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ment business upon an equal basis, and that there shall be secured to the United States the benefits which may be expected to flow from free and open competition. See 18 Comp. Gen. 641, 643; ibid., 117, 118; 13 id. 284, 286, and cases cited in those decisions, particularly United States v. Purcell Envelope Co., 249 U. S. 313, 318, where the Supreme Court observed that by compliance with the statute, “the Government is given the benefit of the competition of the market and each bidder is given the chance for a bargain.” See, also, United States v. Brookridge Farm, Inc., 111 F. (20) 461, 463 (C. C. A. 10th, 1940).
Clearly, bidders would not be in free and open competition for Government business upon an equal basis if, after advertising for proposals, the Government should enter into negotiations with one or more bidders with a view towards the awarding of contracts on a basis differing either from the advertisement for proposals or from the submitted competitive bids. 17 Comp. Gen. 554, 558–559. It long has been recognized, therefore, that the purposes of the statute can be effectuated only by the awarding of a contract to the lowest responsible bidder; and that is what the statute requires. O'Brien v. Carney et al., 6 F. Supp. 761, citing Scott v. United States, 44 Ct. Cls. 524; 17 Comp. Gen. 554, supra.
I am not unaware that strict compliance with the applicable statutory requirements may occasion certain difficulties under present conditions. However, such conditions in themselves do not serve to
. abrogate the statute, or to authorize either the administrative or the accounting officers of the Government to dispense with its requirements in their discretion. That no such discretion may be exercised without statutory authority is plainly evidenced by the fact that the Congress itself, in recent months, specifically has authorized the exercise of administrative discretion with respect to advertising for certain procurements. See, for example, the act of June 28, 1940, 54 Stat. 676, authorizing the award of certain contracts by negotiations, and the act of March 5, 1940, 54 Stat. 45, authorizing the Secretary of the Navy or the Secretary of War to make multiple awards for aircraft, aircraft parts, and accessories therefor, under certain circumstar.ces. Also, see 20 Comp. Gen. 194.
I have to advise, therefore, that this office would not be authorized to allow credit for payments under contracts awarded after "competition and negotiation,” unless such a procedure were to be authorized by legislation; and if you deem it necessary that purchase of radiosondes be made in that manner, the matter should be presented to the Congress.
It is not clearly understood, however, why the needs of the Weather Bureau in this instance could not be met by advertising for proposals in the usual manner. Of course, the public interest would require that the contract for radiosondes be awarded only to a responsible bidder, but any reasonable qualifications which bidders might be required to demonstrate to secure the award of a negotiated contract could just as well be required in the advertisement for proposals in contemplation of award upon a truly competitive basis. In this connection, see my decision of June 7, 1941, B-16653, to the Secretary of the Interior, 20 Comp. Gen. 862; 19 id. 523; 16 id. 708; 14 id. 305; ibid. 78.
If as appears from your letter, the primary concern of the Bureau is the possible interruption in deliveries by a single contractor, it is suggested that the consequences of such an event might be obviated by attempting to secure immediately a supply of radiosondes sufficient to guard against that contingency. For example, bids might be requested under one item for supplying all or any part of a specified quantity of radiosondes, sufficient to take care of an exigency that might thereafter arise, within a limited period, and under another item for supplying the remainder of the Government's requirements over the fiscal year. Presumably, such devices are not manufactured extensively, and the securing of a considerable quantity at the outset might
a require the award of more than one contract under the item requiring prompt delivery. However, that procedure would not be objectionable if all bidders were offered an equal opportunity to supply both the immediate and the prospective needs. Also, if during the performance of a contract a fire or other unavoidable cause should render continued performance impossible, procurements necessary to meet such exigency then could be made in the open market without advertising.
