B-128679, SEP. 18, 1956

B-128679: Sep 18, 1956

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A REPORTED DATED AUGUST 30. IN THE REPORT IT IS STATED. "THERE IS CREATED A COMMITTEE TO KNOWN AS THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS (HEREINAFTER REFERRED TO AS THE "COMMITTEE") TO BE COMPOSED OF A PRIVATE CITIZEN CONVERSANT WITH THE PROBLEMS INCIDENT TO THE EMPLOYMENT OF THE BLIND AND A REPRESENTATIVE OF EACH OF THE FOLLOWING GOVERNMENT DEPARTMENTS: THE NAVY DEPARTMENT. THAT NO CHANGE IN PRICE SHALL BECOME EFFECTIVE PRIOR TO THE EXPIRATION OF FIFTEEN DAYS FROM THE DATE ON WHICH SUCH CHANGE IS MADE BY THE COMMITTEE. * * * "SEC. 48. "ALL BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES HEREAFTER PROCURED IN ACCORDANCE WITH APPLICABLE FEDERAL SPECIFICATIONS BY OR FOR ANY FEDERAL DEPARTMENT OR AGENCY SHALL BE PROCURED FROM SUCH NON PROFIT-MAKING AGENCIES FOR THE BLIND IN ALL CASES WHERE SUCH ARTICLES ARE AVAILABLE WITHIN THE PERIOD SPECIFIED AT THE PRICE DETERMINED BY THE COMMITTEE TO BE THE FAIR MARKET PRICE FOR THE ARTICLE OR ARTICLES SO PROCURED: PROVIDED.

B-128679, SEP. 18, 1956

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A REPORTED DATED AUGUST 30, 1956, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, FURNISHED IN RESPONSE TO A REQUEST FROM THIS OFFICE DATED JULY 30, 1956, FOR INFORMATION AND THE VIEW OF YOUR DEPARTMENT RELATIVE TO THE QUESTION PRESENTED BY BYRNE A. BOWMAN, ATTORNEY AT LAW, 418 COMMERCE EXCHANGE BUILDING, OKLAHOMA CITY, OKLAHOMA, AS TO THE ALLEGED ACTION OF THE DEPARTMENT OF THE AIR FORCE IN EMPLOYING AGENCIES FOR THE BLIND IN THE SEGREGATION OF AIRCRAFT ENGINE HARDWARE.

IN THE REPORT IT IS STATED, IN SUBSTANCE, THAT IN UTILIZING THE SERVICES OF APPROVED AGENCIES FOR THE BLIND IN THE SEGREGATION OF AIRCRAFT ENGINE HARDWARE THE AIR FORCE HAS FOLLOWED THE OPINION OF THE COUNSEL TO THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS THAT THE WAGNER-O-DAY ACT OF JUNE 25, 1938, 52 STAT. 1196, PERMITS SUCH CONTRACTS.

THE CITED STATUTE AS AMENDED PROVIDES (41 U.S.C. 46-48):

"SEC. 46. COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS; CREATION; MEMBERS.

"THERE IS CREATED A COMMITTEE TO KNOWN AS THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS (HEREINAFTER REFERRED TO AS THE "COMMITTEE") TO BE COMPOSED OF A PRIVATE CITIZEN CONVERSANT WITH THE PROBLEMS INCIDENT TO THE EMPLOYMENT OF THE BLIND AND A REPRESENTATIVE OF EACH OF THE FOLLOWING GOVERNMENT DEPARTMENTS: THE NAVY DEPARTMENT, THE WAR DEPARTMENT, THE TREASURY DEPARTMENT, THE DEPARTMENT OF AGRICULTURE, THE DEPARTMENT OF COMMERCE, AND THE DEPARTMENT OF THE INTERIOR. THE MEMBERS OF THE COMMITTEE SHALL BE APPOINTED BY THE PRESIDENT, SHALL SERVE WITHOUT ADDITIONAL COMPENSATION, AND SHALL DESIGNATE ONE OF THEIR NUMBER TO BE CHAIRMAN. * * *

"SEC. 47. SAME; FAIR MARKET PRICE, DETERMINATION, REVISION; DISTRIBUTION OF ORDERS.

