A-47742, NOVEMBER 8, 1933, 13 COMP. GEN. 121

A-47742: Nov 8, 1933

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THE VITAL THINGS IN THE PRESIDENT'S REEMPLOYMENT PROGRAM UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT ARE ACCEPTANCE AND FAITHFUL OBSERVANCE BY EMPLOYERS OF THE COVENANTS OF HIS TENDERED AGREEMENT TO THE END THAT WAGES BE INCREASED AND NEW EMPLOYMENT CREATED. WHEN IT IS DISCLOSED THAT THE LOW BIDDER HAD SIGNED THE PRESIDENT'S REEMPLOYMENT AGREEMENT AND WAS COMPLYING WITH THE COVENANTS THEREOF AT THE TIME OF SUBMITTING ITS BID. AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 14. THE NEW YORK POST OFFICE ANNEX WAS STARTED UNDER AN AUTHORIZATION OF CONGRESS IN THE SECOND DEFICIENCY ACT FOR THE FISCAL YEAR 1929. IN WHICH THE ACQUISITION OF A SITE WAS AUTHORIZED. THIS ACT WAS AMENDED BY THE SECOND DEFICIENCY ACT FOR THE FISCAL YEAR 1930.

A-47742, NOVEMBER 8, 1933, 13 COMP. GEN. 121

PRESIDENT'S REEMPLOYMENT AGREEMENT - FILING OF BY BIDDERS THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, AUTHORIZED THE PRESIDENT UNDER STATED CONDITIONS TO ENTER INTO AGREEMENTS WITH AND TO APPROVE VOLUNTARY AGREEMENTS BETWEEN AND AMONG PERSONS ENGAGED IN TRADE OR INDUSTRY. THE PURPOSE AND INTENT OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND THE PRESIDENT'S ACTION THEREUNDER HAD THE SINGLE PURPOSE TO SECURE THROUGH PATRIOTIC COOPERATION, INCREASED WAGES, AND EMPLOYMENT OF THOSE OUT OF WORK. THE VITAL THINGS IN THE PRESIDENT'S REEMPLOYMENT PROGRAM UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT ARE ACCEPTANCE AND FAITHFUL OBSERVANCE BY EMPLOYERS OF THE COVENANTS OF HIS TENDERED AGREEMENT TO THE END THAT WAGES BE INCREASED AND NEW EMPLOYMENT CREATED. THE FILING OF AGREEMENTS, TO THE SIGNER. SECTION 3709, REVISED STATUTES, REQUIRES THAT CONTRACTS ON BEHALF OF THE GOVERNMENT BE LET TO THE LOWEST RESPONSIBLE BIDDER; AND WHEN IT IS DISCLOSED THAT THE LOW BIDDER HAD SIGNED THE PRESIDENT'S REEMPLOYMENT AGREEMENT AND WAS COMPLYING WITH THE COVENANTS THEREOF AT THE TIME OF SUBMITTING ITS BID, THE APPROPRIATION INVOLVED WOULD NOT BE AVAILABLE FOR PAYMENTS UNDER A CONTRACT AWARDED TO OTHER THAN SUCH LOW BIDDER ON THE GROUND THAT THE LOW BIDDER HAD NOT FILED ITS AGREEMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 8, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 30, 1933, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 14, AND OCTOBER 27, 1933 (A- 47742), RELATIVE TO THE BIDDING FOR THE CONSTRUCTION OF THE NEW YORK CITY POST OFFICE ANNEX, AND ASKING FOR A REPORT REGARDING SUCH BIDDING IN VIEW OF, FIRST, A PROTEST FILED BY JAMES STEWART AND CO., INC., SINCE WITHDRAWN, AND SECOND, A LATER PROTEST FROM THE GEORGE F. DRISCOLL COMPANY.

