B-131278, SEP. 9, 1957

B-131278, SEP. 9, 1957

TO CAMPBELL MUSIC COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEFAX DATED MARCH 28, 1957, PROTESTING INVITATION FOR BIDS NO. 334-57 ISSUED BY SAINT ELIZABETHS HOSPITAL, FOR AN ORGAN ON THE GROUND THAT THE SPECIFICATIONS ARE DISCRIMINATORY.

IT IS REPORTED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE THAT, ALTHOUGH THE LABOR-FEDERAL SECURITY APPROPRIATION ACT OF 1953 CONTAINED AN ITEM OF $300,000 FOR SAINT ELIZABETHS HOSPITAL FOR THE CONSTRUCTION, EQUIPMENT, AND FURNISHING OF A CHAPEL, IT BECAME APPARENT AS THE WORK PROGRESSED ON THE CHAPEL THAT THE FUNDS WOULD NOT BE SUFFICIENT TO PROVIDE FOR THE INSTALLATION OF A SUITABLE ORGAN. JUST PRIOR TO THE OPENING OF THE CHAPEL IN MARCH 1956 IT WAS LEARNED THAT AN INDIVIDUAL DESIRED TO CONTRIBUTE $1,500 TO A MENTAL HOSPITAL FOR SOME WORTHY PURPOSE IN MEMORY OF AN AUNT. THIS WAS DISCUSSED WITH THE INDIVIDUAL AND THE HOSPITAL'S NEED FOR A GOOD ORGAN WAS POINTED OUT AND IT WAS INDICATED THAT THE COST OF A SUITABLE ORGAN WOULD BE ABOUT $10,000. THE INDIVIDUAL, BEING A RELIGIOUS PERSON AND INTERESTED IN MUSIC, HEARTILY CONCURRED IN THE SUGGESTION AND RAISED THE CONTRIBUTION TO $2,000 WITH THE EXPRESS UNDERSTANDING THAT AN ORGAN COSTING ABOUT $10,000 WAS REQUIRED. THE HOSPITAL SUPERINTENDENT THEN REQUESTED THE DEPARTMENT'S PERMISSION TO SET UP A SPECIAL ORGAN FUND TO WHICH CONTRIBUTIONS COULD BE MADE. THE NEED FOR A MORE EXPENSIVE ORGAN WAS MADE CLEAR TO ALL SUBSEQUENT DONORS IN FULL RECOGNITION OF THE FACT THAT THERE ARE ELECTRIC ORGANS ON THE MARKET AT A SUBSTANTIALLY LOWER FIGURE BUT, OF COURSE, WITH CORRESPONDINGLY LOWER QUALITY, TONAL REPRODUCTION CAPABILITIES, AND TEACHING FACILITIES.

INVITATIONS FOR BIDS WERE SENT OUT UNDER DATE OF MARCH 19, 1957, AND THE SPECIFICATIONS CONTAINED THEREIN WERE DEVELOPED BY THE HOSPITAL WITH THE HOSPITAL ORGANIST AS TECHNICAL ADVISOR, THE FINAL DRAFT OF THE SPECIFICATIONS WAS REVIEWED INFORMALLY BY THE DIVISION OF GENERAL SERVICES OF THE DEPARTMENT AND THE CONCLUSION WAS REACHED THAT THE SPECIFICATIONS APPEARED TO BE NONPROPRIETARY IN NATURE AND SUFFICIENTLY COMPREHENSIVE TO BE OTHERWISE ACCEPTABLE. HOWEVER, IT APPEARS THAT THE REQUIREMENTS OF THE SPECIFICATIONS WERE SUCH THAT LESS EXPENSIVE TYPES OF ORGANS COULD NOT COMPLY. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, ONE FROM JORDAN PIANO COMPANY IN THE AMOUNT OF $4,058.75, AND ONE FROM KITT MUSIC COMPANY IN THE AMOUNT OF $9,864.70. IN A TRANSMITTAL LETTER DATED MARCH 20, 1957, THE JORDAN PIANO COMPANY ADMITTED, WITH WHICH THE HOSPITAL AGREES, THAT THE SPECIFICATIONS OF THE ORGAN WHICH THEY PROPOSED TO FURNISH DID NOT MEET THE REQUIREMENTS OF THE INVITATION. ALTHOUGH YOU DID NOT SUBMIT A BID YOU PROTESTED AGAINST THE REQUIREMENTS OF THE SPECIFICATIONS ON THE BASIS THAT THEY WERE DISCRIMINATORY.

