A-87085, JUNE 25, 1937, 16 COMP. GEN. 1113

A-87085: Jun 25, 1937

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ADVERTISING - REJECTION OF BID OF NONUNION BIDDER THERE IS NO STATUTORY AUTHORITY FOR THE REJECTION OF A LOW BID BECAUSE THE BIDDER "IS NOT FULLY ORGANIZED AS A UNION SHOP. AS FOLLOWS: WILL YOU KINDLY GIVE US AS PROMPTLY AS POSSIBLE A RULING UPON A QUESTION WHICH HAS ARISEN IN THIS OFFICE. THE LOWEST OF WHICH WAS SUBMITTED BY REESE PRESS. THE NEXT LOWEST BID WAS FROM THE CASLON PRESS OF THIS CITY. THE LOWEST BIDDER) IS NOT A UNION SHOP. NOR IS THE FIRM ABLE TO CERTIFY THAT IT IS A UNION SHOP. WE HAVE CAREFULLY AVOIDED MAKING ANY AWARD TO ANY FIRM OR CORPORATION WHICH COULD IN ANY SENSE BE CLASSIFIED OR CHARACTERIZED AS BEING UNFAIR TO LABOR AND WHICH IS NOT FULLY ORGANIZED AS A UNION SHOP.

A-87085, JUNE 25, 1937, 16 COMP. GEN. 1113

ADVERTISING - REJECTION OF BID OF NONUNION BIDDER THERE IS NO STATUTORY AUTHORITY FOR THE REJECTION OF A LOW BID BECAUSE THE BIDDER "IS NOT FULLY ORGANIZED AS A UNION SHOP," OR FOR DISCRIMINATION BETWEEN OPEN AND CLOSED SHOP BIDDERS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR GENERAL, UNITED STATES CONSTITUTION SESQUICENTENNIAL COMMISSION, JUNE 25, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 18, 1937, AS FOLLOWS:

WILL YOU KINDLY GIVE US AS PROMPTLY AS POSSIBLE A RULING UPON A QUESTION WHICH HAS ARISEN IN THIS OFFICE.

WE RECENTLY REQUESTED BIDS FOR PRINTING 100,000 ORDER BLANKS FOR THE SALE OF THE BOOK,"STORY OF THE CONSTITUTION," AND RECEIVED FOUR BIDS, THE LOWEST OF WHICH WAS SUBMITTED BY REESE PRESS, SOUTH AND LOMBARD STREETS, BALTIMORE, THE PRICE BEING $247. THE NEXT LOWEST BID WAS FROM THE CASLON PRESS OF THIS CITY, FOR $274. ORDINARILY, WE WOULD AWARD THE WORK IMMEDIATELY TO THE LOWEST BIDDER, BUT IT HAS COME TO MY KNOWLEDGE THAT THE REESE PRESS (IN THIS CASE, THE LOWEST BIDDER) IS NOT A UNION SHOP, NOR IS THE FIRM ABLE TO CERTIFY THAT IT IS A UNION SHOP, ALTHOUGH IT CLAIMS TO PAY UNION WAGES, AND ALSO IT HAS SUBMITTED A LIST OF NUMEROUS GOVERNMENT DEPARTMENTS AND BUREAUS FOR WHICH IT HAS DONE WORK. THIS LIST INCLUDES THE HOME OWNERS' LOAN CORPORATION, THE U.S. FOREST SERVICE IN THE AGRICULTURE DEPARTMENT, THE POST OFFICE DEPARTMENT, AND THE FEDERAL DEPOSIT INSURANCE CORPORATION.

IN CONDUCTING THE BUSINESS OF THIS COMMISSION, WE HAVE CAREFULLY AVOIDED MAKING ANY AWARD TO ANY FIRM OR CORPORATION WHICH COULD IN ANY SENSE BE CLASSIFIED OR CHARACTERIZED AS BEING UNFAIR TO LABOR AND WHICH IS NOT FULLY ORGANIZED AS A UNION SHOP.