THE NEW YORK POST OFFICE ANNEX WAS STARTED UNDER AN AUTHORIZATION OF CONGRESS IN THE SECOND DEFICIENCY ACT FOR THE FISCAL YEAR 1929, APPROVED MARCH 4, 1929 (45 STAT. 1660), IN WHICH THE ACQUISITION OF A SITE WAS AUTHORIZED, WITH A LIMIT OF COST OF $1,500,000. THIS ACT WAS AMENDED BY THE SECOND DEFICIENCY ACT FOR THE FISCAL YEAR 1930, APPROVED JULY 3, 1930 (46 STAT. 901), AUTHORIZING THE PURCHASE OF ADDITIONAL LAND FOR THE EXCEED $2,500,000, AND CONSTRUCTION OF THE ANNEX BUILDING, INCLUDING INCIDENTAL CHANGES IN THE PRESENT BUILDING AND ITS FIXED EQUIPMENT, AT A LIMIT NOT TO EXCEED AN ESTIMATED TOTAL COST OF $7,000,000.

THE ADDITIONAL LAND WAS PURCHASED, AND OUT OF THE $7,000,000 CONSTRUCTION FUND THE SUBSTRUCTURE OF THE ANNEX WAS ERECTED IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN YOUR DECISION OF MARCH 3, 1932, (A-40582).

ON FEBRUARY 28, 1933, BIDS WERE OPENED FOR THE COMPLETION OF THE CONSTRUCTION OF THE BUILDING. THE BIDS SUBMITTED ARE SHOWN ON THE ATTACHED COPY OF THE SYNOPSIS OF BIDS. IN CONNECTION WITH THIS CASE YOU RENDERED YOUR DECISION OF MARCH 18, 1933 (A-47742), RELATIVE TO THE QUALIFICATIONS OF THE LOW BIDDER, THE D.M.W. CONTRACTING COMPANY, INC.

THE SUBSTRUCTURE WAS COMPLETED FROM THE LUMP-SUM APPROPRIATION FOR CARRYING OUT THE REGULAR BUILDING PROGRAM. SHORTLY AFTER MARCH 4, 1933, AND BEFORE AN AWARD WAS MADE ON THE SUPERSTRUCTURE BIDS, THE BUILDING PROGRAM WAS ARRESTED, PENDING A FURTHER STUDY THEREOF. IN THE MEANTIME, THE NATIONAL INDUSTRIAL RECOVERY ACT BECAME A LAW, AND IT WAS FINALLY DETERMINED THAT ANY FURTHER FEDERAL BUILDING PROGRAM SHOULD BE CARRIED OUT WITH FUNDS ALLOTTED BY THE EMERGENCY PUBLIC WORKS ADMINISTRATION.

ALLOTMENT WAS MADE, IN DUE COURSE, AND ALL MONEY NOW AVAILABLE FOR THE SUPERSTRUCTURE HAS BEEN FURNISHED BY THE EMERGENCY PUBLIC WORKS ADMINISTRATION. "INFORMATION RELATING TO THE NEGOTIATION AND ADMINISTRATION OF CONTRACTS FOR FEDERAL PROJECTS UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT," AND THE EXECUTION OF THE CONTRACT ON UNITED STATES GOVERNMENT FORM OF CONTRACT, NO. P.W.A. 51.

PARTICULARLY IN VIEW OF THE MINIMUM WAGE SCALE SET UP BY THE PUBLIC WORKS ADMINISTRATION AND SECTION 53,"N.R.A. REQUIREMENTS" OF BULLETIN 51, WHICH BECAME EFFECTIVE AFTER THE ORIGINAL BIDDING, IT WAS NECESSARY EITHER TO TAKE NEW BIDS OR TO SECURE SUPPLEMENTAL BIDS, IN ORDER TO BRING THE BIDDING WITHIN THE SCOPE OF THE NEW REQUIREMENTS. ACCORDINGLY, SUPPLEMENTAL BIDS WERE OPENED ON OCTOBER 2, 1933, AND FOUR OF THE ORIGINAL BIDDERS RESPONDED.

