A-94784, MAY 18, 1938, 17 COMP. GEN. 960

A-94784: May 18, 1938

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NOR THAT THERE IS NO ONE AGENCY WITH FACILITIES FOR CONSTRUCTING ALL DIORAMAS REQUIRED WITHIN THE LIMITED TIME AVAILABLE. IS LIMITED. THERE IS NO LEGAL OBJECTION TO ADVERTISING THE ENTIRE NEEDS WITH INSTRUCTIONS TO BIDDERS TO SUBMIT BIDS FOR SUCH PART OR PARTS THEREOF AS THEY ARE. WHICH WILL BE DESIGNED TO PORTRAY THE ACTIVITIES OF THE UNITED STATES GOVERNMENT. WILL BE DIVIDED INTO TWELVE SEPARATE THEMES. THESE THEMES WILL BE VARIOUSLY DESIGNED AND CONSTRUCTED. IT APPEARS GENERALLY FROM THE PLANS THAT DIORAMAS AND MODELS WILL PLAY AN IMPORTANT PART IN VIRTUALLY ALL OF THE THEMES. THE DIFFICULTY IN SUBMITTING FOR COMPETITIVE BIDDING THE DESIGNS FOR THE DIORAMAS ARE (FIRST) THAT DIORAMAS ARE ESSENTIALLY ARTISTIC WORKS.

A-94784, MAY 18, 1938, 17 COMP. GEN. 960

ADVERTISING - BIDS - STATUTORY REQUIREMENT APPLICABILITY TO SERVICES, AND NONAVAILABILITY OF FIRMS WITH FACILITIES FOR ENTIRE JOB NEITHER THE FACT THAT CONSTRUCTION OF DIORAMAS INVOLVES PRIMARILY PERSONAL SERVICES OF AN ARTISTIC OR SPECIALIZED CHARACTER, NOR THAT THERE IS NO ONE AGENCY WITH FACILITIES FOR CONSTRUCTING ALL DIORAMAS REQUIRED WITHIN THE LIMITED TIME AVAILABLE, AUTHORIZES DISPENSING WITH ADVERTISING AS REQUIRED BY SECTION 3709, REVISED STATUTES, BUT IN VIEW OF THE CHARACTER OF THE WORK AND THAT THE TIME IN WHICH IT MUST BE ACCOMPLISHED, TO SERVE ITS PURPOSE, IS LIMITED, THERE IS NO LEGAL OBJECTION TO ADVERTISING THE ENTIRE NEEDS WITH INSTRUCTIONS TO BIDDERS TO SUBMIT BIDS FOR SUCH PART OR PARTS THEREOF AS THEY ARE, RESPECTIVELY, QUALIFIED TO PERFORM WITHIN THE ALLOTTED TIME--- RESERVING THE RIGHT TO ACCEPT FOR DIFFERENT PARTS OF THE WORK AS MANY OF THE LOWER BIDS SUBMITTED BY RESPONSIBLE AND QUALIFIED BIDDERS AS MAY BE NECESSARY TO INSURE COMPLETION OF ALL WORK WITHIN THE ALLOTTED TIME.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE UNITED STATES COMMISSIONER GENERAL, UNITED STATES NEW YORK WORLD'S FAIR COMMISSION, MAY 18, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 5, 1938, REQUESTING DECISION WITH RESPECT TO A QUESTION PRESENTED AS FOLLOWS:

THE EXHIBITS, WHICH WILL BE DESIGNED TO PORTRAY THE ACTIVITIES OF THE UNITED STATES GOVERNMENT, ITS AGENCIES AND ITS INSTRUMENTALITIES, WILL BE DIVIDED INTO TWELVE SEPARATE THEMES. THESE THEMES WILL BE VARIOUSLY DESIGNED AND CONSTRUCTED. FOR EXAMPLE, EACH THEME MAY CONSIST OF ONE OR TWO DIORAMAS, A NUMBER OF TRANSPARENCIES, SEVERAL CHARTS, ILLUMINATED LETTERING, AND POSSIBLY OTHER DEVICES. IT APPEARS GENERALLY FROM THE PLANS THAT DIORAMAS AND MODELS WILL PLAY AN IMPORTANT PART IN VIRTUALLY ALL OF THE THEMES. THE QUESTION THAT HAS ARISEN, AND WHICH HAS BEEN PLACED BEFORE THE COMMISSION, INVOLVES THE ARRANGEMENTS FOR THE CONSTRUCTIONS OF THE DIORAMAS, WITH REFERENCE TO THE PRACTICABILITY OF THE PROVISIONS OF THE PUBLIC CONTRACTS LAW REQUIRING COMPETITIVE BIDDING. THE DIFFICULTY IN SUBMITTING FOR COMPETITIVE BIDDING THE DESIGNS FOR THE DIORAMAS ARE (FIRST) THAT DIORAMAS ARE ESSENTIALLY ARTISTIC WORKS, COMBINING THE FEATURES OF MURAL PAINTING AND SCULPTURE TO A LARGE EXTENT; (SECOND) THE CONSTRUCTION OF DIORAMAS IS A HIGHLY SPECIALIZED WORK IN WHICH THERE ARE RELATIVELY FEW GOVERNMENT AND PRIVATE AGENCIES COMPETENT TO DO FIRST-CLASS WORK IN A LIMITED TIME. AS FAR AS WE ARE ABLE TO JUDGE, THERE IS NO ONE AGENCY WITH FACILITIES FOR CONSTRUCTING ALL THE DIORAMAS WHICH WILL BE REQUIRED FOR OUR EXHIBITS; (THIRD) THE COMMISSION IS WORKING ON A LIMITED TIME SCHEDULE AND IF THE WORK ON THE EXHIBITS IS NOT COMPETENTLY DONE IN THE FIRST INSTANCE, TIME WILL NOT PERMIT CORRECTION OF ERRORS.

