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THE DETERMINATION FACTUALLY WHETHER ARTICLES OFFERED MEET THE SPECIFICATIONS ARE THE PROVINCE OF THE GOVERNMENT ADMINISTRATIVE OFFICERS. THE PROVINCE OF THE GENERAL ACCOUNTING OFFICE BEING TO SEE THAT CONTRACTS INVOLVING EXPENDITURE OF PUBLIC FUNDS ARE LEGALLY MADE. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD BE FARCICAL AND DESTRUCTIVE OF OPEN COMPETITIVE BIDDING IN AWARDING OF CONTRACTS. ARE NOT BINDING ON THE UNITED STATES. THERE IS NO SOUND BASIS FOR THE CONTENTION THAT GOVERNMENT ADMINISTRATIVE OFFICERS MUST AWARD A CONTRACT TO THE LOWEST RESPONSIBLE BIDDER MEETING THE SPECIFICATIONS INSTEAD OF REJECTING ALL BIDS AND READVERTISING WHEN IN THE PUBLIC INTEREST.

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A-89734, JANUARY 8, 1938, 17 COMP. GEN. 554

CONTRACTS - SPECIFICATIONS, PROVINCE OF ACCOUNTING AND ADMINISTRATIVE OFFICERS, ILLEGALITY OF AWARDS, AND REJECTION OF BIDS THE DRAFTING OF PROPER SPECIFICATIONS FOR FAIR COMPETITIVE BIDDING, AND THE DETERMINATION FACTUALLY WHETHER ARTICLES OFFERED MEET THE SPECIFICATIONS ARE THE PROVINCE OF THE GOVERNMENT ADMINISTRATIVE OFFICERS, THE PROVINCE OF THE GENERAL ACCOUNTING OFFICE BEING TO SEE THAT CONTRACTS INVOLVING EXPENDITURE OF PUBLIC FUNDS ARE LEGALLY MADE, INCLUDING OBSERVANCE OF THE LAW RESPECTING COMPETITIVE BIDDING, AND, WHEN NECESSARY TO THAT END, TO DETERMINE AS A MATTER OF LAW THE MEANING AND EFFECT OF THE TERMS AND SPECIFICATIONS USED. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD BE FARCICAL AND DESTRUCTIVE OF OPEN COMPETITIVE BIDDING IN AWARDING OF CONTRACTS, THE STRICT MAINTENANCE OF THE RULE BEING INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY ITS VIOLATION. COMP. GEN. 409, AMPLIFIED, AND 15 COMP. GEN. 107, DISTINGUISHED. UNAUTHORIZED ACTS OF GOVERNMENT AGENTS IN ACCEPTING A BID NOT COMPLYING WITH ADVERTISED SPECIFICATIONS--- A PROCEDURE CONTRARY TO LAW -- ARE NOT BINDING ON THE UNITED STATES. THERE IS NO SOUND BASIS FOR THE CONTENTION THAT GOVERNMENT ADMINISTRATIVE OFFICERS MUST AWARD A CONTRACT TO THE LOWEST RESPONSIBLE BIDDER MEETING THE SPECIFICATIONS INSTEAD OF REJECTING ALL BIDS AND READVERTISING WHEN IN THE PUBLIC INTEREST.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JANUARY 8, 1938:

YOUR LETTER OF NOVEMBER 26, 1937, IN EFFECT REQUESTING RECONSIDERATION OF DECISION OF NOVEMBER 19, 1937, 17 COMP. GEN. 409, IS AS FOLLOWS:

THE COMMISSIONERS ARE IN RECEIPT OF A LETTER FROM THE PRESIDENT OF THE WORTHINGTON-GAMON METER COMPANY, DATED NOVEMBER 23, 1937, AS FOLLOWS:

"WE HAVE RECEIVED A COPY OF THE RULING AS GIVEN BY THE OFFICE OF THE COMPTROLLER GENERAL OF THE UNITED STATES ON CASE A-89734, COVERING THE PROTEST ENTERED BY THE BADGER METER MANUFACTURING COMPANY AGAINST THE CONTRACT AWARDED TO US FOR FURNISHING WATER METERS TO THE DISTRICT OF COLUMBIA.

