B-67837, AUGUST 11, 1947, 27 COMP. GEN. 73

B-67837: Aug 11, 1947

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CONTRACTS - OPEN-MARKET PURCHASES WHERE NO BID OFFERING DELIVERY WITHIN THE SPECIFIED TIME WAS RECEIVED IN RESPONSE TO AN INVITATION TO BID SUBMITTED TO SEVEN PROSPECTIVE BIDDERS. SO THAT CANCELLATION OF THE INVITATION AND ISSUANCE OF A PURCHASE ORDER TO THE ONE OF TWO BIDDERS OFFERING THE LOWER PRICE AND SPECIFYING THE EARLIER TIME FOR DELIVERY IS NOT OBJECTIONABLE. A CERTIFYING OFFICER IS NOT REQUIRED TO VERIFY THE CORRECTNESS OF THE CERTIFICATE OF A PURCHASING OR CONTRACTING OFFICER THAT ADVERTISING FOR BIDS WAS NOT REQUIRED IN CONNECTION WITH PURCHASES FROM THE ONLY SOURCE OF SUPPLY. THE PAYMENT VOUCHER SHOULD BE ACCOMPANIED BY A STATEMENT OF FACTS FROM WHICH IT WAS CONCLUDED THAT THE VENDOR WAS THE SOLE SOURCE OF SUPPLY AND A CERTIFICATE BY THE CONTRACTING OFFICER OR THE VENDOR THAT THE PRICES CLAIMED ARE NOT IN EXCESS OF THOSE CHARGED THE GENERAL PUBLIC.

B-67837, AUGUST 11, 1947, 27 COMP. GEN. 73

CONTRACTS - OPEN-MARKET PURCHASES WHERE NO BID OFFERING DELIVERY WITHIN THE SPECIFIED TIME WAS RECEIVED IN RESPONSE TO AN INVITATION TO BID SUBMITTED TO SEVEN PROSPECTIVE BIDDERS, IT MAY BE REGARDED THAT THERE HAS BEEN A SATISFACTORY COMPLIANCE WITH THE REQUIREMENTS FOR ADVERTISING FOR BIDS PRESCRIBED BY SECTION 3709, REVISED STATUTES, AS AMENDED, SO THAT CANCELLATION OF THE INVITATION AND ISSUANCE OF A PURCHASE ORDER TO THE ONE OF TWO BIDDERS OFFERING THE LOWER PRICE AND SPECIFYING THE EARLIER TIME FOR DELIVERY IS NOT OBJECTIONABLE. A CERTIFYING OFFICER IS NOT REQUIRED TO VERIFY THE CORRECTNESS OF THE CERTIFICATE OF A PURCHASING OR CONTRACTING OFFICER THAT ADVERTISING FOR BIDS WAS NOT REQUIRED IN CONNECTION WITH PURCHASES FROM THE ONLY SOURCE OF SUPPLY, PURSUANT TO SECTION 3709, REVISED STATUTES, AS AMENDED; HOWEVER, THE PAYMENT VOUCHER SHOULD BE ACCOMPANIED BY A STATEMENT OF FACTS FROM WHICH IT WAS CONCLUDED THAT THE VENDOR WAS THE SOLE SOURCE OF SUPPLY AND A CERTIFICATE BY THE CONTRACTING OFFICER OR THE VENDOR THAT THE PRICES CLAIMED ARE NOT IN EXCESS OF THOSE CHARGED THE GENERAL PUBLIC. VOUCHERS REPRESENTING OPEN-MARKET PURCHASES NOT IN EXCESS OF $100 MADE PURSUANT TO SECTION 3709, REVISED STATUTES, AS AMENDED, SHOULD BE ACCOMPANIED BY WRITTEN BIDS IF RECEIVED IN RESPONSE TO AN INVITATION TO BID, AND IF THE PURCHASE ORDER WAS BASED ON AN ORAL QUOTATION, A STATEMENT BY THE CONTRACTING OFFICER TO THAT EFFECT SHOULD ACCOMPANY THE VOUCHER; HOWEVER, IF NO ORAL QUOTATION WAS OBTAINED PRIOR TO ISSUANCE OF THE PURCHASE ORDER, THE VOUCHER SHOULD BE ACCOMPANIED BY AN EXPLANATORY STATEMENT AND A CERTIFICATE OF THE CONTRACTING OFFICER OF THE VENDOR THAT THE PRICES CLAIMED ARE NOT IN EXCESS OF THOSE CHARGED THE GENERAL PUBLIC.

