B-3640, MAY 15, 1939, 18 COMP. GEN. 862

B-3640: May 15, 1939

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WHERE THE AMOUNT PAID EACH ONE OF THE COMPETITORS IS SUFFICIENT ONLY TO COVER THE REASONABLE COST OF PRODUCING THE DESIGN. WHERE ARTISTIC FEATURES ARE THE MAJOR CONSIDERATION. THERE IS NO AUTHORITY IN ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT TO GIVE AWAY THE MODELS SO ACQUIRED. 5 COMP. FOR YOUR INFORMATION THERE IS ENCLOSED A COPY OF THE PROPOSED PROGRAM OF COMPETITION. THE POINT IN QUESTION IN THIS INSTANCE IS. YOUR EARLY ADVICE WILL BE APPRECIATED. OR ESTABLISHMENT SO DESIGNATED IS AUTHORIZED TO ACT AS SUCH AGENT. A QUESTION SIMILAR TO THAT NOW SUBMITTED WAS PRESENTED BY THE ARLINGTON BRIDGE COMMISSION IN 1926 AND IN DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES. IT WAS SAID IN PART: A PRIZE COMPETITION WAS HELD UNAUTHORIZED IN DECISION OF FEBRUARY 18.

B-3640, MAY 15, 1939, 18 COMP. GEN. 862

MONUMENT DESIGN COMPETITION - MULTIPLE COMPETITOR PAYMENTS - APPROPRIATION AVAILABILITY NO OBJECTION TO THE PROPOSED PAYMENT, UNDER THE GENERAL DISCRETIONARY AUTHORITY VESTED BY STATUTE IN THE THOMAS JEFFERSON MEMORIAL COMMISSION, OF A SPECIFIED AMOUNT TO EACH OF A NUMBER OF PARTICIPANTS SELECTED TO SUBMIT A PLASTER MODEL OF A PUBLIC MONUMENT, AND A SUBSEQUENT PAYMENT TO THE SCULPTOR SELECTED THEREBY FOR MAKING THE FULL SIZED MODEL OF THE STATUTE, WHERE THE AMOUNT PAID EACH ONE OF THE COMPETITORS IS SUFFICIENT ONLY TO COVER THE REASONABLE COST OF PRODUCING THE DESIGN, WHICH BECOMES THE PROPERTY OF THE GOVERNMENT, AND DOES NOT CONSTITUTE A PRIZE COMPETITION, AND WHERE ARTISTIC FEATURES ARE THE MAJOR CONSIDERATION, BUT THERE IS NO AUTHORITY IN ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT TO GIVE AWAY THE MODELS SO ACQUIRED. 5 COMP. GEN. 640, DISTINGUISHED.

COMPTROLLER GENERAL BROWN TO THE CHAIRMAN, THOMAS JEFFERSON MEMORIAL COMMISSION, MAY 15, 1939:

THERE HAS BEEN RECEIVED A LETTER DATED MAY 10, 1939, FROM THE ACTING DIRECTOR AND EXECUTIVE AGENT OF YOUR COMMISSION, AS FOLLOWS:

IN CONNECTION WITH THE CONTEMPLATED COMPETITION FOR A MONUMENT TO THOMAS JEFFERSON, TO BE ERECTED IN THE THOMAS JEFFERSON MEMORIAL LOCATED IN WEST POTOMAC PARK, WASHINGTON, D.C., THE QUESTION HAS ARISEN WITH REGARD TO THE AMOUNT TO BE PAID EACH OF THE SIX PARTICIPANTS SELECTED TO SUBMIT A PLASTER MODEL OF A MONUMENT TO THOMAS JEFFERSON, AND THE AMOUNT TO BE PAID THE SCULPTOR FOR MAKING THE FULL SIZE MODEL OF THE STATUTE, AS OUTLINED IN THE SECOND STAGE IN THE ACCOMPANYING PROGRAM. FOR YOUR INFORMATION THERE IS ENCLOSED A COPY OF THE PROPOSED PROGRAM OF COMPETITION, APPROVED BY THE THOMAS JEFFERSON MEMORIAL COMMISSION ON MAY 4, 1939.