QUESTION NOW ARISES, HOWEVER, WHETHER THIS POLICY SHOULD BE PURSUED IN THE FUTURE OR WHETHER WE SHOULD ACCEPT BIDS FROM NONUNION CONCERNS.

WILL YOU KINDLY ADVISE US WHETHER UNDER THE CIRCUMSTANCES WE ARE AUTHORIZED TO GIVE THIS AWARD TO THE REESE PRESS OR SHOULD WE TAKE THE NEXT LOWEST BIDDER WHICH HAS A THOROUGHLY ORGANIZED UNION SHOP. A PROMPT REPLY WILL BE GREATLY APPRECIATED.

WHILE SECTION 2 (B) OF THE JOINT RESOLUTION OF JUNE 1, 1936, 49 STAT. 1392, AUTHORIZED THE UNITED STATES CONSTITUTION SESQUICENTENNIAL COMMISSION TO HAVE PRINTING, BINDING, PHOTOLITHOGRAPHIC, AND OTHER WORK DONE AT ESTABLISHMENTS OTHER THAN THE GOVERNMENT PRINTING ICE,"AS PROVIDED FOR IN SECTION 12 OF THE PRINTING ACT, APPROVED JANUARY 12, 1895 * * * AS AMENDED BY THE ACT OF JULY 8, 1935 (49 STAT. 475)," YOU DO NOT STATE WHETHER THE PROVISIONS OF SAID SECTION HAVE BEEN COMPLIED WITH. THE PROVISION INVOLVED READS:

THE JOINT COMMITTEE ON PRINTING MAY PERMIT THE PUBLIC PRINTER TO AUTHORIZE ANY EXECUTIVE DEPARTMENT OR INDEPENDENT OFFICE OR ESTABLISHMENT OF THE GOVERNMENT TO PURCHASE DIRECT FOR ITS USE SUCH PRINTING, BINDING, AND BLANK-BOOK WORK, OTHERWISE AUTHORIZED BY LAW, AS THE GOVERNMENT PRINTING OFFICE IS NOT ABLE OR SUITABLY EQUIPPED TO EXECUTE OR AS MAY BE MORE ECONOMICALLY OR IN THE BETTER INTEREST OF THE GOVERNMENT EXECUTED ELSEWHERE; * * *.

ASSUMING THAT THE PUBLIC PRINTER, WITH THE PERMISSION OF THE JOINT COMMITTEE ON PRINTING, HAS AUTHORIZED YOU TO OBTAIN THIS PRINTING ELSEWHERE THAN FROM THE GOVERNMENT PRINTING OFFICE, NEITHER THE JOINT RESOLUTION OF JUNE 1, 1936, NOR THE JOINT RESOLUTION OF AUGUST 23, 1935, 49 STAT. 735, NOR THE APPROPRIATIONS MADE IN THE ACT OF FEBRUARY 11, 1936, 49 STAT. 1112; JUNE 22, 1936, 49 STAT. 1599; OR PUBLIC, NO. 121, SEVENTY- FIFTH CONGRESS, APPROVED MAY 28, 1937, CONTAIN ANY EXCEPTION TO SECTION 3709, REVISED STATUTES, WHICH PROVIDES:

ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC EXIGENCY, THE ARTICLES OR SERVICE REQUIRED MAY BE PROCURED BY OPEN PURCHASE OR CONTRACT, AT THE PLACES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH SERVICES ENGAGED, BETWEEN INDIVIDUALS.

THIS SECTION CONTEMPLATES FREE AND OPEN COMPETITION AND THE AWARDING OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER, AND THERE IS NO LAW AUTHORIZING THE REJECTION OF A BID SOLELY BECAUSE THE BIDDER "IS NOT FULLY ORGANIZED AS A UNION SHOP" OR AUTHORIZING ANY DISCRIMINATION IN THAT RESPECT BETWEEN OPEN SHOP AND CLOSED SHOP BIDDERS.