RELEASES-GOVERNMENT CLAIMS FOR DAMAGES It is not one of the functions of the Comptroller General of the United States
to execute releases of claims and demands by the Government for damages
arising out of accidents involving Government-owned vehicles. Where there is remitted to the administrative office concerned the full amount
of the Government's damages resulting from an accident involving a Government vehicle, and the execution of a release of all claims and demands by the Government is necessary in order to collect the damages without suit, this office will not object if an officer of the agency concerned should execute such a release, but, if for any reason no administrative officer is willing to execute such a document and the matter may not be adjusted otherwise, the Government's claim should be submitted here for report to the Attorney
General for collection by suit if necessary. Comptroller General Warren to the Secretary of the Interior, July 23, 1941:
I have your letter of July 1, 1941, with its enclosures, relative to a collision between a 1939 Chevrolet sedan delivery car (tags USGS 3550) of the Geological Survey, and a 1936 Chevrolet truck owned by the Rosement Dairy, R. F.D., Columbus, Ga., which is reported to have occurred on March 24, 1941, at the intersection of Twelfth Avenue and Tolbottom Road, Columbus, Ga., and wherein the Government-owned car was damaged.
It is reported that the damage to the Government-owned car has been repaired at a cost of $79.90 and that the Lumberman's Mutual Casualty Co., which carried the insurance on the privately-owned truck, is willing to settle the matter by paying that amount, but that, before doing so, it desires a formal release of all claims and demands for damages arising out of the accident. Your letter encloses a release in a form submitted by the insurance company and you request that it be executed by me and returned to you for delivery to the insurance company upon payment of the amount above mentioned, citing in support of your request a letter of August 16, 1937, of the Acting Comptroller General of the United States, transmitting to you a release executed by him in a case involving a claim for $150 damages to a Government-owned car.
It is my understanding that it has not been the regular practice for this office to execute releases in cases such as involved in the present matter-although it has been done in a few cases such as the one to which you refer—and my view is that it is not one of the functions of the Comptroller General of the United States to execute such releases. If it be necessary in a case such as this that a release be executed in order that the amount of the damages may be collected without suit it should be executed by an officer of the department or establishment which effects the collection. In such a case, where the remittance is in the full amount of the damages as found by the administrative office, as appears to be the case here, there would appear to be no legal basis for this office to raise any objection if the administrative officer receiving the remittance, or any other officer of the establishment concerned, should execute a proper document releasing further liability in the matter. If for any reason, however, no administrative officer is willing to sign such release and the matter may not be adjusted without the execution of such document, the Government's claim in the matter should be submitted here for report to the Attorney General for collection by suit if necessary.
The papers transmitted with your letter are returned herewith.
QUARTERS, ETC., ALLOWANCES—NAVY PERSONNEL ATTACHED TO
VESSEL COMMISSIONED IN ORDINARY
A Navy officer, without dependents, who was attached to a vessel commissioned
in ordinary for duty in connection with its conversion and fitting out, was not on sea duty during the period prior to the full commissioning of the vessel, and consequently, may be paid rental allowance under section 6 of
the act of June 10, 1922, for such period, where he was not furnished
Government quarters either on board ship or on shore. Where there were no quarters or messing facilities for Navy enlisted men during
the period they were assigned to duty in connection with the conversion and fitting out of a vessel commissioned in ordinary, the men may be paid quarters and subsistence allowance for such period at rates prescribed pursuant to section 11 of the act of June 10, 1922, but they are not entitled to such allowances during the passage of the vessel between ports when they
were furnished subsistence by the private contractor delivering the vessel. Assistant Comptroller General Elliott to the Secretary of the Navy, July 24,
1941: There has been received your letter of May 8, 1941, with enclosures, presenting for consideration the following questions:
(a) Whether or not officers, without dependents, ordered to duty in connection with the conversion and fitting out of vessels under orders, copy enclosed, of the type issued to Ensign David D. Long, Jr., DE-O, U. S. Naval Reserve, are entitled to payment of rental allowance for periods intervening between the date the vessel is commissioned in ordinary and the date the vessel is placed in full commission?
(b) Whether or not enlisted men assigned to duty in connection with the conversion and fitting out of the U. S. S. Kilauea, under the conditions set forth in the enclosure, are entitled to subsistence and quarters allowance?
(c) If the answer to (b) is in the affirmative, whether or not the enlisted men concerned in this particular submission are entitled to subsistence and quarters allowance of $1.95 per diem for the period covering passage aboard the U. S. S. Kilauea from Tampa, Fla., date of departure 12:00 noon, March 19, 1941, to Jobile, Ala., date of arrival 7:00 p. m., March 20, 1941?
