B-8045, FEBRUARY 14, 1940, 19 COMP. GEN. 725

B-8045: Feb 14, 1940

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THERE IS NO AUTHORITY FOR MAKING THE FINAL PAYMENTS BEFORE SUCH FINAL ACTION IS TAKEN. EVEN THOUGH SUCH ACTION MAY BE DELAYED AND NO FURTHER SERVICES OF THE CONSULTANTS ARE CONTEMPLATED AT THIS TIME. 1940: I HAVE YOUR LETTER OF JANUARY 15. AS FOLLOWS: THE SMITHSONIAN GALLERY OF ART COMMISSION WAS CREATED BY LAW IN THE SECOND DEFICIENCY BILL APPROVED JUNE 15 (25). THESE GENTLEMEN WERE EMPLOYED BY CONTRACTS DATED DECEMBER 12. ARE TO BE MADE "WHEN FINAL ACTION HAS BEEN TAKEN BY THE REGENTS OF THE SMITHSONIAN INSTITUTION WITH RESPECT TO THE DESIGN FOR THE BUILDING AND GROUNDS SUBMITTED TO THEM BY THE COMMISSION.'. SEC. 2 (B) OF THE JOINT RESOLUTION REFERRED TO ABOVE IS AS FOLLOWS: "THE MEMBERS OF THE COMMISSION SHALL SERVE AS SUCH MEMBERS WITHOUT COMPENSATION AND THE COMMISSION SHALL TERMINATE UPON THE SUBMISSION TO AND APPROVAL BY THE REGENTS OF THE SMITHSONIAN INSTITUTION (HEREINAFTER REFERRED TO AS THE " REGENTS") OF THE SAID DESIGN FOR THE BUILDING AND GROUNDS.'.

B-8045, FEBRUARY 14, 1940, 19 COMP. GEN. 725

CONTRACTS - PAYMENTS - FINAL - PRIOR TO OCCURRENCE OF ALL CONTRACT CONDITIONS WHERE CONTRACTS FOR CONSULTING AND RELATED SERVICES IN CONNECTION WITH SECURING A DESIGN FOR THE PROPOSED SMITHSONIAN GALLERY OF ART, PROVIDE FOR INSTALLMENT PAYMENTS OF FEES TO THE CONSULTANTS AND FOR PAYMENT OF THE FINAL INSTALLMENT UNDER EACH CONTRACT WHEN FINAL ACTION WITH RESPECT TO THE DESIGN HAS BEEN TAKEN BY A SPECIFIED BOARD, THERE IS NO AUTHORITY FOR MAKING THE FINAL PAYMENTS BEFORE SUCH FINAL ACTION IS TAKEN, EVEN THOUGH SUCH ACTION MAY BE DELAYED AND NO FURTHER SERVICES OF THE CONSULTANTS ARE CONTEMPLATED AT THIS TIME.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SMITHSONIAN GALLERY OF ART COMMISSION, FEBRUARY 14, 1940:

I HAVE YOUR LETTER OF JANUARY 15, 1940, AS FOLLOWS:

THE SMITHSONIAN GALLERY OF ART COMMISSION WAS CREATED BY LAW IN THE SECOND DEFICIENCY BILL APPROVED JUNE 15 (25), 1938, MAKING APPROPRIATION OF $40,000 TO COVER PUBLIC RESOLUTION NO. 95, 75TH CONGRESS (JOINT RESOLUTION, APPROVED MAY 17, 1938) TO SECURE A DESIGN FOR THE PROPOSED SMITHSONIAN GALLERY OF ART, HELD A COMPETITION TO SECURE AN APPROPRIATE DESIGN FOR THE BUILDING.

IN CONNECTION WITH THE ABOVE COMPETITION, THE COMMISSION EMPLOYED DR. JOSEPH HUDNUT, OF CAMBRIDGE, MASSACHUSETTS, AND MR. THOMAS D. MABRY, JR., OF NEW YORK, AS CONSULTANTS. THESE GENTLEMEN WERE EMPLOYED BY CONTRACTS DATED DECEMBER 12, 1938 (SEE COPIES ATTACHED).

THE LAST PAYMENTS TO THESE GENTLEMEN, OF $800 AND $700, RESPECTIVELY, ACCORDING TO THE CONTRACTS, ARE TO BE MADE "WHEN FINAL ACTION HAS BEEN TAKEN BY THE REGENTS OF THE SMITHSONIAN INSTITUTION WITH RESPECT TO THE DESIGN FOR THE BUILDING AND GROUNDS SUBMITTED TO THEM BY THE COMMISSION.'