"WE HAVE REQUESTED THE COMPTROLLER GENERAL'S OFFICE TO RECONSIDER THIS CASE BECAUSE OF ADDITIONAL EVIDENCE WE ARE PREPARED TO SUBMIT. A COPY OF THIS REQUEST FOR RECONSIDERATION IS ATTACHED HEREWITH. IN VIEW OF THE FACT THAT WE NOW HOLD THE AWARD OF THE CONTRACT IN ACCORDANCE WITH YOUR SPECIFICATIONS, AND ALSO STAND READY TO COMPLY WITH THE INTERPRETATION OF THESE SPECIFICATIONS AS RENDERED BY THE COMPTROLLER GENERAL'S OFFICE, AT NO ADDITIONAL COST TO THE DISTRICT, WE EARNESTLY SOLICIT YOUR COOPERATION IN HELPING US GAIN RECONSIDERATION OF THE COMPTROLLER GENERAL'S RULING.'

IN YOUR LETTER OF NOVEMBER 19, 1937, YOU ADVISED THE COMMISSIONERS IN SUBSTANCE THAT ALL BIDS SHOULD BE REJECTED AND NEW BIDS ASKED ON A METER IN WHICH THE SPECIFICATIONS WILL BE ADMINISTRATIVELY CLEARLY STATED SETTING FORTH THE PLACE OF THE WATER ESCAPE HOLE AND THE PREVENTIVE OF TAMPERING; OR THAT THERE BE ACCEPTED THE SECOND LOW BID; AS TO EITHER OF WHICH ACTIONS ADMINISTRATIVELY TAKEN, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT.

THE LOW BIDDER HAS SUBMITTED TO THE COMMISSIONERS THE LOWER PORTION OF A REGISTER BOX, TOGETHER WITH A GUARD WHICH IT PROPOSES TO FURNISH AT NO ADDITIONAL COST TO THE DISTRICT, WHICH IN OUR OPINION, IS EQUAL TO THAT OFFERED BY THE BADGER METER MANUFACTURING COMPANY, AND THE COMMISSIONERS FEEL IT THEIR DUTY TO SUBMIT TO YOU THIS ADDITIONAL EVIDENCE IN VIEW OF YOUR DECISION, 15 COMP. GEN. 107, WHERE IT WAS HELD:

"IT IS INCUMBENT UPON PURCHASING AND CONTRACTING OFFICERS CHARGED WITH THE DUTY AND RESPONSIBILITY OF MAKING SUCH PURCHASES, TO PROTECT THE INTERESTS OF THE UNITED STATES, AND THIS DUTY AND RESPONSIBILITY IS NOT PERFORMED BY MERELY OPENING THE BIDS AND AWARDING CONTRACTS WITHOUT GIVING ANY CONSIDERATION WITH RESPECT TO THE BIDS RECEIVED, EXCEPT TO NOTE THAT A LOW BID OR BIDDER FAILED TO FURNISH SOMETHING THAT WAS REQUIRED THAT DOES NOT AFFECT IN ANY WAY THE PRICE, QUANTITY, OF THE EQUIPMENT TO BE FURNISHED.'

WHILE THE CASE CITED IN YOUR SUBMISSION, HANNA VS. BOARD OF EDUCATION, 30 L.R.A. NS 214, 231, HAS SOME BEARING ON THIS MATTER, IT IS NOT THOUGHT THAT IT IS CONTROLLING AS THE COMMISSIONERS FEEL THAT THE SPECIFICATIONS WERE DEFINITE IN THEIR REQUIREMENTS IN THAT THE LOCATION OF THE ESCAPE HOLE OF NECESSITY MUST BEAR RELATION TO THE REGISTER MECHANISM, AND NOT NECESSARILY THE COMPARTMENT WHICH CONTAINS THE REGISTER MECHANISM. OTHER WORDS, THE LOCATION OF THE HOLE IN THE COMPARTMENT BOX IS ESTABLISHED FIRST BY LOCATING THE REGISTER MECHANISM, THEN PLACING THE HOLE IN SUCH A POSITION THAT IF AN INSTRUMENT WERE INSERTED THROUGH THE WATER ESCAPE HOLE, IT WOULD NOT COME IN CONTACT WITH THE REGISTERING MECHANISM. WE THINK THAT THIS ESTABLISHES THE FACT THAT THE SPECIFICATIONS CLEARLY AFFORDED AN OPPORTUNITY TO ALL BIDDERS ON A DEFINITE BASIS.