ON THE FACE OF THE SYNOPSIS, THE GEORGE F. DRISCOLL COMPANY IS THE LOW BIDDER, AND JAMES STEWART AND CO., INC., THE SECOND BIDDER. THE PROTEST OF THE GEORGE F. DRISCOLL COMPANY AND THE WITHDRAWN PROTEST OF THE JAMES STEWART COMPANY SEEM TO BE BASED UPON DIFFERING OPINIONS AS TO

IN CONNECTION WITH ITS CONSIDERATION OF THE SUPPLEMENTAL BIDS, THE DEPARTMENT HAS BEFORE IT A REPORT FROM THE OFFICE OF THE CHIEF INSPECTOR OF THE POST OFFICE DEPARTMENT RELATIVE TO THE FILING OF THE PRESIDENT'S REEMPLOYMENT AGREEMENT BY THE GEORGE F. DRISCOLL COMPANY, AND OPINION OF THE ATTORNEY GENERAL DATED OCTOBER 25, 1933. THE DEPARTMENT ALSO HAS A LETTER OF OCTOBER 5, 1933, FROM THE DRISCOLL COMPANY IN WHICH IT CONTENDS THAT ONLY WHEN ITS BID IS ACCEPTED, RATHER THAN RECEIVED, IS IT NECESSARY TO SIGN THE PRESIDENT'S REEMPLOYMENT AGREEMENT, AND A COPY OF THE PROTEST OF THE JAMES STEWART COMPANY WHICH WAS FILED WITH YOU ON OCTOBER 13TH AND WITHDRAWN ON OCTOBER 16TH.

ALL PERTINENT PAPERS IN THIS MATTER, INCLUDING COPIES OF THE SUPPLEMENTAL SPECIFICATIONS, ARE TRANSMITTED TO YOU HEREWITH, WITH THE REQUEST THAT THEY BE RETURNED WHEN THEY HAVE SERVED YOUR PURPOSE.

THE PUBLIC BUILDING PROJECT HERE INVOLVED--- SUPERSTRUCTURE OF THE UNITED STATES POST OFFICE ANNEX, NEW YORK, N.Y.--- WHILE ORIGINALLY PROVIDED FOR OTHERWISE IS NOW FOR ACCOMPLISHMENT WITH MONEYS ALLOTTED BY THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS UNDER AUTHORITY VESTED IN THE PRESIDENT AND BY HIM DELEGATED TO THE ADMINISTRATOR, FROM THE $3,300,000,000 APPROPRIATED FOR THE PURPOSES OF THE NATIONAL INDUSTRIAL RECOVERY ACT. BIDS AS RECEIVED, AND THE STATUS OF THE BIDDERS, AS TO THE LEGALITY OF PAYMENTS TO BE MADE UNDER SAID APPROPRIATION AFTER AWARD AND CONTRACTING, IN ORDER THAT COMPLICATIONS AND POSSIBLY SERIOUS AND COSTLY CONSEQUENCES MAY BE AVOIDED. THE DUTY TO DETERMINE THE LEGALITY OF USES AND PROPOSED USES OF APPROPRIATIONS IS ONE DEVOLVING UPON THIS OFFICE. THE QUESTION HERE INVOLVED WILL BE CONSIDERED AND DETERMINED ACCORDINGLY.

THE AVAILABILITY OF APPROPRIATED MONEYS TO MAKE PAYMENT UNDER A CONTRACT REQUIRES, AMONG OTHER THINGS, THAT THE CONTRACT BE LEGAL, WHICH, IN TURN, REQUIRES THAT IT BE LET TO THE LOWEST RESPONSIBLE BIDDER ON THE BASIS OF SPECIFICATIONS AFFORDING ALL QUALIFIED BIDDERS AN OPPORTUNITY FOR FULL AND FREE COMPETITION. SECTION 3709, REVISED STATUTES OF THE UNITED STATES.

