A-91563, FEBRUARY 2, 1938, 17 COMP. GEN. 625

A-91563: Feb 2, 1938

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AS SUCH ISLANDS ARE STILL SUBJECT TO THE JURISDICTION OF THE UNITED STATES. AS FOLLOWS: THE RECEIPT IS ACKNOWLEDGED OF YOUR LETTERS OF JANUARY 5 AND 11. THE QUESTION OF THE PURCHASE OF THIS ROPE WAS FIRST BROUGHT TO THE ATTENTION OF THE BUREAU OF LIGHTHOUSES OF THIS DEPARTMENT BY A RADIOGRAM FROM THE SUPERINTENDENT AT SAN FRANCISCO AS FOLLOWS: "IN RESPONSE INVITATIONS COVERING PURCHASE MANILA ROPE LOW BID SUBMITTED BY LOCAL DEALER ON YNCHAUSTI BRANCH MANUFACTURED IN MANILA. AFTER CONSIDERATION OF THIS MATTER AND INFORMAL INQUIRIES MADE WITHIN THE DEPARTMENT AND WITH THE PROCUREMENT DIVISION THE SUPERINTENDENT WAS ADVISED BY RADIOGRAM OF DECEMBER 30. THE MATTER WAS TAKEN UP FURTHER WITH THE SUPERINTENDENT AND UNDER DATE OF JANUARY 10.

A-91563, FEBRUARY 2, 1938, 17 COMP. GEN. 625

CONTRACTS - FOREIGN PRODUCTS - STATUS OF PRODUCTS OF PHILIPPINE ISLANDS PRODUCTS OF THE PHILIPPINE ISLANDS MAY NOT BE CLASSED AT THIS TIME AS FOREIGN PRODUCTS WITHIN THE MEANING OF THE BUY AMERICAN ACT OF MARCH 3, 1933, 47 STAT. 1520, AS SUCH ISLANDS ARE STILL SUBJECT TO THE JURISDICTION OF THE UNITED STATES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, FEBRUARY 2, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 22, 1938, AS FOLLOWS:

THE RECEIPT IS ACKNOWLEDGED OF YOUR LETTERS OF JANUARY 5 AND 11, 1938, THE FORMER ENCLOSING COPY OF A TELEGRAM FROM THE HAVISIDE COMPANY, OF SAN FRANCISCO, CALIFORNIA, AND THE LATTER QUOTING A LETTER FROM SAID COMPANY, CONCERNING THE AWARD OF A CONTRACT BY THE SUPERINTENDENT OF LIGHTHOUSES, SAN FRANCISCO, CALIFORNIA, FOR MANILA ROPE.

THE QUESTION OF THE PURCHASE OF THIS ROPE WAS FIRST BROUGHT TO THE ATTENTION OF THE BUREAU OF LIGHTHOUSES OF THIS DEPARTMENT BY A RADIOGRAM FROM THE SUPERINTENDENT AT SAN FRANCISCO AS FOLLOWS:

"IN RESPONSE INVITATIONS COVERING PURCHASE MANILA ROPE LOW BID SUBMITTED BY LOCAL DEALER ON YNCHAUSTI BRANCH MANUFACTURED IN MANILA, PHILIPPINE ISLANDS, ADVICE REQUESTED IF ROPE MANUFACTURED IN MANILA MAY BE CONSIDERED AS FOREIGN PRODUCT AND BID DISREGARDED.'

AFTER CONSIDERATION OF THIS MATTER AND INFORMAL INQUIRIES MADE WITHIN THE DEPARTMENT AND WITH THE PROCUREMENT DIVISION THE SUPERINTENDENT WAS ADVISED BY RADIOGRAM OF DECEMBER 30, 1937, AS FOLLOWS BY THE COMMISSIONER OF LIGHTHOUSES:

"RE RADIO TWENTY-THIRD, ROPE MANUFACTURED PHILIPPINE ISLANDS BEING ACCEPTED BY PROCUREMENT DIVISION AS DOMESTIC PRODUCTION WITHOUT APPARENT OBJECTION, YOUR OFFICE AUTHORIZED ACT ORDINGLY.'

UPON RECEIPT OF YOUR LETTER OF JANUARY 5, 1938, THE MATTER WAS TAKEN UP FURTHER WITH THE SUPERINTENDENT AND UNDER DATE OF JANUARY 10, 1938, HE ADVISED BY RADIO AS QUOTED BELOW:

"RE BID ROPE AWARD NOT YET MADE ALL BIDS CANCELLED AND NEW PROPOSALS ISSUED OPENING JANUARY ELEVENTH STOP HAVISIDE PROTEST IS FROM TUBBS CORDAGE COMPANY LOCAL MANUFACTURERS STOP WILL AIR MAIL COPY NEW PROPOSAL AND ABSTRACT OF BIDS STOP HAVISIDE PROTEST BASED ENTIRELY ON QUESTION OF ACCEPTING PHILIPPINE ROPE IN COMPETITION WITH ROPE OF DOMESTIC MANUFACTURE AS BID FOR PHILIPPINE ROPE WAS LOWEST OF SEVEN BIDS RECEIVED.'

