A-50713, AUGUST 31, 1933, 13 COMP. GEN. 65

A-50713: Aug 31, 1933

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" BUT THE ADVERTISED SPECIFICATIONS AND THE CONTRACT SHOULD PROVIDE IN COMPLIANCE WITH SAID EXECUTIVE ORDER THAT THE CONTRACTOR WILL BE REQUIRED TO COMPLY WITH THE CODE OF FAIR COMPETITION ESTABLISHED FOR HIS INDUSTRY. THE TWO LOWEST SATISFACTORY BIDS ARE. IN REPLY TO OUR INQUIRY AS TO WHETHER IT IS A MEMBER OF THE NRA STATES. - "* * * WISH TO ADVISE THAT ALL THE WIPING RAGS PRODUCED BY US ARE WASHED AND STERILIZED THROUGH AN NRA MEMBER. "THERE HAVE BEEN TWO CODES SUBMITTED FOR THE PRESIDENT'S APPROVAL. AS SOON AS IT IS DEFINITELY ESTABLISHED WHICH ONE WILL BE ACCEPTED WE WILL BECOME A MEMBER. WE HAVE HELD OFF SIGNING THE BLANKET CODE IN ORDER TO AVOID ANY CONFLICTION IN THE FUTURE UNTIL IT IS DEFINITELY DECIDED WHICH CODE WE COME UNDER. * * *" 2.

A-50713, AUGUST 31, 1933, 13 COMP. GEN. 65

CONTRACTS - CODES OF FAIR COMPETITION - PRESIDENTS REEMPLOYMENT AGREEMENT THE PROVISIONS OF EXECUTIVE ORDER NO. 6246 OF AUGUST 10, 1933, DO NOT REQUIRE THAT A BIDDER, OR CONTRACTOR WITH THE UNITED STATES FOR THE DELIVERY OF SUPPLIES SHALL BE A "MEMBER OF THE NRA," BUT THE ADVERTISED SPECIFICATIONS AND THE CONTRACT SHOULD PROVIDE IN COMPLIANCE WITH SAID EXECUTIVE ORDER THAT THE CONTRACTOR WILL BE REQUIRED TO COMPLY WITH THE CODE OF FAIR COMPETITION ESTABLISHED FOR HIS INDUSTRY, OR IF NO SUCH CODE, THEN WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT, AND THAT FOR ANY VIOLATION THEREOF THE CONTRACT MAY BE CANCELLED AND THE SUPPLIES PURCHASED IN THE OPEN MARKET, THE EXCESS COST BEING CHARGEABLE TO THE CONTRACTOR AND HIS SURETY.

COMPTROLLER GENERAL MCCARL TO THE PUBLIC PRINTER, AUGUST 31, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 24, 1933, AS FOLLOWS:

ON AUGUST 8, 1933, THIS OFFICE REQUESTED BIDS ON 5,00O POUNDS COTTON WIPING RAGS, AND 14 FIRMS SUBMITTED PRICES.

THE TWO LOWEST SATISFACTORY BIDS ARE---

1. ATLANTA WIPING CLOTH COMPANY, 12 1/4 CENTS A POUND.

THIS COMPANY, IN REPLY TO OUR INQUIRY AS TO WHETHER IT IS A MEMBER OF THE NRA STATES---

"* * * WISH TO ADVISE THAT ALL THE WIPING RAGS PRODUCED BY US ARE WASHED AND STERILIZED THROUGH AN NRA MEMBER.

"THERE HAVE BEEN TWO CODES SUBMITTED FOR THE PRESIDENT'S APPROVAL, ONE BY THE SANITARY INSTITUTE OF AMERICA AND THE OTHER BY THE NATIONAL WASTE MATERIAL DEALERS' ASSOCIATION, AND AS SOON AS IT IS DEFINITELY ESTABLISHED WHICH ONE WILL BE ACCEPTED WE WILL BECOME A MEMBER. WE HAVE HELD OFF SIGNING THE BLANKET CODE IN ORDER TO AVOID ANY CONFLICTION IN THE FUTURE UNTIL IT IS DEFINITELY DECIDED WHICH CODE WE COME UNDER. * * *"

2. AMERICAN WIPING CLOTH COMPANY, 13 CENTS PER POUND.

THIS COMPANY CLAIMS MEMBERSHIP IN THE NRA, AND CARRIES THE NRA LABEL ON ITS QUOTATION.

YOUR ADVICE IS REQUESTED AS TO WHETHER THE ABOVE LOW SATISFACTORY BID OF 12 1/4 CENTS A POUND MAY BE REJECTED BECAUSE BIDDER IS NOT A MEMBER OF THE NRA AND AWARD MADE TO THE ABOVE NEXT SATISFACTORY LOW BIDDER AT 13 CENTS A POUND BECAUSE BIDDER IS A MEMBER OF THE NRA; AND ALSO, AS TO WHETHER THIS PROCEDURE IS TO BE FOLLOWED BY THE PUBLIC PRINTER IN SIMILAR CASES IF AND WHEN THEY ARISE.