THE DECISIONS OF THIS OFFICE HAVE BEEN UNIFORM TO THE EFFECT THAT THE ADVERTISED SPECIFICATIONS MUST STATE THE GOVERNMENT'S NEED IN SUCH TERMS AS TO PERMIT OF FULL AND FREE COMPETITION IN BIDDING THEREON AND THAT THE CONTRACT MUST BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE SPECIFICATIONS.

PURSUANT TO INVITATION BY THE TREASURY DEPARTMENT BIDS SUPPLEMENTAL TO THOSE OPENED FEBRUARY 28, 1933, WERE OPENED ON OCTOBER 2, 1933, AND IT WAS FOUND THAT OF THE FOUR ORIGINAL BIDDERS RESPONDING AND ON A WORK INVOLVING AN EXPENDITURE SLIGHTLY IN EXCESS OF $4,000,000 GEORGE F. DRISCOLL CO. WAS LOW BY APPROXIMATELY $112,000, WITH JAMES STEWART AND CO. THE NEXT LOW BIDDER. AWARD TO SUCH LOW BIDDER WAS OBJECTED TO AND WITHHELD BECAUSE SAID BIDDER "HAD NOT SIGNED PRESIDENT REEMPLOYMENT FIFTY-ONE, PART TWO, SECTION FIFTY-THREE RELATIVE N.R.A. REQUIREMENTS.' NO OTHER CAUSE FOR REJECTION HAS BEEN BROUGHT TO THE ATTENTION OF THIS OFFICE AND THE QUESTION THUS PRESENTED WILL BE CONSIDERED AND DETERMINED ON THE THEORY NO OTHER CAUSE FOR REJECTION EXISTS.

THERE WAS MADE A PART OF THE SPECIFICATIONS AS ISSUED FOR SUCH SUPPLEMENTAL BIDS THE BULLETIN NO. 51, ISSUED BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS ON SEPTEMBER 7, 1933, REFERRED TO IN REASON ABOVE STATED FOR WITHHOLDING AWARD TO THE LOW BIDDER. SAID BULLETIN AND SECTION 53 THEREOF AS THE SAME MAY HAVE RELATION TO THE QUESTION FOR DECISION WILL BE HEREINAFTER CONSIDERED.

THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195 211, COVERED A BROAD FIELD BUT TO THE EXTENT HERE MATERIAL DECLARED THE EXISTENCE OF A NATIONAL EMERGENCY PRODUCTIVE OF WIDESPREAD UNEMPLOYMENT RECOVERY; PROVIDED FOR THE ESTABLISHMENT OF NEW AGENCIES AND THE UTILIZATION OF EXISTING AGENCIES TO CARRY OUT SUCH POLICY; EMPOWERED THE PRESIDENT TO APPROVE CODES OF FAIR COMPETITION FOR TRADES OR INDUSTRIES OR SUBDIVISIONS THEREOF, WITH SPECIFIC PROVISION THAT,"AFTER THE PRESIDENT SHALL HAVE APPROVED ANY SUCH CODE, THE PROVISIONS OF SUCH CODE SHALL BE THE STANDARDS OF FAIR COMPETITION FOR SUCH TRADE OR INDUSTRY OR SUBDIVISION THEREOF; " PROVIDED PUNISHMENT FOR VIOLATION OF ANY PROVISION OF AN APPROVED CODE OF FAIR COMPETITION; AUTHORIZED THE PRESIDENT UNDER STATED CONDITIONS TO ENTER INTO AGREEMENTS WITH, AND TO APPROVE VOLUNTARY AGREEMENTS BETWEEN AND AMONG, PERSONS ENGAGED IN TRADE OR INDUSTRY; AND, BY TITLE II, AUTHORIZED THE PRESIDENT TO CREATE A FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS WITH AUTHORITY THEREIN AND UNDER THE DIRECTION OF THE PRESIDENT, TO PREPARE A COMPREHENSIVE PROGRAM OF PUBLIC WORKS, INCLUDING AMONG OTHER THINGS THE CONSTRUCTION, REPAIR, AND IMPROVEMENT OF PUBLIC BUILDINGS; AND FOR THE CARRYING OUT OF SUCH PROGRAM OF PUBLIC WORKS AND THE OTHER PURPOSES OF THE ENACTMENT THERE WAS PROVIDED BY THE ACT OF JUNE 16, 1933, 48 STAT. 275, AN APPROPRIATION IN THE SUM OF $3,300,000,000.