COMPTROLLER GENERAL WARREN TO H. W. WEIDNER, DEPARTMENT OF COMMERCE, AUGUST 11, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1947, AS FOLLOWS:

THERE ARE ATTACHED FOR YOUR CONSIDERATION THE FOLLOWING LISTED VOUCHERS COVERING PURCHASE OF SUPPLIES AND MATERIALS CONCERNING WHICH A DECISION IS RESPECTFULLY REQUESTED:

BU. VOL. NO. AMOUNT

7-8595 MOORE BUSINESS FORMS, INC----------------$1,158.72

7-3923 GENERAL ANILINE AND FILM CORP------------ 514.29

7-4452 GENERAL ANILINE AND FILM CORP------------ 570.82

7-5613 RECORDAK CORPORATION----------------------- 234.36

7-13381 LANSTON MONOTYPE MACHINE CO-------------- 53.10

THE PERTINENT FACTS CONCERNING THE TRANSACTIONS ARE AS FOLLOWS:

BU. VOU. NO. 7-8595 IN FAVOR OF THE MOORE BUSINESS FORMS, INC., IN THE AMOUNT OF $1,158.72 COVERS 125,000 SETS OF FORMS FURNISHED THE BUREAU OF CENSUS, DEPARTMENT OF COMMERCE, UNDER PURCHASE ORDER NO. 47 4140-PPP, DATED NOVEMBER 22, 1946. ACCORDING TO THE ORDER, THE METHOD OF PURCHASE WAS " ADVERTISING ( R.S. SEC. 3709).' IN THE ABSENCE OF EVIDENCE OF ADVERTISING THERE WERE FURNISHED BY THE PROCURING OFFICE, UPON REQUEST, BIDS OF MOORE BUSINESS FORMS, INC., AND STANDARD REGISTER COMPANY ON INVITATION TO BID, STANDARD FORM 33 REVISED, NO. 125, ABSTRACT OF BIDS AND AWARD, FORM S-9, AND STATEMENT AND CERTIFICATE OF AWARD, STANDARD FORM 1036 REVISED.

AS EVIDENCED BY THESE DOCUMENTS, INVITATION NO. 125 WAS SUBMITTED TO 7 DEALERS WITH ONLY 2 BIDS BEING RECEIVED. NO BID WAS RECEIVED MEETING THE DELIVERY TIME SPECIFIED AND, FOR THIS REASON, THE INVITATION WAS CANCELLED BY THE CONTRACTING OFFICER WITH THE NOTATION "ORDER 5" FROM MOORE BUSINESS FORMS, INC.' ACCORDING TO THE STATEMENT AND CERTIFICATE OF AWARD, AWARD WAS MADE "AFTER ADVERTISING BY CIRCULAR LETTERS SENT TO 7 DEALERS," AND "WITHOUT ADVERTISING, IT BEING IMPRACTICABLE TO SECURE COMPETITION BECAUSE OF NO BID RECEIVED MEETING TIME OF DELIVERY ECIFIED.'

QUESTION 1. UNDER THE CIRCUMSTANCES OUTLINED, WOULD THE ACTION OF THE CONTRACTING OFFICER IN MAKING AN AWARD AND ISSUING AN ORDER TO THE LOW BIDDER UNDER THE CANCELLED INVITATION LEGALLY REVOKE SUCH CANCELLATION (SEE DECISION 19 C.G. 356), AND THEREBY EFFECT A COMPLIANCE WITH THE REQUIREMENTS FOR ADVERTISING ESTABLISHED BY REVISED STATUTES 3709, AS AMENDED BY PUBLIC LAW 600, SECTION 9, OR MUST THE TRANSACTION BE CONSIDERED AS AN OPEN MARKET PURCHASE SUBJECT TO THE SUBMISSION OF SUPPORTING EVIDENCE WHICH WOULD ESTABLISH EXEMPTION FROM THE REQUIREMENTS OF THE CITED STATUTES?

