A-90564, NOVEMBER 24, 1937, 17 COMP. GEN. 427

A-90564: Nov 24, 1937

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CONTRACTS - ADDITIONAL WORK - ACCOMPLISHMENT BY EXTRA WORK ORDER UNDER ORIGINAL CONTRACT OR BY AGREEMENT WITH CONTRACTOR ON BASIS OF BIDS OBTAINED BY IT THERE IS NO AUTHORITY FOR THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO EXECUTE AN EXTRA ORDER TO THE GENERAL CONTRACTOR OF THE NEW POLICE COURT BUILDING. AS THE ADDITIONAL WORK TO BE DONE IS OF CONSIDERABLE MAGNITUDE AND IS NOT AN INSEPARABLE PART OF THE ORIGINAL CONTRACT WORK. THE ADVERTISING BY THE GENERAL CONTRACTOR IS NOT A COMPLIANCE WITH THE APPLICABLE STATUTORY ADVERTISING REQUIREMENTS. 1937: I HAVE YOUR LETTER OF NOVEMBER 18. THIS CONSTRUCTION WAS AUTHORIZED BY THE 1937 DISTRICT OF COLUMBIA APPROPRIATION ACT. THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED TO ENTER INTO ONE OR MORE CONTRACTS FOR SUCH CONSTRUCTION AT A COST NOT TO EXCEED $1.

A-90564, NOVEMBER 24, 1937, 17 COMP. GEN. 427

CONTRACTS - ADDITIONAL WORK - ACCOMPLISHMENT BY EXTRA WORK ORDER UNDER ORIGINAL CONTRACT OR BY AGREEMENT WITH CONTRACTOR ON BASIS OF BIDS OBTAINED BY IT THERE IS NO AUTHORITY FOR THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO EXECUTE AN EXTRA ORDER TO THE GENERAL CONTRACTOR OF THE NEW POLICE COURT BUILDING, FOR THE PAINTING OF ALL INTERIOR PLASTER WALLS AND CEILINGS IN VIEW OF THE EXPRESS PROVISION IN THE CONTRACT THAT SUCH PAINTING ,SHALL NOT BE INCLUDED UNDER THIS CONTRACT," NOR MAY THE EXCEPTED PAINTING BE DONE BY AGREEMENT WITH THE GENERAL CONTRACTOR ON THE BASIS OF A LIMITED SOLICITATION OF BIDS OBTAINED BY IT FOR ITS OWN PURPOSES, PLUS A PERCENTAGE FOR OVERHEAD AND PROFIT, AS THE ADDITIONAL WORK TO BE DONE IS OF CONSIDERABLE MAGNITUDE AND IS NOT AN INSEPARABLE PART OF THE ORIGINAL CONTRACT WORK, AND THE ADVERTISING BY THE GENERAL CONTRACTOR IS NOT A COMPLIANCE WITH THE APPLICABLE STATUTORY ADVERTISING REQUIREMENTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, NOVEMBER 24, 1937:

I HAVE YOUR LETTER OF NOVEMBER 18, 1937, AS FOLLOWS:

THE COMMISSIONERS DESIRE TO SUBMIT FOR YOUR EARLY CONSIDERATION AND ADVICE THE QUESTION OF WHETHER THEY WOULD BE AUTHORIZED TO EXECUTE AN EXTRA ORDER FOR PAINTING ALL INTERIOR PLASTER WALLS AND CEILINGS THROUGHOUT THE NEW POLICE COURT BUILDING WITH A PRIMING COAT AND THREE COATS OF LEAD AND OIL PAINT OF GOOD FINISH FOR THE ADDITIONAL SUM OF $9,993.25, TOGETHER WITH 30 DAYS' TIME EXTENSION, UNDER CONTRACT WITH THE CONSOLIDATED ENGINEERING COMPANY, INC., NO. DC F 12636, DATED SEPTEMBER 4, 1936, LOCATED ON THE EAST SIDE OF 5TH STREET NORTHWEST, BETWEEN E AND F STREETS, IN THE DISTRICT OF COLUMBIA.