DOUBTLESS BECAUSE IT WOULD REQUIRE MONTHS, UNDER MOST FAVORABLE CONDITIONS, TO WORK OUT THE DETAILS, DRAFT AND PROMULGATE CODES OF FAIR COMPETITION FOR ANY APPRECIABLE PORTION OF THE NUMEROUS TRADES AND INDUSTRIES FOR CONSIDERATION, AND THE CONDITION OF UNEMPLOYMENT WAS DAILY GROWING MORE AGGRAVATED, THE PRESIDENT ON JULY 27, 1933, AND AS A "PART OF A NATION-WIDE PLAN TO RAISE WAGES, CREATE EMPLOYMENT, AND THUS INCREASE PURCHASING POWER AND RESTORE BUSINESS," APPEALED TO ALL EMPLOYERS TO JOIN HIM IN AGREEMENT WITH PROVISIONS FOR CONDUCT PURPOSED TO BRING ABOUT SUCH RESULT. THE FORM OF AGREEMENT EMPLOYED, KNOWN AS THE PRESIDENT'S REEMPLOYMENT AGREEMENT, STIPULATED AMONG OTHER THINGS, PARAGRAPH 13, AS FOLLOWS:

THIS AGREEMENT SHALL CEASE UPON APPROVAL BY THE PRESIDENT OF A CODE TO WHICH THE UNDERSIGNED IS SUBJECT; OR IF THE N.R.A. SO ELECTS, UPON SUBMISSION OF A CODE TO WHICH THE UNDERSIGNED IS SUBJECT AND SUBSTITUTION OF ANY OF ITS PROVISIONS FOR ANY OF THE TERMS OF THIS AGREEMENT.

THE ADMINISTRATOR, NATIONAL RECOVERY ADMINISTRATION, TO WHOM THE PRESIDENT DELEGATED CERTAIN OF HIS AUTHORITY UNDER TITLE I OF THE ACT OF JUNE 16, 1933, REPORTED TO THIS OFFICE OCTOBER 31, 1933, THAT WHILE NO CODE OF FAIR COMPETITION FOR THE CONSTRUCTION INDUSTRY, THE INDUSTRY HERE INVOLVED, HAD BEEN APPROVED BY THE PRESIDENT, A CODE FOR SUCH INDUSTRY HAD BEEN SUBMITTED ON AUGUST 25, 1933, AND FROM NATIONAL RECOVERY BULLETIN NO. 6, PAGES 45-46 (CODE NO. 1616-2-31. RELEASE NO. 300-E), IT APPEARS THE PROVISIONS THERE QUOTED WERE SUBSTITUTED BY THE ADMINISTRATION FOR CERTAIN PROVISIONS THERETOFORE APPEARING IN THE PRESIDENT'S REEMPLOYMENT AGREEMENT.

