B-29285, OCTOBER 27, 1942, 22 COMP. GEN. 400

B-29285: Oct 27, 1942

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WHICH ORDINARILY ARE REQUIRED BY LAW TO BE INCLUDED IN CONTRACTS. IT IS ONLY WHEN THERE IS SOME SOUND BASIS. FOR THE BELIEF THAT THE INCLUSION OF A CERTAIN PROVISION WILL UNJUSTLY INTERFERE WITH THE CARRYING OUT OF THE PURPOSE OF THE SAID ACT THAT IT IS WITHIN THE DISCRETION OF ADMINISTRATIVE OFFICERS TO DECIDE WHETHER SUCH PROVISION SHOULD BE OMITTED FROM THE CONTRACT. UNLESS THERE ARE PRESENT SOME FACTS OR CIRCUMSTANCES WHICH WOULD INDICATE THAT THE INCLUSION OF SAID PROVISIONS WOULD UNDULY INTERFERE WITH SUCH PROCUREMENT. 1942: I HAVE YOUR LETTER OF SEPTEMBER 28. PAYMENTS FOR THE PURCHASES AND PROCESSING WERE MADE UNDER APPROPRIATION SYMBOL NO. 12-111/30026 (34/. 1941 ( LEND-LEASE) WERE MADE AVAILABLE TO THE DEPARTMENT OF AGRICULTURE.

B-29285, OCTOBER 27, 1942, 22 COMP. GEN. 400

CONTRACTS - DEFENSE ARTICLES - SCOPE OF DISCRETIONARY AUTHORITY CONFERRED BY ACT OF MARCH 11, 1941 WHILE SECTION 3 (A) OF THE ACT OF MARCH 11, 1941, AUTHORIZED THE PROCUREMENT OF DEFENSE ARTICLES "NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW," IT DOES NOT VEST ADMINISTRATIVE DEPARTMENTS WITH UNLIMITED DISCRETION IN DETERMINING WHETHER CERTAIN PROVISIONS, WHICH ORDINARILY ARE REQUIRED BY LAW TO BE INCLUDED IN CONTRACTS, MAY BE OMITTED, AND IT IS ONLY WHEN THERE IS SOME SOUND BASIS, EITHER BY REASON OF A PARTICULAR PROVISION OR BY REASON OF THE FACTS IN A PARTICULAR CASE, FOR THE BELIEF THAT THE INCLUSION OF A CERTAIN PROVISION WILL UNJUSTLY INTERFERE WITH THE CARRYING OUT OF THE PURPOSE OF THE SAID ACT THAT IT IS WITHIN THE DISCRETION OF ADMINISTRATIVE OFFICERS TO DECIDE WHETHER SUCH PROVISION SHOULD BE OMITTED FROM THE CONTRACT. SECTION 3 (A) OF THE ACT OF MARCH 11, 1941, AUTHORIZING THE PROCUREMENT OF DEFENSE ARTICLES ,NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW," MAY NOT BE CONSIDERED AS AUTHORIZING THE OMISSION OF THE PROVISIONS OF THE 8- HOUR LAW OF JUNE 19, 1912, AS AMENDED, FROM CONTRACTS FOR THE PROCESSING OF GOVERNMENT-OWNED TOBACCO OR FROM OTHER CONTRACTS FOR THE PROCUREMENT OF DEFENSE ARTICLES ENTERED INTO PURSUANT TO THE 1941 ACT, UNLESS THERE ARE PRESENT SOME FACTS OR CIRCUMSTANCES WHICH WOULD INDICATE THAT THE INCLUSION OF SAID PROVISIONS WOULD UNDULY INTERFERE WITH SUCH PROCUREMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, OCTOBER 27, 1942:

I HAVE YOUR LETTER OF SEPTEMBER 28, 1942, AS FOLLOWS:

UNDER DATE OF AUGUST 27, 1942, THE CONTRACT EXAMINING SECTION OF YOUR OFFICE ADDRESSED A LETTER TO THE SURPLUS MARKETING ADMINISTRATION OF THIS DEPARTMENT, CALLING ATTENTION TO THE FACT THAT THE CONTRACT BETWEEN FEDERAL SURPLUS COMMODITIES CORPORATION AND THE BROWN AND WILLIAMSON TOBACCO CORPORATION, DATED JANUARY 2, 1942, AND NUMBERED DA FSC-397, FOR THE PROCESSING OF TOBACCO DOES NOT CONTAIN PROVISIONS RELATIVE TO THE EIGHT-HOUR LAW OF JUNE 19, 1912, AS AMENDED BY SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, AND REQUESTING AN EXPLANATION FOR SUCH OMISSION.