THIS CONSTRUCTION WAS AUTHORIZED BY THE 1937 DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JUNE 5, 1936, AS FOLLOWS:

"FOR COMMENCING CONSTRUCTION OF A BUILDING IN JUDICIARY SQUARE TO HOUSE THE POLICE COURT OF THE DISTRICT OF COLUMBIA, INCLUDING FURNITURE AND EQUIPMENT, AND INSPECTION, $1,000,000, TO BE IMMEDIATELY AVAILABLE; AND THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED TO ENTER INTO ONE OR MORE CONTRACTS FOR SUCH CONSTRUCTION AT A COST NOT TO EXCEED $1,500,000.'

FOR THE COMPLETION OF THIS BUILDING, THE FOLLOWING LANGUAGE WAS INSERTED IN THE 1938 DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JUNE 29, 1937:

"FOR COMPLETING CONSTRUCTION OF A BUILDING IN JUDICIARY SQUARE TO HOUSE THE POLICE COURT OF THE DISTRICT OF COLUMBIA, INCLUDING FURNITURE AND EQUIPMENT, AND INSPECTION, $450,000.'

WHILE THE COMMISSIONERS FEEL THAT THE PAINTING SHOULD BE PERFORMED BY THE GENERAL CONTRACTOR AND THAT IT IS EXCEEDINGLY TO THE INTEREST OF THE DISTRICT TO DO SO, DOUBT IS EXPRESSED AS TO WHETHER THIS WORK MAY BE PERFORMED IN THIS MANNER IN VIEW OF PARAGRAPH 654 (G), WHICH PROVIDES:

"THE PAINTING OF THE PLASTER WALLS AND CEILINGS SHALL NOT BE INCLUDED UNDER THIS CONTRACT.'

THIS PARAGRAPH APPEARS TO BE IN CONFLICT WITH ARTICLE III ENTITLED "CHANGES," WHICH PROVIDES:

"THE ENGINEER COMMISSIONER MAY AT ANY TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETY, MAKE CHANGES IN THE DRAWINGS AND/OR SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE GENERAL SCOPE THEREOF. SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE, AND IF NO RATE IS FIXED BY CURRENT CONTRACTS THE CONTRACTOR SHALL BE PAID THE ACTUAL COST AS DETERMINED BY THE ENGINEER COMMISSIONER PLUS FIFTEEN PERCENT (15 PERCENT) OF SAID COST. ANY CLAIM FOR ADJUSTMENT UNDER THIS ARTICLE MUST BE ASSERTED WITHIN TEN (10) DAYS FROM THE DATE THE CHANGE IS ORDERED, UNLESS THE ENGINEER COMMISSIONER SHALL FOR PROPER CAUSE EXTEND SUCH TIME; AND IF THE PARTIES CANNOT AGREE UPON THE ADJUSTMENT, THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN ARTICLE 15 HEREOF. BUT NOTHING PROVIDED IN THIS ARTICLE SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE WORK SO CHANGED.'

IN CONNECTION WITH THIS PAINTING THE GENERAL CONTRACTOR RECEIVED PROPOSALS (LETTER BIDS) FROM THE FOLLOWING:

CHART

W. A. THOMAS AND COMPANY, INC ------------------------ $16,927.00

EDWARD W. MINTE COMPANY, INC ------------------------- 8,890.00

D. ZELINSKY AND SONS, INC ---------------------------- 8,800.00

UNDER THESE PROPOSALS THE COST HAS BEEN ESTABLISHED AS

FOLLOWS:

PAINTING 164,700 SQUARE FEET OF PLASTER AT

$0.0531 -------------------------------------------- $ 8,800.00

PAINTING CONCRETE AREA WALLS ------------------------- 55.00

OVERHEAD (15 PERCENT) -------------------------------- 1,328.25

TOTAL -------------------------------------------- $10,183.25

LESS AMOUNT ALLOWED FOR PAINTING WALLS BACK OF

RADIATORS (EXTRA ORDER NO. 12) --------------------- 190.00

NET TOTAL ---------------------------------------- $ 9,993.25

DOUBT IS FURTHER EXPRESSED AS TO WHETHER THIS METHOD OF OBTAINING COMPETITION WILL SATISFY THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, AND OF THE ACT OF JUNE 11, 1878, 20 STAT. 105, WHEREIN IT IS PROVIDED THAT "ANY WORK, THE TOTAL COST OF WHICH EXCEEDS THE SUM OF $1,000, NOTICE SHALL BE GIVEN IN ONE NEWSPAPER IN WASHINGTON, AND IF THE TOTAL COST SHALL EXCEED $5,000, THEN IN ONE NEWSPAPER IN EACH OF THE CITIES OF NEW YORK, PHILADELPHIA, AND BALTIMORE, ALSO FOR ONE WEEK, FOR PROPOSALS, WITH FULL SPECIFICATIONS AS TO MATERIALS FOR THE WHOLE OR ANY PART OF THE WORK PROPOSED TO BE DONE.' ADVERTISING IN NEWSPAPERS PUBLISHED OUTSIDE OF THE DISTRICT OF COLUMBIA WAS DISPENSED WITH BY A PROVISION IN THE CURRENT DISTRICT OF COLUMBIA APPROPRIATION ACT.

BY THE TERMS OF THIS CONTRACT THE DATE OF COMPLETION AS EXTENDED IS DECEMBER 23, 1937, AND IF COMPETITION IS OBTAINED AND A NEW CONTRACT IS LET, THERE IS THE LIKELIHOOD THAT OCCUPANCY OF THIS BUILDING WILL BE DEFERRED FOR AT LEAST SIXTY OR NINETY DAYS AS IT WILL NOT BE POSSIBLE FOR TWO CONTRACTORS TO BE OPERATING AT THE SAME TIME ON THE SAME JOB. THERE ARE MANY OTHER ADVANTAGES IN HAVING THE PAINTING DONE BY THE GENERAL CONTRACTOR ASIDE FROM THE ELEMENT OF TIME. THE NEW FURNITURE WHICH IS TO BE INSTALLED BY THE GENERAL CONTRACTOR WOULD BE HANDLED SEVERAL TIMES AND THERE WOULD BE SOME UNAVOIDABLE DAMAGE TO IT AND TO THE FLOORS AND WOODWORK. LIKEWISE, HARDWARE, SWITCHPLATES, AND MISCELLANEOUS MECHANICAL APPLIANCES WOULD HAVE TO BE REMOVED WHICH MAY AFFECT THE GUARANTEE CLAUSE OF THE CONTRACT. A THOROUGH INVESTIGATION AS TO THE PRACTICABILITY OF PAINTING THE NEW BUILDING REVEALS THAT THE PROCUREMENT DIVISION MAKES A PRACTICE OF PAINTING BEFORE OCCUPANCY OF ALL OF THEIR MONUMENTAL BUILDINGS. THE NEW FEDERAL RESERVE BUILDING RECENTLY COMPLETED WAS ALSO PAINTED BEFORE IT WAS OCCUPIED.

IN 5 COMP. GEN. 606, IT WAS HELD:

"OFFICERS OF THE GOVERNMENT ARE NOT AUTHORIZED TO MODIFY THE TERMS OF A CONTRACT WHICH HAS BEEN ENTERED INTO IF SUCH MODIFICATION WILL BE PREJUDICIAL TO THE UNITED STATES, AS APPEARS TO BE THE CASE HERE.'

THIS LANGUAGE WOULD IMPLY THAT THE COMMISSIONERS WOULD BE AUTHORIZED TO MODIFY THE TERMS OF THEIR CONTRACT IF IT WERE TO THE INTEREST OF THE DISTRICT OF COLUMBIA TO DO SO. CONSEQUENTLY THEY FEEL THAT THE ENGINEER COMMISSIONER, HAVING RESERVED TO HIMSELF THE AUTHORITY TO APPROVE ADDITIONAL WORK, OUGHT TO BE PERMITTED, AFTER DETERMINING THE REASONABLENESS OF THE CHARGE, TO DIRECT THAT THE WORK BE PERFORMED BY THE GENERAL CONTRACTOR.

THE COMMISSIONERS WOULD THEREFORE APPRECIATE EARLY ADVICE FROM YOU AS TO WHETHER THIS WORK MAY BE PERFORMED UNDER THE CIRCUMSTANCES AS ADDITIONAL WORK UNDER THE TERMS OF THE CONTRACT, THEY HAVING PREVIOUSLY DETERMINED THAT THE CHARGE IS REASONABLE FOR THIS WORK AND THE PROCEDURE OUTLINED IS DECIDEDLY TO THE ADVANTAGE OF THE DISTRICT OF COLUMBIA.