BU. VOU. NOS. 7-3923 AND 7-4452 IN FAVOR OF THE GENERAL ANILINE AND FILM CORPORATION IN THE TOTAL AMOUNT OF $1,085.11,COVER PHOTOGRAPHIC SUPPLIES FURNISHED UNDER PURCHASE ORDER NO. 47-1473-TS, DATED AUGUST 27, 1946. ACCORDING TO THE PURCHASE ORDER, ONE ITEM OF PHOTOGRAPHIC FILM IN THE AMOUNT OF $12.70 WAS ORDERED UNDER THE GENERAL SCHEDULE OF SUPPLIES. THE METHOD OF PURCHASE FOR THE BALANCE, TOTALING $1,072.21, IS INDICATED AS "OTHER EXEMPTION FROM R.S. SEC. 3709" AND " EXIGENCY.' UPON REQUEST FOR REQUIRED SUPPORTING DOCUMENTS, NAMELY AN AGREEMENT (4 C.G. 14 AND 9 C.G. 387) AND STATEMENT AND CERTIFICATE OF AWARD, STANDARD FORM 1036 REVISED ( GENERAL REGULATIONS NO. 51), THERE WERE FURNISHED APPLICABLE TO THE TRANSACTION MEMORANDUMS FROM R. W. TURNLEY, ADMINISTRATIVE OFFICER, TO MISS KITTY HOGE, PURCHASE AND SUPPLY SECTION, DATED AUGUST 23, 1946 AND SEPTEMBER 9, 1946, AND STANDARD FORM 1936 REVISED INDICATING AN AWARD "WITHOUT ADVERTISING IN ACCORDANCE WITH PUBLIC LAW 600 (2).'

IN A PREVIOUS DECISION, 14 C.G. 875, IT WAS RULED, QUOTING FROM THE SYLLABUS,"AN EMERGENCY JUSTIFYING A FAILURE TO ADVERTISE IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IS A SUDDEN OR UNEXPECTED HAPPENING; AN UNFORESEEN OCCURRENCE OR CONDITION; A PERPLEXING CONTINGENCY OR COMPLICATION OF CIRCUMSTANCES; A SUDDEN OR UNEXPECTED OCCASION FOR ACTION; AN EXIGENCY.' CONSIDERED IN THE LIGHT OF THIS DECISION, THE STATEMENT "THIS ORDER WAS PLACED UNDER AN EXIGENCY, AS IT WAS NECESSARY TO MAKE IMMEDIATE SHIPMENT TO PORT OF EMBARKATION FOR IMMEDIATE RESHIPMENT TO FRANKFURT, GERMANY WHERE THE MATERIAL WAS URGENTLY NEEDED FOR OVERSEAS OPERATION," APPEARING IN THE CONTRACTING OFFICER'S CERTIFICATE ON THE STATEMENT AND CERTIFICATE OF AWARD, WOULD BE A MERE STATEMENT THAT AN EMERGENCY EXISTED AND, AS SUCH, WOULD NOT ESTABLISH THE EMERGENCY AS REQUIRED BY REGULATIONS. IN THE MEMORANDUM FROM R. W. TURNLEY TO MISS HOGE DATED SEPTEMBER 9, 1946, REQUESTING DELIVERY BY AIR EXPRESS, IT IS STATED "IT IS FELT THAT THE ADDITIONAL COST OF USING AIR EXPRESS IS FAR MORE THAN OFFSET BY THE FACT THAT OUR ENTIRE STAFF IN GERMANY WILL BE IDLE IF MATERIALS ARE NOT RECEIVED WITHIN TWO WEEKS.' THERE IS THEREFORE FOR CONSIDERATION THE ADDITIONAL DIFFICULTIES ENCOUNTERED IN FOREIGN OPERATIONS WHICH ARE NOT INVOLVED IN DOMESTIC OPERATIONS.

QUESTION 2. CAN THE FACTS PRESENTED ABOVE, SPECIFICALLY IN VIEW OF THE FOREIGN NATURE OF THE OPERATION, BE CONSIDERED AS ESTABLISHING AN EMERGENCY AS CONTEMPLATED BY PUBLIC LAW 600, SECTION 9 (A) (2/?

