B-81702, JANUARY 24, 1949, 28 COMP. GEN. 431

B-81702, JANUARY 24, 1949, 28 COMP. GEN. 431

TRANSPORTATION - HOUSEHOLD EFFECTS - ADVERTISING NECESSITY IN THE LIGHT OF THE PROVISIONS OF SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, DISPENSING WITH THE ADVERTISING FOR BIDS REQUIREMENT WITH RESPECT TO PROCURING BIDS FOR TRANSPORTATION SERVICES, SUCH SERVICES MAY BE PROCURED FROM "ANY AVAILABLE CARRIER" UNDER SECTION 21 OF EXECUTIVE ORDER NO. 9805 WITHOUT ADVERTISING IN CONNECTION WITH THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF TRANSFERRED EMPLOYEES; HOWEVER, THERE IS NOTHING IN SAID ACT OR EXECUTIVE ORDER WHICH PRECLUDES THE USE OF ADVERTISING WHERE ADMINISTRATIVELY SUCH PROCEDURE IS DETERMINED TO BE IN THE BEST INTERESTS OF THE UNITED STATES.

COMPTROLLER GENERAL WARREN TO E. BAGATELL, DEPARTMENT OF COMMERCE, JANUARY 24, 1949:

BY LETTER OF NOVEMBER 15, 1948, THE CIVIL AERONAUTICS ADMINISTRATION FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF NOVEMBER 8, 1948, IN WHICH YOU REQUEST DECISION WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER THEREWITH TRANSMITTED IN FAVOR OF THE CONTINENTAL VAN SERVICE, INC., 1819 BROADWAY, NEW YORK, NEW YORK, IN THE AMOUNT OF $569.85 COVERING PACKING, CRATING, BOXING, AND TRANSPORTATION OF HOUSEHOLD EFFECTS OF ROBERT E. RATHBURN FROM 22 IRVING LANE, NEW HYDE PARK, LONG ISLAND, NEW YORK, TO THE SHIPSIDE IN JERSEY CITY, NEW JERSEY. IT APPEARS THAT THE SERVICES WERE PROCURED BY PURCHASE ORDER OF JUNE 8, 1948, WITHOUT ADVERTISING. YOU APPEAR TO BE IN DOUBT WHETHER THIS PURCHASE ORDER WAS PROPER WITHOUT ADVERTISING UNDER SECTION 3709, REVISED STATUTES, AS AMENDED.

WHILE NEITHER YOUR LETTER NOR THE PAPERS THEREWITH TRANSMITTED ESTABLISH A CHANGE OF STATION, IT WILL BE ASSUMED FOR THE PURPOSE OF THIS CASE THAT THERE WAS A PROPER ORDER TRANSFERRING THE EMPLOYEE'S STATION TO A POST IN A FOREIGN COUNTRY CONTAINING THE REQUISITE AUTHORIZATION FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE, ETC.

SECTION 1 OF THE ADMINISTRATIVE EXPENSE ACT OF AUGUST 2, 1946, 60 STAT. 806, PROVIDES THAT ,UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE" CIVILIAN OFFICERS OR EMPLOYEES MAY BE REIMBURSED FOR THE COST OF TRANSPORTATION OF THEIR HOUSEHOLD EFFECTS UPON TRANSFER FROM ONE STATION TO ANOTHER. IN ACCORDANCE THEREWITH, EXECUTIVE ORDER 9805, NOVEMBER 25, 1946, PROVIDES, WITH RESPECT TO TRANSPORTATION OF HOUSEHOLD EFFECTS TO OR FROM POINTS OUTSIDE OF THE UNITED STATES, AS FOLLOWS:

SEC. 21. MEANS OF SHIPMENT. FOR THE DURATION OF THE PRESENT WAR AND SIX MONTHS THEREAFTER TRANSPORTATION SERVICES, INCLUDING ALLOWANCES SPECIFIED IN SECTIONS 18 AND 19 HEREOF, MAY BE PROCURED BY THE AGENCY CONCERNED FROM ANY AVAILABLE COMMON CARRIER: PROVIDED, HOWEVER, THAT THE EMPLOYEE MAY HAVE HIS EFFECTS MOVED BY SOME MEANS OTHER THAN THAT SELECTED BY THE GOVERNMENT BY PAYING THE DIFFERENCE BETWEEN THE CHARGES UNDER THE MEANS SELECTED BY THE GOVERNMENT AND THE CHARGES BY THE PREFERRED MEANS.

SECTION 3709, REVISED STATUTES, WAS AMENDED BY SECTION 9 OF THE ADMINISTRATIVE EXPENSE ACT, 60 STAT. 809, TO READ AS FOLLOWS:

UNLESS OTHERWISE PROVIDED IN THE APPROPRIATION CONCERNED OR OTHER LAW, PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT MAY BE MADE OR ENTERED INTO ONLY AFTER ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS, EXCEPT (1) WHEN THE AMOUNT INVOLVED IN ANYONE CASE DOES NOT EXCEED $100, (2) WHEN THE PUBLIC EXIGENCIES REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES OR PERFORMANCE OF THE SERVICE, (3) WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY, OR (4) WHEN THE SERVICES ARE REQUIRED TO BE PERFORMED BY THE CONTRACTOR IN PERSON AND ARE (A) OF A TECHNICAL AND PROFESSIONAL NATURE OR (B) UNDER GOVERNMENT SUPERVISION AND PAID FOR ON A TIME BASIS. EXCEPT (1) AS AUTHORIZED BY SECTION 29 OF THE SURPLUS PROPERTY ACT OF 1944 (50 U.S.C. APP. 1638), (2) WHEN OTHERWISE AUTHORIZED BY LAW OR (3) WHEN THE REASONABLE VALUE INVOLVED IN ANY ONE CASE DOES NOT EXCEED $100, SALES AND CONTRACTS OF SALE BY THE GOVERNMENT SHALL BE GOVERNED BY THE REQUIREMENTS OF THIS SECTION FOR ADVERTISING.

