A-35645, MARCH 11, 1931, 10 COMP. GEN. 407

A-35645: Mar 11, 1931

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WILL BE BETTER SERVED BY LETTING THE CONCESSION FOR SPEED BOATS AT HAINS POINT IN EAST POTOMAC PARK FOR A PERIOD OF THREE YEARS. AS THERE IS NO STATUTORY REQUIREMENT THAT CONTRACTS OR LEASES FOR THE OPERATION OF SUCH CONCESSIONS BE CONFINED TO THE FISCAL YEAR AS IN THE CASE OF CONTRACTS CALLING FOR PAYMENTS FROM APPROPRIATED FUNDS. ONLY ONE BID WAS RECEIVED. IT IS DESIRED TO STATE THAT THE POTOMAC SPEED BOAT CORPORATION WAS GRANTED A 1- YEAR CONCESSION "P.B.P. WAS FORCED TO DISCONTINUE OPERATIONS ON OCTOBER 31. THE INITIAL CAPITAL OUTLAY INVOLVED IS EVIDENTLY TOO LARGE TO JUSTIFY A CONCESSION FOR A TERM OF ONE YEAR. AS ONLY ONE BID WAS RECEIVED AND THAT BEING FOR A 3-YEAR TERM. YOUR OFFICE SUBSEQUENTLY HOLD SUCH ACTION IS NOT LEGAL.

A-35645, MARCH 11, 1931, 10 COMP. GEN. 407

CONTRACTS - FISCAL YEAR - CONCESSIONS SHOULD IT BE DETERMINED AS AN ADMINISTRATIVE POLICY THAT THE INTERESTS OF THE GOVERNMENT, AS WELL AS THE GENERAL PUBLIC, WILL BE BETTER SERVED BY LETTING THE CONCESSION FOR SPEED BOATS AT HAINS POINT IN EAST POTOMAC PARK FOR A PERIOD OF THREE YEARS, SUCH LETTING WOULD BE PERMISSIBLE, AFTER PROPER ADVERTISING, ON THAT BASIS, AS THERE IS NO STATUTORY REQUIREMENT THAT CONTRACTS OR LEASES FOR THE OPERATION OF SUCH CONCESSIONS BE CONFINED TO THE FISCAL YEAR AS IN THE CASE OF CONTRACTS CALLING FOR PAYMENTS FROM APPROPRIATED FUNDS.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL MARCH 11, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 2, 1931, AS FOLLOWS:

UNDER DATE OF FEBRUARY 18, 1931, THIS OFFICE SENT OUT PROPOSALS INVITING BIDS FOR OPERATING, IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS, A SPEED BOAT CONCESSION AT HAINS POINT IN EAST POTOMAC PARK, THIS CITY. ONLY ONE BID WAS RECEIVED, AS FOLLOWS: CHART

MAIN BID ALTERNATIVE ALTERNATIVE

BID "A" BID "B" DOWN TOWN PARKING GARAGE, INC., WASHINGTON, D.C.--------- ---------- NO BID----- NO BID----- $3,001.00

IN CONNECTION WITH THE DECISION REQUESTED IN THIS COMMUNICATION, IT IS DESIRED TO STATE THAT THE POTOMAC SPEED BOAT CORPORATION WAS GRANTED A 1- YEAR CONCESSION "P.B.P. NO. 349" FOR THE OPERATION OF SPEED BOATS FROM THE TIP OF HAINS POINT DURING THE CALENDAR YEAR 1930, AND WAS FORCED TO DISCONTINUE OPERATIONS ON OCTOBER 31, 1930, BEING INDEBTED TO THE GOVERNMENT TO THE EXTENT OF $400.00. THE INITIAL CAPITAL OUTLAY INVOLVED IS EVIDENTLY TOO LARGE TO JUSTIFY A CONCESSION FOR A TERM OF ONE YEAR, AS ONLY ONE BID WAS RECEIVED AND THAT BEING FOR A 3-YEAR TERM, BEGINNING MARCH 15, 1931, AND ENDING DECEMBER 31, 1933. IT APPEARS THAT THIS OFFICE HAS AUTHORITY TO ENTER INTO AN AGREEMENT OF THIS NATURE FOR A 5-YEAR PERIOD IN ACCORDANCE WITH SECTION 2 OF THE ACT OF CONGRESS APPROVED DECEMBER 22, 1928, 45 STAT. P. 1070. HOWEVER, SHOULD THIS OFFICE GRANT THE BIDDER A 3-YEAR CONCESSION, AND YOUR OFFICE SUBSEQUENTLY HOLD SUCH ACTION IS NOT LEGAL, HE IN ALL PROBABILITY WOULD BE SUBJECTED TO CONSIDERABLE FINANCIAL LOSS IN MAKING A LARGE INITIAL EXPENDITURE IN THE PURCHASE OF A FLOAT, BOATS, ETC., WITHOUT THE PROSPECT OF RECOUPING OVER A 3-YEAR PERIOD.