IN THE FURTHER CONSIDERATION OF THIS PURCHASE TRANSACTION, ATTENTION IS DIRECTED TO THE FACT THAT THERE HAS NOT BEEN FURNISHED ANY EVIDENCE OF A WRITTEN OR ORAL AGREEMENT REGARDING THE PRICE OF THE MATERIALS ORDERED AND DELIVERED. THE ORDER ITSELF, STATING " THIS CONFIRMS TELEPHONE ORDER OF EVEN DATE TO MR. JACK WARREN," WAS ISSUED IN ESTIMATED AMOUNTS WHICH EVIDENCES FAILURE TO CONSIDER THE PRICE OF MATERIALS WHEN ORDERING FROM THE VENDOR. THIS IS FURTHER SUPPORTED BY THE FACT THAT THE PROCURING OFFICE'S PURCHASE FILE AVAILABLE TO THIS OFFICE CONTAINS NO RECORD OF A QUOTATION. PERTINENT TO THIS MATTER IS THE MEMORANDUM FROM MR. TURNLEY TO THE CONTRACTING OFFICE DATED AUGUST 23, 1946, WHICH STATES " MR. HAROLD HARSH, TO WHOM WE TALKED BY PHONE TODAY, SUGGESTED THAT WE CONTACT THEIR WASHINGTON REPRESENTATIVE FOR WEIGHTS AND PRICES.' IT IS FURTHER NOTED THAT THE ESTIMATED PRICES QUOTED ON THE ORDER ARE IDENTICAL WITH THE ESTIMATED COSTS APPEARING ON THE ATTACHED COPY OF THE REQUISITION FOR MATERIALS, AND THAT, WITH THE EXCEPTION OF THE ITEM DESCRIBED AS " FILM, 35 MM X 100 FEET," THE ESTIMATED PRICES ARE IN EXCESS OF THE ACTUAL PRICES CHARGED BY THE VENDOR.

IN A PREVIOUS DECISION, 22 C.G. 817, IT WAS RULED, QUOTING FROM THE SYLLABUS,"1WHERE, DUE TO THE PRESENT MARKET CONDITIONS AND THE RESULTING RELUCTANCE OR INABILITY OF VENDORS TO COMMIT THEMSELVES TO ANY CONSIDERABLE EXTENT, IT IS IMPRACTICABLE FOR COMMODITIES, SUCH AS SUBSISTENCE SUPPLIES, THIS OFFICE WILL ACCEPT PURCHASE ORDERS BASED UPON ORAL QUOTATIONS AS A SUFFICIENT COMPLIANCE WITH THE CONTRACT FILLING REQUIREMENTS OF SECTION 3743, REVISED STATUTES, PROVIDED THE PURCHASE ORDERS BE ACCOMPANIED BY STANDARD FORM 1036 ( STATEMENT AND CERTIFICATE OF AWARD), OR A SIMILAR CERTIFICATE, SETTING FORTH THE CONDITIONS UNDER WHICH THE PURCHASE WAS MADE, BUT IT IS EXPECTED THAT ADVERTISING WILL BE RESORTED TO EXCEPT WHEN NOT REQUIRED UNDER SECTION 3709, REVISED STATUTES, AND THAT WRITTEN QUOTATIONS WILL BE OBTAINED, WHERE PRACTICABLE.'

QUESTION 3. IN VIEW OF THE CONDITIONS AS OUTLINED AND THE REGULATIONS CITED, WOULD THE VOUCHER SUPPORTED BY A STATEMENT AND CERTIFICATE OF AWARD, STANDARD FORM 1036 REVISED, A COPY OF THE PURCHASE ORDER, AND A CERTIFICATE BY THE CONTRACTING OFFICER OR VENDOR THAT THE PRICES CLAIMED ARE NOT IN EXCESS OF THOSE CHARGED THE GENERAL PUBLIC AT THE TIME PURCHASE WAS MADE, EFFECT COMPLIANCE WITH THE REGULATIONS AND PERMIT LEGAL CERTIFICATION OF THE VOUCHER FOR PAYMENT?

BU. VOU. NO. 7-5613 IN FAVOR OF THE RECORDAK CORPORATION IN THE AMOUNT OF $234.36 COVERS PARTS FOR A 35 MM RECORDAK FILM READER FURNISHED UNDER PURCHASE ORDER NO. 47-3352-TS, DATED OCTOBER 30, 1946. ACCORDING TO THE ORDER, THE PURCHASE WAS EFFECTED IN THE OPEN MARKET UNDER "OTHER EXEMPTION FROM R.S. SEC. 3709.' IN THE ABSENCE OF REQUIRED SUPPORTING DATA, THERE WAS FURNISHED BY THE PROCURING OFFICE STANDARD FORM 1036, REVISED, EVIDENCING PURCHASE " WITHOUT ADVERTISING IN ACCORDANCE WITH PUBLIC LAW 600 (2) (3)," AND INDICATING A CERTIFICATION TO THE EFFECT THAT THE MANUFACTURER WAS THE SOLE SOURCE OF SUPPLY. THERE IS NO CERTIFICATE WITH RESPECT TO THE FACTS WHICH ESTABLISHES AN EMERGENCY. AS IN THE PREVIOUS CASE, THE ORDER INDICATES ESTIMATED AND NOT ACTUAL PRICES. UNLIKE THE PREVIOUS CASE, THE ACTUAL PRICES CHARGED ARE IN EXCESS OF THE ESTIMATED COSTS ON THE ORDER, SPECIFICALLY IN THE CASE OF THE ITEM "MIRROR GLASS, UPPER," WHICH IS ESTIMATED AT $15.00 FOR 12 ON THE ORDER WITH A TOTAL CHARGE OF $172.80 BEING MADE BY THE VENDOR.

