B-3260, MAY 2, 1939, 18 COMP. GEN. 818

B-3260: May 2, 1939

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THERE IS NO OBJECTION TO THE ACCEPTANCE OF THE LOWEST BID ON THE PARTICULAR STONE SELECTED WITHIN THE RANGE OF THE DIFFERENT KINDS ENUMERATED IN THE SPECIFICATIONS SHOULD IT BE DETERMINED THAT THE STONE SO SELECTED IS MORE SUITABLE FOR THE PURPOSE THAN ANY OF THE LOWER PRICED STONES. THE ENTIRE COST OF THE MEMORIAL WILL NOT EXCEED THE STATUTORY LIMITATION BECAUSE OF THE SAID SELECTION. IT IS. REQUESTED THAT YOU ADVISE THIS SERVICE AS TO WHETHER OR NOT ANY OBJECTION WOULD BE INTERPOSED IF THE CONTRACT FOR THE WORK IS EXECUTED ON THE BASIS INDICATED IN THE ATTACHED COPY OF THE LETTER OF AWARD AND THE ABSTRACT OF BIDS. THERE IS ALSO ENCLOSED A COPY OF THE SPECIFICATIONS FOR THE WORK AS ADVERTISED.

B-3260, MAY 2, 1939, 18 COMP. GEN. 818

ADVERTISING - MEMORIAL CONSTRUCTION - SPECIFICATIONS REQUIRING BIDS ON VARIOUS KINDS OF STONE - CONTRACT LOW BID AWARD PROCEDURE WHERE, UNDER THE GENERAL DISCRETIONARY AUTHORITY VESTED IN THE COMMISSION, SPECIFICATIONS IN CONNECTION WITH THE CONSTRUCTION OF A PUBLIC MEMORIAL REQUIRED SEVERAL BIDS, EACH BASED ON THE USE OF A DIFFERENT KIND OF STONE OF THE MAJOR PORTIONS OF THE EXTERIOR MASONRY WORK, IN ORDER THAT, SHOULD THE LOW BID ON THE STONE OF FIRST CHOICE BE EXCESSIVE IN THE LIGHT OF THE FUNDS AVAILABLE FOR THE WORK, ONE OF THE LESS EXPENSIVE STONES COULD BE CONSIDERED, THERE IS NO OBJECTION TO THE ACCEPTANCE OF THE LOWEST BID ON THE PARTICULAR STONE SELECTED WITHIN THE RANGE OF THE DIFFERENT KINDS ENUMERATED IN THE SPECIFICATIONS SHOULD IT BE DETERMINED THAT THE STONE SO SELECTED IS MORE SUITABLE FOR THE PURPOSE THAN ANY OF THE LOWER PRICED STONES, AND THE ENTIRE COST OF THE MEMORIAL WILL NOT EXCEED THE STATUTORY LIMITATION BECAUSE OF THE SAID SELECTION, SECTION 3709, REVISED STATUTES, CONTEMPLATING MERELY THE ACCEPTANCE OF THE LOWEST BID ON THE PARTICULAR STONE SELECTED AND NOT THE LOWEST BID ON ANY OF THE KINDS OF STONE ENUMERATED IN THE SPECIFICATIONS.

COMPTROLLER GENERAL BROWN TO THE EXECUTIVE AGENT, THOMAS JEFFERSON MEMORIAL COMMISSION, MAY 2, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 21, 1939, AS FOLLOWS:

IN CONNECTION WITH THE CONTEMPLATED CONSTRUCTION OF THE THOMAS JEFFERSON MEMORIAL, A QUESTION HAS ARISEN WITH REGARD TO THE AWARD OF THE PROPOSED WORK PURSUANT TO THE BIDS RECEIVED. IT IS, THEREFORE, REQUESTED THAT YOU ADVISE THIS SERVICE AS TO WHETHER OR NOT ANY OBJECTION WOULD BE INTERPOSED IF THE CONTRACT FOR THE WORK IS EXECUTED ON THE BASIS INDICATED IN THE ATTACHED COPY OF THE LETTER OF AWARD AND THE ABSTRACT OF BIDS. FOR YOUR INFORMATION, THERE IS ALSO ENCLOSED A COPY OF THE SPECIFICATIONS FOR THE WORK AS ADVERTISED, AS WELL AS COPIES OF SUBSEQUENT AMENDMENTS.

AS INDICATED IN PARAGRAPHS 23 AND 81 OF THE SPECIFICATIONS AND IN STANDARD GOVERNMENT FORM OF BIDS, SIX MAIN BIDS WERE REQUIRED, EACH BASED ON THE USE OF A DIFFERENT KIND OF STONE FOR THE MAJOR PORTIONS OF THE EXTERIOR MASONRY WORK. BECAUSE OF THE DIFFERENCE IN THE CHARACTER AND COST OF THE STONES, IT WAS DEEMED ADVISABLE TO FOLLOW THIS PROCEDURE IN ORDER THAT, SHOULD THE LOW BID SUBMITTED ON THE BASIS OF USING IMPERIAL DANBY MARBLE, WHICH WAS THE FIRST CHOICE OF THE ARCHITECT, BE EXCESSIVE IN LIGHT OF THE FUNDS AVAILABLE FOR THE WORK, ONE OF THE LESS EXPENSIVE STONES COULD BE CONSIDERED.

