B-130302, JANUARY 17, 1957, 36 COMP. GEN. 513

B-130302: Jan 17, 1957

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1957: ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF TODAY TO MR. YOUR ATTENTION IS PARTICULARLY DIRECTED TO THIS MATTER. BECAUSE THE RENDERING OF THE DECISION IS TO A CERTAIN EXTENT A DEPARTURE FROM PROCEDURES HERETOFORE ADHERED TO IN THE RENDITION OF ADVANCE DECISIONS. IT HAS FREQUENTLY BEEN SAID THAT THERE IS NO AUTHORITY IN OUR OFFICE FOR THE RENDITION OF ADVANCE DECISIONS EXCEPT AS REQUIRED BY THOSE ACTS. EXCEPTIONS HAVE BEEN MADE IN CERTAIN INSTANCES. GEN. 565 IT WAS STATED THAT QUESTIONS OF ERRORS IN BID ALLEGED BEFORE AWARD MIGHT BE SUBMITTED DIRECTLY BY CONTRACTING OFFICERS. SIMILAR SUBMISSIONS BY CONTRACTING OFFICERS WERE AUTHORIZED OF QUESTIONS OF REFORMATION OF CONTRACTS FOR MUTUAL MISTAKE.

B-130302, JANUARY 17, 1957, 36 COMP. GEN. 513

BIDS - ADVANCE DECISION - SUBMISSION BY CONTRACTING AND PROCUREMENT OFFICERS CONTRACTING AND PROCUREMENT OFFICERS MAY SUBMIT FOR ADVANCE DECISION OF THE COMPTROLLER GENERAL ANY QUESTION WHICH AFFECTS THE AWARD OF PUBLIC CONTRACTS AND WHICH REQUIRES DETERMINATION PRIOR TO AWARD.

TO THE SECRETARY OF THE NAVY, JANUARY 17, 1957:

ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF TODAY TO MR. J. C. SNYDER, A CONTRACTING OFFICER OF THE BUREAU OF SHIPS, IN REPLY TO HIS LETTER OF JANUARY 9, 1957, RELATIVE TO A QUESTION ARISING ON OPENING OF COMPETITIVE BIDS UNDER AN INVITATION OF THE NAVY PURCHASING OFFICE.

YOUR ATTENTION IS PARTICULARLY DIRECTED TO THIS MATTER, BECAUSE THE RENDERING OF THE DECISION IS TO A CERTAIN EXTENT A DEPARTURE FROM PROCEDURES HERETOFORE ADHERED TO IN THE RENDITION OF ADVANCE DECISIONS. AS YOU KNOW, THE PERTINENT STATUTES--- SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 208 (MADE APPLICABLE TO OUR OFFICE BY SECTION 304 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24), 31 U.S.C. 74, AND SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, 31 U.S.C. 82D--- PROVIDE THAT DISBURSING AND CERTIFYING OFFICERS HAVING VOUCHERS BEFORE THEM FOR PAYMENT OR CERTIFICATION, AND THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS HAVING ANY QUESTION INVOLVING PAYMENTS TO BE MADE UNDER THEM, MAY APPLY FOR, AND THE COMPTROLLER GENERAL SHALL RENDER, A DECISION WITH RESPECT THERETO, WHICH SHALL BE BINDING UPON THE AUDIT OF SUCH PAYMENTS.

IT HAS FREQUENTLY BEEN SAID THAT THERE IS NO AUTHORITY IN OUR OFFICE FOR THE RENDITION OF ADVANCE DECISIONS EXCEPT AS REQUIRED BY THOSE ACTS. EXCEPTIONS HAVE BEEN MADE IN CERTAIN INSTANCES, HOWEVER. FOR EXAMPLE, IN 16 COMP. GEN. 565 IT WAS STATED THAT QUESTIONS OF ERRORS IN BID ALLEGED BEFORE AWARD MIGHT BE SUBMITTED DIRECTLY BY CONTRACTING OFFICERS; IN 20 COMP. GEN. 782, SIMILAR SUBMISSIONS BY CONTRACTING OFFICERS WERE AUTHORIZED OF QUESTIONS OF REFORMATION OF CONTRACTS FOR MUTUAL MISTAKE; AND IN NUMEROUS INDIVIDUAL CASES DECISIONS HAVE BEEN RENDERED TO AGENCY HEADS UPON QUESTIONS SUBMITTED BY SUBORDINATE OFFICERS.

