A-99031, NOVEMBER 12, 1938, 18 COMP. GEN. 453

A-99031: Nov 12, 1938

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THE AMENDMENT OF ARMY REGULATIONS ACCORDINGLY WILL NOT BE OBJECTED TO BY THE GENERAL ACCOUNTING OFFICE. IS AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF A LETTER ADDRESSED TO THE QUARTERMASTER GENERAL DATED AUGUST 29. THE QUOTED PROVISION WAS ORIGINALLY INCORPORATED IN U.S. THERE IS NO AFFIRMATIVE EVIDENCE BEFORE THIS DEPARTMENT IN SUPPORT OF THE INFERENCE EXPRESSED IN 17 COMPTROLLER GENERAL 585 THAT THE INCLUSION OF THE PARAGRAPH IN QUESTION IN THE ADVERTISED SPECIFICATIONS NECESSARILY TENDS TO RESULT IN SUBMISSION OF HIGHER BIDS OR TO RESTRICT COMPETITION. BY PREFACING THIS CLAUSE AS FOLLOWS: "IT IS REQUESTED THAT THE BIDDER AGREE TO COMPLY WITH THE PROVISIONS OF THE FOLLOWING CLAUSE.'. IT WAS SAID RESPECTING CONTRACT STIPULATIONS FOR REPORTING PAY ROLL AND OTHER STATISTICAL DATA TO THE DEPARTMENT OF LABOR.

A-99031, NOVEMBER 12, 1938, 18 COMP. GEN. 453

CONTRACTS - SPECIFICATIONS - INCLUSION OF PAY ROLL STATISTICS, REPORTS, ETC., REQUESTS THE INCLUSION IN ADVERTISED SPECIFICATIONS OF A REQUEST THAT THE BIDDER AGREE TO SUBMISSION OF REPORTS TO THE DEPARTMENT OF LABOR CONCERNING PAY ROLL AND OTHER STATISTICAL INFORMATION, AND THE AMENDMENT OF ARMY REGULATIONS ACCORDINGLY WILL NOT BE OBJECTED TO BY THE GENERAL ACCOUNTING OFFICE, BUT OTHERWISE ACCEPTABLE BIDS MAY NOT BE REJECTED FOR REFUSAL TO COMPLY WITH SUCH REQUESTS. 18 COMP. GEN. 285, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, NOVEMBER 12, 1938:

YOUR LETTER OF OCTOBER 28, 1938, IS AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF A LETTER ADDRESSED TO THE QUARTERMASTER GENERAL DATED AUGUST 29, 1938, FILE A-CS-CE, FROM THE CHIEF, CONTRACT EXAMINING SECTION, GENERAL ACCOUNTING OFFICE, RELATIVE TO INCLUSION OF CLAUSE IN SPECIAL CONDITIONS OF CONTRACT NO. W-538 QM-105 WITH LOUIS VALENTINE JAMBERS, REQUIRING SUBMISSION OF REPORTS PERTAINING TO PAY ROLLS, MAN HOURS WORKED, AND OTHER STATISTICAL INFORMATION TO THE DEPARTMENT OF LABOR.

THE QUOTED PROVISION WAS ORIGINALLY INCORPORATED IN U.S. GOVERNMENT FORM OF CONTRACT NO. P.W.A. 51, IN CONFORMITY WITH THE N.I.R.A., AND HAS SINCE BEEN RETAINED IN SPECIAL CONDITIONS ATTACHED TO U.S. STANDARD CONTRACT FORM NO. 23, PURSUANT TO RECOMMENDATION OF THE SECRETARY OF LABOR AND FEDERAL CONTRACT BOARD AS SET FORTH IN PROCUREMENT DIVISION, TREASURY DEPARTMENT, CIRCULAR LETTER NO. 45 OF JULY 19, 1934. THIS DEPARTMENT HAS NO RECORD OR KNOWLEDGE OF THE REJECTION OF A LOW OR OTHERWISE SATISFACTORY BID ON THE GROUNDS THAT THE BIDDER FAILED OR REFUSED TO COMPLY WITH THIS REQUEST FOR STATISTICAL INFORMATION AS SET FORTH IN PAR. SC-5 OF SPECIAL CONDITIONS, AND FURTHER, THERE IS NO AFFIRMATIVE EVIDENCE BEFORE THIS DEPARTMENT IN SUPPORT OF THE INFERENCE EXPRESSED IN 17 COMPTROLLER GENERAL 585 THAT THE INCLUSION OF THE PARAGRAPH IN QUESTION IN THE ADVERTISED SPECIFICATIONS NECESSARILY TENDS TO RESULT IN SUBMISSION OF HIGHER BIDS OR TO RESTRICT COMPETITION.

IN VIEW OF YOUR DECISION OF SEPTEMBER 30, 1938, A-96689, (18 COMP. GEN. 285) PERTAINING TO THE REQUIREMENT HERE UNDER DISCUSSION, THE APPROPRIATE ACTION HAS BEEN TAKEN TO AMEND THE APPLICABLE ARMY REGULATION AUTHORIZING THE INCLUSION OF THIS PROVISION IN SPECIAL CONDITIONS, BY PREFACING THIS CLAUSE AS FOLLOWS: "IT IS REQUESTED THAT THE BIDDER AGREE TO COMPLY WITH THE PROVISIONS OF THE FOLLOWING CLAUSE.'

IN DECISION OF MARCH 7, 1938, 17 COMP. GEN. 700, 708, IT WAS SAID RESPECTING CONTRACT STIPULATIONS FOR REPORTING PAY ROLL AND OTHER STATISTICAL DATA TO THE DEPARTMENT OF LABOR, THAT---

AS THE DATA SOUGHT TO BE OBTAINED BY THE USE OF THE PROVISION IN QUESTION IS FOR AN AUTHORIZED USE BY THE GOVERNMENT, AND SINCE IT HAS BEEN REPRESENTED THAT BIDDERS GENERALLY DO NOT OBJECT TO FURNISHING SUCH DATA, THIS OFFICE IS NOT REQUIRED TO INTERPOSE OBJECTION TO A PROCEDURE UNDER WHICH GOVERNMENT CONTRACTORS ARE REQUESTED--- BUT NOT REQUIRED--- TO FURNISH THE DESIRED MONTHLY REPORTS TO THE DEPARTMENT OF LABOR. IT MUST BE UNDERSTOOD, HOWEVER, THAT THERE EXISTS NO LAWFUL AUTHORITY FOR THE REJECTION OF A LOW AND OTHERWISE SATISFACTORY BID BECAUSE OF REFUSAL TO COMPLY WITH SUCH REQUEST.

ON THE BASIS STATED THEREIN THAT CONTRACTORS MAY BE REQUESTED BUT NOT REQUIRED TO FURNISH SUCH STATISTICAL DATA AND REPORTS, AND WITH THE UNDERSTANDING THAT THE REJECTION OF OTHERWISE ACCEPTABLE BIDS FOR REFUSAL TO AGREE TO COMPLY WITH SUCH REQUEST IS NOT AUTHORIZED, THIS OFFICE PERCEIVES NO PRESENT OBJECTION TO THE STATED AMENDMENT TO THE ARMY REGULATIONS IN THIS PARTICULAR.