"IT SHALL BE THE DUTY OF THE COMMITTEE TO DETERMINE THE FAIR MARKET PRICE OF ALL BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES MANUFACTURED BY THE BLIND AND OFFERED FOR SALE TO THE FEDERAL GOVERNMENT BY ANY NON-PROFIT- MAKING AGENCY FOR THE BLIND ORGANIZED UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE, TO REVISE SUCH PRICES FROM TIME TO TIME IN ACCORDANCE WITH CHANGING MARKET CONDITIONS, AND TO MAKE SUCH RULES AND REGULATIONS REGARDING SPECIFICATIONS, TIME OF DELIVERY, AUTHORIZATION OF A CENTRAL NON -PROFIT-MAKING AGENCY TO FACILITATE THE DISTRIBUTION OF ORDERS AMONG THE AGENCIES OF THE BLIND, AND OTHER RELEVANT MATTERS OF PROCEDURE AS SHALL BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS SECTION AND SECTIONS 46 AND 48 OF THIS TITLE: PROVIDED, THAT NO CHANGE IN PRICE SHALL BECOME EFFECTIVE PRIOR TO THE EXPIRATION OF FIFTEEN DAYS FROM THE DATE ON WHICH SUCH CHANGE IS MADE BY THE COMMITTEE. * * *

"SEC. 48. SAME; PROCUREMENT AT DETERMINED PRICE.

"ALL BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES HEREAFTER PROCURED IN ACCORDANCE WITH APPLICABLE FEDERAL SPECIFICATIONS BY OR FOR ANY FEDERAL DEPARTMENT OR AGENCY SHALL BE PROCURED FROM SUCH NON PROFIT-MAKING AGENCIES FOR THE BLIND IN ALL CASES WHERE SUCH ARTICLES ARE AVAILABLE WITHIN THE PERIOD SPECIFIED AT THE PRICE DETERMINED BY THE COMMITTEE TO BE THE FAIR MARKET PRICE FOR THE ARTICLE OR ARTICLES SO PROCURED: PROVIDED, THAT THIS SECTION AND SECTIONS 46 AND 47 OF THIS TITLE SHALL NOT APPLY IN ANY CASES WHERE BROOMS AND MOPS ARE AVAILABLE FOR PROCUREMENT FROM ANY FEDERAL DEPARTMENT AGENCY AND PROCUREMENT THEREFROM IS REQUIRED UNDER THE PROVISIONS OF ANY LAW IN EFFECT ON JUNE 25, 1938, OR IN CASES WHERE BROOMS AND MOPS ARE PROCURED FOR USE OUTSIDE CONTINENTAL UNITED STATES. * * *"

IT APPEARS FROM THE "SCHEDULE OF BLIND-MADE PRODUCTS" PUBLISHED BY THE COMMITTEE IN ACCORDANCE WITHE THE REGULATIONS PROMULGATED UNDER THE STATUTE (41 C.F.R., CHAPTER 3) THAT PRIOR TO OCTOBER 1, 1955, THERE WERE INCLUDED ONLY "COMMODITIES MANUFACTURED" BY THE BLIND, IN STRICT CONFORMITY WITH THE LANGUAGE OF THE ACT. ON THAT DATE THE ITEM "SORTING SERVICE FOR AIRCRAFT ENGINE HARDWARE (NUTS AND BOLTS)" WAS ADDED AS ITEM NO. 103-S-75. THE COMMITTEE HAS FURNISHED A COPY OF A LETTER DATED AUGUST 24, 1955, FROM THE SECRETARY TO THE CHAIRMAN, RECOMMENDING THAT THE ITEM IN QUESTION BE INCLUDED IN THE SCHEDULE, AND THAT THE PRICE FOR SUCH SERVICE BE FIXED AT $0.58 PER POUND. IT WAS REPORTED THEREIN THAT A TRIAL OPERATION HAD BEEN CARRIED OUT DURING THE PERIOD JANUARY 1 TO MAY 31, 1955, AT THE GEORGIA FACTORY FOR THE BLIND WHICH SHOWED A COST OF $5,760.57, AS AGAINST A COST OF $16,195.20 FOR THE SAME OPERATIONS IN AIR FORCE SHOPS, ACCORDING TO THE DIRECTOR OF PROCUREMENT AND PRODUCTION, WARNER ROBINS AIR MATERIAL AREA.