IT HAS BECOME INCREASINGLY APPARENT THAT THE NECESSITY FOR PROMPT ACTION IN CONNECTION WITH THE AWARD OF CONTRACTS, AND THE DELAYS INVOLVED IN PROCESSING SUBMISSIONS OF LEGAL QUESTIONS INVOLVED THEREIN THROUGH ESTABLISHED ADMINISTRATIVE CHANNELS FOR SIGNATURE BY THE DEPARTMENT HEADS, HAS IN TOO MANY INSTANCES RESULTED IN AWARDS WHICH WE PROBABLY WOULD NOT HAVE APPROVED, BUT WHICH WE FEEL TO BE NOT SO CLEARLY ILLEGAL AS TO JUSTIFY THEIR CANCELLATION. WE ALSO HAVE OBSERVED A TENDENCY IN SOME PROCURING ACTIVITIES TO MAKE AWARDS OF CONTRACTS IN THE FACE OF ALLEGATIONS OF ERROR WITHOUT RESOLVING THE QUESTIONS INVOLVED, BUT LEAVING THEM TO BE DETERMINED DURING OR AFTER PERFORMANCE OF THE CONTRACT AS CLAIMS FOR ADDITIONAL COMPENSATION. THIS PRACTICE NOT ONLY IS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT ALSO IN SOME CASES RESULTS IN PAYMENTS OF AMOUNTS IN EXCESS OF THOSE WHICH WOULD PROPERLY HAVE BEEN PAYABLE HAD PROPER AWARDS BEEN MADE IN THE FIRST INSTANCE.

FOR THESE REASONS, AND WITH A VIEW TO EXPEDITING AND FACILITATING THE ORDERLY FUNCTIONING OF GOVERNMENT PROCUREMENT PROCESSES, WE HAVE CONCLUDED THAT WE WILL RAISE NO OBJECTIONS TO SUBMISSIONS BY CONTRACTING OFFICERS OR HEADS OF PROCURING ACTIVITIES OF ANY QUESTION AFFECTING THE AWARD OF A PUBLIC CONTRACT WHEN THE PROMPT RESOLUTION OF SUCH QUESTION IS NECESSARY OR DESIRABLE AS A PREREQUISITE TO THE MAKING OF AN AWARD. SUCH SUBMISSIONS SHOULD, OF COURSE, BE ACCOMPANIED BY THE SAME RECORDS, EXHIBITS, AND FACTUAL DATA AS HAVE BEEN PRESENTED IN THE PAST, BUT NO COMMENTS, OPINIONS, OR REPORTS OF INTERMEDIATE OR REVIEWING AUTHORITY WILL BE REQUIRED EXCEPT WHERE THEY ARE NECESSARY TO COMPLETE THE FACTUAL PRESENTATION OR TO REFUTE CONTENTIONS ADVANCED BY INTERESTED PARTIES. IMMEDIATE ATTENTION WILL BE GIVEN TO SUCH MATTERS HERE AND WE BELIEVE THAT IN MOST CASES DECISIONS CAN BE RENDERED IN AMPLE TIME TO PERMIT AWARDS WITHIN THE TIME LIMITS FIXED BY BID INVITATIONS OR THE EXIGENCIES OF THE GOVERNMENT'S NEEDS.

WE DO NOT, OF COURSE, INTEND TO INTERFERE WITH THE ESTABLISHED PROCEDURES OR COMMAND CHANNELS OF YOUR DEPARTMENT OR OF ANY OTHER AGENCY OR SERVICE, AND THIS IS NOT TO BE TAKEN AS AN INVITATION TO CONTRACTING OFFICERS OR OTHER SUBORDINATE OFFICIALS TO IGNORE OR DISREGARD AGENCY RULES AND REGULATIONS TO WHICH THEY ARE SUBJECT. WE ARE HOPEFUL, HOWEVER, THAT TO THE EXTENT SUCH PROCEDURAL REGULATIONS ARE BASED UPON PRIOR REQUIREMENTS OF OUR OFFICE AS TO SUBMISSIONS BY SUBORDINATE OFFICERS, THEY WILL BE REVIEWED AND MODIFIED WITH A VIEW TO THE EXPEDITIOUS HANDLING WHICH IS OUR OBJECTIVE.

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