B-146708, APR. 6, 1962

B-146708, APR. 6, 1962

TO THE NEW YORK SHIPBUILDING CORPORATION:

WE HAVE YOUR LETTER OF FEBRUARY 23, 1962, CONCERNING THE AUTHORITY FOR INCLUDING PARAGRAPH V (F) IN CONTRACT NO. MA-1675, AWARDED TO YOUR FIRM BY THE MARITIME ADMINISTRATION, FOR CONSTRUCTION OF THE NS SAVANNAH. UNDER THE TERMS OF THE PARAGRAPH THE CONTRACTOR AGREES TO GIVE ACCESS TO RECORDS RELATING TO THE CONTRACT TO AUTHORIZED REPRESENTATIVES OF OUR OFFICE.

IN OUR LETTER OF FEBRUARY 1, 1962, WE STATED THAT THE PARAGRAPH IS REQUIRED PURSUANT TO 41 U.S.C. 254 (C) TO BE INCLUDED IN ANY CONTRACT NEGOTIATED PURSUANT TO CERTAIN STATUTES INCLUDING THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252, ET SEQ. WE HAD INDICATED IN EARLIER CORRESPONDENCE THAT THE CONTRACT WAS ENTERED INTO UNDER AUTHORITY OF THE LATTER STATUTE.

YOU NOW CONTEND THAT THE AUTHORITY FOR ENTERING INTO THE CONTRACT IS NOT THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, NOR ANY OF THE OTHER STATUTES CITED IN 41 U.S.C. 254 (C), BUT PUBLIC LAW 848, 84TH CONGRESS, 70 STAT. 731, WHICH CONTAINS NO REQUIREMENT OR AUTHORIZATION FOR THE INCLUSION OF AN ACCESS-TO-RECORDS CLAUSE. ACCORDINGLY, YOU CONCLUDE THAT:

"* * * IT WOULD SEEM APPROPRIATE THAT YOU WITHDRAW YOUR REQUEST FOR ACCESS TO THE DATA SPECIFIED BY YOU AND DISCONTINUE THAT PORTION OF THE AUDIT OF DATA INVOLVING TRANSACTIONS RELATED TO THE CONTRACT WHICH IS CURRENTLY BEING MADE AT OUR OFFICE BY YOUR REPRESENTATIVES.'

PUBLIC LAW 848 IS, AS ITS LANGUAGE CLEARLY STATES, AN APPROPRIATION AUTHORIZATION. ITS CHIEF PURPOSE IS TO AUTHORIZE THE APPROPRIATION OF FUNDS FOR THE PROJECT. IT DOES NOT AUTHORIZE THE NEGOTIATION OF A CONTRACT FOR CONSTRUCTION OF THE SHIP WITHOUT THE PROVISIONS REQUIRED BY THE TERMS OF THE FEDERAL PROPERTY ACT. SEE IN THIS CONNECTION 41 U.S.C. 252 (C) WHICH REQUIRES THAT ALL CONTRACTS BE MADE PURSUANT TO CERTAIN PRESCRIBED PROCEDURES.

IT MAY BE ARGUED THAT THE MARITIME ADMINISTRATION IS AUTHORIZED BY SECTION 207 OF THE MERCHANT MARINE ACT, 1936, AS AMENDED, 46 U.S.C. 1117, TO ENTER INTO CONTRACTS WITHOUT REGARD TO 41 U.S.C. 254 (C). WHETHER, IN FACT, THE ADMINISTRATION USED THAT CONTRACTING AUTHORITY OR THE AUTHORITY IN 41 U.S.C. 252 (A) (2) (WHICH IS AVAILABLE TO ANY EXECUTIVE AGENCY, OTHER THAN THOSE COVERED BY TITLE 10 OF THE U.S.C. TO THE EXTENT OF AUTHORITY DELEGATED BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION) IS NOT SHOWN ON THE FACE OF THE CONTRACT. IN ANY CASE, HOWEVER, WE REGARD THE QUESTION AS ACADEMIC SINCE THE INCLUSION OF THE RECORDS CLAUSE IS CONSISTENT WITH 40 U.S.C. 474 (16) WHICH ENCOURAGES COORDINATION OF THE ADMINISTRATION'S OPERATIONS WITH THE REQUIREMENTS OF THE FEDERAL PROPERTY ACT. THE USE OF THE PROVISION IN QUESTION MUST, THEREFORE, BE REGARDED EITHER AS REQUIRED OR ENCOURAGED BY STATUTE. IN EITHER CASE, THE CLAUSE HAVING ACTUALLY BEEN INCLUDED IN THE CONTRACT, THE PARTIES ARE BOUND BY ITS TERMS.

ACCORDINGLY, WE CANNOT REGARD IT AS APPROPRIATE TO WITHDRAW OUR REQUEST FOR ACCESS TO THE RECORDS SPECIFIED OR TO DISCONTINUE AUDITING THE DATA ALREADY PROVIDED.