AS EXPLAINED BY THE PROCURING OFFICE IN MEMORANDUM FROM GERALD RYAN, ADMINISTRATIVE OFFICER, DATED DECEMBER 19, 1946," THIS IS DUE TO THE FACT THAT THE REQUISITION FROM THE OFFICE OF TECHNICAL SERVICES GAVE THE WRONG CATALOG NUMBERS AND THE CORRECT NUMBERS AND PRICES COULD NOT BE DETERMINED UNTIL THE ORDER REACHED THE FACTORY.' IN THE ABSENCE OF DEFINITE INFORMATION TO THE CONTRARY ON THE BASIS OF THE STATEMENT FURNISHED, IT WOULD APPEAR THAT THE ORDER WAS ISSUED WITHOUT A PREVIOUS AGREEMENT, WHICH ORDER WAS ACCEPTED BY THE VENDOR AND THE MATERIALS DELIVERED.

QUESTION 4. UNDER PUBLIC LAW 600, SECTION 9 (A) (3), TO WHAT EXTENT IS THE CERTIFYING OFFICER RESPONSIBLE FOR CERTIFICATION OF THE CONTRACTING OFFICER'S CERTIFICATE IN VIEW OF THE CONSISTENT RULINGS BY THE COMPTROLLER GENERAL IN 16 C.G. 318 AND 18 C.G. 579 TO THE EFFECT THAT WHETHER A PARTICULAR MANUFACTURER IS ONLY ONE WHO CAN MEET ACTUAL NEEDS OF THE U.S. IS FOR DETERMINATION BY ADVERTISING AND NOT BY CONCLUSIONS OR OPINIONS FORMED OR OBTAINED OTHERWISE BY CONTRACTING OFFICERS?

QUESTION 5. IF THE ANSWER TO QUESTION 3 ABOVE IS IN THE AFFIRMATIVE, WOULD THE SAME SUPPORTING INFORMATION EFFECT COMPLIANCE WITH REGULATIONS AND PERMIT LEGAL CERTIFICATION OF A VOUCHER FOR PAYMENT WHERE THE ACTUAL CHARGES EXCEED THE ESTIMATED COSTS CITED ON THE ORDER?

QUESTION 6. IF THE ANSWER TO QUESTION 4 IS IN NEGATIVE, UNDER THE CIRCUMSTANCES CITED IS THE ACCEPTANCE OF THE ORDER BY THE VENDOR TO BE CONSIDERED AS A BINDING CONTRACT AND PAYMENT CERTIFIED IN AN AMOUNT NOT IN EXCESS OF THE ESTIMATED AMOUNT DESIGNATED BY THE ORDER?

QUESTION 7. WOULD THE DECISIONS REACHED IN CONNECTION WITH QUESTIONS 3, 5 AND 6 ALSO APPLY TO OPEN MARKET PURCHASES UNDER $100 WHERE THE SAME CONDITIONS EXIST?

FOR EXAMPLE, THERE IS ATTACHED BU. VOU. NO. 7-13381 IN FAVOR OF THE LANSTON MONOTYPE MACHINE COMPANY IN THE AMOUNT OF $53.10 COVERING MATERIALS FURNISHED UNDER PURCHASE ORDER NO. 47-5322-PD, DATED JANUARY 7, 1947. ALTHOUGH NO UNIT PRICE IS INDICATED ON THE VENDOR'S BILL, THERE IS SHOWN A TOTAL PRICE OF $52.80 FOR THE MATERIALS WITH AN ADDITIONAL CHARGE OF ?18 FOR TRANSPORTATION AND .12 FOR INSURANCE, WHEREAS THE PURCHASE ORDER INDICATES A TOTAL ESTIMATED PRICE OF $35.20 WITH DELIVERY TERMS F.O.B. DESTINATION. THERE IS NO AVAILABLE EVIDENCE IN THE PURCHASE ORDER FILE OF THE PROCURING OFFICE THAT DEFINITE PRICES WERE OBTAINED, AND FROM ALL INDICATIONS IT WOULD APPEAR THAT THE VENDOR'S FIRST KNOWLEDGE OF THE TRANSACTION WAS THE RECEIPT OF THE PURCHASE ORDER.