THE MANUFACTURER AND DESIGNER OF THE METER BOX NECESSARILY HAVE FIRST TO CONSIDER THE CONSTRUCTION OF THE MECHANISM BEFORE THE HOLE CAN BE LOCATED. CONSEQUENTLY, TO LOCATE THE ESCAPE HOLE WITHOUT REFERENCE TO THE MECHANISM WOULD BE FOLLY. TO SAY THAT THE HOLE SHOULD BE LOCATED EITHER HERE OR THERE WOULD MEAN NOTHING TO THE PROSPECTIVE BIDDER UNLESS HE REDESIGN THE MECHANISM SO AS TO LOCATE THE GEARS IN A POSITION THAT THEY COULD NOT BE REACHED THROUGH THE ESCAPE HOLE.

YOU SUGGEST THAT MERELY PUTTING THE ESCAPE HOLE IN THE REGISTER BOX IN ITSELF WOULD EXPOSE TO TAMPERING THE CHANGE GEARS OR REGISTER MECHANISM, AND THAT MERELY FINDING A PLACE FOR THE ESCAPE HOLE WILL NOT OVERCOME TAMPERING. THAT APPARENTLY IS A CORRECT STATEMENT. HOWEVER, THE CHANGE GEARS OR REGISTER MECHANISM MAY BE PLACED ON THE OPPOSITE SIDE OF THE REGISTER BOX, OR AWAY FROM THE HOLE, AND CONSEQUENTLY MAKE IT MORE DIFFICULT TO REACH WITH AN INSTRUMENT THROUGH THE ESCAPE HOLE, OR WHAT IS COMMONLY CALLED TAMPERING--- NOT DAMAGE. APPARENTLY IT HAS BEEN CONCEDED BY BOTH PARTIES AFFECTED BY THIS CONTROVERSY THAT THE METERS CAN BE TAMPERED WITH. CONSEQUENTLY YOU HAVE CONSIDERED THE MATTER ON THE GROUNDS OF DEGREES WITH WHICH THESE TWO METERS CAN BE DAMAGED THROUGH THE ESCAPE HOLE. IT IS NOT POSSIBLE TO OVERCOME TAMPERING WITH THESE METERS TO THE EXTENT THAT THE MECHANISM CANNOT BE INJURED. ANYTHING BEYOND THAT POINT WOULD BE FOR PROSECUTION UNDER EXISTING LAW FOR THE WILFUL DESTRUCTION OF PUBLIC PROPERTY, OR FOR THE PURPOSE OF OBTAINING FROM THE GOVERNMENT THROUGH THIS FRAUDULENT MANNER A LARGER QUANTITY OF WATER WITHOUT CHARGE THAN THAT REFLECTED BY THE REGISTER.

NO ATTEMPT WAS MADE AT FAVORITISM OR UNFAIRNESS IN THE PREPARATION OF THE SPECIFICATIONS, AND ALL BIDDERS WERE PUT ON NOTICE OF THE REQUIREMENTS IN THIS RESPECT. THERE WAS LEFT TO THEIR INDEPENDENT JUDGMENT, HOWEVER, THE LOCATION OF THE ESCAPE HOLE AS TO ITS RELATIONSHIP WITH THE MECHANISM, AND IN THIS CONNECTION ALL BIDDERS HAVE SUPPLIED SAMPLES INDICATED IN A MANNER SATISFACTORY TO THE DISTRICT OFFICIALS.