On February 27, 1941, orders were issued by the Chief of the Bureau of Navigation, via the Commandant, Sixth Naval District, to Ensign David D. Long, Jr., DE-O, U. S. N. R., 2d Division, Organized Reserves, Atlanta, Ga., worded as follows:
References: (a) BuNav dispatch orders 071629, December, 1940; confirmed by Nav-1614-NRP 80005, dated December 16, 1940.
1. When directed by the Commandant, Sixth Naval District, you will consider yourself detached from whaterer duty you may be performing under reference (a). You will proceed to Mobile, Alabama, and on or before March 5, 1941, report to the Supervisor of Shipbuilding, Alabama Drydock and Shipbuilding Company, for active duty in connection with the conversion and fitting out of the U. S. S. Kilauea (ex-Surprise), and on board that vessel when placed in full commission.
2. Pay and allowances under these orders will continue as a charge against appropriation, “Pay, Subsistence and Transportation of Naval Personnel.”
Indorsements on the orders indicate that Ensign Long reported to the Assistant District Material Officer, Alabama Drydock & Shipbuilding Co., Mobile, Ala., on March 5, 1941; that Ensign Long was "detached” March 20, 1941, directed to report on the same day to the Commanding Officer, U. S. S. Kilauea “for duty on board that vessel in ordinary for conversion and on board when placed in full commission” and that he so reported. It further appears from an indorsement on the orders by the Commanding Officer of the U. S. S. Kilauea that there were no Government quarters available for occupancy at the Reserve officer's “station of duty or on board ship.”
It appears that in connection with the conversion and fitting out of the U. S. S. Kilauea, the vessel departed Tampa, Fla., at noon, March 19, 1941, and proceeded to Mobile, Ala., arriving at the dock at Mobile 7 p. m. March 20, 1941. At 7:30 p. m. the same day the vessel was placed in commission in ordinary. Although it is stated that during passage from Tampa to Mobile the personnel which accompanied the vessel, including certain enlisted men of the Navy, were subsisted and furnished lodging by the Tampa Shipbuilding Co., which was under contract with the United States to deliver the vessel at Tampa, Fla., it was reported by the commanding officer in a letter dated April 1, 1941, "that there are no habitable quarters on board nor any facilities or arrangements for messing either officers or men” and that all officers and men attached thereto in connection with its conversion are living ashore and subsisting and boarding at their own expense.
Section 6 of the act of June 10, 1922, as amended by section 2 of the act of May 31, 1924, 43 Stat. 250, provides for payment of rental allowance. The fourth paragraph of the amendment provides:
No rental allowance shall accrue to an officer, having no dependents, while he is on field or sea duty, nor while an officer with or without dependents is assigned as quarters at his permanent station the number of rooms provided by law for an officer of his rank or a less number of rooms in any particular case wherein, in the judgment of competent superior authority of the service concerned, a less number of rooms would be adequate for the occupancy of the officer and his dependents.
Under the terms of Bureau of Navigation orders of February 27, 1941, Ensign Long, when directed by the Commandant, Sixth Naval District, was to proceed and report to the Supervisor of Shipbuilding at the Alabama Dry Dock & Shipbuilding Co. for duty in connection with the conversion and fitting out of the U.S. S. Kilauea, which was essentially a shore duty, and after completion of the fitting out of the vessel and when placed in full commission, on board for duty. The orders of February 27, 1941, are silent as to assignment of the officer on board prior to the placing of the vessel in full commission, but in view of the necessity for safeguarding the vessel and Government material thereon from fire and other possible hazards while being converted and fitted out, it was apparently deemed desirable and necessary during her commission in ordinary that a commanding officer and other personnel be attached thereto. It appears evident, however, that during this period, prior to full commission, the personnel so attached were engaged primarily in the fitting out of the vessel at the Alabama Dry Dock & Shipbuilding Co. and were not on sea duty within the meaning of section 6 of the act of June 10, 1922. Section 11 of the act of June 10, 1922, 42 Stat. 630, provides :
To each enlisted man not furnished quarters or rations in kind there shall be granted, under such regulations as the President may prescribe, an allowance for quarters and subsistence, the value of which shall depend on the conditions under which the duty of the man is being performed, and