A-11388, FEBRUARY 18, 1926, 5 COMP. GEN. 640

A-11388: Feb 18, 1926

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CONTEMPLATES THE USE OF THE REGULAR FORCE OF THE NAVAL ESTABLISHMENT FOR THAT PURPOSE AND IS NOT AVAILABLE FOR THE PAYMENT OF REWARDS OR PRIZES FOR THE BEST TWO DESIGNS OF AMPHIBIOUS LANDING GEARS PREPARED AND SUBMITTED IN A PRIZE COMPETITION BY PERSONS NOT IN THE GOVERNMENT EMPLOY. 1926: I HAVE YOUR LETTER OF SEPTEMBER 30. COPY OF WHICH IS ENCLOSED. THE APPROPRIATION PROPOSED TO BE CHARGED WITH THIS EXPENDITURE IS "AVIATION. " AND IS CONTAINED IN THE FOLLOWING LANGUAGE IN THE NAVAL APPROPRIATION ACT APPROVED FEBRUARY 11. FROM THE ENCLOSED COPY OF THE REQUISITION IT WILL BE NOTED THAT IT IS PROPOSED TO PURCHASE THE DESIGNS DESIRED FROM ENTRANTS IN A COMPETITION TO BE CONDUCTED IN ACCORDANCE WITH THE REQUIREMENTS OF BUREAU OF AERONAUTICS SPECIFICATION NO.

A-11388, FEBRUARY 18, 1926, 5 COMP. GEN. 640

PERSONAL SERVICES - PRIZES FOR AIRPLANE DESIGNS THE APPROPRIATION UNDER THE SUBTITLE "AVIATION, NAVY," FOR CONTINUING EXPERIMENTS AND DEVELOPMENT WORK ON ALL TYPES OF AIRCRAFT, ACT OF FEBRUARY 11, 1925, 43 STAT. 877, CONTEMPLATES THE USE OF THE REGULAR FORCE OF THE NAVAL ESTABLISHMENT FOR THAT PURPOSE AND IS NOT AVAILABLE FOR THE PAYMENT OF REWARDS OR PRIZES FOR THE BEST TWO DESIGNS OF AMPHIBIOUS LANDING GEARS PREPARED AND SUBMITTED IN A PRIZE COMPETITION BY PERSONS NOT IN THE GOVERNMENT EMPLOY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 18, 1926:

I HAVE YOUR LETTER OF SEPTEMBER 30, 1925 (FILE 26983-1810 P) REQUESTING DECISION UPON A QUESTION SUBMITTED AS FOLLOWS:

THE BUREAU OF AERONAUTICS OF THIS DEPARTMENT HAS SUBMITTED A REQUISITION, COPY OF WHICH IS ENCLOSED, TO OBLIGATE FUNDS FOR THE PURCHASE OF TWO DESIGNS FOR AMPHIBIOUS LANDING GEAR SUITABLE FOR APPLICATION TO THE SC TYPE AIRPLANE.

THE APPROPRIATION PROPOSED TO BE CHARGED WITH THIS EXPENDITURE IS "AVIATION, NAVY 1926," AND IS CONTAINED IN THE FOLLOWING LANGUAGE IN THE NAVAL APPROPRIATION ACT APPROVED FEBRUARY 11, 1925 (43 STAT. L. 877, PAMPHLET EDITION), VIZ:

"FOR CONTINUING EXPERIMENTS AND DEVELOPMENT WORK ON ALL TYPES OF AIRCRAFT $1,550,000 * * *.'

FROM THE ENCLOSED COPY OF THE REQUISITION IT WILL BE NOTED THAT IT IS PROPOSED TO PURCHASE THE DESIGNS DESIRED FROM ENTRANTS IN A COMPETITION TO BE CONDUCTED IN ACCORDANCE WITH THE REQUIREMENTS OF BUREAU OF AERONAUTICS SPECIFICATION NO. SD-101 "RULES AND SPECIFICATION FOR DESIGN COMPETITION FOR AMPHIBIOUS LANDING GEAR," AUGUST 1, 1925.