THE FOREGOING FACTORS COMBINE TO LEAD US TO BELIEVE THAT INSOFAR AS THE CONSTRUCTION OF THE DIORAMAS AND MODELS IS CONCERNED, THE WORK SHOULD BE ALLOCATED AMONG THOSE QUALIFIED, INCLUDING BOTH PRIVATE FIRMS AND GOVERNMENT DEPARTMENTS, UPON THE BASIS OF THEIR ABILITY TO PERFORM THE WORK SATISFACTORILY IN THE TIME REQUIRED, THE PRICES AND TERMS OF THE CONTRACTS FOR SUCH CONSTRUCTION TO BE APPROVED BY THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT. THIS ARRANGEMENT HAS BEEN DISCUSSED BY THE COMMISSION AND HAS BEEN APPROVED AS THE ONLY PRACTICABLE METHOD OF COMPLETING THE JOB SATISFACTORILY WITHIN THE TIME LIMITS UNDER WHICH WE ARE WORKING.

WE FEEL CONFIDENT THAT THE ARRANGEMENT SUGGESTED IS WITHIN THE PUBLIC CONTRACT LAW SINCE, AS WE HAVE POINTED OUT, THE CONSTRUCTION OF DIORAMAS IS AN ARTISTIC OPERATION CALLING FOR "PERSONAL SERVICES," WHICH ARE EXCEPTED FROM THE COMPETITIVE BIDDING REQUIREMENTS.

WE WISH TO MAKE PERFECTLY CLEAR THAT ALL CONSTRUCTION, OTHER THAN DIORAMAS AND MODELS AND WORK OF PURELY ARTISTIC CHARACTER, WILL BE SUBJECT TO COMPETITIVE BIDDING IN THE USUAL MANNER. THUS THE CONSTRUCTION OF THE HOUSING OF THE DIORAMAS AND MODELS, WIRING, PAINTING OF THE EXHIBIT HALL, THE MANUFACTURE OF TRANSPARENCIES AND ILLUMINATED LETTERING, ETC., WILL NOT BE INCLUDED IN THE ARRANGEMENT WE PROPOSE.

WE WOULD APPRECIATE HAVING YOUR VIEWS AS TO THE SUGGESTED PROCEDURE IN RESPECT OF DIORAMAS AT YOUR EARLY CONVENIENCE.

THE MERE FACT THAT THE CONSTRUCTION OF DIORAMAS INVOLVES PRIMARILY PERSONAL SERVICES OF AN ARTISTIC OR SPECIALIZED CHARACTER DOES NOT EXEMPT CONTRACTS THEREFOR FROM THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, WHICH SECTION IS SPECIFICALLY MADE APPLICABLE TO CONTRACTS FOR SERVICES AS WELL AS TO CONTRACTS FOR SUPPLIES. NEITHER DOES THE FACT, IF IT BE A FACT, THAT THERE IS NO ONE AGENCY WITH FACILITIES SUFFICIENT FOR CONSTRUCTING ALL THE DIORAMAS WHICH WILL BE REQUIRED FOR THE EXHIBITS WITHIN THE LIMITED TIME AVAILABLE, AUTHORIZE DISPENSING WITH ADVERTISING AS REQUIRED BY LAW.

HOWEVER, IN VIEW OF THE CHARACTER OF THE WORK INVOLVED AND THE LIMITED TIME IN WHICH IT MUST BE ACCOMPLISHED IN ORDER TO SERVE THE PURPOSE FOR WHICH INTENDED, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO ADVERTISING THE ENTIRE NEEDS WITH INSTRUCTIONS TO THE PROSPECTIVE BIDDERS TO SUBMIT BIDS FOR SUCH PART OR PARTS THEREOF AS THEY ARE, RESPECTIVELY, QUALIFIED AND EQUIPPED TO PERFORM WITHIN THE ALLOTTED TIME--- RESERVING TO THE GOVERNMENT THE RIGHT TO ACCEPT FOR DIFFERENT PARTS OF THE WORK AS MANY OF THE LOWER BIDS SUBMITTED BY RESPONSIBLE BIDDERS OF ESTABLISHED QUALIFICATIONS AS MAY BE NECESSARY TO INSURE THE COMPLETION OF ALL OF THE REQUIRED WORK WITHIN THE ALLOTTED TIME.