IN VIEW OF THE FACT THAT ADDITIONAL VOUCHERS ARE BEING HELD COVERING TRANSACTIONS OF A SIMILAR NATURE, YOUR EARLY DECISION ON THE ABOVE-CITED QUESTIONS WOULD BE APPRECIATED.

WITH RESPECT TO QUESTION 1 CONCERNING BUREAU VOUCHER 7-8595 IN THE AMOUNT OF $1,158.72 STATED IN FAVOR OF MOORE BUSINESS FORMS, INC., IT APPEARS THAT UNDER DATE OF NOVEMBER 13, 1946, THE DEPARTMENT OF COMMERCE ISSUED INVITATION NO. 125--- FOR BIDS TO BE OPENED NOVEMBER 20, 1946--- FOR FURNISHING 125,000 SETS OF PAY JACKETS, F.O.B. SUITLAND, MARYLAND, DELIVERY TO BE COMPLETED JANUARY 15, 1947; THAT TWO BIDS WERE RECEIVED, THE LOWER BID BEING SUBMITTED BY MOORE BUSINESS FORMS, INC., IN THE AMOUNT OF $8.52 PER THOUSAND SETS, TOTAL $1,065, IT AGREEING TO COMPLETE DELIVERY WITHIN 100 CALENDAR DAYS "AFTER OK-D PROOF; " THAT THE HIGHER BIDDER AGREED TO COMPLETE DELIVERY WITHIN 165 DAYS; THAT, ALTHOUGH BOTH BIDS FAILED TO OFFER DELIVERY WITHIN THE TIME SPECIFIED IN THE INVITATION, PURCHASE ORDER NO. 47-4140-PPP WAS ISSUED ON NOVEMBER 22, 1946, DIRECTING MOORE BUSINESS FORMS, INC., TO FURNISH 125,000 SETS AT $8.52 PER THOUSAND SETS, DELIVERY TO BE MADE WITHIN 100 DAYS.