THE AMOUNT SPECIFIED IN THE REQUISITION IS $25,000 AND IT IS CONTEMPLATED UNDER THE RULES, COPY OF WHICH IS ENCLOSED, TO HOLD A COMPETITION FOR THE DESIRED DESIGNS, THE DESIGNS TO BE GIVEN A PRELIMINARY AND FINAL EXAMINATION BY THE BUREAU OF AERONAUTICS AND THOSE THAT ARE ACCEPTED TO BE ARRANGED IN THE ORDER OF MERIT. IN PARAGRAPH 7 OF THE ENCLOSED RULES IT IS STATED THAT:

"THE DEPARTMENT WILL CONTRACT TO PURCHASE THE TWO MOST SUCCESSFUL DESIGNS BASED ON THE ORDER OF MERIT ESTABLISHED IN THE FINAL EXAMINATION AS FOLLOWS: FIRST MERIT $15,000; 2ND MERIT $10,000.'

PRIOR TO APPROVING THE PROPOSED REQUISITION THE DEPARTMENT DEEMS IT ADVISABLE TO SUBMIT A COPY THEREOF FOR YOUR DECISION AS TO WHETHER THE EXPENDITURE IN THE MANNER CONTEMPLATED IS AUTHORIZED BY THE APPROPRIATION ABOVE CITED.

THE PARAGRAPH OF THE APPROPRIATION ACT OF FEBRUARY 11, 1925, 43 STAT. 877, IN WHICH THE APPROPRIATION SOUGHT TO BE USED IS FOUND, CONTAINS THE FOLLOWING:

FOR AVIATION, AS FOLLOWS: FOR NAVIGATIONAL, PHOTOGRAPHIC, AEROLOGICAL, RADIO, AND MISCELLANEOUS EQUIPMENT, INCLUDING REPAIRS THERETO, FOR USE WITH AIRCRAFT BUILT OR BUILDING ON JUNE 30, 1925, $375,000; FOR MAINTENANCE, REPAIR, AND OPERATION OF AIRCRAFT FACTORY, HELIUM PLANT, AIR STATIONS, FLEET ACTIVITIES, TESTING LABORATORIES, AND FOR OVERHAULING OF PLANES, $6,921,625, INCLUDING $300,000 FOR THE EQUIPMENT OF VESSELS WITH CATAPULTS; FOR CONTINUING EXPERIMENTS AND DEVELOPMENT WORK ON ALL TYPES OF AIRCRAFT, $1,550,000; FOR DRAFTING, CLERICAL, INSPECTION, AND MESSENGER SERVICE, $700,000; FOR NEW CONSTRUCTION AND PROCUREMENT OF AIRCRAFT AND EQUIPMENT, $5,243,375; IN ALL, $14,790,000; AND THE MONEY HEREIN SPECIFICALLY APPROPRIATED FOR ,AVIATION" SHALL BE DISBURSED AND ACCOUNTED FOR IN ACCORDANCE WITH EXISTING LAWS AS "AVIATION" AND FOR THAT PURPOSE SHALL CONSTITUTE ONE FUND: PROVIDED, THAT IN ADDITION TO THE AMOUNT HEREIN APPROPRIATED AND SPECIFIED FOR EXPENDITURE FOR NEW CONSTRUCTION AND PROCUREMENT OF AIRCRAFT AND EQUIPMENT, THE SECRETARY OF THE NAVY MAY ENTER INTO CONTRACTS FOR THE PRODUCTION AND PURCHASE OF NEW AIRPLANES AND THEIR EQUIPMENT, SPARE PARTS AND ACCESSORIES, TO AN AMOUNT NOT IN EXCESS OF $4,100,000 * * *.