IT IS STATED THAT THE DETERMINATION THAT AN ORGAN OF THE TYPE COVERED BY THE SPECIFICATIONS IS NEEDED IS BASED IN PART ON THE FACT THAT AN ORGAN SIMILAR TO THE ONE COVERED BY THE JORDAN BID WAS INSTALLED IN THE HOSPITAL CHAPEL ON A TRIAL BASIS, AT NO COST TO THE GOVERNMENT, DURING THE EASTER HOLIDAYS AND THAT IT WAS FOUND TO BE UNSATISFACTORY, PARTICULARLY WHEN PLAYED WITH INCREASED VOLUME. IT IS FURTHER STATED THAT IT WOULD APPEAR THAT THE GOVERNMENT IS MORALLY AND LEGALLY BOUND TO CONFORM TO THE CONDITIONS SUBJECT TO WHICH THE GIFTS WERE MADE. THE GIFTS WERE NOT GENERAL, ABSOLUTE, AND WITHOUT RESTRICTION, BUT WERE MADE BY THE RESPECTIVE DONORS AND ACCEPTED BY THE GOVERNMENT UPON THE EXPRESS CONDITION AND UNDERSTANDING THAT THEY WERE TO BE UTILIZED FOR THE PURPOSE OF PURCHASING A HIGH QUALITY ORGAN CONTAINING FEATURES AND QUALITIES WHICH WOULD MAKE IT UNIQUELY FUNCTIONAL AND SUITABLE TO THE NEEDS OF THE HOSPITAL CHAPEL. FOR THOSE REASONS IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE SPECIFICATIONS SET FORTH IN THE INVITATION ARE NECESSARY TO CONFORM TO THE CONDITIONS AND TO SATISFY THE NEEDS OF THE GOVERNMENT.

PRIVATE CONTRIBUTIONS SUCH AS THESE HERE IN QUESTION, RECEIVED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF NOVEMBER 7, 1951, 55 STAT. 760, AS AMENDED (24 U.S.C. 181), CONSTITUTE TRUST FUNDS WITHIN THE PURVIEW OF SECTION 20 OF THE PERMANENT APPROPRIATION REPEAL ACT, APPROVED JUNE 26, 1934, 48 STAT. 1233, 31 U.S.C. 725S, TO BE DISBURSED IN ACCORDANCE WITH THE TERMS OF THE TRUST. ALSO, AS STATED IN 16 COMP. GEN. 650, AT PAGE 655, WHERE THE CONGRESS AUTHORIZES FEDERAL OFFICERS TO ACCEPT PRIVATE GIFTS OR BEQUESTS FOR A SPECIFIC PURPOSE AUTHORITY MUST OF NECESSITY BE REPOSED IN THE CUSTODIANS OF THE TRUST FUND TO MAKE EXPENDITURES NECESSARY TO CARRY OUT THE PURPOSES OF THE TRUST WITHOUT REFERENCE TO GENERAL REGULATORY OR PROHIBITORY STATUTES APPLICABLE TO PUBLIC FUNDS.

YOU ARE THEREFORE ADVISED THAT WE PERCEIVE NO LEGAL OBJECTION TO THE PROPOSED PURCHASE OF AN ORGAN OF THE TYPE COVERED BY THE SPECIFICATIONS INVOLVED, WHICH HAVE BEEN ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO MEET THE PARTICULAR NEEDS OF SAINT ELIZABETHS HOSPITAL AND TO CONFORM TO THE INTENTIONS OF THE DONORS OF THE FUNDS TO BE USED THEREFOR.