECUTIVE SECRETARY, AND PROCEEDED TO MAKE ARRANGEMENTS FOR EQUIPPING THE OFFICES WHICH HAD BEEN SECURED IN THE GENERAL ACCOUNTING OFFICE BUILDING. AFTER TRYING UNSUCCESSFULLY TO SECURE RUGS ON A LOAN BASIS FROM OTHER GOVERNMENT DEPARTMENTS, AN ATTEMPT WAS MADE TO PURCHASE THE RUGS UNDER THE GENERAL SERVICES ADMINISTRATION FEDERAL SUPPLY SCHEDULE ALREADY MENTIONED. THE CONTRACTOR, HOWEVER, COULD NOT DELIVER IN LESS THAN 60 DAYS, AND THE TIME REMAINING DID NOT PERMIT OF THAT EXTENDED DELAY. NEITHER DID THE TIME ELEMENT PERMIT SOLICITATION FOR BIDS, AND, AFTER CONTACTING OTHER DEALERS, THE PURCHASE WAS MADE FROM W AND J SLOANE AS THE ONLY DEALER WHO COULD OFFER IMMEDIATE DELIVERY OF SUITABLE RUGS AT A PRICE CONSIDERED TO BE THE MOST ADVANTAGEOUS TO THE GOVERNMENT.

SECTION 302 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 PROHIBITS PURCHASES BY ANY AGENCY IN EXCESS OF $1,000 WITHOUT ADVERTISING FOR BIDS, AND FURTHER PROHIBITS PURCHASES IN EXCESS OF $500 BY ANY AGENCY OTHER THAN THE GENERAL SERVICES ADMINISTRATION. IT LONG HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT, WHEN THE FEDERAL SUPPLY SERVICE OF THE GENERAL SERVICES ADMINISTRATION HAS CONTRACTED FOR PARTICULAR SUPPLIES, IT IS MANDATORY UPON ALL AGENCIES TO SECURE SUCH SUPPLIES UNDER THAT CONTRACT. SEE 16 COMP. GEN. 225; 26 ID. 866; AND B-99151 OF DECEMBER 12, 1950.

CONFORMANCE WITH THE ADVERTISING REQUIREMENT IS EXCUSED BY SECTION 302 (C) (2) OF THE ACT IF A PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING FOR BIDS. SEE B-121122 OF OCTOBER 7, 1954. SIMILARLY, IT HAS BEEN HELD BY OUR OFFICE THAT, IF A PUBLIC EMERGENCY EXISTS, AN AGENCY MAY PURCHASE NEEDED SUPPLIES ON THE OPEN MARKET EVEN THOUGH A GENERAL SERVICES ADMINISTRATION CONTRACT EXISTS COVERING THE SAME SUPPLIES. SEE A-88975 OF MARCH 18, 1938; B-87713 OF SEPTEMBER 23, 1949; AND B-99151 OF DECEMBER 12, 1950.

THAT AN EMERGENCY SITUATION DOES EXIST IS FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY IN THE FIRST INSTANCE, AND, IF THERE EXISTS EVIDENTIARY SUPPORT FOR THAT DETERMINATION, PURCHASES MADE ON THAT BASIS NEED NOT BE QUESTIONED. SEE B-87713 OF SEPTEMBER 23, 1949. THEREFORE, AND IN VIEW OF THE PURPOSES FOR WHICH THE COMMISSION ON GOVERNMENT SECURITY WAS ESTABLISHED, THE IMPERATIVE NEED FOR ITS EARLY ORGANIZATION IN ORDER TO MEET ITS STATUTORY DEADLINE, AND THE FACT THAT A DETERMINATION WAS FIRST MADE THAT SUITABLE RUGS COULD NOT BE OBTAINED IN SUFFICIENT TIME FROM EITHER THE GOVERNMENT CONTRACTOR OR FROM OTHER GOVERNMENT AGENCIES, THE METHOD OF PROCUREMENT EMPLOYED IS JUSTIFIED AS AN EMERGENCY PURCHASE.

ACCORDINGLY, THE INVOICE MAY BE PROCESSED FOR PAYMENT FROM THE APPROPRIATION CITED IN YOUR MEMORANDUM.