B-161038, JUL. 25, 1967

B-161038, JUL. 25, 1967

AGENCY COMPLIANCE DECISION TO PROTESTING BIDDER CONCERNING STATUTORY REQUIREMENT FOR ADMINISTRATIVE COMPLIANCE WITH DECISION B-161038, JULY 10, 1967, 47 COMP. GEN. ----, ADVISING ARMY TO SUSPEND USE OF MILITARY SPECIFICATION FOR TIRE CHAINS INCORPORATING PROPRIETARY COMET SWIVEL HOOK UNTIL OTHER COMPETITIVE HOODS HAVE BEEN TESTED AND EVALUATED. BY VIRTUE OF STATUTORY AUTHORITY, DECISION S ON QUESTIONS RELATING TO EXPENDITURE OF PUBLIC FUNDS ARE CONCLUSIVE UPON EXECUTIVE BRANCH AND SINCE WE HAVE AUTHORITY TO DISALLOW CREDIT IN AN AGENCY'S ACCOUNTS FOR ANY EXPENDITURES MADE IN VIOLATION OF OUR DECISIONS THEY HAVE LONG BEEN RECOGNIZED AND ACCEPTED BY THE HEADS OF THE DEPARTMENTS AND ESTABLISHMENTS.

TO W. GERALD WARREN, ESQUIRE, DICKINSON, WRIGHT, MCKEAN AND CUDLIP, COUNSELLORS AT LAW:

WE REFER TO YOUR LETTER OF JULY 12, 1967, INQUIRING AS TO THE STATUTORY REQUIREMENT FOR ADMINISTRATIVE COMPLIANCE WITH OUR DECISION OF JULY 10, 1967, B-161038, WHEREIN IT IS STATED AT PAGE 13 THAT WE WERE ADVISING THE SECRETARY OF THE ARMY TO SUSPEND FURTHER USE OF THE SUBJECT MILITARY SPECIFICATION FOR TIRE CHAINS INCORPORATING THE PROPRIETARY COMET SWIVEL HOOK UNTIL OTHER COMPETITIVE HOOKS HAVE BEEN TESTED AND EVALUATED.

IN CONSIDERING A PROTEST SUCH AS THAT OF YOUR CLIENT, THE THOMAS COMPANY, AGAINST A GOVERNMENT PROCUREMENT ACTION OUR FUNCTION IS ONLY TO INSURE THAT THE PROCUREMENT IS MADE IN ACCORDANCE WITH THE APPLICABLE LAW, AND REGULATIONS ISSUED PURSUANT THERETO. SUCH RESPONSIBILITY ARISES FROM ONE OF THE PRIMARY DUTIES OF THIS OFFICE (31 U.S.C. 41 ET. SEQ.) WHICH IS TO DETERMINE THE VALIDITY OF ADMINISTRATIVE EXPENDITURES OF PUBLIC FUNDS. WHERE SUCH EXPENDITURES ARE MADE, OR PROPOSED TO BE MADE, PURSUANT TO CONTRACTS OUR DETERMINATION NECESSARILY INVOLVES CONSIDERATION OF ALL FACTORS RELATING TO THE VALIDITY OF SUCH EXECUTED, OR CONTEMPLATED, CONTRACTS. OUR BASIC AUTHORITY TO RENDER DECISIONS TO THE HEADS OF GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS IS CONTAINED IN SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 207, AS AMENDED BY THE BUDGET AND ACCOUNTING ACT, APPROVED JUNE 10, 1921, 42 STAT. 24, 31 U.S.C. 74 (THIRD PARAGRAPH), WHICH PROVIDES:

"DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE GENERAL ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.'

IT HAS BEEN HELD FOR MANY YEARS THAT THE HEAD OF THE PROPER DEPARTMENT OR ESTABLISHMENT MAY APPLY FOR DECISION UPON ANY QUESTION INVOLVED IN A PAYMENT WHICH MAY ARISE IN CONSEQUENCE OF ANY ACTION CONTEMPLATED BY SUCH HEAD OF DEPARTMENT OR ESTABLISHMENT. 4 COMP. DEC. 332. DECISIONS CONSTANTLY ARE BEING RENDERED AT THE REQUEST OF THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS UPON QUESTIONS PROPERLY PRESENTED INCLUDING MANY QUESTIONS OTHER THAN THOSE ARISING IN VOUCHERS WHICH HAVE BEEN PRESENTED FOR PAYMENT.

BY VIRTUE OF STATUTE OUR DECISIONS ON QUESTIONS RELATING TO THE EXPENDITURE OF PUBLIC FUNDS, IRRESPECTIVE OF THE MANNER IN WHICH THE QUESTIONS ARISE, ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND SINCE WE HAVE THE AUTHORITY TO DISALLOW CREDIT IN AN AGENCY'S ACCOUNTS FOR ANY EXPENDITURES MADE IN VIOLATION OF OUR DECISIONS, THEY HAVE LONG BEEN RECOGNIZED AND ACCEPTED BY THE HEADS OF THE VARIOUS DEPARTMENTS AND ESTABLISHMENTS THEREIN. OTHER THAN THE FOREGOING, HOWEVER, WE CAN OFFER NO ASSURANCE AS TO WHAT COURSE OF ACTION MAY BE FOLLOWED BY THE DEPARTMENT OF THE ARMY.

IN ACCORDANCE WITH YOUR REQUEST, THERE IS ENCLOSED A COPY OF OUR LETTER OF JULY 10, 1967, TO THE SECRETARY OF THE ARMY CONCERNING THE MATTER.