IN ORDER TO FULFILL REQUISITIONS BY THE BRITISH FOOD MISSION, THE FEDERAL SURPLUS COMMODITIES CORPORATION PURCHASED LEAF TOBACCO AND, UNDER THE ABOVE-MENTIONED CONTRACT, HAD SAME PROCESSED INTO CIGARETTE AND PIPE TOBACCO. PAYMENTS FOR THE PURCHASES AND PROCESSING WERE MADE UNDER APPROPRIATION SYMBOL NO. 12-111/30026 (34/--- DEFENSE AID--- AGRICULTURAL INDUSTRIAL AND OTHER COMMODITIES ( ALLOTMENT TO AGRICULTURE) 1941-1943 (AMA), BY WHICH FUNDS APPROPRIATED FOR THE PURPOSES OF THE ACT OF MARCH 11, 1941 ( LEND-LEASE) WERE MADE AVAILABLE TO THE DEPARTMENT OF AGRICULTURE. THE CIGARETTE AND PIPE TOBACCO WAS DELIVERED TO THE BRITISH FOOD MISSION AND THE ENTIRE TRANSACTION CONSTITUTED A PROCUREMENT OF A DEFENSE ARTICLE FOR THE GOVERNMENT OF A COUNTRY WHOSE DEFENSE THE PRESIDENT DEEMS VITAL TO THE DEFENSE OF THE UNITED STATES, AS AUTHORIZED UNDER SECTION 3 (A) OF SAID ACT OF MARCH 11, 1941.

YOUR ATTENTION IS INVITED TO THE LANGUAGE OF SAID SECTION 3 (A), WHICH AUTHORIZES THE PROCUREMENT OF SUCH DEFENSE ARTICLE "NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW.' THIS PHRASE, SO QUOTED, IS ALL INCLUSIVE AND ADMITS NO EXCEPTIONS TO ITS SCOPE. IT IS CLEAR AND UNAMBIGUOUS. IS OUR BELIEF THAT THIS PROVISION, TO GIVE IT FULL IMPORT, CONFERS ADMINISTRATIVE DISCRETION IN THE EMPLOYMENT OF MEANS AND SELECTION OF CONTRACTUAL PROVISIONS IN THE PROCUREMENT OF DEFENSE ARTICLES. TO THAT EXTENT, THEREFORE, THE INCLUSION OF THE REQUIREMENTS OF THE EIGHT-HOUR LAW IN SUCH PROCUREMENT CONTRACTS IS NOT MANDATORY. IN THIS CONNECTION, WE NOTE THE LANGUAGE IN YOUR OPINION, 18 (20) COMP. GEN. 890, 895:

"IT HAS BEEN HELD THAT WHERE A DISCRETION OF THIS KIND HAS BEEN CONFERRED UPON AN OFFICER AND A CONTRACT IS MADE IN WHICH THAT DISCRETION HAS BEEN EXERCISED THAT THE VALIDITY OF THE CONTRACT CAN NOT BE MADE TO DEPEND ON THE DEGREE OF WISDOM OR SKILL WHICH MAY HAVE ACCOMPANIED ITS EXERCISE. UNITED STATES V. SPEED, 8 WALL. 72.'

WE TRUST THAT THIS EXPLANATION, COMMON TO THIS AND SEVERAL OTHER CONTRACTS WHICH WE HAVE ENTERED INTO, WILL BE SUFFICIENT FOR YOUR PURPOSES.

AS IS STATED IN YOUR LETTER, CONTRACT NO. DA-FSC-397 PROVIDES FOR THE PROCESSING OF TOBACCO FURNISHED TO THE CONTRACTOR BY THE GOVERNMENT AND THERE IS NO QUESTION BUT THAT SUCH CONTRACT IS ONE "WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS.' THEREFORE, PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 19, 1912, 37 STAT. 137, AS AMENDED BY SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, 54 STAT. 884, SAID CONTRACT IS ONE WHICH ORDINARILY SHOULD CONTAIN A PROVISION STIPULATING THAT NO LABORER OR MECHANIC EMPLOYED THEREUNDER SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN 8 HOURS IN ANY ONE CALENDAR DAY WITHOUT THE PAYMENT OF TIME AND ONE-HALF FOR OVERTIME. IN OTHER WORDS, THE ACT OF JUNE 19, 1912, CONSTITUTES A MANDATORY DIRECTIVE TO OFFICERS AND AGENTS OF THE GOVERNMENT TO INCLUDE THE SPECIFIED PROVISION IN ALL APPLICABLE CONTRACTS. SEE 20 COMP. GEN. 890, 892, 17 ID. 937.