ON SEPTEMBER 7, 1933, THERE WAS ISSUED BY THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, TO WHOM THE PRESIDENT HAD THERETOFORE DELEGATED CERTAIN OF HIS AUTHORITY UNDER TITLE II OF THE ACT OF JUNE 16, 1933, BULLETIN NO. 51, HEREINBEFORE MENTIONED, ENTITLED ,INFORMATION RELATING TO THE NEGOTIATION AND ADMINISTRATION OF CONTRACTS FOR FEDERAL PROJECTS UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT," AND THERE APPEARS THEREIN A SECTION AS FOLLOWS:

SEC. 53, N.R.A. REQUIREMENTS.--- (A) NO BIDS WILL BE ACCEPTED FROM ANY CONTRACTOR WHO HAS NOT SIGNED AND COMPLIED WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION ADOPTED UNDER TITLE I OF THE NATIONAL INDUSTRIAL RECOVERY ACT FOR THE TRADE OR INDUSTRY OR SUBDIVISION THEREOF CONCERNED, OR, IF THERE BE NO SUCH APPROVED CODE OF FAIR COMPETITION, WHO HAS NOT SIGNED AND COMPLIED WITH THE PROVISIONS OF THE PRESIDENT'S REEMPLOYMENT AGREEMENT.

THE MATTER FOR DECISION IS WHETHER, BY REASON OF THE PROVISION QUOTED, THE APPROPRIATION INVOLVED COULD BE LEGALLY EMPLOYED IN MAKING PAYMENTS, OTHERWISE LAWFUL, TO THE LOW BIDDER, GEORGE F. DRISCOLL CO., IF AWARDED THE CONTRACT, AND NECESSARILY THE FURTHER QUESTION WHETHER THE APPROPRIATION WOULD BE AVAILABLE TO MAKE PAYMENTS UNDER A CONTRACT AWARDED TO OTHER THAN SAID LOW BIDDER.

THE BIDS HERE INVOLVED--- SUPPLEMENTAL TO THOSE OPENED FEBRUARY 28, 1933- -- WERE OPENED OCTOBER 2, 1933.

GEORGE F. DRISCOLL CO. HAS DULY SIGNED THE PRESIDENT'S REEMPLOYMENT AGREEMENT AND AS FILED THE AGREEMENT SHOWS EXECUTION ON SEPTEMBER 29, 1933. IT APPEARS, HOWEVER, THAT SUCH AGREEMENT WAS NOT RECEIVED IN THE NEW YORK CITY OFFICE, UNITED STATES DEPARTMENT OF COMMERCE, FOR FILING, UNTIL OCTOBER 5, 1933, AND THE ENVELOPE IN WHICH RECEIVED IS POSTMARKED 8:30 P.M., OCTOBER 4, 1933, GRAND CENTRAL ANNEX, NEW YORK.

IN FAILING TO HAVE ITS SIGNED AGREEMENT IN THE LOCAL OFFICE OF THE DEPARTMENT OF COMMERCE PRIOR TO THE OPENING OF BIDS ON OCTOBER 2, 1933, THE LOW BIDDER VIOLATED NO COVENANT WITH THE PRESIDENT, BUT DUE TO THE FACT IT MIGHT AND MAY HAVE BEEN TRANSMITTED FOR FILING AFTER THE BIDS WERE OPENED DISCLOSING THE COMPANY AS LOW BIDDER, AND MIGHT NOT OTHERWISE HAVE BEEN FILED, IT IS SUGGESTED THAT SECTION 53 OF BULLETIN NO. 51, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS HEREINBEFORE QUOTED, MAY REQUIRE REJECTION.

THE PROCEDURE UNDER THE PRESIDENT'S REEMPLOYMENT PROGRAM, AS SET OUT IN BULLETIN NO. 3, NATIONAL RECOVERY ADMINISTRATION, CONTEMPLATES THAT SIGNED AGREEMENTS BE TRANSMITTED BY MAIL TO THE LOCAL OFFICE OF THE DEPARTMENT OF COMMERCE--- IN THE INSTANT MATTER THE LOCAL OFFICE IN NEW YORK CITY--- AND THAT THEREAFTER THE SIGNER MAY SIGN A "CERTIFICATE OF COMPLIANCE" AND BY DELIVERING SAME TO THE LOCAL POSTMASTER OBTAIN THE POSTERS, ETC., WITH WHICH TO EVIDENCE HIS ADHERENCE TO THE PRESIDENT'S PLAN. WHILE FULL COOPERATION WITH THOSE ADMINISTERING THE MOVEMENT INCLUDES PROMPT FILING OF AGREEMENTS AND OBTAINING THE POSTERS, ETC., TO THE END THAT THE PURCHASING PUBLIC MAY HAVE MEANS TO DISTINGUISH THOSE SO SIGNIFYING A PURPOSE TO AID THE MOVEMENT, THERE IS INVOLVED THEREIN THAT WHICH IN LARGE PART MAY OPERATE BENEFICIALLY ONLY TO THE SIGNER WHILE AND FAITHFUL OBSERVANCE BY EMPLOYERS OF THE COVENANTS OF HIS TENDERED AGREEMENT, TO THE END THAT WAGES MAY BE INCREASED AND NEW EMPLOYMENT CREATED.