THE DESIGNS TO BE SUBMITTED EVIDENTLY ARE NOT NOW IN EXISTENCE; NEITHER ARE THEY TO BE PRODUCED UNDER AND IN ACCORDANCE WITH PRESCRIBED GOVERNMENT SPECIFICATIONS. THEREFORE, THE PROPOSED TRANSACTION CAN NOT BE REGARDED AS A PURCHASE OR CONSTRUCTION CONTRACT. AND WHILE IT INVOLVES, PRIMARILY, PERSONAL SERVICES, IT CAN NOT BE REGARDED AS THE EMPLOYMENT OF PERSONAL SERVICES EITHER BY CONTRACT OR APPOINTMENT. REDUCED TO ITS FINAL ANALYSIS, I FAIL TO SEE HOW THE PROPOSITION CAN BE REGARDED AS OTHER THAN THE OFFERING OF A REWARD OR PRIZE FOR THE FIRST AND SECOND BEST DESIGN OR CONCEPTION OF A LANDING GEAR. THE PROPOSITION EVIDENTLY CONTEMPLATES THAT A NUMBER OF PERSONS WILL DEVOTE THEIR TIME, ABILITY, AND EFFORTS TO THE DEVELOPMENT OF A DESIGN AND THAT ONLY TWO OF THE NUMBER WILL RECEIVE ANY COMPENSATION WHATEVER FOR THEIR SERVICES. NATURALLY, UNDER SUCH AN ARRANGEMENT WITH THE ATTENDANT RISK OF RECEIVING NO REWARD WHATEVER, THE AMOUNT OF THE REWARD TO THE SUCCESSFUL CONTESTANTS MAY BE LARGELY IN EXCESS OF THE REASONABLE VALUE OF THE PERSONAL SERVICES OF THE SUCCESSFUL CONTESTANTS FOR THE PERIOD OF TIME ACTUALLY ENGAGED IN PRODUCING THE DESIGN. FURTHERMORE, ONE OR BOTH OF THE TWO DESIGNS PROPOSED TO BE ACQUIRED BY THE GOVERNMENT MAY THEREAFTER PROVE TO BE OF NO USE OR VALUE WHATEVER, EITHER BECAUSE A GEAR CONSTRUCTED IN ACCORDANCE THEREWITH MIGHT BE FOUND IMPRACTICABLE OF PRODUCTION OR OPERATION, OR BECAUSE OF A SUBSEQUENTLY DEVELOPED DESIGN OF SUPERIOR MERIT. THERE IS NO AUTHORITY IN THE APPROPRIATION PROVISIONS CITED "FOR CONTINUING EXPERIMENTS AND DEVELOPMENT WORK ON ALL TYPES OF AIRCRAFT" FOR SUCH A PROCEDURE. THE PROPOSITION THAT OTHERS THAN THE USUAL ADMINISTRATIVE FORCES MAKE DESIGNS IN ITSELF IS DOUBTFUL. IT MAY BE, HAVING REGARD TO THE NATURE OF THE AIRCRAFT INDUSTRY, THAT THE NEED OF THE DEPARTMENT FOR A DESIGN FOR AN AMPHIBIOUS LANDING GEAR CAN BEST BE MET BY OUTSIDE SOURCES, AND IF THE SECRETARY OF THE NAVY SO FINDS, THAT IS TO SAY, THAT NONE WITHIN THE NAVY DEPARTMENT CAN INITIATE, DEVELOP, OR PRODUCE SUCH A DESIGN, THEN THERE WOULD APPEAR NEED TO SUBMIT THE MATTER TO THE CONGRESS SO THAT IT MAY EXPRESS ITS INTENT THEREON, IT APPEARING SUCH AN UNUSUAL PROCEDURE IN THE OBLIGATING OF APPROPRIATED MONEYS. THE PRESENT INTENT OF THE LAW IS THAT THE EXPERIMENT AND DEVELOPMENT WORK IS TO BE PERFORMED BY THE NAVY DEPARTMENT RATHER THAN TO BE ACCOMPLISHED BY THE OFFERING OF REWARD OR PRIZES TO INDUCE OUTSIDE AGENCIES TO DO THE EXPERIMENTING AND DEVELOPING WORK AND SUBMIT THE RESULT OF THEIR EFFORT TO THE NAVY DEPARTMENT FOR ADOPTION IN THE MANNER INDICATED.

ANSWERING YOUR QUESTION SPECIFICALLY, I AM CONSTRAINED TO HOLD THAT THE PROPOSED EXPENDITURE, UNDER THE CIRCUMSTANCES AND CONDITIONS APPEARING, IS NOT AUTHORIZED.