B-109100, JULY 21, 1952, 32 COMP. GEN. 32

B-109100: Jul 21, 1952

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OR BROKERS OF FINISHED GOODS WHICH HAVE BEEN MADE BY CONVICTS. 1952: REFERENCE IS MADE TO LETTER DATED APRIL 3. IT IS STATED THAT WORK UNDER THE CONTRACTS WOULD BE PERFORMED BY PRISON LABOR IN THE VARIOUS STATE PRISONS. IT IS ASSUMED THAT THE LABOR UNDER THE INSTANT CONTRACTS WOULD BE PERFORMED BY STATE RATHER THAN FEDERAL CONVICTS. EXECUTIVE ORDER NO. 325A WAS ISSUED MAY 18. ALL OFFICERS OR AGENTS OF THE UNITED STATES WERE AS A MATTER OF PUBLIC POLICY FORBIDDEN. IT IS HEREBY ORDERED. THE EMPLOYMENT OF PERSONS UNDERGOING SENTENCES OF IMPRISONMENT AT HARD LABOR WHICH HAVE BEEN IMPOSED BY COURTS OF THE SEVERAL STATES. IT WAS HELD IN 28 COMP. THAT SINCE THE EXECUTIVE ORDER WAS APPLICABLE ONLY TO CONTRACTS "INVOLVING THE EMPLOYMENT OF LABOR" IN THEIR PERFORMANCE.

B-109100, JULY 21, 1952, 32 COMP. GEN. 32

CONTRACTS - LABOR STIPULATIONS - CONVICT LABOR WHILE EXECUTIVE ORDER NO. 325A DOES NOT PROHIBIT PROCUREMENT BY THE FEDERAL GOVERNMENT, OR BY ITS CONTRACTORS, SUBCONTRACTORS, OR BROKERS OF FINISHED GOODS WHICH HAVE BEEN MADE BY CONVICTS, THE ORDER DOES PRECLUDE ENTERING INTO CONTRACTS INVOLVING EMPLOYMENT OF PRISON LABOR IN THEIR PERFORMANCE, WHETHER THE CONTRACTOR BE AN INDIVIDUAL, CORPORATION, OR STATE INSTRUMENTALITY, AND THEREFORE, A CONTRACT MAY BE ENTERED INTO WITH A STATE CORRECTIONAL INSTITUTION FOR THE REPAIR OF AUTOMOTIVE VEHICLES, TYPEWRITERS, CLOTHING, SHOES, OR OTHER ARMY EQUIPMENT.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JULY 21, 1952:

REFERENCE IS MADE TO LETTER DATED APRIL 3, 1952, FROM THE UNDER SECRETARY OF THE ARMY REQUESTING MY VIEWS AS TO THE PROPRIETY OF ENTERING INTO CONTRACTS WITH THE DEPARTMENT OF CORRECTIONAL INDUSTRIES, STATE OF CALIFORNIA, FOR THE REPAIR OF AUTOMOTIVE VEHICLES, TYPEWRITERS, CLOTHING, SHOES, AND OTHER ARMY EQUIPMENT. IT IS STATED THAT WORK UNDER THE CONTRACTS WOULD BE PERFORMED BY PRISON LABOR IN THE VARIOUS STATE PRISONS, WHICH RAISES THE QUESTION AS TO THE APPLICABILITY OF SECTION 1 OF THE ACT OF FEBRUARY 23, 1887, AND EXECUTIVE ORDER NO. 325A TO CONTRACTS OF THIS NATURE.

SECTION 1 OF THE ACT OF FEBRUARY 23, 1887, 24 STAT. 411, 18 U.S.C. 708, PROHIBITS THE HIRING OR CONTRACTING OUT OF THE LABOR OF FEDERAL CONVICTS. IT IS ASSUMED THAT THE LABOR UNDER THE INSTANT CONTRACTS WOULD BE PERFORMED BY STATE RATHER THAN FEDERAL CONVICTS, AND, IF SO, THE ACT CITED WOULD NOT BE APPLICABLE. EXECUTIVE ORDER NO. 325A WAS ISSUED MAY 18, 1905, AND PROVIDES AS FOLLOWS:

WHEREAS BY AN ACT OF CONGRESS WHICH RECEIVED EXECUTIVE APPROVAL ON FEBRUARY 23, 1887, ALL OFFICERS OR AGENTS OF THE UNITED STATES WERE AS A MATTER OF PUBLIC POLICY FORBIDDEN, UNDER APPROPRIATE PENALTIES TO HIRE OR CONTRACT OUT THE LABOR OF ANY CRIMINALS WHO MIGHT THEREAFTER BE CONFINED IN ANY PRISON, JAIL, OR OTHER PLACE OF INCARCERATION FOR THE VIOLATION OF ANY LAWS OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;