IF YOU WILL REFER TO THE SPECIFICATIONS PARAGRAPH ENTITLED: "SAMPLE METERS, INSPECTION AND TESTS," IT WAS INCLUDED FOR THE PURPOSE OF EXAMINING THE METER TO SEE WHETHER IT COMPLIED WITH THE SPECIFICATIONS, AND MOST IMPORTANT, TO SEE THAT IT MET THE TEST REQUIREMENTS SPECIFIED THEREIN. NEITHER THE BID NOR THE LITERATURE SUBMITTED BY THE BADGER METER MANUFACTURING COMPANY INDICATED THAT ANY ADDITIONAL PROTECTIVE DEVICE WOULD BE SUPPLIED TO PREVENT THE MECHANISM FROM BEING DAMAGED THROUGH THE WATER ESCAPE HOLE, NOR DO WE BELIEVE THAT THE SPECIFICATIONS REQUIRE THE FURNISHING OF SUCH AN ADDITIONAL SHIELD. WE BELIEVE, HOWEVER, THAT SINCE THE WORTHINGTON GAMON METER COMPANY HAS AGREED TO SUPPLY A SHIELD, WITHOUT CHARGE, EQUAL TO IF NOT SUPERIOR TO THAT OF THE PROTESTANT, THAT ITS BID OUGHT TO BE CONSIDERED.

UNLESS IT CAN BE CLEARLY SHOWN THAT THE AWARD HAS BEEN ILLEGALLY MADE, THE COMMISSIONERS HAVE NO ALTERNATIVE BUT TO REJECT ALL BIDS, AND THIS WOULD REQUIRE APPROXIMATELY 60 DAYS IN WHICH TO REVISE THE SPECIFICATIONS, AND OBTAIN METERS, THUS DELAYING THE ACTIVITIES OF THE WATER DEPARTMENT ACCORDINGLY.

THE BIDS AND THE SAMPLE PROTECTIVE DEVICE INVOLVED ARE ENCLOSED HEREWITH, AND YOUR EARLY RECONSIDERATION OF THIS MATTER WILL BE APPRECIATED. IT IS REQUESTED THAT THE BIDS AND THE SAMPLE OF THE PROTECTIVE DEVICE BE RETURNED WITH YOUR DECISION IN THE MATTER.

THE WORTHINGTON-GAMON METER CO., THE LOW BIDDER, IN ITS LETTER OF NOVEMBER 23, 1937, TO THIS OFFICE RELATIVE TO THE MATTER, URGES THAT THE ACCEPTANCE OF ITS BID MADE A BINDING CONTRACT; THAT AS A MECHANICAL FACT THE REGISTERING MECHANISM OF THE METER WHICH IT OFFERED CANNOT BE TAMPERED WITH THROUGH THE WATER ESCAPE HOLE EXCEPT BY FORCING THE GEARS OUT OF MESH BY BENDING OR BREAKING THE GEARS OR SHAFTS, AMOUNTING TO WILFUL DESTRUCTION RATHER THAN TAMPERING; BUT THAT NEVERTHELESS IT STANDS READY AT NO EXTRA COST TO ACCEPT THE RESPONSIBILITY OF DESIGNING AND INSERTING IN THE METERS SUCH ADDITIONAL NONFUNCTIONING PART OR PARTS AS WILL BE ACCEPTABLE TO THE WATER DEPARTMENT OF THE DISTRICT OF COLUMBIA TO PROTECT THE GEARS FROM ANY OUTSIDE AGENCY INSERTED THROUGH THE HOLE. IN THIS CONNECTION YOUR LETTER OF NOVEMBER 26, SUPRA, TRANSMITTED A SAMPLE PROTECTIVE DEVICE OR SHIELD WHICH THIS BIDDER NOW PROPOSES TO INSERT IN THE METER PREVIOUSLY OFFERED TO COVER THE WATER ESCAPE HOLE, AND WITH YOUR LETTER OF DECEMBER 29, 1937, YOU TRANSMITTED WHAT IS STATED IN THE ACCOMPANYING COPY OF A LETTER FROM THIS BIDDER TO BE A SKELETON SAMPLE OF THE METER WHICH IT ORIGINALLY OFFERED TO FURNISH, AND WHICH WAS SUBMITTED TO YOU WITH THE REQUEST THAT IT BE TRANSMITTED HERE WITH AN ACCOMPANYING METER WRENCH AND "SHARP POINTED INSTRUMENT WHICH CAN BE FORCED INTO THE WATER ESCAPE HOLE" AND THAT THIS OFFICE BE REQUESTED TO "DO EVERYTHING POSSIBLE IN AN EFFORT TO TAMPER WITH THESE GEARS.' THE WRENCH WAS RECEIVED WITH THE SKELETON SAMPLE BUT THE SHARP POINTED INSTRUMENT REFERRED TO DOES NOT APPEAR TO HAVE BEEN INCLUDED. ALL THE RESPECTIVE ITEMS RECEIVED HERE ARE HEREWITH RETURNED.