THE WORD "COMMODITY" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY AS FOLLOWS:

"2. THAT WHICH AFFORD CONVENIENCE, ADVANTAGE, OR PROFIT, ESPECIALLY IN COMMERCE, INCLUDING EVERYTHING MOVABLE THAT IS BOUGHT AND SOLD (EXCEPT ANIMALS),--- GOODS, WARES, MERCHANDISE, PRODUCE OF LAND AND MANUFACTURES, ETC. * * *

"4. AN ELEMENT OF WEALTH; AN ECONOMIC GOOD * * * COMMODITY HAS BEEN SOMETIMES USED TO INCLUDE SERVICES AS WELL AS PHYSICAL THINGS, BUT THIS USAGE IS NOT GENERAL.'

SEE, ALSO, 15 G.J.S. 587-8; WORDS AND PHRASES, VOLUME 7A, "COMMODITY," PAGES 594-5.

IN COURT DECISIONS, THE WORD "COMMODITY" IS USED ALMOST EXCLUSIVELY TO MEAN TANGIBLE THINGS. THE COURT STATED IN DAVIS V. BOSTON AND MAINE R. COMPANY, 89 F.2 368, 374: "LABOR IS NOT A COMMODITY.' IN HARRELSON V. TYLER, 281 MO. 383, 219 S.W. 908, 913, IT IS STATED:

"* * * LABOR, WHETHER PHYSICAL, OR INTELLECTUAL, OR A COMBINATION OF THE TWO, IS NOT BY ANY FAIR RULE OF CONSTRUCTION A "PRODUCT OR COMMODITY" THAT IS THE SUBJECT OF "IMPORTATION, TRANSPORTATION, MANUFACTURE, PURCHASE, OR SALE," WITHIN THE MEANING OF THE WORDS AS USED IN THE STATUTE.'

IN VIEW OF THE FOREGOING, AND PARTICULARLY SINCE THE ACT OF JUNE 25, 1938, REFERS ONLY TO ,BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES MANUFACTURED BY THE BLIND AND OFFERED FOR SALE TO THE FEDERAL GOVERNMENT," WE PERCEIVE NO SOUND BASIS FOR REGARDING IT AS APPLICABLE TO LABOR OR SERVICES OR ANYTHING OTHER THAN TANGIBLE ARTICLES PRODUCED BY THE BLIND. OF COURSE, THERE IS NOTHING TO PREVENT THE BLIND, OR AN AGENCY FOR THE BLIND, FROM CONTRACTING TO PERFORM FOR THE GOVERNMENT LABOR OR SERVICES WHICH THEY ARE EQUIPPED TO RENDER, BUT SUCH CONTRACTS SHOULD BE MADE PURSUANT TO REGULAR CONTRACTING PROCEDURE RATHER THAN UNDER THE SPECIAL PROCEDURE SET UP UNDER 41 U.S.C. 46-48, IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY. FUTURE ACTION IN YOUR DEPARTMENT SHOULD BE TAKEN ACCORDINGLY. HOWEVER, CONSIDERING THE PECULIAR CIRCUMSTANCES OF THIS MATTER AND SINCE THE ACTION HERETOFORE TAKEN BY YOUR DEPARTMENT AND THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS APPEARS TO HAVE BEEN TAKEN IN GOOD FAITH AND THE GOVERNMENT IS RECEIVING THE BENEFIT OF THE SERVICES AT A COST DETERMINED BY THE COMMITTEE TO BE REASONABLE, THIS OFFICE OFFERS NO OBJECTION TO THE COMPLETION OF CURRENT CONTRACTS.

A COPY OF THIS DECISION IS BEING SENT TO THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS AND TO BYRNE A. BOWMAN, ESQUIRE.