THE LANGUAGE OF SECTION 21 OF EXECUTIVE ORDER 9805, SUPRA,"FROM ANY AVAILABLE COMMON CARRIER" IS IDENTICAL WITH THAT FOUND IN SECTION 5 OF EXECUTIVE ORDER 8588 OF NOVEMBER 7, 1940, AS AMENDED BY PART I OF EXECUTIVE ORDER 9587 OF JULY 6, 1945, WHICH LATTER REGULATIONS CONTROLLED THE MOVEMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE UNTIL NOVEMBER 1, 1946. PRIOR TO THE AMENDATORY ORDER OF JULY 6, EXECUTIVE ORDER 8588 PROVIDED THAT " SHIPMENT SHALL BE MADE BY THE MOST ECONOMICAL MEANS" AND SECTION 3709, REVISED STATUTES, WAS APPLICABLE TO SHIPMENTS OF HOUSEHOLD EFFECTS ACCOMPLISHED THEREUNDER. THE PRIMARY PURPOSE OF INCORPORATION OF THE LESS RESTRICTIVE LANGUAGE IN EXECUTIVE ORDER 9587 WAS THE ELIMINATION OF COMPETITION, THUS RELIEVING FEDERAL AGENCIES FROM THE EXPENSE AND DELAY OCCASIONED BY THE NEED FOR DETERMINING THE MOST ECONOMICAL MEANS OF SHIPMENT. THE SAID REVISION AUTOMATICALLY DISPENSED WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IN THE CLASS OF CASES HERE INVOLVED, BY VIRTUE OF THE STATUTORY EXEMPTION IN SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, APPROVED SEPTEMBER 18, 1940, 54 STAT. 954, AS AMENDED BY THE ACT OF DECEMBER 12, 1945, 59 STAT. 606 (49 U.S.C. 65), AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, BUT SUBJECT TO THE PROVISIONS OF SECTIONS 1 (7) AND 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, THE FULL APPLICABLE COMMERCIAL RATES, FARES, OR CHARGES SHALL BE PAID FOR TRANSPORTATION BY ANY COMMON CARRIER SUBJECT TO SUCH ACT OF ANY PERSONS OR PROPERTY FOR THE UNITED STATES, OR ON ITS BEHALF, AND THE RATE DETERMINED BY THE INTERSTATE COMMERCE COMMISSION AS REASONABLE THEREFOR SHALL BE PAID FOR THE TRANSPORTATION BY RAILROAD OF THE UNITED STATES MAIL: PROVIDED, HOWEVER, THAT ANY CARRIER BY RAILROAD AND THE UNITED STATES MAY ENTER INTO CONTRACTS FOR THE TRANSPORTATION OF THE UNITED STATES MAIL FOR LESS THAN SUCH RATE: PROVIDED FURTHER, THAT SECTION 3709, REVISED STATUTES ( U.S.C., 1934 EDITION, TITLE 41 SEC. 5), SHALL NOT HEREAFTER BE CONSTRUED AS REQUIRING ADVERTISING FOR BIDS IN CONNECTION WITH THE PROCUREMENT OF TRANSPORTATION SERVICES WHEN THE SERVICES REQUIRED CAN BE PROCURED FROM ANY COMMON CARRIER LAWFULLY OPERATING IN THE TERRITORY WHERE SUCH SERVICES ARE TO BE PERFORMED. SEE, GENERALLY, 21 COMP. GEN. 510.

IN THE LIGHT OF THE ABOVE, IT IS EVIDENT THAT UNDER SECTION 21 OF EXECUTIVE ORDER 9805 ADVERTISING IS NOT REQUIRED. HOWEVER, IT SHOULD BE BORNE IN MIND THAT NO PROVISION IN EITHER THE ABOVE-MENTIONED ACT OF SEPTEMBER 18, 1940, AS AMENDED, OR IN EXECUTIVE ORDER 9805, AS AMENDED, PRECLUDES THE USE OF ADVERTISING IN CONNECTION WITH THE MOVEMENT OF HOUSEHOLD EFFECTS OF GOVERNMENT EMPLOYEES WHERE ADMINISTRATIVELY SUCH PROCEDURE IS DETERMINED TO BE IN THE BEST INTERESTS OF THE UNITED STATES. SEE, IN THAT CONNECTION, SECTION 22 OF PART I OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, AS AMENDED BY SECTIONS 3 (C) AND 3 (E), TITLE I, OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 900, 901, AND BY THE ACT OF SEPTEMBER 27, 1944, 58 STAT. 751 ( CH. 423), IN EFFECT, AUTHORIZING THE GOVERNMENT TO PROCURE TRANSPORTATION SERVICES BY ADVERTISING FOR BIDS, OR OTHERWISE, AT RATES OR FARES LOWER THAN THE FULL APPLICABLE COMMERCIAL RATES OR FARES.

ACCORDINGLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT, AND NOT IN EXCESS OF APPLICABLE TARIFFS, NOTWITHSTANDING THE LACK OF ADVERTISING.