B-75028, JUNE 1, 1948, 27 COMP. GEN. 735

B-75028: Jun 1, 1948

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PROVIDED IT BE ADMINISTRATIVELY DETERMINED THAT THE MICROSCOPE PROPOSED TO BE FURNISHED IN CONFORMANCE WITH THE SPECIFICATIONS ACCOMPANYING THE INVITATION IS THE ONLY ONE THAT WILL MEET THE NEEDS OF THE SERVICE. 1948: REFERENCE IS MADE TO YOUR LETTER OF MARCH 31. YOU ARE AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT. IN RESPONSE TO THE INVITATION ONE BID WAS RECEIVED. WHILE THE PRESENTATION OF THE VOUCHER WOULD INDICATE AN ACCEPTANCE BY THE GOVERNMENT OF SAID BID SUCH AN ACCEPTANCE IS NOT INDICATED ON THE CONTRACT FORM. 000 IS ACCOMPANIED BY COPIES OF FOUR STATEMENTS AND/OR MEMORANDUMS AS FOLLOWS: (1) A JUSTIFICATION BY THE ASSISTANT CHIEF. 000 "IS A JUST FIGURE. " (3) A STATEMENT THAT THE ELECTRON MICROSCOPE IN QUESTION IS THE "ONLY ONE OF ITS KIND IN EXISTENCE" AND THAT THE BIDDER.

B-75028, JUNE 1, 1948, 27 COMP. GEN. 735

OFFICERS AND EMPLOYEES - CONTRACTING WITH GOVERNMENT WHERE AN EMPLOYEE SUBMITTED THE ONLY BID IN RESPONSE TO AN INVITATION FOR BIDS SENT TO NINE PROSPECTIVE BIDDERS FOR THE FURNISHING OF AN ELECTRON MICROSCOPE, SUCH BID NEED NOT BE DISREGARDED AS BEING IN CONTRAVENTION OF THE RULE OF PUBLIC POLICY AGAINST THE GOVERNMENT CONTRACTING WITH ITS EMPLOYEES, PROVIDED IT BE ADMINISTRATIVELY DETERMINED THAT THE MICROSCOPE PROPOSED TO BE FURNISHED IN CONFORMANCE WITH THE SPECIFICATIONS ACCOMPANYING THE INVITATION IS THE ONLY ONE THAT WILL MEET THE NEEDS OF THE SERVICE.

ACTING COMPTROLLER GENERAL YATES TO WESLEY H. MILTNER, DEPARTMENT OF COMMERCE, JUNE 1, 1948:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1948, TRANSMITTING A VOUCHER STATED IN FAVOR OF DR. L. L. MARTON IN THE AMOUNT OF $8,000, AND REQUESTING A DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES OUTLINED IN YOUR LETTER AND ACCOMPANYING PAPERS, YOU ARE AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT.

IT APPEARS THAT UNDER DATE OF JANUARY 15, 1948, THE NATIONAL BUREAU OF STANDARDS ADVERTISED FOR BIDS--- TO BE OPENED ON FEBRUARY 2, 1948--- FOR FURNISHING ONE NEW AND ONE USED ELECTRON MICROSCOPE AND ACCESSORIES IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS. IN RESPONSE TO THE INVITATION ONE BID WAS RECEIVED, SUCH BID BEING SUBMITTED BY DR. L. L. MARTON PROPOSING TO FURNISH A USED ELECTRON MICROSCOPE FOR THE SUM OF $8,000. WHILE THE PRESENTATION OF THE VOUCHER WOULD INDICATE AN ACCEPTANCE BY THE GOVERNMENT OF SAID BID SUCH AN ACCEPTANCE IS NOT INDICATED ON THE CONTRACT FORM. THE VOUCHER PROPOSING PAYMENT IN THE AMOUNT OF $8,000 IS ACCOMPANIED BY COPIES OF FOUR STATEMENTS AND/OR MEMORANDUMS AS FOLLOWS: (1) A JUSTIFICATION BY THE ASSISTANT CHIEF, ATOMIC PHYSICS DIVISION, NATIONAL BUREAU OF STANDARDS, FOR THE PURCHASE OF A HORIZONTAL 100 KILOVOLT ELECTRON MICROSCOPE LISTING FOUR DISTINCTIVE FEATURES; (2) A CERTIFICATION BY THE ASSISTANT CHIEF, ATOMIC PHYSICS DIVISION, THAT THE BID OF $8,000 "IS A JUST FIGURE; " (3) A STATEMENT THAT THE ELECTRON MICROSCOPE IN QUESTION IS THE "ONLY ONE OF ITS KIND IN EXISTENCE" AND THAT THE BIDDER, AN EMPLOYEE OF THE BUREAU, MADE THE INSTRUMENT BEFORE HE WAS EMPLOYED BY THE GOVERNMENT AND IS NOW USING IT IN HIS WORK; AND (4) A STATEMENT BY THE BIDDER THAT THE MICROSCOPE IN QUESTION IS OWNED BY HIM.