IN VIEW OF THE EXPRESS PROVISION IN THE CONTRACT SPECIFICATIONS THAT "THE PAINTING OF THE PLASTER WALLS AND CEILINGS SHALL NOT BE INCLUDED UNDER THIS CONTRACT," IT IS CLEAR THAT THE CONTRACTOR MAY NOT BE AUTHORIZED TO DO SUCH PAINTING BY A CHANGE ORDER UNDER ARTICLE 3 OF THE CONTRACT, QUOTED IN YOUR LETTER, AND, THEREFORE, THAT SUCH PAINTING IS NOT WITHIN THE "GENERAL SCOPE" OF THE CONTRACT AS STIPULATED IN THE SAID ARTICLE 3, AUTHORIZING ADJUSTMENT OF THE CONTRACT PRICE FOR CHANGES WITHIN THE GENERAL SCOPE THEREOF.

YOUR QUERY WHETHER AN AGREEMENT NEVERTHELESS MAY BE MADE WITH THE CONTRACTOR TO DO THE EXCEPTED PAINTING, WITHOUT ADVERTISEMENT OF THE WORK BY THE DISTRICT OF COLUMBIA, BUT ON THE BASIS OF BIDS OBTAINED BY THE CONTRACTOR FROM THREE FIRMS, PLUS 15 PERCENT FOR THE CONTRACTOR'S OVERHEAD AND PROFIT, MUST BE ANSWERED IN THE NEGATIVE. THE RULE WAS STATED IN DECISION OF JANUARY 21, 1926, 5 COMP. GEN. 508,512, AS FOLLOWS:

* * * IN GENERAL, AN EXISTING CONTRACT MAY NOT BE EXPANDED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE, WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. THE APPARENT PROBABILITY THAT THE ADDITIONAL WORK MAY BE DONE MORE CONVENIENTLY OR EVEN AT LESS EXPENSE BY THE ORIGINAL CONTRACTOR, BECAUSE OF BEING ENGAGED UPON THE ORIGINAL WORK, OR OTHERWISE, IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709 ARE FOR APPLICATION. WHETHER THE ORIGINAL CONTRACTOR CAN DO THE WORK AT LESS EXPENSE TO THE GOVERNMENT THAN CAN ANY OTHER CONTRACTOR IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED UNDER SAID SECTION. * * *

SEE ALSO, 5 COMP. GEN. 642, AND CASES CITED THEREIN; 14 ID. 466; 15 ID. 573; A-39661, NOVEMBER 27, 1931; A-38834, MARCH 10, 1932; A-64819, SEPTEMBER 20, 1935.

IN DECISION TO YOU OF DECEMBER 14, 1934, 14 COMP. GEN. 466, INVOLVING A SIMILAR MATTER, WHERE IT WAS KNOWN BY DISTRICT OF COLUMBIA OFFICIALS, BUT NOT BY THE CONTRACTOR, THAT UNDERGROUND SPRINGS WOULD BE ENCOUNTERED IN THE EXCAVATION FOR THE WOODROW WILSON HIGH SCHOOL, AND NO PROVISION WAS MADE IN THE CONTRACT FOR A NECESSARY SUBSOIL DRAINAGE SYSTEM, BUT DURING THE PROGRESS OF THE WORK AN AGREEMENT WITHOUT ADVERTISING WAS MADE WITH THE CONTRACTOR TO INSTALL SUCH DRAINAGE AT AN ADDITIONAL COST OF $1,035, IT WAS SAID:

IN VIEW OF THE STATEMENT THAT THE CONTRACTOR COULD HAVE COMPLETED HIS CONTRACT WITHOUT PROVIDING A SUBSOIL DRAINAGE SYSTEM, IT IS APPARENT THAT THE WORK WAS NOT "EXTRA WORK" UNDER THE CONTRACT, BUT WAS A SEPARATE AND DISTINCT UNDERTAKING, DETERMINED BY THE DISTRICT ENGINEERS TO BE DICTATED BY GOOD ENGINEERING JUDGMENT TO PREVENT POSSIBLE DAMAGE TO THE PUMP ROOM AFTER THE BUILDING WAS ACCEPTED.