SEC. 2 (B) OF THE JOINT RESOLUTION REFERRED TO ABOVE IS AS FOLLOWS: "THE MEMBERS OF THE COMMISSION SHALL SERVE AS SUCH MEMBERS WITHOUT COMPENSATION AND THE COMMISSION SHALL TERMINATE UPON THE SUBMISSION TO AND APPROVAL BY THE REGENTS OF THE SMITHSONIAN INSTITUTION (HEREINAFTER REFERRED TO AS THE " REGENTS") OF THE SAID DESIGN FOR THE BUILDING AND GROUNDS.'

WHILE THE BOARD OF REGENTS AT THEIR MEETING HELD JANUARY 11, 1940, DID NOT APPROVE OR REJECT THE DESIGN (WHICH ACTION MAY BE INDEFINITELY POSTPONED), THEY DID PASS THE FOLLOWING RESOLUTION: , RESOLVED: TO RECEIVE AND GIVE CONSIDERATION TO THE REPORT OF THE SMITHSONIAN GALLERY OF ART COMMISSION, TOGETHER WITH THE DESIGN FOR THE BUILDING AND GROUNDS SUBMITTED BY THEM.'

ALTHOUGH THE CONTRACTS WITH MESSRS. HUDNUT AND MABRY CALL FOR PAYMENT WHEN "FINAL" ACTION HAS BEEN TAKEN BY THE REGENTS, I RESPECTFULLY REQUEST AUTHORITY, AS CHAIRMAN OF THE COMMISSION, TO MAKE THE FINAL PAYMENTS TO THEM. MY REASONS FOR THE ABOVE REQUEST ARE AS FOLLOWS:

FIRST: MESSRS. HUDNUT AND MABRY WERE EMPLOYED AS CONSULTANTS ONLY IN CONNECTION WITH THE COMPETITION FOR THE DESIGN.

SECOND: THEIR WORK HAS BEEN ENTIRELY AND SATISFACTORILY COMPLETED, AS THE COMPETITION FOR THE DESIGN IS FINISHED; THE JURORS HAVE DESIGNATED THE SUCCESSFUL COMPETITORS; AND THEIR DESIGNS HAVE BEEN ACCEPTED BY THE COMMISSION AND PRIZES HAVE BEEN AWARDED.

I TRUST THAT IT MAY BE POSSIBLE TO AUTHORIZE THE ABOVE PAYMENTS, AS THE FINAL APPROVAL OR REJECTION OF THE DESIGN BY THE BOARD OF REGENTS MAY BE INDEFINITELY DELAYED BECAUSE DEPENDENT ON SECURING FUNDS FROM PRIVATE PARTIES, AND MESSRS. HUDNUT AND MABRY COMPLETED THEIR WORK SIX MONTHS AGO.

IT APPEARS THAT THE CONTRACTS INVOLVED, NOS. SI-19 AND 20, WERE ENTERED INTO UNDER DATE OF DECEMBER 12, 1938, WITH MESSRS. JOSEPH HUDNUT AND THOMAS D. MABRY, JR., CONSULTANTS, PURSUANT TO AUTHORITY CONTAINED IN SECTION 3 (B) OF PUBLIC RESOLUTION NO. 95, APPROVED MAY 17, 1938, 52 STAT. 399, 400, AUTHORIZING THE EMPLOYMENT BY THE SMITHSONIAN GALLERY OF ART COMMISSION OF SUITABLE ARCHITECTURAL ENGINEERING AND CONSULTING SERVICES WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

ARTICLES 1 AND 3 OF THE CONTRACT WITH JOSEPH HUDNUT ARE AS FOLLOWS:

ARTICLE 1. STATEMENT OF WORK.--- THE CONSULTANT, FOR THE CONSIDERATION HEREINAFTER MENTIONED, SHALL:

(A) CONSULT WITH MEMBERS OF THE COMMISSION REGARDING THE REQUIREMENTS FOR THE BUILDING, AND FURNISH SUCH ADVICE AND ATTEND SUCH CONFERENCES AS MAY, IN THE OPINION OF THE COMMISSION, BE NECESSARY UNTIL THE FINAL ACTION HAS BEEN TAKEN BY THE REGENTS OF THE SMITHSONIAN INSTITUTION WITH RESPECT TO THE DESIGN FOR THE BUILDING AND GROUNDS SUBMITTED TO THEM BY THE COMMISSION.

(B) PREPARE THE COMPETITION PROGRAMS FOR USE IN THE TWO STAGES OF THE COMPETITION, AND OBTAIN APPROVAL THEREOF BY THE COMMISSION.