THE BADGER METER MANUFACTURING CO., THE SECOND LOW BIDDER, IN A LETTER BRIEF DATED DECEMBER 6, 1937, SUBMITTED BY COUNSEL, URGES THAT IT WAS THE LOWEST RESPONSIBLE BIDDER MEETING THE ADVERTISED SPECIFICATIONS; THAT OTHER BIDS MAY NOT LEGALLY BE AMENDED AFTER OPENING TO CHANGE THIS RESULT; THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAVE NO DISCRETION LEFT TO REJECT ALL BIDS AND READVERTISE THE CONTRACT, AND THAT, ACCORDINGLY, THE CONTRACT IS REQUIRED TO BE AWARDED TO IT.

UPON REVIEW OF THE WHOLE RECORD NOW HERE I FIND NO REASON TO MODIFY THE CONCLUSIONS OF THE PRIOR DECISION IN THE MATTER, NAMELY, (1) THAT ON THE BASIS OF THE ADMINISTRATIVE REPORT AS TO THE POSSIBILITY OF TAMPERING WITH THE CHANGE GEARS BY INSERTING A WIRE OR SLIM SCREW DRIVER THROUGH THE WATER ESCAPE HOLE THE METER OFFERED BY THE LOW BIDDER COULD NOT BE VIEWED LEGALLY AS COMPLYING WITH THE UNQUALIFIED REQUIREMENT OF THE ADVERTISED SPECIFICATIONS THAT THE WATER ESCAPE HOLE "BE SO PLACED THAT THE CHANGE GEARS OR REGISTER MECHANISM CANNOT BE TAMPERED WITH," AND, CONSEQUENTLY, THAT AN AWARD OF THE CONTRACT TO SUCH BIDDER WAS NOT PROPER; AND (2) THAT ON THE BASIS OF SUCH ADMINISTRATIVE REPORT AS TO THE METER OFFERED BY THE SECOND LOW BIDDER THE DESTRUCTIVE ACTS OF DRIVING A SHARP INSTRUMENT THROUGH THE METAL SHIELD COVERING THE WATER ESCAPE HOLE OR USING SUFFICIENT FORCE TO BEND IT ASIDE TO PERMIT INTERFERENCE WITH THE REGISTERING MECHANISM, OR THE PACKING OF THE MECHANISM WITH FOREIGN SUBSTANCES, TRANSCENDED THE ORDINARY MEANING OF THE TERM TAMPERING AND, HENCE, IF OTHERWISE PROPER, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO AN AWARD TO SUCH BIDDER, OR TO A REJECTION OF ALL BIDS AND READVERTISEMENT OF THE SPECIFICATIONS SO AMENDED AS TO SET FORTH DEFINITELY WHAT IS WANTED IN THIS RESPECT TO MEET THE REQUIREMENTS OF THE DISTRICT OF COLUMBIA.

IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. IT IS THE PROVINCE OF THIS OFFICE IN SETTLING ACCOUNTS AND DETERMINING THE AVAILABILITY OF APPROPRIATIONS TO SEE THAT CONTRACTS INVOLVING THE EXPENDITURE OF PUBLIC FUNDS BE LEGALLY MADE, INCLUDING OBSERVANCE OF THE LAW RESPECTING COMPETITIVE BIDDING; AND WHEN NECESSARY TO THAT END, TO DETERMINE AS A MATTER OF LAW THE MEANING AND EFFECT OF THE TERMS AND SPECIFICATIONS USED. IT IS NOT THE PROVINCE OF THIS OFFICE TO TEST THE RESPECTIVE METERS TO ATTEMPT TO DETERMINE AS A MATTER OF FACT WHETHER THIS ONE OR THAT ONE CAN BE TAMPERED WITH. IT IS WITHIN THE PROVINCE OF THIS OFFICE TO DETERMINE THE MEANING OF THE ADVERTISED TERMS SUBMITTED FOR COMPETITION AND TO SAY WHETHER AS A MATTER OF LAW THE FACTS APPEARING BRING ONE OR THE OTHER WITHIN THOSE TERMS. THAT IS TO SAY, UPON THE FACTS AS TAKEN FROM THE ADMINISTRATIVE REPORT AND RECORDS SUBMITTED APPARENTLY CONCEDING THAT THE CHANGE GEARS OF THE ONE METER CAN BE TAMPERED WITH BY THE INSERTION OF A WIRE OR SLIM SCREW DRIVER THROUGH THE WATER ESCAPE HOLE IT MUST BE HELD AS A MATTER OF LAW THAT SUCH A METER DOES NOT COME WITHIN THE ADVERTISED TERM REQUIRING A METER WITH A WATER ESCAPE HOLE SO PLACED THAT THE CHANGE GEARS "CANNOT BE TAMPERED WITH" BUT THAT THE WORD "TAMPERED" AS USED IN THE SPECIFICATIONS, REASONABLY DEFINED, DOES NOT INCLUDE WANTONLY DESTRUCTIVE ACTS AND THEREFORE THE TERM DOES NOT EXCLUDE METERS SO CONSTRUCTED THAT WHILE THE CHANGE GEARS MAY BE REACHED THROUGH THE WATER ESCAPE HOLE THEY MAY BE SO REACHED ONLY BY SUCH DESTRUCTIVE ACTS AS DRIVING THROUGH OR FORCING ASIDE THE METAL SHIELD FIXED BETWEEN THE HOLE AND THE GEARS. YOUR PRESENT LETTER DOES NOT REPORT A DIFFERENT STATE OF FACTS BUT STATES IN THIS RESPECT THAT THE MATTER WAS CONSIDERED HERE "ON THE GROUNDS OF DEGREES WITH WHICH THESE TWO METERS CAN BE DAMAGED THROUGH THE ESCAPE HOLE.' THIS IS SCARCELY ACCURATE. IT WAS A MATTER OF DIFFERENCE IN DEGREE OF THE ACTS REQUIRED TO INTERFERE WITH THE CHANGE GEARS THROUGH THE ESCAPE HOLE, AND THE DIFFERENCE APPEARED SUFFICIENT ON THE RECORD PRESENTED TO WARRANT THE CONCLUSION THAT THE DESTRUCTIVE ACTS REQUIRED IN THE SHIELDED METER WERE SOMETHING MORE AND BEYOND THE USUAL SIGNIFICANCE OF THE TERM "TAMPERED WITH" USED IN THE SPECIFICATIONS. IF, AS A MATTER OF VERIFIABLE FACT, THE CHANGE GEARS AND OPERATION OF THE REGISTERING MECHANISM IN THE METER OFFERED BY THE LOW BIDDER CAN BE INTERFERED WITH THROUGH THE WATER ESCAPE HOLE ONLY BY COMPARABLE DESTRUCTIVE ACTS, IT IS NOT SO SHOWN AND SUCH CONCLUSION WOULD APPEAR CONTRARY TO THE REPORTS AND DATA HERETOFORE SUBMITTED TO THIS OFFICE. WITH RESPECT TO THE OFFER OF THE LOW BIDDER TO EQUIP ITS METERS WITH A GUARD OR SHIELD AT NO ADDITIONAL COST, YOU QUOTE FROM DECISION OF AUGUST 7, 1935, 15 COMP. GEN. 107, TO THE EFFECT THAT IT IS INCUMBENT UPON PURCHASING AND CONTRACTING OFFICERS TO PROTECT THE INTERESTS OF THE UNITED STATES AND THAT THIS DUTY IS NOT PERFORMED BY MERELY OPENING BIDS AND AWARDING CONTRACTS WITHOUT GIVING CONSIDERATION TO THE BIDS RECEIVED EXCEPT TO NOTE THAT A LOW BIDDER FAILED TO FURNISH SOMETHING REQUIRED THAT "DOES NOT AFFECT IN ANY WAY THE PRICE, QUALITY (NOT QUANTITY, AS QUOTED IN YOUR LETTER), ETC., OF THE EQUIPMENT TO BE FURNISHED.' THAT WAS A CASE WHERE IT APPEARED THAT A LOW BID TO FURNISH A PRECISION TRANSIT HAD BEEN SUMMARILY REJECTED BECAUSE THE BIDDER HAD FAILED TO SUBMIT CERTAIN DESCRIPTIVE MATTER WITH ITS BID. IT WAS HELD IN EFFECT THAT THIS DID NOT GO TO THE SUBSTANCE OF THE BID AND THAT THE BIDDER SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO SUPPLY THE MISSING DATA. IT WAS SAID IN THE DECISION:

IT IS TO BE UNDERSTOOD, OF COURSE, THAT THERE WOULD BE NO AUTHORITY TO AWARD A CONTRACT TO A BIDDER NOT OFFERING EQUIPMENT IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS, * * *

AND, ALSO, THAT---

* * * HOWEVER, THE ADVERTISED SPECIFICATIONS ARE CONTROLLING, THAT IS, THE NEEDS OF THE NAVY DEPARTMENT WITH RESPECT TO SURVEYING INSTRUMENTS ARE FOR SETTING FORTH IN THE SPECIFICATIONS. * *

THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056---

* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.

SEE, ALSO, IN THIS CONNECTION 13 OP.ATTY.GEN. 510.

IT MUST BE HELD, ACCORDINGLY, THAT THE CONSUMMATION OF A CONTRACT WITH THE LOW BIDDER ON THE BASIS SUGGESTED THAT IT WILL EQUIP THE METERS WITH AN APPLIANCE NOT OFFERED BY ITS ORIGINAL PROPOSAL AND WHICH IT WOULD NOT HAVE BEEN BOUND TO FURNISH BY THE TERMS OF ITS ORIGINAL PROPOSAL AS GOVERNED BY THE SAMPLE METER THEN SUBMITTED, IS NOT AUTHORIZED. IF IT BE ADMINISTRATIVELY DETERMINED THAT THE NEEDS OF THE DISTRICT OF COLUMBIA WOULD BE BEST SERVED BY METERS SO EQUIPPED, OR, ON THE OTHER HAND, THAT SUCH GUARDS ARE NOT NEEDED TO PROVIDE A SUFFICIENT DEGREE OF PROTECTION FROM TAMPERING, AS IS SAID TO HAVE BEEN THE PAST EXPERIENCE, THEN THE PROPER COURSE IS TO ADVERTISE FOR SUCH METERS ON SPECIFICATIONS SETTING FORTH WHAT IS WANTED IN SUFFICIENT DETAIL SO THAT PROSPECTIVE BIDDERS MAY SUBMIT THEIR PROPOSALS ON AN EQUAL FOOTING, OR TO ACCEPT THE LOWEST RESPONSIBLE BID ACTUALLY MEETING THE SPECIFICATIONS HERETOFORE ADVERTISED. BUT NEITHER RESULT IS PROPERLY TO BE REACHED BY ADVERTISING A RIGID NONTAMPERING SPECIFICATION AND THEN ACCEPTING AN ARTICLE NOT MEETING THAT SPECIFICATION, ON THE BASIS THAT IT MEETS ACTUAL NEEDS, OR BY PERMITTING A BIDDER NOT MEETING SUCH SPECIFICATION TO AMEND ITS PROPOSAL, AFTER THE BIDS ARE OPENED, TO MEET THE RIGID NONTAMPERING REQUIREMENT.