WITH A VIEW TO ELIMINATING THE POSSIBILITY OF FINANCIALLY JEOPARDIZING THE BIDDER IN AWARDING HIM A 3-YEAR CONCESSION, THIS OFFICE THEREFORE SUBMITS THE BID FOR YOUR APPROVAL IN ADVANCE TO AVOID THE POSSIBILITY OF BEING EMBARRASSED BY HAVING ITS ACCEPTANCE OF THE DOWN TOWN PARKING GARAGE'S BID QUESTIONED BY YOU LATER. THIS BID IS BELIEVED TO BE VERY FAVORABLE TO THE UNITED STATES.

AS THE PROPOSED CONCESSION IS TO BEGIN MARCH 15, 1931, AN EARLY REPLY FROM YOU IN CONNECTION WITH THIS MATTER WILL BE APPRECIATED.

SECTION 2 OF THE ACT OF DECEMBER 22, 1928, 45 STAT. 1070, PROVIDES:

THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL IS AUTHORIZED, SUBJECT TO THE APPROVAL OF THE NATIONAL CAPITAL PARK AND PLANNING COMMISSION, TO LEASE, FOR A TERM NOT EXCEEDING FIVE YEARS, AND TO RENEW SUCH LEASE, SUBJECT TO SUCH APPROVAL, FOR AN ADDITIONAL TERM NOT EXCEEDING FIVE YEARS, PENDING NEED FOR THEIR IMMEDIATE USE IN OTHER WAYS BY THE PUBLIC, AND ON SUCH TERMS AS THE DIRECTOR SHALL DETERMINE, LAND, OR ANY EXISTING BUILDING OR STRUCTURE ON LAND ACQUIRED FOR PARK, PARKWAY, OR PLAYGROUND PURPOSES.

IN DECISION TO YOU OF JUNE 28, 1929, A-27584, IT WAS STATED:

IT IS EVIDENT FROM THE LANGUAGE OF SECTION 2 OF THE SAID ACT OF DECEMBER 22, 1928, AND THE SENATE REPORT THEREON, THAT SAID STATUTE HAS NO APPLICATION TO THE LETTING OF CONCESSIONS IN THE PARKS OF THIS CITY BUT WAS INTENDED MERELY TO PERMIT THE RENTING OR LEASING OF LAND AND BUILDINGS ACQUIRED FOR ULTIMATE PARK PURPOSES BUT WHICH WERE NOT NEEDED IMMEDIATELY FOR SUCH PURPOSES. * *

HOWEVER, THERE IS NO STATUTORY REQUIREMENT THAT LEASES OR CONTRACTS FOR THE OPERATION OF CONCESSIONS IN THE PARKS OF THE NATIONAL CAPITAL FROM WHICH SOME INCOME INURES TO THE UNITED STATES, BE CONFINED TO THE FISCAL YEAR AS IS THE REQUIREMENT ORDINARILY WHERE CONTRACTS CALL FOR PAYMENTS FROM APPROPRIATED FUNDS. THEREFORE, SHOULD IT BE DETERMINED AS AN ADMINISTRATIVE POLICY, THAT THE INTERESTS OF THE GOVERNMENT, AS WELL AS THE GENERAL PUBLIC, WILL BE BETTER SERVED BY LETTING THE CONCESSION FOR SPEED BOATS OPERATING FROM HAINS POINT FOR A PERIOD OF THREE YEARS, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THAT PROCEDURE, AFTER PROPER ADVERTISING ON THAT BASIS. A-23158, MAY 17, 1930. BUT THERE IS NO AUTHORITY FOR AWARDING A CONTRACT FOR A 3-YEAR PERIOD WHEN THE ADVERTISEMENT OR REQUEST FOR BIDS WAS ON A 1-YEAR PERIOD.