IT IS HEREBY ORDERED, THAT ALL CONTRACTS WHICH SHALL HEREAFTER BE ENTERED INTO BY OFFICERS OR AGENTS OF THE UNITED STATES INVOLVING THE EMPLOYMENT OF LABOR IN THE STATES COMPOSING THE UNION, OR THE TERRITORIES OF THE UNITED STATES CONTIGUOUS THERETO, SHALL UNLESS OTHERWISE PROVIDED BY LAW, CONTAIN A STIPULATION FORBIDDING, IN THE PERFORMANCE OF SUCH CONTRACTS, THE EMPLOYMENT OF PERSONS UNDERGOING SENTENCES OF IMPRISONMENT AT HARD LABOR WHICH HAVE BEEN IMPOSED BY COURTS OF THE SEVERAL STATES, TERRITORIES, OR MUNICIPALITIES HAVING CRIMINAL JURISDICTION.

AS STATED IN THE LETTER OF APRIL 3, 1952, THIS OFFICE HAS HAD OCCASION TO CONSIDER THE APPLICABILITY OF EXECUTIVE ORDER NO. 325A TO SUPPLY CONTRACTS, AND IT WAS HELD IN 28 COMP. GEN. 409, THAT SINCE THE EXECUTIVE ORDER WAS APPLICABLE ONLY TO CONTRACTS "INVOLVING THE EMPLOYMENT OF LABOR" IN THEIR PERFORMANCE, PURCHASES OF SUPPLIES FOR THE GOVERNMENT UNDER CONTRACTS WHICH DO NOT EXCEED $10,000 IN AMOUNT AND WHICH DO NOT NECESSARILY INVOLVE THE EMPLOYMENT OF LABOR IN THEIR PERFORMANCE ARE NOT RENDERED INVALID BY REASON OF THE FACT THAT THE ARTICLES FURNISHED MAY HAVE BEEN PRODUCED IN STATE PENAL INSTITUTIONS. HOWEVER, IT WAS ALSO STATED IN THAT DECISION THAT CONTRACTS CALLING FOR THE CONSTRUCTION OF THINGS, FOR THE FURNISHING OF SERVICES, OR FOR THE SPECIAL FABRICATION OF ARTICLES CLEARLY INVOLVED THE EMPLOYMENT OF LABOR. SUCH CONTRACTS, WHICH WOULD INCLUDE THOSE FOR CLEANING, REPAIRING, OR REBUILDING ARTICLES, COULD NOT BE HELD TO BE EXEMPT FROM THE PROVISIONS OF EXECUTIVE ORDER NO. 325A SOLELY ON THE GROUND THAT THEY DID NOT INVOLVE THE EMPLOYMENT OF LABOR.

IT IS SUGGESTED THAT EXECUTIVE ORDER NO. 325A MAY NOT BE APPLICABLE TO ALL CONTRACTS INVOLVING THE EMPLOYMENT OF LABOR, AND IN THIS CONNECTION REFERENCE IS MADE TO AN INTERPRETATION PLACED BY THE DEPARTMENT OF JUSTICE UPON AN OPINION OF THE ATTORNEY GENERAL RENDERED MAY 6, 1942. THE OPINION OF MAY 6, 1942, 40 OP. ATTY. GEN. 202, ADVISED THE PRESIDENT THAT THERE WAS NO PROVISION OF FEDERAL LAW WHICH PROHIBITED THE PURCHASE BY THE FEDERAL GOVERNMENT OF EITHER STATE OR FEDERAL PRISON-MADE GOODS. THAT OPINION, HOWEVER, DISCUSSED ONLY STATUTORY PROVISIONS RELATING TO PRISON- MADE GOODS, SUCH AS THE ACT OF MAY 27, 1930, 46 STAT. 391, AND THE FEDERAL PRISON INDUSTRIES ACT, 48 STAT. 1211, 18 U.S.C. 744A-744H, 744I-744N; SECTION 602 (B) OF THE ACT OF JUNE 30, 1932, 47 STAT. 418, 31 U.S.C. 686B (B); THE ACTS OF OCTOBER 14, 1940, 54 STAT. 1134, AND JULY 24, 1935, 49 STAT. 495, 18 U.S.C. 396A, 396B-396E; THE ACT OF JANUARY 19, 1929, 45 STAT. 1084, 49 U.S.C. 60; AND THE WALSH-HEALEY ACT, 49 STAT. 2036, 41 U.S.C. 35 ET SEQ., AND DID NOT MENTION OR DISCUSS EXECUTIVE ORDER NO. 325A. THEREAFTER UNDER DATE OF JUNE 20, 1942, THE ASSISTANT SOLICITOR GENERAL OF THE DEPARTMENT OF JUSTICE MADE AN INTERPRETATION WITH RESPECT TO THE APPLICABILITY OF THE OPINION DATED MAY 6, 1942, TO PURCHASES BY GOVERNMENT CONTRACTORS, SUBCONTRACTORS, AND BROKERS. IN THE INTERPRETATION, WHICH WAS APPROVED BY THE ATTORNEY GENERAL, EXECUTIVE ORDER NO. 325A WAS DISCUSSED IN THE FOLLOWING LANGUAGE, 40 OP. ATTY. GEN. 207, 211:

* * * ITS PURPOSE WAS TO PROHIBIT THE USE ON GOVERNMENTAL PROJECTS OF CONVICT LABOR OBTAINED BY A PRIVATE CONTRACTOR UNDER THE OLD CONTRACTING- OUT-SYSTEM AND THE REFERENCE IN THE ORDER TO THE ACT OF FEBRUARY 23, 1887, IS CLEARLY INDICATIVE OF ITS LIMITED SCOPE. THERE IS NO INDICATION THAT IT WAS INTENDED TO COVER A SITUATION WHERE THE PRISON ITSELF IS THE CONTRACTOR AND, OF COURSE, THERE IS NOTHING IN THE OPINION OF THE ATTORNEY GENERAL OR IN THIS LETTER WHICH JUSTIFIES THE EMPLOYMENT OF CONVICT LABOR DIRECTLY BY PRIVATE CONTRACTORS.

MOREOVER, IT MAY BE POINTED OUT THAT THE EXECUTIVE ORDER IN QUESTION HAS NO APPLICATION TO PROCUREMENT OF CONVICT-MADE GOODS BY THE FEDERAL GOVERNMENT ITSELF. * * *

THE INTERPRETATION OF JUNE 20, 1942, DOES NOT DISCLOSE THE AUTHORITY RELIED UPON FOR THE STATEMENTS MADE THEREIN AS TO THE PURPOSE OF EXECUTIVE ORDER NO. 325A AND AS TO ITS NONAPPLICABILITY TO THE PROCUREMENT OF CONVICT-MADE GOODS BY THE FEDERAL GOVERNMENT ITSELF. WHILE IT IS TRUE, AS STATED, THAT THE ORDER CONTAINS NO INDICATION THAT IT WAS INTENDED TO COVER A SITUATION WHERE THE PRISON ITSELF IS THE CONTRACTOR, IT IS EQUALLY TRUE THAT IT CONTAINS NO INDICATION TO THE CONTRARY. MOREOVER, IT IS PERTINENT THAT EXECUTIVE ORDER NO. 2960 OF SEPTEMBER 14, 1918, WHICH AUTHORIZED GOVERNMENT AGENTS TO PLACE ORDERS WITH STATE COUNTY OR MUNICIPAL PENAL INSTITUTIONS FOR THE PERIOD OF WORLD WAR I, ALSO SUSPENDED INCONSISTENT PROVISIONS OF EXECUTIVE ORDER NO. 325A FOR THE DURATION OF THAT WAR. BY ITS TERMS THE ORDER IS APPLICABLE TO "ALL CONTRACTS WHICH SHALL HEREAFTER BE ENTERED INTO BY OFFICERS OR AGENTS OF THE UNITED STATES INVOLVING THE EMPLOYMENT OF LABOR.' SINCE THE UNITED STATES CAN CONTRACT ONLY THROUGH ITS OFFICERS OR AGENTS, THE LANGUAGE USED IS CLEARLY BROAD ENOUGH TO INCLUDE ALL FEDERAL CONTRACTS INVOLVING THE EMPLOYMENT OF LABOR IN THEIR PERFORMANCE, REGARDLESS OF THE STATUS OF THE OTHER CONTRACTING PARTY AS AN INDIVIDUAL, CORPORATION, OR STATE INSTRUMENTALITY.

