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time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles or performance of the service. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals.”
By the act approved July 5, 1884, ch. 217 (23 Stat. 107, 109), it is provided:
“All purchases of regular and miscellaneous supplies for the army furnished by the Quartermaster's Department and by the Commissary Department for immediate use shall be made by the officers of such department, under direction of the Secretary of War, at the places nearest the points where they are needed, the conditions of cost and quality being equal: Provided also, That all purchases of said supplies, except in cases of emergency, which must be at once reported to the Secretary of War for his approval, shall be made by contract after public notice of not less than ten days for small amounts for immediate use, and of not less than from thirty to sixty days whenever, in the opinion of the Secretary of War, the circumstances of the case and conditions of the service shall warrant such extension of time. The award in every case shall be made to the lowest responsible bidder for the best and most suitable article, the right being reserved to reject any and all bids.”
By the act of March 2, 1901, ch. 803 (31 Stat. 905), it is provided :
“That hereafter, except in cases of emergency or where it is impracticable to secure competition, the purchase of all supplies for the use of the various departments, and posts of the army and of the branches of the army service shall only be made after advertisement, and shall be purchased where the same can be purchased the cheapest, quality and cost of transportation and the interests of the Government considered; but every open-market emergency purchase made in the manner common among
business men which exceeds in amount two hundred dollars shall be reported for approval to the Secretary of War under such regulations as he may prescribe.”
These provisions were subsequently reenacted in the following statutes:
Act of January 30, 1902, ch. 1328 (32 Stat. 514); act of March 2, 1903 (ib. 936); act of April 23, 1904, ch. 1485 (33 Stat. 268).
By the act of April 10, 1878, ch. 58 (20 Stat. 36), as amended by the act of March 3, 1883, ch. 120 (22 Stat. 487), it was provided:
“That the Secretary of War is hereby authorized to prescribe rules and regulations to be observed in the preparation and submission and opening of bids for contracts under the War Department.
And he may require every bid to be accompanied by a written guarantee, signed by one or more responsible persons, to the effect that he or they undertake that the bidder, if his bid is accepted, will, at such time as may be prescribed by the Secretary of War or the officer authorized to make a contract in the premises, give bond, with good and sufficient sureties, to furnish the supplies proposed or to perform the service required. If after the acceptance of a bid and a notification thereof to the bidder he fails within the time prescribed by the Secretary of War or other duly authorized officer to enter into a contract and furnish a bond with good and sufficient security for the proper fulfillment of its terms, the Secretary or other authorized officer shall proceed to contract with some other person to furnish the supplies or perform the service required, and shall forthwith cause the difference between the amount specified by the bidder in default in the proposal and the amount for which he may have contracted with another party to furnish the supplies or perform the service for the whole period of the proposal to be charged up against the bidder and his guarantor or guarantors, and the sum may be immediately recovered by the United States for the use of the War Department in an action of debt against either or all of such persons.”
In compliance with these statutory enactments, the Army Regulations (June 1, 1908) prescribed, among others:
“Par. 547. Except in rare cases, where the United States elects to exercise the right to reject proposals, awards will be made to the lowest responsible bidder whose proposal for furnishing a proper article is not unreasonable.
"Par. 548. Slight failures on the part of a bidder to comply strictly with the terms of an advertisement should not necessarily lead to the rejection of his bid, but the interests of the Government will be fully considered in making the award."
In considering the matters referred to in your communication, I deem it unnecessary to refer to the acts of Congress regulating purchases for specific purposes; as those amendatory of section 3709, especially the act of June 17, 1910, chapter 213; and those providing for the purchase of horses and medical supplies and printing for the War Department. Nor do I deem it necessary to refer to the statutes regulating the manner of purchases in the other departments of the Government. They are all to the same intent and in furtherance of the same policy.
As was said by Mr. Attorney-General Berrien (2 Op. 259), speaking of a like statute:
"Congress intended * to throw additional guards around this subject; to prevent favoritism, and to give to the United States the benefit of competition between those who were disposed to render the services or furnish the supplies which the Government might require."
These statutory provisions provide a uniform system for the purchase of supplies. They embrace all the requirements to secure that object. They contemplate the advertising for proposals, definite and specific proposals by competitive bidders, a fair and impartial opening and comparison of the bids, and an award by competent authority. The award must be "to the lowest responsible bidder. This responsibility is not confined to pecuniary
' responsibility. A discretionary power, to a certain extent, must be reposed in the authorized officer to judge of the
quality and utility of the article or service offered. The statute says, for the best and most suitable article."
It is also provided that the right is reserved “to reject any and all bids.” This authority can only be exercised in conformity with the obligations imposed by the statute. It is not a right to arbitrarily or capriciously reject any bid. If the bid is excessive, if the bidder is not a responsible person, as if for instance he had previously been in default on other contracts, the right to reject exists. And so, in the statutes of 1901, and those following, providing that the purchase of supplies "shall only be made after advertisement, and shall be purchased where the same can be purchased the cheapest, quality and cost of transportation and the interests of the Government considered," the phrase, "the interests of the Government considered," does not enlarge the authority of the contracting oflicer, but has reference to the cost and adaptability of the supplies for the uses of the Government. Indeed, a literal construction would confine it to the cost of the articles.
The system is defined and restricted by the terms of the statutes. The exceptions to the mode prescribed are only where an emergency exists arising from a public exigency or a shortness of time. To impose other restrictions upon this procedure of purchase or the qualification of bidders or the manner of award, would be to import into the act authorities which can only be established by legislative'act, and are therefore beyond the office of departmental regulation.
The authority to make rules and regulations conferred by the act of 1878 (supra), is to make such administrative regulations as are necessary to carry out the existing law. The right is not given to amend or enlarge the law. To restrict bidders to a certain class, or to exclude a certain class from the right to bid, is not within the provisions of any existing law. If Congress could delegate this power, it certainly has not done so by the statutes herein cited.
The view here expressed is in accord with the conclusion reached by the Attorney-General in an opinion which he transmitted to you on April 19, 1910. The question there considered arose under a joint resolution passed by Congress on June 25, 1906, which provided that the purchase of material and equipment for use in the construction of the Panama Canal should be restricted to articles of domestic production and manufacture, from the lowest responsible bidder, unless the President should in any case deem the bids or tenders thereof to be extortionate or unreasonable; and the Executive Order of January 6, 1908, applying to the Isthmian Canal Commission, which contained the following provision:
“Contracts for the purchase of supplies, involving an estimated expenditure exceeding $10,000, shall be made only after the public advertisement in newspapers of general circulation, and shall be awarded to the lowest responsible bidder, except in case of emergency, when with the approval of the Secretary of War, advertising may be dispensed with.
“In the making of contracts for supplies or construction involving an estimated expenditure of more than $1,000 and less than $10,000, competitive bids shall be secured by invitation or advertisement whenever practicable."
The question was whether under this resolution and executive order, you could disregard a bid because offered by a company which had been adjudicated to be a party to a combination in restraint of trade in violation of the Sherman antitrust act, and the Attorney-General held that a company which had been adjudged to be a party to such combination was not, for that reason, irresponsible, and that therefore such fact could not be considered in determining whether the bid should be accepted or rejected.
The question there presented is identical in principle with the one now propounded by you, and I think the opinion then expressed by the Attorney-General is conclusive of the present question.
As I understand, the Vacuum Oil Company has not been finally adjudged to be a party to a combination in restraint of trade, but that from the decree which was