RESPECTING THE LOW BIDDER'S CONTENTION THAT THE ACCEPTANCE OF ITS BID MADE A BINDING CONTRACT, IT NEED ONLY BE STATED THAT UNAUTHORIZED ACTS OF GOVERNMENT AGENTS IN ACCEPTING A BID NOT COMPLYING WITH ADVERTISED SPECIFICATIONS, AND, THEREFORE, CONTRARY TO LAW, MAY NOT BE TAKEN AS BINDING THE GOVERNMENT. SEE SCHNEIDER V. UNITED STATES, 19 CT.CLS. 547; 13 OP.ATTY.GEN. 510; 15 ID. 539. NOR DOES THERE APPEAR ANY SOUND BASIS FOR THE CONTENTION OF THE SECOND LOW BIDDER THAT THE DISTRICT COMMISSIONERS MAY NOT NOW REJECT ALL BIDS AND READVERTISE, BUT ARE BOUND TO AWARD THE CONTRACT TO IT AS THE LOWEST RESPONSIBLE BIDDER MEETING THE SPECIFICATIONS. NOT ONLY DID THE INVITATION FOR BIDS EXPRESSLY STATE A RESERVATION OF THE RIGHT TO REJECT ANY AND ALL PROPOSALS, BUT A REQUEST FOR BIDS OR OFFERS, IRRESPECTIVE OF ANY SUCH RESERVATION, DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, AND CERTAINLY IT CANNOT BE CONCEDED THAT A PUBLIC OFFICER, ACTING FOR THE GENERAL WELFARE, IS BOUND TO ACCEPT A BID, WHERE HE DETERMINES THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND A READVERTISEMENT OF THE CONTRACT ON SPECIFICATIONS STATED TO REFLECT MORE ACCURATELY THE ACTUAL NEEDS TO BE MET, OR, FOR THAT MATTER, THAT DUE TO THE LAPSE OF TIME OR OTHERWISE A MORE ADVANTAGEOUS CONTRACT MIGHT BE OBTAINED. IN THIS CONNECTION THERE MAY BE CITED THE RECENT CASE OF WHITE MOTOR COMPANY V. MORGENTHAU ET ., EQUITY NO. 65974, IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA (NO OPINION FILED), WHICH DENIED PLAINTIFF'S PETITION FOR AN INJUNCTION TO COMPEL THE AWARD TO IT OF A CONTRACT AS THE LOWEST RESPONSIBLE BIDDER BEING APPARENTLY CONTROLLED BY THE PRINCIPLE THAT STATUTES GOVERNING THE LETTING OF PUBLIC CONTRACTS ARE FOR THE PROTECTION OF THE GOVERNMENT AND BIDDERS HAVE NO STANDING IN COURT TO COMPEL ADMINISTRATIVE ACTION THEREUNDER. SEE, ALSO, TO THIS EFFECT O- BRIEN V. CARNEY, 6 FED.SUPP. 761, AND SCOTT V. UNITED STATES, 44 CT.CLS. 524, 527, THAT IN THE MATTER OF ADVERTISING FOR THE LETTING OF CONTRACTS THE AGENTS OF THE GOVERNMENT MUST ACCEPT THE LOWEST OR THE HIGHEST RESPONSIBLE BID "OR REJECT ALL AND READVERTISE.'

ACCORDINGLY, THE CONCLUSIONS OF THE DECISION OF NOVEMBER 19, 1937, IN THE PRESENT MATTER ARE AFFIRMED.

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