THE POINT IN QUESTION IN THIS INSTANCE IS, HAS THE THOMAS JEFFERSON MEMORIAL COMMISSION, UNDER THE PROVISIONS OF THE ACT OF JUNE 3, 1936, 49 STAT. 1397, AUTHORITY TO PAY EACH OF THE PARTICIPANTS IN THE SECOND STAGE OF THE COMPETITION THE SUM OF ONE THOUSAND DOLLARS $1,000) FOR THE PREPARATION, DELIVERY AND SETTING UP OF A MODEL OF THEIR DESIGN FOR THAT STATUTE, AND TO ENTER INTO FORMAL CONTRACT WITH ONE OF THE SIX COMPETING SCULPTORS TAKING PART IN THE SECOND STAGE OF THE COMPETITION, IN THE AMOUNT OF THIRTY-FIVE THOUSAND DOLLARS ($35,000), FOR THE PREPARATION OF THE NECESSARY FULL SIZE MODEL OR MODELS OF THE SCULPTURE FOR THE MONUMENT OF A DESIGN SATISFACTORY TO THE COMMISSION.

BECAUSE OF THE NEED OF INITIATING THE COMPETITION AS SOON AS POSSIBLE, YOUR EARLY ADVICE WILL BE APPRECIATED.

THE ACT OF JUNE 3, 1936, 49 STAT. 1397, PROVIDES:

THAT THE THOMAS JEFFERSON MEMORIAL COMMISSION (HEREINAFTER REFERRED TO AS THE COMMISSION), HERETOFORE CREATED FOR THE PURPOSE OF CONSIDERING AND FORMULATING PLANS FOR DESIGNING AND CONSTRUCTING A PERMANENT MEMORIAL IN THE CITY OF WASHINGTON, DISTRICT OF COLUMBIA, TO THE MEMORY OF THOMAS JEFFERSON, SHALL DETERMINE UPON A PLAN AND DESIGN FOR, AND PROCEED WITH THE CONSTRUCTION OF, SUCH MEMORIAL UPON A SITE SELECTED BY THE COMMISSION, UNDER A CONTRACT OR CONTRACTS HEREBY AUTHORIZED TO BE ENTERED INTO IN A TOTAL SUM NOT EXCEEDING $3,000,000.

SEC. 2. IN THE EXECUTION OF ITS FUNCTIONS THE COMMISSION---

(A) MAY DESIGNATE AS ITS EXECUTIVE AGENT ANY OFFICER, AGENCY, OR ESTABLISHMENT OF THE FEDERAL GOVERNMENT QUALIFIED AND EQUIPPED TO ACT IN THAT CAPACITY, AND ANY SUCH OFFICER, AGENCY, OR ESTABLISHMENT SO DESIGNATED IS AUTHORIZED TO ACT AS SUCH AGENT.

(B) MAY AVAIL ITSELF OF THE ASSISTANCE AND ADVICE OF THE COMMISSION OF FINE ARTS, AND THE COMMISSION OF FINE ARTS SHALL, UPON REQUEST, RENDER SUCH ASSISTANCE AND ADVICE.

(C) MAY MAKE EXPENDITURES FOR PERSONAL SERVICES WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL-SERVICE LAWS AND REGULATIONS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE PURCHASE OR PREPARATION OF PLANS, DESIGNS, AND ESTIMATES, PRINTING AND BINDING, OFFICE EQUIPMENT AND SUPPLIES, CONTRACT STENOGRAPHIC REPORTING SERVICE, BOOKS AND PERIODICALS, TRAVELING EXPENSES OF MEMBERS AND EMPLOYEES OF THE COMMISSION (INCLUDING SUCH EXPENSES AND ALLOWANCES FOR MEMBERS OF THE COMMISSION WHEN REQUIRED TO BE IN WASHINGTON, DISTRICT OF COLUMBIA, IN CONNECTION WITH THE WORK OF THE COMMISSION), AND SUCH OTHER CONTINGENT AND MISCELLANEOUS EXPENSES AS MAY BE NECESSARY: PROVIDED, THAT SECTION 3709 OF THE REVISED STATUTES (U.S.C. TITLE 41, SEC. 5) SHALL NOT BE CONSTRUED TO APPLY TO ANY PURCHASE OR SERVICE RENDERED FOR THE COMMISSION UNDER AUTHORITY OF THIS SUBSECTION.

