B-10675, JULY 8, 1940, 20 COMP. GEN. 14

B-10675: Jul 8, 1940

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CONTRACTS - NATIONAL LABOR RELATIONS ACT COMPLIANCE THERE IS NO AUTHORITY OF LAW FOR REQUIRING. THAT PERSONS OR FIRMS BIDDING ON GOVERNMENT BUSINESS CERTIFY OR OTHERWISE AFFIRMATIVELY SIGNIFY THAT THEY ARE COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH THE NATIONAL LABOR RELATIONS ACT OF JULY 5. THERE IS NO LEGAL BASIS FOR REQUIRING. 1940: I HAVE YOUR LETTER OF JUNE 4. AS FOLLOWS: YOUR DECISION IS REQUESTED AS TO WHETHER PAYMENT IS AUTHORIZED OF THE ENCLOSED VOUCHER IN FAVOR OF GEORGE WOOD SONS AND COMPANY IN THE AMOUNT OF $25.66 FOR SATEEN FURNISHED THE INDIAN SERVICE UNDER CONTRACT NO. HOURS OF WORK OF EMPLOYEES HAVE BEEN COMPLIED WITH.'. YOU ARE ADVISED THAT PURSUANT TO INSTRUCTIONS CONTAINED IN YOUR LETTER DATED APRIL 2.

B-10675, JULY 8, 1940, 20 COMP. GEN. 14

CONTRACTS - NATIONAL LABOR RELATIONS ACT COMPLIANCE THERE IS NO AUTHORITY OF LAW FOR REQUIRING, AS A CONDITION PRECEDENT TO THE AWARD OF A CONTRACT, THAT PERSONS OR FIRMS BIDDING ON GOVERNMENT BUSINESS CERTIFY OR OTHERWISE AFFIRMATIVELY SIGNIFY THAT THEY ARE COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, 49 STAT. 449. THERE IS NO LEGAL BASIS FOR REQUIRING, AS A CONDITION PRECEDENT TO PAYMENT OF THE CONTRACT PRICE, THAT A CONTRACTOR CERTIFY IT HAS COMPLIED WITH THE NATIONAL LABOR RELATIONS ACT OF JULY 5, 1935, IN THE PERFORMANCE OF ITS CONTRACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JULY 8, 1940:

I HAVE YOUR LETTER OF JUNE 4, 1940, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER PAYMENT IS AUTHORIZED OF THE ENCLOSED VOUCHER IN FAVOR OF GEORGE WOOD SONS AND COMPANY IN THE AMOUNT OF $25.66 FOR SATEEN FURNISHED THE INDIAN SERVICE UNDER CONTRACT NO. I-1-IND- 17053, DATED MAY 24, 1939, WITHOUT THE SIGNING BY THE COMPANY OF CERTIFICATE NO. 3, APPEARING ON THE BACK OF THE VOUCHER WHICH READS AS FOLLOWS:

" I CERTIFY THAT THE STIPULATIONS REQUIRED BY LAW AND/OR UNDER CONTRACT, ETC., WITH RESPECT TO WAGES, RIGHTS, AND HOURS OF WORK OF EMPLOYEES HAVE BEEN COMPLIED WITH.'

YOU ARE ADVISED THAT PURSUANT TO INSTRUCTIONS CONTAINED IN YOUR LETTER DATED APRIL 2, 1938 (A-51607 AND A-49009), THERE WAS INCLUDED IN THE ADVERTISEMENT FOR DRY GOODS FOR THE INDIAN SERVICE FOR THE FISCAL YEAR 1940, A PRINTED SHEET ON WHICH THE ATTENTION OF ALL BIDDERS WERE INVITED TO CERTAIN CERTIFICATIONS INCLUDING NO. 3 QUOTED ABOVE, WHICH MAY BE REQUIRED OF CONTRACTORS AND VENDORS IN SUPPORT OF INVOICES OR PUBLIC VOUCHERS FOR PURCHASES AND SERVICES OTHER THAN PERSONAL.

THE ENCLOSED VOUCHER WAS RENDERED BY THE CONTRACTOR AS A RESULT OF AN ADDITIONAL ORDER PLACED BY THE SUPERINTENDENT OF THE INDIAN SERVICE WAREHOUSE IN CHICAGO, ON MARCH 13, 1940, IN ACCORDANCE WITH THE INCREASE PROVISIONS IN THE CONTRACT.

THE CONTRACTOR HAS REFUSED TO SIGN THE CERTIFICATE NO. 3, STATING THAT AS HE UNDERSTOOD THE MATTER THE WALSH-HEALEY ACT DID NOT APPLY BECAUSE THE AMOUNT OF THE CONTRACT WAS LESS THAN $10,000. THAT STATEMENT IS CORRECT SINCE THE TOTAL VALUE OF SUPPLIES OBTAINABLE UNDER THE TERMS OF THE CONTRACT TAKING INTO CONSIDERATION THE 100 PERCENT INCREASE PROVISION AMOUNTS TO $5,372.04.

THE REMAINING QUESTION, ARISING FROM THE CITATION IN A-51607 OF 49 STAT. 449 AS AN EXAMPLE OF APPLICABLE STIPULATIONS FOR CERTIFICATE NO. 3, IS WHETHER THE VENDOR IN THIS INSTANCE, AND VENDORS GENERALLY, MAY BE REQUIRED THUS TO CERTIFY TO COMPLIANCE WITH THE SO-CALLED NATIONAL LABOR RELATIONS ACT (49 STAT. 449). YOUR LATER DECISION (A-86908) OF JULY 15, 1937, INDICATES OTHERWISE.