SO FAR AS CONCERNS THE STATEMENT IN THE INTERPRETATION OF JUNE 20, 1942, THAT EXECUTIVE ORDER NO. 325A HAS NO APPLICATION TO THE PROCUREMENT OF CONVICT-MADE GOODS BY THE FEDERAL GOVERNMENT ITSELF OR BY ITS CONTRACTORS, SUBCONTRACTORS, OR BROKERS, THIS OFFICE IS IN AGREEMENT, AT LEAST TO THE EXTENT THAT CONTRACTS FOR SUCH GOODS DO NOT NECESSARILY INVOLVE THE EMPLOYMENT OF LABOR IN THEIR PERFORMANCE. AS WAS STATED IN THE DECISION, 28 COMP. GEN. 409, 412,"* * * CONTRACTS WHICH MERELY REQUIRE THE FURNISHING OF FINISHED ARTICLES DO NOT NECESSARILY INVOLVE THE EMPLOYMENT OF LABOR IN THEIR PERFORMANCE, SINCE THE CONTRACTORS MAY SECURE THE CONTRACT ARTICLES IN THE OPEN MARKET OR FROM EXISTING STOCKS.' IT MAY BE NOTED, HOWEVER, THAT DESPITE THE VIEW EXPRESSED BY THE DEPARTMENT OF JUSTICE AS TO THE NONAPPLICABILITY OF EXECUTIVE ORDER NO. 325A TO FEDERAL PROCUREMENT OF CONVICT-MADE GOODS, THE MATTER WAS DEEMED SUFFICIENTLY DOUBTFUL THAT THE ORDER WAS SPECIFICALLY SUSPENDED IN THAT RESPECT DURING WORLD WAR II. THIS WAS DONE BY EXECUTIVE ORDER NO. 9196, ISSUED JULY 9, 1942, WHICH STATED IN PART AS FOLLOWS:

* * * IN ORDER TO REMOVE ANY DOUBTS WHICH MIGHT OTHERWISE EXIST * * * IT IS HEREBY ORDERED THAT EXECUTIVE ORDER NO. 325A OF MAY 18, 1905, BE, AND THE SAME IS HEREBY, SUSPENDED FOR THE PERIOD OF THE WAR AND FOR SIX MONTHS THEREAFTER TO THE EXTENT NECESSARY TO PERMIT OFFICERS AND AGENCIES OF THE FEDERAL GOVERNMENT CHARGED WITH THE PURCHASE OR PROCUREMENT OF ARTICLES NECESSARY IN THE CONDUCT OF THE WAR TO PROCURE, DIRECTLY OR INDIRECTLY, * * * ARTICLES OF ANY KIND PRODUCED IN ANY FEDERAL, STATE, OR TERRITORIAL PRISON, PROVIDED SUCH ARTICLES ARE NOT PRODUCED PURSUANT TO ANY CONTRACT OR OTHER ARRANGEMENT UNDER WHICH PRISON LABOR IS HIRED OUT TO, OR EMPLOYED OR USED BY, ANY PRIVATE PERSON, FIRM OR CORPORATION. (ITALICS SUPPLIED.) EXECUTIVE ORDER NO. 9196 DID NOT PERMIT, NOR PURPORT TO SUSPEND ANY INHIBITION IN EXECUTIVE ORDER NO. 325A AGAINST, THE MAKING OF CONTRACTS FOR SERVICES TO BE PERFORMED BY CONVICTS, EVEN THOUGH SUCH CONTRACTS MIGHT BE MADE DIRECTLY BETWEEN THE PRISON AUTHORITIES AND THE FEDERAL GOVERNMENT. AND, AS YOU KNOW, EXECUTIVE ORDER NO. 9196 WAS RESCINDED BY EXECUTIVE ORDER NO. 9859, ISSUED MAY 31, 1947.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED IT IS THE VIEW OF THIS OFFICE THAT EXECUTIVE ORDER NO. 325A PRECLUDES THE AWARD OF CONTRACTS FOR THE REPAIR OF GOVERNMENT EQUIPMENT BY PRISON LABOR, WHETHER THE CONTRACTOR BE THE PRISON ITSELF OR A PRIVATE PERSON. ANY IMPEDIMENT WHICH THIS RULING MAY INTERPOSE TO DEFENSE PROCUREMENT ACTIVITIES OF THE GOVERNMENT DURING THE PRESENT EMERGENCY COULD, OF COURSE, BE REMOVED BY PRESIDENTIAL ACTION SUSPENDING OR MODIFYING THE PROVISIONS OF THE EXECUTIVE ORDER.