YOU WERE INFORMED IN MY DECISION A-47848, APRIL 10, 1933, THAT THE GENERAL RULE IS THAT AN ORIGINAL CONTRACT MAY NOT BE EXPANDED BY SUPPLEMENTAL AGREEMENTS ENTERED INTO WITHOUT ADVERTISING, PROVIDING FOR SUBSTANTIAL ADDITIONS TO AND NOT A PART OF THE WORK COVERED BY THE CONTRACT. SEE ALSO, 5 COMP. GEN. 508; ID. 642.

IT WOULD APPEAR THAT THE COURSE FOLLOWED BY THE DISTRICT OFFICERS IN EMPLOYING THE GENERAL CONTRACTOR TO INSTALL THE SUBSOIL DRAINAGE SYSTEM WITHOUT COMPETITION WAS CONTRARY TO LAW AND, THEREFORE, HAD NO BINDING EFFECT ON THE GOVERNMENT. THE PRACTICE IN THIS RESPECT SHOULD BE CORRECTED. * * *

THE PAINTING OF WALLS AND CEILINGS IN THE NEW POLICE COURT BUILDING IS NOT "SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTORS.' ANY DOUBT AS TO THIS IS DISPELLED BY THE FACT THAT SUCH WORK WAS EXPRESSLY EXCLUDED FROM THE ORIGINAL CONTRACT, THE INFERENCE NECESSARILY BEING THAT IT WOULD BE DONE UNDER A SEPARATE CONTRACT. THE WORK INVOLVED APPEARS TO BE OF "CONSIDERABLE MAGNITUDE," INVOLVING AN AMOUNT APPROXIMATING THAT INVOLVED IN WOODROW WILSON HIGH SCHOOL CASE, SUPRA. THEREFORE, THE MATTER DOES NOT FALL WITHIN THE EXCEPTION STATED IN 5 COMP. GEN. 508, SUPRA. BY GIVING ALL INTERESTED PERSONS AN OPPORTUNITY TO BID ON THE WORK IT IS TO BE SUPPOSED THAT THE DISTRICT WOULD OBTAIN AT LEAST AS FAVORABLE A PRICE AS THAT OBTAINED FROM THE LIMITED NUMBER OF FIRMS--- APPARENTLY ONLY THREE--- SOLICITED BY THE BUILDING CONTRACTOR, AND IN ANY EVENT THE DISTRICT WOULD NOT HAVE TO PAY THE BUILDING CONTRACTOR WHAT, AS PROPOSED, AMOUNTS TO A 15-PERCENT FEE OR $1,328.25 AS AN INTERMEDIARY TO HAVE THE WORK DONE AT A COST OF $8,665 EVEN ON THE BASIS OF THE LIMITED QUOTATIONS RECEIVED BY THE CONTRACTOR. OBVIOUSLY SUCH A PAYMENT IS NOT TO THE INTEREST OF THE DISTRICT OF COLUMBIA. AS WAS SAID IN 15 COMP. GEN. 573,"BUT, BE THAT AS IT MAY, THE ONLY PROPER WAY TO ASCERTAIN WHETHER ADVERTISING WILL PRODUCE THE DESIRED RESULTS IS TO ADVERTISE, AND THAT IS WHAT THE LAW REQUIRES.' IF ON SUCH ADVERTISING THE BUILDING CONTRACTOR, BY REASON OF BEING ALREADY ON THE JOB, OR OTHERWISE, IS ABLE TO SUBMIT A BETTER BID THAN OTHER RESPONSIBLE BIDDERS, IT WILL BE ENTITLED, OF COURSE, TO AN AWARD OF THE CONTRACT. BUT, OBVIOUSLY, THIS CANNOT BE DETERMINED WITHOUT PRIOR ADVERTISING, AND JUST AS OBVIOUSLY THE LIMITED SOLICITATION OF PROPOSALS BY THE BUILDING CONTRACTOR FOR ITS OWN PURPOSES IS NOT THE ADVERTISING REQUIRED BY STATUTE. 14 COMP. GEN. 364.

