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the material called for in the bids opened July 25, 1933. contention in this behalf does not appear tenable in view of the law and the facts.

The Agricultural Adjustment Act of May 12, 1933, 48 Stat. 35, provided that when the Secretary of Agriculture determined that rental or benefit payments were to be made with respect to any basic agricultural commodity, he should proclaim such determination, and a processing tax should be in effect with respect to such commodity from the beginning of the marketing year therefor next following the date of such proclamation, and that the beginning of such marketing year should be determined by the Secretary of Agriculture. Section 11 of said act specified cotton and cotton products as among the agricultural products contemplated. The act definitely provided for the levying of the taxes and action by the Secretary of Agriculture to effectuate the law. The bidder was on notice that the processing tax on cotton and cotton products had been provided by Congress and would be effective upon action by the Secretary of Agriculture. The act likewise provided the basis upon which the rate of tax should be determined. It may be said that while the act gave some latitude or discretion to the Secretary of Agriculture, his action in proclaiming and applying the tax to products designated by the act was in large measure ministerial. The proclamation by the Secretary of Agriculture approved by the President on July 14, 1933, levied the tax imposed by the act of May 12, 1933, made it applicable to the product, and fixed the beginning of the marketing year, all as provided in the Agricultural Adjustment Act. The proclamation was complete, was the fulfillment of the law, and constituted constructive notice to the bidder. The fact that the tax was not effective until August 1, 1933, the date fixed by the proclamation as the beginning of the marketing year next succeeding the late of the proclamation, and that such date was after the opening of the bids here involved is not for consideration. The tax was imposed and made applicable to the product prior to the date of the opening. A-57446, September 21, 1934. In view of the manifest purpose and intent of the Agricultural Adjustment Act and the proclamation of the Secretary of Agriculture of July 14, 1933, the contractor was charged with knowledge that the processing tax had been imposed prior to the opening of its bid, and would be in effect on and after August 1, 1933. 14 Comp. Gen. 44. It is to be observed further that the formal contract was not executed until August 9, 1933, 9 days after the tax became effective, yet it makes no stipulation for any payment by the Government of the processing tax.

The records of this office disclose that while payment for the materials covered by the contract was made in October 1933, the item of processing tax shown on the contractor's invoice was at that time deducted and the payment on account of the processing tax was not made until April 1934. There appears no reason why the question was not referred here for determination in advance as to the legality of the proposed payment of the amount covering processing taxes, as should be done in all matters where there is room for doubt as to the legality of an item presented to a disbursing officer for payment.

Upon the law and facts presented, it is clear that the contractor was not entitled to be paid any amount in addition to prices fixed by the contract by reason of processing taxes alleged to have been paid by the contractor, and that your payment of such additional amount was unauthorized. Upon review the disallowance in your accounts must be and is sustained.

(A-59182)

SPECIFICATIONS-RESTRICTIVE CONDITIONS-BIDS

A stipulation in Government specifications for motor trucks as to the particular manner of mounting a spare tire is arbitrary and unnecessary to meet the needs of the United States, the rejection of the lowest bid for failure to meet such a stipulation is unwarranted, and payment under the contract resulting from an award to a higher bidder may not exceed the lowest price bid.

Comptroller General McCarl to the Secretary of the Interior, January 4, 1935: Consideration has been given to your report of December 26, 1934, with inclosures, in response to my letter of December 15, 1934, relative to a protest of General Motors Truck Co. against the terms of specifications U. S. D. I. 8, dated September 5, 1934, for bids to be opened September 11, 1934, for the delivery of a number of trucks and as to the requirement in paragraph D-14 of the specifications that one spare tire and tube on spare rim or wheel should be provided "mounted in left front fender well." You have stated that as the result of the protest, subsequent specifications, including U. S. D. I. 147, dated November 16, 1934, for bids to be opened November 26, 1934, had eliminated such requirement by a provision in paragraph D-14 thereof that when spare tire was specified, one spare wheel or rim was to be furnished with each spare tire "safely and conveniently mounted on suitable carrier and provided with lock and key" with the mounting so arranged that there would be no interference with safe and efficient loading and operation of the truck and no interference with cab door opening nor with the driver's vision.

