one that combines two kinds of basic powers.
The office of Comptroller General examines all vouchers and scrutinizes all payments made by Government disbursing officers. In case any payments are found excessive, improvident, or illegal, the accounts of the disbursing officer may be surcharged accordingly. The Comptroller General may also transmit such items to the Department of Justice with a view to bringing judicial proceedings in order to secure refunds from persons to whom erroneous payments have been made. The Comptroller General is not a law officer. He does not render legal opinions. His decisions are binding and conclusive only on the Executive branch of the Government, particularly on disbursing officers.
As a matter of convenience, the Comptroller General may render advance rulings on questions whether certain payments, if made, would or would not be approved by him, 31 U.S.C. § 74, 3d paragraph. Such a course is conductive to fairness and efficiency. While the statute expressly authorizes the Comptroller General to do so, it would seem that even in the absence of an explicit provisions such an activity would impliedly be within his functions. Technically a decision of the Comptroller General upon a question so submitted to him, is not a legal opinion, but a ruling or an announcement that if certain payments were made by disbursing officers in the future, they would be passed or disallowed. The disapproval would be binding and conclusive on the disbursing officer but not upon the person to whom the payment might be made. It would still be open to the latter to contest any claim for refund and interpose any defense that he may have. If the disbursing officer on the basis of the advance ruling of the Comptroller General declines to make a payment, it is open to the claimant to pursue a judicial remedy by way of a suit for money damages either in the Court of Claims or in an appropriate United States District Court, as the case may be.
Applying these principles to the case at bar, the decision of the Comptroller General in this instance is equivalent to an announcement that if the contract were made with the plaintiffs, he would disallow any payments that might be made by any disbursing officer thereunder. As a practical matter, no disbursing officer would make any such payments in the face of this ruling. To be sure, it would still be open to the plaintiffs to bring suit against the United States in the Court of Claims for any amount claimed to be due under the agreement. It was proper and prudent, however, for the Architect of the Capitol, acting under the direction and supervision of the House Office Building Commission, to decline to enter into a contract under such circumstances, because it would be undesirable and inexpedient to take a step that might tie up a large Government building project in litigation. As a matter of fact, in light of the ruling of the Comptroller General the plaintiffs would be buying a lawsuit if the contract were awarded to them.
This Court may not set aside the decision of the Comptroller General, first, because it is not erroneous as a matter of law, but merely refuses to make an exception to a rigid rule; and also, because no justiciable controversy is presented, since theoretically the Comptroller General's ruling is in its legal effect merely an announcement that he would disallow any payments under any contract based on the plaintiff's bid. By ineluctable logic the conclusion inescapably follows that this Court may not interfere and require a reconsideration of the plaintiffs' bid.
In addition, the plaintiffs are confronted with a procedural obstacle. The rule of law requiring Government contracts to be let to the lowest responsible bidder after advertising, has been held to exist solely for the advantage of the Government, rather than for the benefit of prospective bidders. A disappointed bidder has no standing to sue in order to secure an award of the contract to him, Perkins v. Lukens Steel Co., 310 U.S. 113, 126, 60 S. Ct. 869, 84 L. Ed. 1108; Friend v. Lee, 95 U.S.App.D.C. 224, 227, 221 F.2d 96.
The motion of the defendants to dismiss the complaint is granted.
The motion of the plaintiffs for a preliminary injunction is denied.