YOU URGE PARTICULARLY THE DELAY AND INCONVENIENCE OF HAVING THE PAINTING DONE UNDER A SEPARATE CONTRACT, AND STATE THAT IT WILL NOT BE POSSIBLE FOR TWO CONTRACTORS TO BE OPERATING AT THE SAME TIME ON THE SAME JOB. ARTICLE 13 OF THE CONTRACT EXPRESSLY PROVIDES: OTHER CONTRACTS.--- THE DISTRICT MAY AWARD OTHER CONTRACTS FOR ADDITIONAL WORK, AND THE CONTRACTOR SHALL FULLY COOPERATE WITH SUCH OTHER CONTRACTORS AND CAREFULLY FIT HIS OWN WORK TO THAT PROVIDED UNDER OTHER CONTRACTS AS MAY BE DIRECTED BY THE ENGINEER. THE CONTRACTOR SHALL NOT COMMIT OR PERMIT ANY ACT WHICH WILL INTERFERE WITH THE PERFORMANCE OF WORK BY ANY OTHER CONTRACTOR.

UNDER THIS ARTICLE THE BUILDING CONTRACTOR IS OBLIGATED TO COOPERATE FULLY WITH OTHER CONTRACTORS FOR ADDITIONAL WORK, AND NO REASON IS APPARENT WHY THE PAINTING WORK SHOULD NOT BE CARRIED FORWARD AS PROMPTLY BY A SEPARATE CONTRACTOR WORKING IN COOPERATION WITH THE BUILDING CONTRACTOR UNDER THE DIRECTION OF THE DISTRICT ENGINEER, AS IT WOULD BE IF PERFORMED BY A SUBCONTRACTOR OF THE BUILDING CONTRACTOR OR DIRECTLY BY THE BUILDING CONTRACTOR. EVIDENTLY THE SPECIFICATIONS FOR THE PAINTING HAVE BEEN PREPARED, FOR OTHERWISE THE BUILDING CONTRACTOR WOULD NOT HAVE BEEN IN POSITION TO OBTAIN PROPOSALS FOR THE WORK. ADVERTISING THE WORK, OBTAINING COMPETITIVE BIDS, AND AWARDING A CONTRACT SHOULD TAKE ONLY A SHORT TIME. IF THE MATTER BE HANDLED EXPEDITIOUSLY, THERE IS NO REASON TO ASSUME THAT AWARDING A SEPARATE CONTRACT SHOULD RESULT IN ANY SUBSTANTIAL DELAY IN HAVING THE PAINTING COMPLETED, BEYOND THE TIME WHICH WOULD BE REQUIRED FOR SUCH WORK BY THE BUILDING CONTRACTOR. IT IS NOTED IN THIS CONNECTION THAT RECENT NEWSPAPER REPORTS STATE THAT WORK ON THE POLICE COURT BUILDING HAS BEEN STOPPED BY A STRIKE OF THE CONTRACTOR'S EMPLOYEES.

HOWEVER THESE MATTERS MAY BE, IT IS SETTLED THAT ADVERTISING MAY NOT BE DISPENSED WITH IN SUCH CASES EXCEPT IN AN EMERGENCY. IT HAS BEEN KNOWN AT LEAST SINCE SEPTEMBER 4, 1936, WHEN THE BUILDING CONTRACT WAS ENTERED INTO THAT THIS PAINTING WOULD HAVE TO BE DONE IN ADDITION TO THE CONTRACT WORK. ANY EMERGENCY NOW EXISTING WITH RESPECT TO HAVING THE PAINTING DONE WOULD APPEAR TO HAVE BEEN CREATED BY THE ADMINISTRATIVE DELAY IN ARRANGING FOR THE WORK, AND SUCH ADMINISTRATIVELY CREATED EMERGENCIES DO NOT SUFFICE TO EXCUSE THE OMISSION OF ADVERTISING AND THE LETTING OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS AS REQUIRED BY LAW. SEE 14 COMP. GEN. 364. AND IT MAY BE ADDED THAT THE 15 PERCENT TO BE ALLOWED TO THE BUILDING CONTRACTOR WOULD BE PRACTICALLY COMPENSATION FOR SERVICES IN THE NATURE OF CLERICAL-- - OBTAINING BIDS, ETC.--- WHICH ARE FOR PERFORMING BY THE ADMINISTRATIVE EMPLOYEES OF THE DISTRICT OF COLUMBIA.

ACCORDINGLY YOU ARE ADVISED THAT THE PROPOSED AGREEMENT WITH THE BUILDING CONTRACTOR IS NOT AUTHORIZED.