IT SEEMS UNNECESSARY AT THIS TIME TO DETERMINE WHETHER, AS URGED, THE PROVISIONS OF SECTION 53 OF BULLETIN 51, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS SO GO BEYOND AND SUPPLEMENT THE LAW AS TO BE WITHOUT FORCE OR EFFECT UNDER THE RULE STATED IN NUMEROUS CASES, INCLUDING UNITED STATES V. 200 BARRELS OF WHISKEY, 95 U.S. 571; UNITED STATES V. EATON, 144 U.S. 677. THE EVIDENT PURPOSE OF THE PROVISION IS TO ENCOURAGE SUPPORT FOR THE PRESIDENT'S REEMPLOYMENT PROGRAM AND FAITHFUL OBSERVANCE OF CODES OF FAIR COMPETITION BY THOSE SUBJECT THERETO. EFFORTS PROMPTED BY SO WORTHY A MOTIVE ARE NOT TO BE DISCOURAGED. OF THE PROVISION, WHAT DOES IT REQUIRE AND WHAT IS ITS APPLICATION TO THE FACTS IN THE INSTANT CASE? WHAT DOES THE LANGUAGE EMPLOYED CONVEY TO THE MAN IN BUSINESS WHO POSSIBLY HAS INFREQUENT OCCASION TO BID ON A GOVERNMENT PROJECT? NOTE ITS PROVISIONS: "NO BIDS WILL BE ACCEPTED FROM ANY CONTRACTOR WHO HAS NOT SIGNED AND COMPLIED WITH THE APPLICABLE APPROVED CODE ...... OR, IF THERE BE NO APPROVED CODE ...... WHO HAS NOT SIGNED AND COMPLIED WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT.' THE LOW BIDDER INTERPRETED THESE PROVISIONS AS PERMITTING COMPLIANCE THEREWITH AT ANY TIME BEFORE FINAL ACTION BY THE GOVERNMENT ON THE BIDS AND CONTENDS THAT HAD THE INTENTION BEEN TO RESTRICT BIDDING TO ONLY THOSE WHO HAD THERETOFORE NOT ONLY FULLY COMPLIED WITH THE PRESIDENT'S REQUEST BY SIGNING THE AGREEMENT AND OBSERVING THE COVENANTS THEREOF BUT HAD COMPLETED ALL PROCEDURAL FORMALITIES ADMINISTRATIVELY ATTACHED THERETO, UNDOUBTEDLY THE PROVISION WOULD HAVE BEEN MADE TO READ "NO BIDS WILL BE CONSIDERED" RATHER THAN "NO BIDS WILL BE ACCEPTED," AND THAT IF THE FILING OF THE SIGNED AGREEMENT HAD BEEN INTENDED AS A NECESSARY PREREQUISITE TO BIDDING OR TO AN AWARD, THE PROVISION WOULD HAVE SO STIPULATED, WHEREAS IT ELIMINATES ONLY THOSE WHO HAVE "NOT SIGNED AND COMPLIED WITH" THE PRESIDENT'S REEMPLOYMENT AGREEMENT.