ALTHOUGH THE SEVERAL BIDS RECEIVED REFLECT THE COST OF FURNISHING THE SEVERAL KINDS OF STONE AND INDICATE THAT THE LESS DESIRABLE STONE IS LESS EXPENSIVE, THE LOW BID FOR CONSTRUCTING THE MEMORIAL IN IMPERIAL DANBY MARBLE IS OF SUCH AMOUNT THAT THE FUNDS AVAILABLE WILL PERMIT OF THE USE OF THIS STONE.

THE POINT IN QUESTION IN THIS INSTANCE IS, IS THE THOMAS JEFFERSON MEMORIAL COMMISSION REQUIRED, UNDER THE CIRCUMSTANCES, TO AWARD AND CONTRACT FOR THE WORK ON THE BASIS OF THE LOWEST OF THE MAIN BIDS SUBMITTED BY THE LOW BIDDER WITHOUT REGARD TO THE CHARACTER AND QUALITY OF THE STONE PROPOSED FOR USE PURSUANT TO SUCH BID, OR MAY IT CONTRACT FOR THE WORK ON THE BASIS OF ANY OF THE KINDS OF STONE THAT WERE THE DIFFERENTIATING FACTORS UNDER THE MAIN BIDS, AS MAY BE DETERMINED BY IT OR ITS AGENTS TO BE TO THE BEST INTEREST OF AND MOST APPROPRIATE FOR THE TYPE OF STRUCTURE CONTEMPLATED, WITHOUT REGARD TO THE OTHER MAIN BIDS SUBMITTED BY THE LOW BIDDER.

BECAUSE OF THE EARLY NEED OF INITIATING THE CONTEMPLATED WORK IN ORDER THAT ITS COMPLETION MAY BE ACCOMPLISHED AS PROMPTLY AS POSSIBLE, YOUR EARLY ADVICE WILL BE APPRECIATED.

UNDER THE PROVISIONS OF THE ACT OF JUNE 3, 1936, 49 STAT. 1397, IT IS THE DUTY AND RESPONSIBILITY OF THE COMMISSION TO DETERMINE THE MATERIAL WITH WHICH THE MEMORIAL IS TO BE CONSTRUCTED, WITHIN THE LIMIT OF COST AS SPECIFIED IN THE ACT. AND THE FACT THAT INSTEAD OF MAKING A DEFINITE SELECTION BEFORE ADVERTISING FOR BIDS THERE WAS ADOPTED THE PROCEDURE OF REQUESTING BIDDERS TO SUBMIT SIX MAIN BIDS, EACH BASED ON THE USE OF A DIFFERENT KIND OF STONE FOR THE MAJOR PORTIONS OF THE EXTERIOR OF THE MEMORIAL IN ORDER TO ENABLE THE COMMISSION TO DETERMINE THE DIFFERENT KINDS OF STONE THAT MIGHT BE USED IN THE CONSTRUCTION OF A MEMORIAL OF THE DESIGN DESIRED WITHIN THE LIMIT OF THE AVAILABLE FUNDS, DOES NOT PRECLUDE THE MAKING OF THE SELECTION AFTER THE BIDS ARE RECEIVED.

THE INFORMATION DISCLOSED BY THE BIDS SHOULD ENABLE THE COMMISSION TO MAKE A PROPER DETERMINATION OF THE KIND OF STONE IT SHOULD SELECT FOR THE MEMORIAL; AND WHILE THE PROVISIONS OF SECTION 3709, REVISED STATUTES, CONTEMPLATE THE ACCEPTANCE OF THE LOWEST BID ON THE PARTICULAR STONE SELECTED, THERE WOULD APPEAR TO BE NO REQUIREMENT, EITHER UNDER SAID SECTION OR BY REASON OF HAVING OBTAINED SEVERAL ALTERNATE BIDS ON VARIOUS KINDS OF STONE, COMPELLING THE COMMISSION TO ACCEPT THE LIMESTONE BID RATHER THAN ONE OF THE MARBLE BIDS, OR TO ACCEPT THE LOWEST OF THE MARBLE BIDS. BUT, OF COURSE, THE COMMISSION IS NOT AUTHORIZED TO SELECT A KIND OF STONE AT A HIGHER COST TO THE GOVERNMENT UNLESS THE COMMISSION, IN THE EXERCISE OF ITS DISCRETION, DETERMINES THAT THE KIND OF STONE SO SELECTED IS MORE SUITABLE FOR THE PURPOSE OF THE MEMORIAL THAN IS ANY OF THE LOWER PRICED STONES OFFERED BY THE BIDDER.

IN ANSWER TO THE SPECIFIC QUESTION STATED IN YOUR LETTER, I HAVE TO ADVISE THAT THE COMMISSION MAY CONTRACT FOR THE WORK ON THE BASIS OF ANY OF THE KINDS OF STONE THAT WERE THE DIFFERENTIATING FACTORS UNDER THE MAIN BIDS, AS MAY BE DETERMINED BY IT OR ITS AGENTS TO BE TO THE BEST INTEREST OF, AND MOST APPROPRIATE FOR, THE TYPE OF STRUCTURE CONTEMPLATED, WITHOUT REGARD TO THE OTHER MAIN BIDS SUBMITTED BY THE LOW BIDDER--- IT BEING UNDERSTOOD, OF COURSE, THAT THE ENTIRE COST MUST NOT EXCEED THE LIMITATION FIXED IN THE ACT OF 1936.