A QUESTION SIMILAR TO THAT NOW SUBMITTED WAS PRESENTED BY THE ARLINGTON BRIDGE COMMISSION IN 1926 AND IN DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, UNDER DATE OF APRIL 5, 1926, A-13559, IT WAS SAID IN PART:

A PRIZE COMPETITION WAS HELD UNAUTHORIZED IN DECISION OF FEBRUARY 18, 1926, 5 COMP. GEN. 640. HOWEVER, THE PRESENT PROPOSITION AS SUBMITTED DOES NOT SUGGEST A COMPETITION IN THE ORDINARY SENSE, FOR THE REASON THAT EACH ONE OF THE COMPETITORS SUBMITTING A SATISFACTORY DESIGN WILL BE PAID FOR SUCH DESIGN A PURCHASE PRICE ESTIMATED TO BE SUFFICIENT ONLY TO COVER THE REASONABLE COST OF PRODUCING THE DESIGN. THE TRANSACTION, THEREFORE, WOULD APPEAR TO INVOLVE A DIRECT PURCHASE OF THE SATISFACTORY DESIGNS WITH A RIGHT IN THE UNITED STATES TO APPLY THEM WHERE AND AS IT MAY SEE FIT IN THE FINAL DETERMINATION AND CONSTRUCTION OF A BASCULE FOR THE DRAW SPAN OF THE BRIDGE. CONSIDERING THE QUESTION FROM THIS STANDPOINT, AND HAVING REGARD TO THE TERMS OF THE APPROPRIATION INVOLVED, THE FACT THAT THIS PARTICULAR BRIDGE IS INTENDED, NOT MERELY FOR UTILITY PURPOSES, BUT AS A MEMORIAL IN WHICH THE ARTISTIC FEATURES ARE A MAJOR, IF NOT THE PRIMARY, CONSIDERATION, AND THE STATEMENT IN YOUR SUBMISSION THAT "THE COMPETITION CONTEMPLATED IS NOT UNUSUAL IN ORDINARY ENGINEERING PRACTICE AND APPEARS TO BE THE ONLY WAY IN WHICH THE GOVERNMENT CAN OBTAIN A FAIR COMPARISON OF VARIOUS TYPES FOR A COMPLICATED AND UNUSUAL STRUCTURE," THIS OFFICE WOULD APPEAR JUSTIFIED IN MAKING NO OBJECTION TO THE PROCUREMENT OF THE DESIGNS IN THE MANNER AND FOR THE USES STATED.

SEE ALSO DECISION OF APRIL 3, 1931, A-35929, INVOLVING A SIMILAR PROCEDURE FOR THE PROCUREMENT OF DESIGNS FOR GRANITE COLUMNS TO BE ERECTED IN CONNECTION WITH THE ARLINGTON MEMORIAL BRIDGE.

FOR THE REASONS STATED IN THE DECISIONS REFERRED TO AND CONSIDERING THE SUBJECT MATTER INVOLVED AND THE BROAD PROVISIONS OF THE ACT OF JUNE 3, 1936, SUPRA, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE PLAN OF COMPETITION PROPOSED TO BE ADOPTED BY THE COMMISSION AS SET FORTH IN THE INCLOSURE TRANSMITTED WITH THE SUBMISSION. IT IS NOTED, HOWEVER, THAT WHILE THE PROPOSED SPECIFICATIONS PROVIDE FOR THE PAYMENT OF $1,000 TO EACH OF THE SCULPTORS SELECTED TO SUBMIT MODELS AND THAT "ALL MODELS SHALL BECOME THE PROPERTY OF THE COMMISSION," IT IS FURTHER PROVIDED THAT THE UNUSED MODELS "MAY BE CLAIMED BY THEIR AUTHORS FOR REMOVAL BY THEM AT THEIR EXPENSE AND RISK.' SINCE THE MODELS BECOME THE PROPERTY OF THE GOVERNMENT UPON PAYMENT OF THE CONSIDERATION OF $1,000 THERE WOULD APPEAR TO BE NO AUTHORITY IN ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT TO GIVE AWAY SUCH PROPERTY. SEE IN THIS CONNECTION BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CLS. 584, 607. IT IS THEREFORE SUGGESTED THAT THE CLAUSE IN QUESTION BE ELIMINATED FROM THE PROPOSED SPECIFICATIONS.