YOUR DOUBT AS TO THE PROPRIETY OF THE PROPOSED PAYMENT ARISES BY REASON OF THE HOLDING OF THIS OFFICE IN A-58137, NOVEMBER 20, 1934 (14 COMP. GEN. 403), TO THE EFFECT THAT WHERE THE NEEDS OF THE GOVERNMENT REASONABLY CAN BE OTHERWISE SUPPLIED THE UNITED STATES SHOULD NOT CONTRACT WITH ITS OFFICERS OR EMPLOYEES FOR THE REASON THAT SUCH CONTRACTS ARE AGAINST PUBLIC POLICY AND WOULD AFFORD GROUNDS FOR COMPLAINT AS TO ALLEGED FAVORITISM IN THE CONDUCT OF PUBLIC BUSINESS.

CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE NOT PROHIBITED BY STATUTE EXCEPT WHERE AN EMPLOYEE OF THE GOVERNMENT ACTS AS AGENT BOTH FOR THE GOVERNMENT AND THE CONTRACTOR IN THE PARTICULAR TRANSACTION OR WHERE THE SERVICE TO BE RENDERED UNDER THE CONTRACT IS SUCH AS COULD HAVE BEEN REQUIRED OF THE CONTRACTOR IN HIS CAPACITY AS AN EMPLOYEE. 18 U.S.C. 93; 5 ID. 69, 70; 21 COMP. GEN. 705. HOWEVER, AS POINTED OUT IN 14 COMP. GEN. 403, REFERRED TO BY YOU, THIS OFFICE HAS HELD THAT CONTRACTS BETWEEN THE GOVERNMENT AND ITS EMPLOYEES ARE OPEN TO CRITICISM ON THE GROUNDS OF POSSIBLE FAVORITISM OR PREFERENTIAL TREATMENT AND SHOULD NOT BE ENTERED INTO EXCEPT FOR THE MOST COGENT REASONS. ALSO, SEE 5 COMP. GEN. 93; 21 ID. 705; 25 ID. 690.

IN THE INSTANT CASE IT IS INDICATED THAT BIDS FOR FURNISHING AN ELECTRON MICROSCOPE CONFORMING TO THE SPECIFICATIONS ACCOMPANYING THE INVITATIONS WERE SOLICITED FROM NINE PROSPECTIVE BIDDERS AND THE ONLY BID RECEIVED WAS THAT IN THE AMOUNT OF $8,000 SUBMITTED BY DR. MARTON. WHILE THIS FACT IN ITSELF WOULD TEND TO REMOVE ANY SUGGESTION OF POSSIBLE FAVORITISM OR PREFERENTIAL TREATMENT, IT IS NOTED THAT THE ASSISTANT CHIEF, ATOMIC PHYSICS DIVISION, NATIONAL BUREAU OF STANDARDS, IN HIS MEMORANDUM OF FEBRUARY 6, 1948, CERTIFIES THAT THE ELECTRON MICROSCOPE COVERED BY THE CONTRACT INVOLVED IS "THE ONLY ONE OF ITS KIND IN EXISTENCE" WHICH MIGHT SUGGEST THAT THE SPECIFICATIONS WERE SO DRAWN AS TO ELIMINATE COMPETITION. ALSO, IT IS NOTED THAT THE UNDATED STATEMENT OF THE ASSISTANT CHIEF, ATOMIC PHYSICS DIVISION, IN JUSTIFICATION OF THE PURCHASE OF SAID ELECTRON MICROSCOPE DESIGNED FOR RESEARCH PURPOSES, LISTS FOUR DISTINCTIVE FEATURES--- ONE OF WHICH IS STATED TO BE ESSENTIAL--- NOT FOUND ON COMMERCIALLY AVAILABLE INSTRUMENTS. THE DETERMINATION OF THE NEED FOR A PARTICULAR TYPE OF MICROSCOPE IS, OF COURSE, NOT A FUNCTION OF THIS OFFICE, BUT PERSONAL PREFERENCE--- SUCH AS MIGHT BE INFERRED FROM THE FACT THAT THE CONTRACTOR IS USING HIS OWN MICROSCOPE--- IS NOT TO BE CONSIDERED AS THE CONTROLLING ELEMENT IN THE PROCUREMENT THEREOF. COMP. GEN. 579.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES REPORTED IN THE MATTER, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO EXECUTION OF THE CONTRACT AND CERTIFICATION OF THE VOUCHER FOR PAYMENT THEREUNDER IF IT BE ADMINISTRATIVELY DETERMINED THAT A MICROSCOPE CONFORMING TO THE SPECIFICATIONS ACCOMPANYING THE INVITATION IS THE ONLY ONE THAT WILL MEET THE NEEDS OF THE SERVICE AND A STATEMENT TO THIS EFFECT BY THE CONTRACTING OFFICER OR OTHER RESPONSIBLE ADMINISTRATIVE OFFICIAL IS ATTACHED TO THE CONTRACT.