The matter of arbitrary restrictions in specifications for the purchase of motor trucks was considered at some length in 13 Comp. Gen. 284, 291, and it appears to be obvious that whether a spare tire be mounted in a fender well, as required by the specifications of September 5, 1934, or suitably mounted, according to the commercial practices of the bidder, as stated, in effect, in the specifications of November 16, 1934, is wholly inconsequential insofar as the needs of the United States for these trucks may be concerned. It is not understood why the purchasing officer of the Department of the Interior was permitted to issue the specifications of September 5, 1934, with any such arbitrary restriction on competition, as contained therein with respect to the mounting of the spare tire and which has resulted not only in the protest of the General Motors Truck Co., but in the administrative action taken in awarding the contract to a higher bidder for the delivery of the trucks. This office is unable, on the present record, to conclude that there is any legal justification whatever for charging appropriated moneys with increased amounts under the contract awarded to the International Harvester Co. simply because the spare tires on its trucks were mounted in a fender well, while the spare tires on the trucks offered by the General Motors Truck Co. were mounted, apparently, in exactly the same position, except that there was no fender well in connection with the trucks offered by the General Motors Truck Co.

Accordingly, you are advised that payments under the contract awarded to the International Harvester Co. may not, upon the present record, exceed the lower bid prices submitted by the General Motors Truck Co.

(A-59195)

TRANSPORTATION OF DESERTERS OR STRAGGLERS, UNITED STATES MARINE CORPS, AS STOWAWAYS

Where stragglers or deserters from the U. S. Marine Corps secreted themselves on a Canadian steamship in the port of Honolulu, T. H., and were transported as stowaways to Vancouver, B. C., and from thence delivered by the Canadian immigration authorities under guard to Marine Corps authorities at Seattle, Washington, neither the request of the Marine Corps to direct the men to proceed to Bremerton, Washington, at their own expense, nor the fact that the men were deserters from the Marine Corps imposed any obligation on the United States with respect to the transportation of the men from Honolulu to Vancouver; however, the steamship company may be reimbursed expenses incurred in delivering the men under guard, Vancouver to Seattle, from the appropriation "General Expenses, Marine Corps."

Comptroller General McCarl to the Secretary of the Navy, January 4, 1935: By your second endorsement December 7, 1934, there has been received the request of the Quartermaster, Marine Corps Headquarters, for advance decision as to the authority to pay from the appro

priation "General Expenses, Marine Corps, 1935" the claim of the Canadian Pacific Steamships, Ltd., in the amount of $154.92 as reimbursement for expenses incurred by claimant in connection with transportation from Honolulu, T. H., to Vancouver, B. C., of two enlisted men of the Marine Corps under circumstances set out by the Major General Commandant in first endorsement as follows:

1. The facts in this case appear to be as follows: On October 4 two stowaways were found on the S. S. Empress of Japan, en route from Honolulu to Vancouver, the men being discovered on board without tickets when they attempted to have dinner in the third class dining saloon the first night out. The stowaways turned out to be Privates Dante Mammini, AWOL, and Edward O. Kirby, AWOL, from Marine Barracks, Pearl Harbor.

2. The Empress of Japan notified Honolulu October 5; Pearl Harbor notified the Department of the Pacific; Department of the Pacific asked Headquarters for instructions, and then on October 6, sent the following message to the Empress of Japan:

"It is requested that Privates Edward Odas Kirby and Dante Mammini Marine Corps. reported as towaways on your vessel, be directed to proceed Marine Barracks, Bremerton, Wash., at own expense and report to commanding officer."