(C) DURING BOTH STAGES OF THE COMPETITION SUPERVISE THE RECEIPT, OPENING, AND RETURN OF ALL ENTRIES; CONDUCT ALL NECESSARY CORRESPONDENCE WITH COMPETITORS, AND CONDUCT THE ENTIRE COMPETITION IN SUCH A MANNER AS TO PLACE COMPETITORS UNDER UNIFORM CONDITIONS.

(D) CONFER WITH THE COMMISSION'S OTHER CONSULTANTS ON THE VARIOUS PHASES OF THE WORK ON WHICH THE LATTER ARE CONCERNED; SELECT THE JURY OF AWARD SUBJECT TO THE APPROVAL OF THE COMMISSION AND BEFORE THE PUBLICATION OF THE PROGRAM; ADVISE WITH THE JURORS IN THEIR DELIBERATIONS OF THE ENTRIES, AND DETERMINE THAT THE DESIGNS SELECTED BY THE JURORS COMPLY IN EVERY RESPECT WITH THE MANDATORY REQUIREMENTS OF THE COMPETITION.

ARTICLE 3. FEE AND PAYMENTS.--- THE CONSULTANT SHALL BE PAID AS FEE THE SUM OF FOUR THOUSAND DOLLARS ($4,000.00), PAYMENTS TO BE MADE AS FOLLOWS:

(A) EIGHT HUNDRED DOLLARS ($800.00) WHEN THE PROGRAM FOR THE FIRST STAGE OF THE COMPETITION IS APPROVED BY THE COMMISSION;

(B) ONE THOUSAND SIX HUNDRED DOLLARS ($1,600.00) WHEN THE PROGRAM FOR THE SECOND STAGE OF THE COMPETITION IS APPROVED BY THE COMMISSION;

(C) EIGHT HUNDRED DOLLARS ($800.00) WHEN THE JURY OF AWARD MAKES ITS RECOMMENDATION AS TO THE WINNERS OF THE SECOND STAGE OF THE COMPETITION;

(D) EIGHT HUNDRED DOLLARS ($800.00) WHEN FINAL ACTION HAS BEEN TAKEN BY THE REGENTS OF THE SMITHSONIAN INSTITUTION WITH RESPECT TO THE DESIGN FOR THE BUILDING AND GROUNDS SUBMITTED TO THEM BY THE COMMISSION.

THE CONTRACT WITH THOMAS D. MABRY, JR., IS SIMILAR THERETO IN ALL RESPECTS EXCEPT THAT ARTICLE 3 THEREOF PROVIDES FOR A FEE OF $3,500 PAYABLE IN FOUR INSTALLMENTS ON THE SAME BASIS AS THE CONTRACT WITH JOSEPH HUDNUT.

THE RECORDS OF THIS OFFICE SHOW THAT THE PAYMENTS AS PROVIDED IN ARTICLE 3 (A), (B), AND (C) HAVE BEEN MADE UNDER THE CONTRACTS AND, ALTHOUGH YOU REPORT THAT FINAL ACTION HAS NOT BEEN TAKEN BY THE BOARD OF REGENTS, YOU REQUEST AUTHORITY TO MAKE FINAL PAYMENTS AS PROVIDED UNDER ARTICLE 3 (D) OF THE CONTRACTS. WHILE IT MAY NOT BE CONTEMPLATED AT THIS TIME THAT ANY FURTHER SERVICES WILL BE REQUIRED OF THE CONSULTANTS, IT IS TO BE NOTED THAT UNDER ARTICLE 1 OF THE CONTRACTS THE CONSULTANTS ARE TO FURNISH SUCH ADVICE AND ATTEND SUCH CONFERENCES AS MAY BE NECESSARY UNTIL FINAL ACTION HAS BEEN TAKEN BY THE REGENTS WITH RESPECT TO THE DESIGN. HOWEVER, REGARDLESS OF WHETHER ANY FURTHER SERVICES MAY OR MAY NOT BE REQUIRED OF THE CONSULTANTS, THE CONTRACTS, UNDER ARTICLE 3 (D) THEREOF, ARE SPECIFIC AS TO WHEN FINAL PAYMENTS THEREUNDER ARE TO BE MADE, THAT IS, ONLY WHEN FINAL ACTION HAS BEEN TAKEN BY THE REGENTS ON THE DESIGN.

ACCORDINGLY, SINCE YOU HAVE REPORTED THAT FINAL ACTION HAS NOT BEEN TAKEN BY THE BOARD OF REGENTS WITH RESPECT TO THE DESIGN, UNDER THE PLAIN TERMS OF THE CONTRACTS THERE IS AT THIS TIME NO PROPER BASIS FOR AUTHORIZING RELEASE OF THE FINAL PAYMENTS PROVIDED THEREIN.