HOWEVER, IT IS URGED IN YOUR LETTER OF SEPTEMBER 28, SUPRA, THAT UNDER THE TERMS OF SECTION 3 (A) OF THE ACT OF MARCH 11, 1941, 55 STAT. 31, CONTRACTS FOR THE PROCUREMENT OF DEFENSE ARTICLES THEREUNDER MAY BE ENTERED INTO BY ADMINISTRATIVE OFFICERS "NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW" AND, THEREFORE, THAT IT IS ENTIRELY DISCRETIONARY WITH ADMINISTRATIVE OFFICERS AS TO WHETHER OR NOT THE PROVISIONS OF THE 8-HOUR LAW SHOULD BE INCLUDED IN CONTRACTS, SUCH AS THE INSTANT ONE, COVERING THE PROCUREMENT OF DEFENSE ARTICLES UNDER THE ACT OF MARCH 11, 1941.

THE ACT OF MARCH 11, 1941, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 3. (A) NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE PRESIDENT MAY, FROM TIME TO TIME, WHEN HE DEEMS IT IN THE INTEREST OF NATIONAL DEFENSE, AUTHORIZE THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE HEAD OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT--

(1) TO MANUFACTURE IN ARSENALS, FACTORIES, AND SHIPYARDS UNDER THEIR JURISDICTION, OR OTHERWISE PROCURE, TO THE EXTENT TO WHICH FUNDS ARE MADE AVAILABLE THEREFOR, OR CONTRACTS ARE AUTHORIZED FROM TIME TO TIME BY THE CONGRESS, OR BOTH, ANY DEFENSE ARTICLE FOR THE GOVERNMENT OF ANY COUNTRY WHOSE DEFENSE THE PRESIDENT DEEMS VITAL TO THE DEFENSE OF THE UNITED STATES.

(2) TO SELL, TRANSFER TITLE TO, EXCHANGE, LEASE, LEND, OR OTHERWISE DISPOSE OF, TO ANY SUCH GOVERNMENT ANY DEFENSE ARTICLES, BUT NO DEFENSE ARTICLE NOT MANUFACTURED OR PROCURED UNDER PARAGRAPH (1) SHALL IN ANY WAY BE DISPOSED OF UNDER THIS PARAGRAPH, EXCEPT AFTER CONSULTATION WITH THE CHIEF OF STAFF OF THE ARMY OR THE CHIEF OF NAVAL OPERATIONS OF THE NAVY, OR BOTH. * * *

CONSIDERATION OF SAID PROVISION DOES NOT INDICATE THAT THE PHRASE "NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW," USED THEREIN MAY BE SAID TO CONFER ON ADMINISTRATIVE OFFICIALS THE BROAD DISCRETIONARY POWERS URGED IN YOUR LETTER OF SEPTEMBER 22, SUPRA. IT SEEMS CLEAR FROM A CONSIDERATION OF THE TERMS OF SAID PROVISION AS A WHOLE, THAT BY THE INCLUSION OF THE PHRASE IN QUESTION IN THE LANGUAGE OF THE ACT, THE CONGRESS DID NOT INTEND THAT ALL LAWS WHICH MIGHT BE APPLICABLE TO THE PROCUREMENT, MANUFACTURE, AND TRANSFER OF DEFENSE ARTICLES COULD BE WAIVED, SUSPENDED, OR DISREGARDED BY ADMINISTRATIVE DEPARTMENTS IN THEIR DISCRETION, BUT IT INTENDED THAT ONLY THOSE LAWS SHOULD BE SUSPENDED, WAIVED, OR DISREGARDED WHOSE PROVISIONS OTHERWISE MIGHT PROHIBIT OR UNDULY INTERFERE WITH THE CARRYING OUT OF THE PURPOSE INTENDED TO BE ACCOMPLISHED BY SAID ACT, NAMELY, THE MANUFACTURE AND PROCUREMENT OF DEFENSE ARTICLES AND THE SALE, TRANSFER, LEASE, ETC., THEREOF, TO COUNTRIES WHOSE DEFENSE THE PRESIDENT DEEMS VITAL TO THE DEFENSE OF THE UNITED STATES. SEE HOUSE REPORT NO. 18 AND SENATE REPORT NO. 45 ON THE BILL H.R. 1776, 77TH CONGRESS, WHICH LATER BECAME THE ACT HERE INVOLVED. ACCORDINGLY, IT CANNOT BE SAID THAT ADMINISTRATIVE DEPARTMENTS POSSESS THE AUTHORITY TO EXERCISE UNLIMITED DISCRETION IN DETERMINING WHETHER CERTAIN PROVISIONS, WHICH ORDINARILY ARE REQUIRED BY LAW TO BE INCLUDED IN CONTRACTS, MAY BE OMITTED IN THE EXECUTION OF CONTRACTS FOR THE PROCUREMENT OF DEFENSE ARTICLES. RATHER, IN ORDER FOR THE OMISSION OF A PARTICULAR STATUTORY PROVISION OR PROVISIONS FROM CONTRACTS FOR THE PROCUREMENT OF DEFENSE ARTICLES TO BE AUTHORIZED, IT SHOULD APPEAR THAT THE INCLUSION OF SUCH PROVISION OR PROVISIONS WOULD PRECLUDE OR UNDULY INTERFERE WITH THE PROCUREMENT OF THE DEFENSE ARTICLES, OR THE DOING OF SOMETHING WHICH THE ACT OF MARCH 11, 1941, AUTHORIZES TO BE DONE. WHEN THERE IS SOME SOUND BASIS, EITHER BY REASON OF THE TERMS OF A PARTICULAR PROVISION OR BY REASON OF THE FACTS IN A PARTICULAR CASE, FOR THE BELIEF THAT THE INCLUSION OF A CERTAIN PROVISION IN A CONTRACT WILL PRECLUDE OR UNJUSTLY INTERFERE WITH THE PROCUREMENT OF A DEFENSE ARTICLE OR THE DOING OF SOMETHING WHICH IS AUTHORIZED BY THE ACT OF MARCH 11, 1941, TO BE DONE THEN IT IS WITHIN THE DISCRETION OF ADMINISTRATIVE OFFICERS TO DECIDE WHETHER SUCH PROVISIONS SHOULD BE OMITTED FROM THE CONTRACT.

