B-83460, FEBRUARY 18, 1949, 28 COMP. GEN. 470

B-83460, FEBRUARY 18, 1949, 28 COMP. GEN. 470

ADVERTISING FOR BIDS - NO USEFUL PURPOSE TO BE SERVED BY ADVERTISING - MATERIALS IN SHORT SUPPLY IN VIEW OF THE PRESENT CONDITION OF THE ALUMINUM CONDUCTOR MARKET, THE REPEATED UNSUCCESSFUL ATTEMPTS BY A GOVERNMENT AGENCY TO OBTAIN SATISFACTORY BIDS FOR SUCH COMMODITY, AND THE ADDITIONAL EXPENSE THE USE OF A SUBSTITUTE--- EVEN IF OBTAINABLE--- WOULD ENTAIL, CONTRACTS MAY BE ENTERED INTO BY NEGOTIATION WITH AN AVAILABLE SUPPLIER FOR THE PROCUREMENT OF ALUMINUM CONDUCTOR WITHOUT REGARD TO THE ADVERTISING AND COMPETITIVE BIDDING REQUIREMENTS OF SECTION 3709, REVISED STATUTES, AS AMENDED, UNTIL SUCH TIME AS MARKET CONDITIONS HAVE IMPROVED TO AN EXTENT THAT COMPLIANCE WITH THE STATUTE AGAIN IS PRACTICABLE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 18, 1949:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1949, REQUESTING A DECISION AS TO WHETHER, UNDER EXISTING CIRCUMSTANCES, THE BUREAU OF RECLAMATION IS AUTHORIZED TO DISPENSE WITH FORMAL ADVERTISING--- AS REQUIRED BY SECTION 3709, REVISED STATUTES, AS AMENDED--- FOR PROPOSALS TO FURNISH ALUMINUM CONDUCTOR TO THE GOVERNMENT AND TO ENTER INTO A CONTRACT WITH THE WISCONSIN ELECTRIC COOPERATIVE, A MEMBER OF THE NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, FOR THE PURCHASE OF SUCH CONDUCTOR.

IT IS STATED IN YOUR LETTER THAT SOME OF THE BUREAU OF RECLAMATION'S IRRIGATION AND POWER SCHEDULES ARE BEING THREATENED SERIOUSLY BY THE INABILITY TO OBTAIN ALUMINUM CONDUCTOR; THAT SUPPLIERS ALREADY UNDER CONTRACT WITH THAT BUREAU HAVE STATED THAT THEY ARE UNABLE TO MEET REQUIRED DELIVERY DATES; THAT RECENT ADVERTISEMENTS HAVE FAILED TO PRODUCE BIDS PROVIDING FOR DELIVERY WITHIN FOUR YEARS; THAT SEVERAL PUMPING AND POWER PLANTS ARE SCHEDULED TO GO INTO OPERATION DURING THE YEARS 1950, 1951, 1952, AND SUBSEQUENT YEARS, AND UNLESS CONDUCTOR IS AVAILABLE FOR COMPLETION OF TRANSMISSION FACILITIES BY THE TIME THE POWER PLANTS ARE READY FOR SERVICE, OPERATION OF THE PLANTS NECESSARILY WILL BE DEFERRED, WITH CONSIDERABLE LOSS OF REVENUE; THAT THE SUBSTITUTION OF COPPER CONDUCTOR, EVEN IF OBTAINABLE, WOULD ENTAIL MUCH MORE EXPENSE, AND NECESSITATE THE REDESIGNING OF STEEL TOWERS AND OTHER FACILITIES FOR TRANSMISSION LINES, AS WELL AS THE DISPOSAL OF SOME TOWERS ALREADY ACQUIRED; AND THAT MANY ATTEMPTS BY THE BUREAU OF RECLAMATION TO FIND ADEQUATE SOURCES OF SUPPLY FOR THE ALUMINUM CONDUCTOR HAVE BEEN UNAVAILING EXCEPT FOR A POSSIBILITY OF PARTICIPATING IN AN UNDERTAKING BY THE WISCONSIN ELECTRIC COOPERATIVE. IT APPEARS THAT THE SAID COOPERATIVE HAS MADE ARRANGEMENTS WITH THE REYNOLDS METAL COMPANY WHEREBY THAT COMPANY WILL EXPAND ITS ALUMINUM PRODUCTION AND FURNISH TO THE WISCONSIN ELECTRIC COOPERATIVE, FOR SALE TO COOPERATIVES AND PUBLIC AGENCIES, FROM 50 TO 75 MILLION POUNDS OF ALUMINUM CONDUCTOR EACH YEAR FOR THE NEXT EIGHT YEARS. IN VIEW OF REPEATED UNSUCCESSFUL ATTEMPTS BY THE BUREAU OF RECLAMATION TO OBTAIN SATISFACTORY BIDS AS TO DELIVERY TIME, AND THE PRESENT CONDITION OF THE ALUMINUM CONDUCTOR MARKET, YOU REQUEST TO BE ADVISED WHETHER THERE IS ANY "OBJECTION TO THE MAKING OF A CONTRACT FOR ALUMINUM CONDUCTOR WITH WISCONSIN ELECTRIC COOPERATIVE WITHOUT ADVERTISING AND COMPETITIVE BIDDING.'

IT CONSISTENTLY HAS BEEN HELD THAT SECTION 3709, REVISED STATUTES, DOES NOT REQUIRE ADVERTISING WHERE ADVERTISING CAN ACCOMPLISH NO USEFUL PURPOSE. 1 COMP. GEN. 748; 5 ID. 963; 7 ID. 282; B-66914, JULY 23, 1947; 17 OP. ATTY. GEN. 84; BID. 385.

UNDER THE CIRCUMSTANCES SET FORTH ABOVE, IT IS APPARENT THAT ADVERTISING WOULD ACCOMPLISH NO USEFUL PURPOSE AND, CONSEQUENTLY, WOULD APPEAR TO RENDER UNNECESSARY COMPLIANCE WITH THE REQUIREMENT OF SECTION 3709, REVISED STATUTES, AS AMENDED.

ACCORDINGLY, YOU ARE ADVISED THAT UNDER EXISTING CONDITIONS THERE APPEARS TO BE NO LEGAL OBJECTION TO THE NEGOTIATION OF CONTRACTS WITH THE WISCONSIN ELECTRIC COOPERATIVE FOR THE PROCUREMENT OF ALUMINUM CONDUCTOR REQUIRED TO FILL THE NEEDS OF THE BUREAU OF RECLAMATION THEREFOR UNTIL SUCH TIME AS MARKET CONDITIONS HAVE IMPROVED TO AN EXTENT THAT COMPETITION MAY BE OBTAINED AND COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IS AGAIN PRACTICABLE.