YOUR INSTRUCTIONS IN THE MATTER, WITH THE RETURN OF THE VOUCHER, ARE REQUESTED. THE INSTRUCTIONS RECEIVED FROM YOU WILL BE USED AS A GUIDE IN DISPOSING OF SIMILAR QUESTIONS WHICH MAY ARISE IN THE FUTURE.

IN THE CITED DECISION OF JULY 15, 1937, A-86908 (17 COMP. GEN. 37), TO THE SOCIAL SECURITY BOARD, IT WAS STATED:

WHILE AS STATED IN THE MEMORANDUM OF YOUR GENERAL COUNSEL, THE CONGRESS HAS, IN THE STATUTES THEREIN REFERRED TO, ENACTED CERTAIN REQUIREMENTS WITH RESPECT TO GOVERNMENT CONTRACTS, NO SUCH REQUIREMENTS ARE FOUND IN THE NATIONAL LABOR RELATIONS ACT. THE CONGRESS HAS PROVIDED THE MEANS OF ENFORCING COMPLIANCE WITH THE REQUIREMENTS OF SAID ACT, BUT THE WITHHOLDING OF GOVERNMENT CONTRACTS FROM A VIOLATOR OF SUCH REQUIREMENTS IS NOT ONE OF THE MEANS SO PROVIDED.

THERE IS NOTHING IN THE SOCIAL SECURITY ACT TO REQUIRE THAT PERSONS OR FIRMS BIDDING ON GOVERNMENT BUSINESS SHALL CERTIFY OR OTHERWISE AFFIRMATIVELY SIGNIFY THAT THEY ARE COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH THE NATIONAL LABOR RELATIONS ACT. AND THE FACT THAT A BIDDER WHO SUBMITS A BID HAS PREVIOUSLY VIOLATED SAID ACT IS NOT FOR CONSIDERATION BY THE PURCHASING OR CONTRACTING OFFICER IN THE AWARDING OF A CONTRACT. THE SOLE JURISDICTION IN THE MATTER OF ENFORCING COMPLIANCE WITH THE NATIONAL LABOR RELATIONS ACT IS PLACED BY THE ACT IN THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS.

IN A DECISION OF SEPTEMBER 30, 1938, A-96689 (18 COMP. GEN. 285, 296), REFERENCE WAS MADE TO CONSOLIDATED EDISON COMPANY V. NATIONAL LABOR RELATIONS BOARD, 95 F. (2D) 390, 393, AND IT WAS STATED:

WHAT WAS SAID THERE WOULD APPEAR EQUALLY PERTINENT AS TO LOCAL CONSTRUCTION CONTRACTORS, BUT HOWEVER THAT MAY BE, I FIND NO LEGISLATIVE INTENT TO FURTHER THE PROVISIONS OF THE NATIONAL LABOR RELATIONS ACT BY STIPULATIONS IN GOVERNMENT CONTRACTS, 17 COMP. GEN. 37. SUCH STIPULATIONS MAY RESTRICT COMPETITION AND INCREASE CONTRACT PRICES AS A CHARGE AGAINST THE APPROPRIATION, CONTRARY TO SECTIONS 3709 AND 3678, REVISED STATUTES, NO PART OF THE APPROPRIATION INVOLVED FOR THE ACTIVITIES OF THE FARM SECURITY ADMINISTRATION HAVING BEEN MADE FOR THAT PURPOSE. IT MUST BE HELD, ACCORDINGLY, THAT THE INCLUSION IN FARM SECURITY ADMINISTRATION CONSTRUCTION CONTRACTS OF THE PROPOSED STIPULATIONS RESPECTING EMPLOYEE ORGANIZATION AND COLLECTIVE BARGAINING ARE NOT NOW AUTHORIZED BY LAW.

ALSO, SEE MY LETTER OF FEBRUARY 5, 1940, TO YOU, CONCERNING THE CERTIFICATE IN QUESTION, AND THE DECISION PUBLISHED AT 19 COMP. GEN. 748.

THERE BEING NO AUTHORITY OF LAW FOR REQUIRING, AS A CONDITION PRECEDENT TO THE AWARD OF A CONTRACT, THAT PERSONS OR FIRMS BIDDING ON GOVERNMENT BUSINESS CERTIFY OR OTHERWISE AFFIRMATIVELY SIGNIFY THAT THEY ARE COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH THE NATIONAL LABOR RELATIONS ACT, THERE LIKEWISE WOULD APPEAR NO PROPER OR LEGAL BASIS FOR REQUIRING, AS A CONDITION PRECEDENT TO PAYMENT OF THE CONTRACT PRICE, UNDER THE CIRCUMSTANCES HERE APPEARING, THAT THE BIDDER CERTIFY THAT IT COMPLIED WITH THE NATIONAL LABOR RELATIONS ACT IN THE PERFORMANCE OF THE CONTRACT.

ACCORDINGLY, THIS OFFICE WILL NOT OBJECT TO PAYMENT, IF OTHERWISE CORRECT, ON THE VOUCHER, WHICH IS RETURNED HEREWITH, WITHOUT REQUIRING THE CONTRACTOR TO CERTIFY AS TO COMPLIANCE WITH THE NATIONAL LABOR RELATIONS ACT. THAT IS TO SAY, THE TWO QUESTIONS, IN THE ORDER IN WHICH THEY HAVE BEEN PRESENTED IN YOUR LETTER, SUPRA, ARE ANSWERED IN THE AFFIRMATIVE AND THE NEGATIVE, RESPECTIVELY.