HOWEVER, IT IS NOT READILY APPARENT THAT THE INCLUSION IN CONTRACTS OF THE PROVISIONS REQUIRED BY THE 8-HOUR LAW WILL PRECLUDE OR UNJUSTLY INTERFERE WITH THE PROCUREMENT OF DEFENSE ARTICLES OR OTHERWISE RESTRICT DEPARTMENTS IN DOING SOMETHING WHICH THE ACT OF MARCH 11, 1941, AUTHORIZES TO BE DONE. IN THIS CONNECTION, ATTENTION IS INVITED TO THE REPORTS OF THE COMMITTEES OF THE SENATE AND OF THE HOUSE OF REPRESENTATIVES ON THE BILL H.R. 1776, SUPRA. MOREOVER, THERE IS NOTHING IN YOUR LETTER INDICATING THAT BY REASON OF SOME FACTUAL SITUATION PECULIAR TO THE INSTANT TRANSACTION THE INCLUSION OF THE PROVISIONS REQUIRED BY THE 8-HOUR LAW IN THE INSTANT AND SIMILAR CONTRACTS WOULD HAVE PRECLUDED OR UNDULY INTERFERED WITH THE PROCUREMENTS IN QUESTION.

THEREFORE, YOU ARE ADVISED THAT THE EXPLANATION FURNISHED IN YOUR LETTER IS NOT CONSIDERED SUFFICIENT TO ESTABLISH THAT THE ACTION OF YOUR DEPARTMENT IN OMITTING THE PROVISIONS OF THE 8-HOUR LAW FROM THE INSTANT AND SIMILAR CONTRACTS WAS AUTHORIZED. HOWEVER, SINCE THE OMISSION OF THE PROVISIONS REQUIRED BY SAID LAW DOES NOT APPEAR TO HAVE BEEN DUE TO ANY WILLFUL DISREGARD BY YOUR DEPARTMENT OF THE REQUIREMENTS OF THE ACT OF JUNE 19, 1912, AS AMENDED, THE INSTANT AND SIMILAR CONTRACTS HERETOFORE ENTERED INTO BY YOUR DEPARTMENT WILL NOT BE FURTHER QUESTIONED BY THIS OFFICE SOLELY BECAUSE OF SUCH OMISSIONS. BUT IT IS TO BE UNDERSTOOD THAT SUCH PROVISION MUST BE INCLUDED IN FUTURE CONTRACTS OF YOUR DEPARTMENT FOR THE PROCUREMENT OF DEFENSE ARTICLES, UNLESS THERE ARE PRESENT SOME FACTS OR CIRCUMSTANCES WHICH WOULD INDICATE THAT THE INCLUSION OF SAID PROVISIONS WOULD PRECLUDE OR UNDULY INTERFERE WITH THE CARRYING OUT OF THE PROVISIONS OF THE ACT OF MARCH 11, 1941, SUPRA. ..END :