3. The ship on October 6 then sent the following message to the Commanding Officer, Marine Barracks, Bremerton :

"Two privates, Marine Corps, Edward Kirby and Dante Mammini, deserters from Honolulu and stowaways, on board here. Have request from Commanding General Department, San Francisco, that these men should proceed Bremerton at own expense. Men without means. Will you arrange transportation and guard from Victoria? We are due there at 7 Tuesday morning."

4. No escort was provided at Victoria, and the men were taken through to the port of Vancouver, where they were turned over to the immigration authorities. The immigration authorities delivered them to the recruiting station, Seattle, October 8.

5. The American consul general at Vancouver now sends in bill of the Canadian Pacific Steamships, Ltd., for transportation of the men from Honolulu to Vancouver, $130; wireless telegrams, $4.92; immigration maintenance, $4.50; and expense of delivery, Vancouver to Seattle, $15.50, a total of $154.92. 6. While the transportation furnished these men was not requested or authorized by the Marine Corps, the steamship company, when it learned the identity of the men, furnished them with accommodations and had them delivered to the Marine Corps. It is considered that for the good name of the Marine Corps the company should be reimbursed.

7. It is requested that these papers be forwarded to the Comptroller General with the request for advance decision before payment is made as to the legality of such payment, and particularly as to the availability of the appropriation "General Expenses, Marine Corps ", in view of the fact that the vessels upon which transportation was furnished were of foreign register.

The transportation of the men was not and, in view of section 601 of the Merchant Marine Act, could not have been authorized by any official of the Marine Corps. Apparently claimant rendered no service with respect to the transportation of these men from Honolulu to Vancouver, other than as stowaways. The request of the Marine Corps to direct the men to proceed to Marine Barracks. Bremerton, Wash., at their own expense, imposed on the United States no obligation with respect to the transportation of the stowaways. It seems the steamship authorities could not have done otherwise than to turn the men over to the immigration authorities

at Vancouver at their own expense. The fact that the stowaways were also deserters from the Marine Corps gives no basis for paying for their passage.

Section 16-19, Marine Corps Manual, authorizes officers of the Marine Corps, in certain circumstances, to furnish deserters or stragglers from the Marine Corps who are without necessary funds transportation to return to their proper station, the cost of which to be deducted from the men's pay.

In the circumstances appearing, upon proper approval by you, items in the claim covering expenses for wireless telegrams, $4.92; immigration maintenance, $4.50; and expenses of delivery of the men under guard, Vancouver to Seattle, $15.50; total $24.92, may be paid under the appropriation "General Expenses, Marine Corps, 1935.” The question submitted is answered accordingly.

(A-59400)

MILEAGE-ARMY OFFICER GRANTED LEAVE WHILE CHANGING

STATION

An Army officer granted leave effective upon the date he was relieved from duty and directed to make a permanent change of station, whose orders while on leave were modified so as to direct the performance of temporary duty at another place and who had not proceeded to his newly assigned permanent station, is entitled to mileage from his old station to his temporary duty station.

Comptroller General McCarl to Major E. C. Morton, United States Army, January 4, 1935:

There has been received your request of December 14, 1934, for decision as to whether you are authorized to make payment on a voucher transmitted therewith in favor of Brig. Gen. Percy P. Bishop, United States Army, in the amount of $80.64 for mileage on account of travel performed October 19 to 21, 1934, from Tiptonville, Tenn., to Washington, D. C. The pertinent orders in the order issued are as follows:

Special Orders No. 218, War Department, dated September 14, 1934:

1. Leave of absence is granted to each of the following-named officers, effective on or about the dates specified:

Colonel Percy P. Bishop, Coast Artillery Corps, twenty-one days, October 2, 1934.

Special Orders No. 234, War Department, dated October 2, 1934: 4. Brigadier General Percy P. Bishop, United States Army, is relieved from further assignment and duty as assistant commandant Coast Artillery School, Fort Monroe, Virginia, is assigned to the 4th Coast Artillery District, Fort

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