THE TIME OF COMPLETION OF THE CONTRACT GENERALLY IS CONSIDERED A MATERIAL PART OF THE SPECIFICATIONS SO THAT A CHANGE THEREIN BY A BIDDER MAY JUSTIFY THE REJECTION OF HIS BID, 65 A.L.R. 839--847. HOWEVER, WHERE, AS HERE, THE GOVERNMENT DID NOT RECEIVE ANY BID OFFERING DELIVERY WITHIN THE TIME SPECIFIED IN THE INVITATION FOR BIDS AND THE ONLY FEASIBLE ALTERNATIVE WAS TO PLACE THE ORDER FOR THE SUPPLIES WITH THE LOWER BIDDER SPECIFYING THE EARLIER TIME FOR DELIVER, NAMELY, MOORE BUSINESS FORMS, INC., IT WOULD APPEAR THAT THERE HAS BEEN A SATISFACTORY COMPLIANCE WITH THE REQUIREMENTS FOR ADVERTISING PRESCRIBED BY SECTION 3709, REVISED STATUTES, AS AMENDED BY THE ACT OF AUGUST 2, 1946, 60 STAT. 806, 809. HENCE, THE EVIDENCE FURNISHED IN SUPPORT OF BUREAU VOUCHER 7-8595 MAY BE REGARDED AS SUFFICIENT. IN THE CASE OF BUREAU VOUCHERS NOS. 7-3923 AND 7- 4452 IN THE AMOUNTS OF $514.29 AND $570.82, RESPECTIVELY, STATED IN FAVOR OF THE GENERAL ANILINE AND FILM CORPORATION AND COVERING PHOTOGRAPHIC SUPPLIES FURNISHED UNDER PURCHASE ORDER NO. 47-1473-TS DATED AUGUST 27, 1946, YOU STATE THAT THE SAID PURCHASE ORDER INDICATES THAT ONE ITEM OF PHOTOGRAPHIC FILM--- COMMERCIAL ORTHOCHROMATIC, 8 INCHES X 10 INCHES--- IN THE AMOUNT OF $12.90 WAS ORDERED UNDER GENERAL SCHEDULE OF SUPPLIES CONTRACT NO. TPS-75598 AND THAT THE METHOD OF PURCHASE FOR THE BALANCE OF THE ITEMS, TOTALING $1,072.21, IS INDICATED AS "OTHER EXEMPTIONS FROM R.S. SEC. 3709" AND " EXIGENCY.' HOWEVER, AN EXAMINATION OF THE GENERAL SCHEDULE OF SUPPLIES, CLASS 18, PHOTOGRAPHIC EQUIPMENT AND SUPPLIES, FOR THE PERIOD FROM FEBRUARY 1, 1946, TO JANUARY 31, 1947, DISCLOSES THAT A MAJORITY OF THE ITEMS INVOLVED ARE COVERED BY THE SAID GENERAL SCHEDULE OF SUPPLIES CONTRACT NO. TSP-75598 AND HAVE BEEN BILLED AT THE CONTRACTOR'S PRICES THEREUNDER. FOR EXAMPLE, THE FIRST ITEM OF SUPPLIES LISTED ON THE INVOICE SUPPORTING BUREAU VOUCHER 7-3923 IS COVERED BY ITEMS NOS. 18-F- 34530, 18-F-32650 AND 18-P-8586 OF THE GENERAL SCHEDULE OF SUPPLIES AND THE FIRST THREE ITEMS OF SUPPLIES ON BUREAU VOUCHER 7-4452 ARE COVERED BY ITEM NO. 18-P-8586 OF THE GENERAL SCHEDULE OF SUPPLIES. WHILE IT WOULD APPEAR THAT THE REMAINING ITEMS, TOTALING $136.86, WERE PURCHASED IN THE OPEN MARKET--- FOR USE IN CONJUNCTION WITH THE OTHER ITEMS--- BECAUSE OF A REPORTED EMERGENCY, ORDINARILY THE MERE STATEMENT THAT AN EMERGENCY EXISTED MAY NOT BE ACCEPTED AS JUSTIFICATION FOR THE PURCHASE OF SUPPLIES WITHOUT ADVERTISING AS REQUIRED BY SECTION 3709, REVISED STATUTES, AS AMENDED. HOWEVER, CONSIDERING THE FACT THAT ALL THE ITEMS INVOLVED WERE SHIPPED BY AIR EXPRESS RATHER THAN BY BOAT BECAUSE OF THE URGENT NEED FOR THE MATERIALS IN GERMANY, AND THE FURTHER FACT THAT PRACTICALLY ALL THE ITEMS COVERED BY PURCHASE ORDER NO. 47-1473-TS WERE FURNISHED UNDER THE GENERAL SCHEDULE OF SUPPLIES, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT IN THIS PARTICULAR CASE TO PAYMENT FOR SUCH SUPPLIES AS WERE PROCURED WITHOUT ADVERTISING.

WHILE THE PRICES FOR THE VARIOUS ITEMS COVERED BY THE AFORESAID PURCHASE ORDER NO. 47-1473-TS, EXCEPT THE FIRST ITEM THEREON, ARE STATED AS ESTIMATED PRICES AND NO REASON HAS BEEN ASSIGNED FOR FAILING TO SECURE AN ORAL QUOTATION ON THE SEVERAL ITEMS WHICH IN FACT WERE NOT COVERED BY THE GENERAL SCHEDULE OF SUPPLIES CONTRACT, AS POINTED OUT HEREINABOVE, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO A PAYMENT ON THE VOUCHER IN VIEW OF THE REPORTED URGENT NEED FOR THE MATERIALS FOR OVERSEAS OPERATIONS, IF SUPPORTED BY THE PAPERS AND THE STATEMENT REFERRED TO IN QUESTION 3 OF YOUR LETTER.