IF SUCH WAS NOT THE INTENT OF THE PROVISION THEN UNQUESTIONABLY THE LANGUAGE EMPLOYED LEAVES AMPLE ROOM FOR SUCH AN UNDERSTANDING OF THE INTENT AND PURPOSE.

THERE IS ANOTHER ELEMENT WHICH POSSIBLY ADDED TO THE CONFUSION. WHILE IT APPEARS NO CODE OF FAIR COMPETITION FOR THE CONSTRUCTION INDUSTRY HAS BEEN APPROVED BY THE PRESIDENT THERE WAS SUBMITTED A PROPOSED CODE ON BEHALF OF THE INDUSTRY ON AUGUST 25, 1933, AND WITH RESPECT TO WHICH THE NATIONAL RECOVERY ADMINISTRATION TOOK ACTION APPARENTLY AUTHORIZING SUBSTITUTION OF CERTAIN OF ITS PROVISIONS FOR CERTAIN PROVISIONS OF THE PRESIDENT'S REEMPLOYMENT AGREEMENT, AND BECAUSE OF SUCH ACTION AND THE PROVISIONS OF PARAGRAPH 13 OF THE PRESIDENT'S AGREEMENT THERE WAS APPARENTLY DOUBT IN THE MINDS OF SOME AS TO THE EXACT STATUS OF SUCH INDUSTRY--- WHETHER OPERATING UNDER THE PROVISIONS OF A SUBMITTED CODE OR UNDER THE PRESIDENT'S PLAN.

THE RECORD DISCLOSES THAT THE LOW BIDDER SIGNED THE PRESIDENT'S AGREEMENT ON SEPTEMBER 29, 1933, AND THAT SAID AGREEMENT IS NOW ON FILE WITH THE PROPER AUTHORITIES. IT SHOWS FURTHER, BY A REPORT OF A GOVERNMENT INSPECTOR UNDER DATE OF OCTOBER 11, 1933, THAT SAID LOW BIDDER "IS PAYING ABOVE THE N.R.A. WAGE SCALE AND IS CONFORMING TO THE HOURS THEREOF.' THUS IT APPEARS NOT ONLY THAT THE LOW BIDDER HAD SIGNED THE PRESIDENT'S AGREEMENT BEFORE BIDDING BUT THAT SUCH BIDDER IS COMPLYING WITH THE COVENANTS THEREOF.

WHEN THERE IS CONSIDERED THE PURPOSE AND INTENT OF THE NATIONAL INDUSTRIAL RECOVERY ACT, THE SERIOUS CONDITION SOUGHT BY IT TO BE REMEDIED, AND THE PRESIDENT'S PROMPT ACTION THEREUNDER WITH A SINGLE PURPOSE TO SECURE THROUGH PATRIOTIC COOPERATION WITH HIS PROGRAM BY EMPLOYERS, INCREASED WAGES AND EMPLOYMENT FOR THOSE OUT OF WORK, IT WOULD APPEAR OUT OF LINE WITH THE RECOVERY PROGRAM AND FAR AFIELD FROM THE HIGH PLANE ON WHICH THE PRESIDENT APPEALED TO EMPLOYERS FOR SUPPORT OF HIS PLAN TO DENY FOR OTHER THAN AN IMPELLING REASON A LOW BIDDER FOR PUBLIC WORK WHO HAS IN THE VITAL THINGS FULLY COOPERATED WITH THE PRESIDENT'S PLAN. NO SUCH REASON APPEARS IN THE INSTANT CASE.

IN THE LIGHT OF THE FACTS APPEARING AND THE APPLICABLE LAW IT IS HEREBY DECIDED THE APPROPRIATION HERE UNDER CONSIDERATION IS NOT AVAILABLE FOR PAYMENTS UNDER A CONTRACT FOR THE PUBLIC WORK BID UPON, WITH OTHER THAN THE LOW BIDDER, THE GEORGE F. DRISCOLL CO. ..END :