THE SUPERINTENDENT HAS SINCE ADVISED THAT THE CANCELLATION OF BIDS OPENED DECEMBER 23, 1937, WAS DUE TO HIS OFFICE LEARNING THAT THE PRICE OF ROPE HAD BEEN REDUCED APPROXIMATELY $0.01 PER POUND SINCE THE DATE OF OPENING BIDS ON ACCOUNT OF SOME LOCAL CONTROVERSY. THIS FACT IS BORNE OUT BY THE NEW BID PRICES SUBMITTED AS SHOWN ON THE ENCLOSED ABSTRACTS. HOWEVER, THE WEEKS-HOWE-EMERSON COMPANY ARE STILL LOW BIDDERS, THEIR QUOTATION BEING BASED ON FURNISHING MANILA ROPE MANUFACTURED IN THE PHILIPPINE ISLANDS, AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER SUCH BID MAY BE DISREGARDED AS NOT COMPLYING WITH THE PROVISIONS OF SECTION 2, TITLE 3 OF THE ACT OF CONGRESS APPROVED MARCH 3, 1933, 47 STAT. 1520, AND THE BID OF THE MARSHALL-NEWELL-SUPPLY COMPANY ACCEPTED AS COMPLYING WITH THE ADVERTISED PROPOSAL.

WITH SPECIAL REFERENCE TO YOUR LETTER OF JANUARY 11, IT DOES NOT APPEAR THAT THE PROVISIONS OF THE WAGNER NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, REFERRED TO BY THE HAVISIDE COMPANY ARE REQUIRED TO BE MADE A PART OF GOVERNMENT CONTRACTS FOR THE PURCHASE OF SUPPLIES, AND SAME WERE NOT INCLUDED IN THE ADVERTISED TERMS OR SPECIFICATIONS UNDER CONSIDERATION. THE PERTINENT MATTER FOR CONSIDERATION AS INDICATED ABOVE, IS UNDERSTOOD TO INVOLVE THE DOMESTIC OR FOREIGN CHARACTER OF THE MATERIAL TO BE SUPPLIED BY THE WEEKS-HOWE-EMERSON COMPANY WITH RESPECT TO COMPLIANCE WITH THE ACT ABOVE CITED.

THE AMOUNT INVOLVED BEING LESS THAN $10,000, THERE IS INAPPLICABLE THE SO -CALLED WALSH-HEALEY ACT OF JUNE 30, 1936, 49 STAT. 2036, ET SEQ. THE BUY AMERICAN ACT OF MARCH 3, 1933, 47 STAT. 1520, PROVIDED IN SECTION 1 THEREOF:

THAT WHEN USED IN THIS TITLE---

(A) THE TERM "UNITED STATES," WHEN USED IN A GEOGRAPHICAL SENSE, INCLUDES THE UNITED STATES AND ANY PLACE SUBJECT TO THE JURISDICTION THEREOF;

(B) THE TERMS "PUBLIC USE," "PUBLIC BUILDING," AND "PUBLIC WORK" SHALL MEAN USE BY, PUBLIC BUILDING OF, AND PUBLIC WORK OF, THE UNITED STATES, THE DISTRICT OF COLUMBIA, HAWAII, ALASKA, PUERTO RICO, THE PHILIPPINE ISLANDS, AMERICAN SAMOA, THE CANAL ZONE, AND THE VIRGIN ISLANDS.

THE PHILIPPINE ISLANDS ARE STILL SUBJECT TO THE JURISDICTION OF THE UNITED STATES. HENCE, PRODUCTS OF SAID ISLANDS MAY NOT BE CLASSED AT THIS TIME AS FOREIGN PRODUCTS WITHIN THE MEANING OF THE ACT OF MARCH 3, 1933, SUPRA.

THE HAVISIDE CO. HAS COMPLAINED AGAINST INEQUALITY OF COMPETITION BETWEEN CONCERNS IN THE UNITED STATES AND IN THE PHILIPPINE ISLANDS DUE TO THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, 49 STAT. 449, 457, BUT, AS YOU HAVE INTIMATED IN THE CONCLUDING PARAGRAPH OF THE ABOVE-QUOTED LETTER, ANY SUCH INEQUALITY IS NOT ONE WHICH MAY BE REMOVED BY CONTRACT STIPULATIONS UNDER EXISTING LAW, EXCEPT TO THE EXTENT THAT THE PURCHASES EXCEED $10,000 AND ARE MADE IN COMPLIANCE WITH THE WALSH-HEALEY ACT OF JUNE 30, 1936, AND THE REGULATIONS ISSUED PURSUANT THERETO.

IF THE ROPE OFFERED UNDER THE LOW BID OF THE WEEKS-HOWE-EMERSON CO. MEETS THE REQUIREMENTS OF THE SPECIFICATIONS THE ACCEPTANCE OF A HIGHER BID IN THIS INSTANCE IS NOT AUTHORIZED.