THE PRESIDENT, IN EXECUTIVE ORDER NO. 6246, DATED AUGUST 10, 1933, FOR THE ADMINISTRATION OF THE NATIONAL INDUSTRIAL RECOVERY ACT PROVIDED, IN PERTINENT PART, THAT:

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE ACT OF CONGRESS ENTITLED "AN ACT TO ENCOURAGE NATIONAL INDUSTRIAL RECOVERY, TO FOSTER FAIR COMPETITION, AND TO PROVIDE FOR THE CONSTRUCTION OF CERTAIN USEFUL PUBLIC WORKS, AND FOR OTHER PURPOSES," APPROVED JUNE 16, 1933 (PUBLIC NO. 67, 73D CONG.), AND IN ORDER TO EFFECT THE PURPOSES OF THAT ACT, IT IS HEREBY ORDERED THAT---

(1) CONTRACTS FOR SUPPLIES.--- EVERY CONTRACT ENTERED INTO WITHIN THE LIMITS OF THE UNITED STATES (BY WHICH IS MEANT THE 48 STATES OF THE UNION, THE DISTRICT OF COLUMBIA, THE TERRITORIES OF HAWAII AND ALASKA, THE PANAMA CANAL ZONE, PUERTO RICO, AND THE VIRGIN ISLANDS) BY THE UNITED STATES OR ANY OF ITS AGENCIES OR INSTRUMENTALITIES FOR SUPPLIES MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES AS CONTEMPLATED BY SECTION 2, TITLE III, OF THE ACT APPROVED MARCH 3, 1933, ENTITLED "AN ACT MAKING APPROPRIATIONS FOR THE TREASURY AND POST OFFICE DEPARTMENTS FOR THE FISCAL YEAR ENDING JUNE 30, 1934, AND FOR OTHER PURPOSES" (PUBLIC NO. 428, 72D CONG.), EXCEPT AS SET FORTH IN THE PROVISO UNDERPARAGRAPH (A) BELOW, SHALL PROVIDE AND REQUIRE THAT:

(A)THE CONTRACTOR SHALL COMPLY WITH ALL PROVISIONS OF THE APPLICABLE APPROVED CODE OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY OR SUBDIVISION THEREOF CONCERNED, OR, IF THERE BE NO APPROVED CODE OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY OR SUBDIVISION THEREOF CONCERNED, THEN WITH THE PROVISIONS OF THE PRESIDENT'S REEMPLOYMENT AGREEMENT PROMULGATED UNDER AUTHORITY OF SECTION 4 (A) OF THE FOREGOING ACT, OR ANY AMENDMENT THEREOF, WITHOUT REGARD TO WHETHER THE CONTRACTOR IS HIMSELF A PARTY TO SUCH CODE OR AGREEMENT:

PROVIDED, THAT WHERE SUPPLIES ARE PURCHASED THAT ARE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES, THE SPECIAL OR GENERAL CODE OF FAIR PRACTICE SHALL APPLY TO THAT PORTION OF THE CONTRACT EXECUTED WITHIN THE UNITED STATES.

(B) IF THE CONTRACTOR FAILS TO COMPLY WITH THE FOREGOING PROVISION, THE GOVERNMENT MAY BY WRITTEN NOTICE TO THE CONTRACTOR TERMINATE THE CONTRACTOR'S RIGHT TO PROCEED WITH THE CONTRACT, AND PURCHASE IN THE OPEN MARKET THE UNDELIVERED PORTION OF THE SUPPLIES COVERED BY THE CONTRACT, AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE TO THE GOVERNMENT FOR ANY EXCESS COST OCCASIONED THE GOVERNMENT THEREBY.

THE QUOTED TERMS OF THE EXECUTIVE ORDER OF AUGUST 10, 1933, DO NOT REQUIRE THAT A BIDDER, OR CONTRACTOR WITH THE UNITED STATES FOR THE DELIVERY OF SUPPLIES SHALL BE A "MEMBER OF THE NRA," AS EXPRESSED BY YOU, BUT THE REQUIREMENT IS THAT EVERY CONTRACT FOR SUPPLIES SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR SHALL COMPLY WITH THE APPLICABLE CODE OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY OR SUBDIVISION THEREOF CONCERNED AND IF NO SUCH CODE, THEN WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT "WITHOUT REGARD TO WHETHER THE CONTRACTOR IS HIMSELF A PARTY TO SUCH CODE OR AGREEMENT.' THE CONTRACT MUST PROVIDE THAT IN EVENT OF VIOLATION OF SUCH STIPULATION, THE UNITED STATES MAY TERMINATE THE CONTRACT AND PURCHASE THE UNDELIVERED MATERIAL AND SUPPLIES IN THE OPEN MARKET AND COLLECT THE EXCESS COST, IF ANY, FROM THE CONTRACTOR AND HIS SURETIES.

THAT IS TO SAY, YOU ARE NOT AUTHORIZED TO REJECT THE LOW BID IN THIS CASE SIMPLY BECAUSE SUCH LOW BIDDER IS NOT A MEMBER OF THE NRA, BUT THE CONTRACT ENTERED INTO WITH SUCH LOW BIDDER SHOULD CONTAIN THE STIPULATIONS REQUIRED BY THE ABOVE-QUOTED TERMS OF THE EXECUTIVE ORDER OF AUGUST 10, 1933, AND SUCH PROCEDURE SHOULD BE FOLLOWED IN ALL SIMILAR CASES UNLESS AND UNTIL THE EXECUTIVE ORDER SHOULD BE MODIFIED OR REVOKED OR THE LAW SHOULD OTHERWISE PROVIDE.