AS TO THE ITEM OF $234.36 COVERING A PROPOSED PAYMENT TO THE RECORDAK CORPORATION ON BUREAU VOUCHER 7-5613 FOR THE PURCHASE OF PARTS FOR A RECORDAK FILM READER, IT IS STATED THAT THE PURCHASE WAS EFFECTED IN THE OPEN MARKET BY REASON OF THE FACT THAT THE MANUFACTURER WAS THE SOLE SOURCE OF SUPPLY, AND IT IS SO CERTIFIED BY THE CONTRACTING OFFICER ALTHOUGH IT IS NOT STATED HOW IT WAS DETERMINED THAT SUCH WAS THE CASE. UNDER THE PROVISIONS OF SECTION 9 (A) (3) OF THE ACT OF AUGUST 2, 1946 (AMENDING SECTION 3709, REVISED STATUTES), SUPRA, ADVERTISING IN CONNECTION WITH PURCHASES AND CONTRACTS FOR SUPPLIES NEED NOT BE REQUIRED "WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY.' UNDER THE PROVISIONS OF THE SAID ACT, IT IS THE CONTRACTING OFFICER'S RESPONSIBILITY TO DETERMINE WHETHER ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND, WHILE IT MAY NOT BE REGARDED AS THE DUTY OF THE CERTIFYING OFFICER TO VERIFY THE CORRECTNESS OF THE CONTRACTING OFFICER'S CERTIFICATE, THE CERTIFICATE SHOULD BE ACCOMPANIED BY A STATEMENT OF FACTS FROM WHICH IT HAS BEEN CONCLUDED THAT THE VENDOR IS THE SOLE SOURCE OF SUPPLY. COMPARE 18 COMP. GEN. 579. ACCORDINGLY, UPON THE FURNISHING BY THE CONTRACTING OFFICER OF SUCH A STATEMENT OF FACTS IN THIS CASE, AND A CERTIFICATE BY THE CONTRACTING OFFICER OR THE VENDOR THAT THE PRICES CLAIMED ARE NOT IN EXCESS OF THOSE CHARGED THE GENERAL PUBLIC, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT. THIS ANSWER TO YOUR QUESTION 4 WOULD APPEAR TO CONSTITUTE AN ANSWER TO QUESTION 6 ALSO.

WITH RESPECT TO YOUR QUESTIONS 5 AND 7, WHICH APPARENTLY CONCERN VOUCHERS NOW "BEING HELD" BY YOU, YOU ARE ADVISED THAT WHILE UNDER SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, THE CERTIFYING OFFICER IS ENTITLED TO OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON QUESTIONS OF LAW INVOLVED IN PAYMENT ON SPECIFIC VOUCHERS PRESENTED TO HIM FOR CERTIFICATION, SUCH VOUCHERS SHOULD ACCOMPANY THE REQUEST FOR DECISION. 21 COMP. GEN. 1128. UNDER SUCH CIRCUMSTANCES, A DECISION ON THESE QUESTIONS PROPERLY MAY NOT BE RENDERED TO YOU BY THIS OFFICE.

AS TO BUREAU VOUCHER NO. 7-13381 IN THE AMOUNT OF $53.10, STATED IN FAVOR OF THE LANSTON MONOTYPE MACHINE COMPANY, SUBMITTED IN CONNECTION WITH YOUR GENERAL QUESTION 7, IT DOES NOT APPEAR FROM PURCHASE ORDER 47 5322-PD, ATTACHED TO SAID VOUCHER, WHETHER THE SUPPLIES INVOLVED WERE PROCURED AS THE RESULT OF ADVERTISING FOR PROPOSALS THEREFOR, IT BEING NOTED THAT THE SAID PURCHASE ORDER REFERS TO INVITATION NO. 205-334-79 AND ALSO TO THE METHOD OF PROCUREMENT AS " OTHER EXEMPTIONS FROM R.S. SEC. 3709.' PROPOSALS WERE SOLICITED THROUGH ADVERTISING, THE VOUCHER SHOULD BE SUPPORTED BY THE WRITTEN BID OR BIDS RECEIVED IN RESPONSE THERETO. IF THE PURCHASE ORDER WAS BASED ON AN ORAL QUOTATION FROM THE VENDOR, A STATEMENT TO THIS EFFECT BY THE CONTRACTING OFFICER SHOULD ACCOMPANY THE VOUCHER OR, IF NO ORAL QUOTATION WAS OBTAINED, THE VOUCHER SHOULD BE ACCOMPANIED BY A WRITTEN STATEMENT FROM THE CONTRACTING OFFICER SETTING FORTH THE REASON WHY IT WAS IMPOSSIBLE OR IMPRACTICAL TO OBTAIN A QUOTATION PRIOR TO THE ISSUANCE OF SAID PURCHASE ORDER, AND BY A FURTHER CERTIFICATE, EXECUTED BY THE CONTRACTING OFFICER OR THE VENDOR, THAT THE PRICES CLAIMED ARE NOT IN EXCESS OF THOSE CHARGED THE GENERAL PUBLIC.