B-83868, MARCH 16, 1949, 28 COMP. GEN. 517

B-83868: Mar 16, 1949

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WHEREIN THE ACTUAL CONSTRUCTION WORK IS PERFORMED BY FOREIGN CONTRACTORS ENGAGED BY THE COMMISSION BUT A CONSIDERABLE PART OF THE ARCHITECTURAL SERVICES IS RENDERED IN THE UNITED STATES. ARE NOT CONTRACTS "FOR THE CONSTRUCTION. ARE IN FACT CONSTRUCTION SERVICES REQUIRING THE FURNISHING OF A PERFORMANCE BOND AS REQUIRED BY THE TERMS OF THE MILLER ACT OF 1935. IT IS STATED IN THE SUBMISSION THAT THE ACTUAL CONSTRUCTION WORK UNDER SUCH A CONTRACT IS PERFORMED BY FOREIGN CONTRACTORS ENGAGED BY THE COMMISSION. THAT THE ARCHITECT NEVERTHELESS HAS THE RESPONSIBILITY OF SEEING THAT THE COMPLETED WORK IS IN ACCORDANCE WITH HIS DRAWINGS AND SPECIFICATIONS. IS STATED FURTHER. THAT WHILE THE COMMISSION IS AWARE THAT THE MILLER ACT PROVIDES THAT WHEN THE CONSTRUCTION IS IN A FOREIGN COUNTRY THE REQUIREMENT FOR A PERFORMANCE BOND MAY BE WAIVED.

B-83868, MARCH 16, 1949, 28 COMP. GEN. 517

CONTRACTS - ARCHITECTURAL SERVICES - APPLICABILITY OF MILLER ACT REQUIREMENTS ARCHITECTURAL CONTRACTS PROVIDING FOR THE FURNISHING OF PROFESSIONAL SERVICES IN THE DESIGNING AND CONSTRUCTION OF MEMORIAL STRUCTURES TO BE ERECTED BY THE AMERICAN BATTLE MONUMENTS COMMISSION PURSUANT TO THE ACT OF MARCH 4, 1923, AS AMENDED, WHEREIN THE ACTUAL CONSTRUCTION WORK IS PERFORMED BY FOREIGN CONTRACTORS ENGAGED BY THE COMMISSION BUT A CONSIDERABLE PART OF THE ARCHITECTURAL SERVICES IS RENDERED IN THE UNITED STATES, ARE NOT CONTRACTS "FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES" WITHIN THE PURVIEW OF THE MILLER ACT OF 1935, REQUIRING THE FURNISHING OF PERFORMANCE BONDS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, THE AMERICAN BATTLE MONUMENTS COMMISSION, MARCH 16, 1949:

THERE HAS BEEN RECEIVED A LETTER OF FEBRUARY 2, 1949, WITH ENCLOSURE, FROM THE SECRETARY OF THE AMERICAN BATTLE MONUMENTS COMMISSION, REQUESTING A DECISION AS TO WHETHER THE SERVICES PERFORMED BY ARCHITECTS UNDER THE CONTRACT FORM TRANSMITTED WITH SAID LETTER ( NO. ABM-W), PROVIDING FOR THE FURNISHING OF PROFESSIONAL SERVICES IN THE DESIGNING AND CONSTRUCTION OF MEMORIAL STRUCTURES TO BE ERECTED BY THE AMERICAN BATTLE MONUMENTS COMMISSION UNDER THE ACT OF MARCH 4, 1923, 42 STAT. 1509, AS AMENDED BY THE ACT OF JUNE 26, 1946, 60 STAT. 317 (36 U.S.C. 121, ET SEQ.), ARE IN FACT CONSTRUCTION SERVICES REQUIRING THE FURNISHING OF A PERFORMANCE BOND AS REQUIRED BY THE TERMS OF THE MILLER ACT OF 1935, 49 STAT. 793 (40 U.S.C. 270A).

IT IS STATED IN THE SUBMISSION THAT THE ACTUAL CONSTRUCTION WORK UNDER SUCH A CONTRACT IS PERFORMED BY FOREIGN CONTRACTORS ENGAGED BY THE COMMISSION, WHICH ADMINISTERS THE CONTRACTS AND PAYS THE CONTRACTORS, BUT THAT THE ARCHITECT NEVERTHELESS HAS THE RESPONSIBILITY OF SEEING THAT THE COMPLETED WORK IS IN ACCORDANCE WITH HIS DRAWINGS AND SPECIFICATIONS. IS STATED FURTHER, IN EFFECT, THAT WHILE THE COMMISSION IS AWARE THAT THE MILLER ACT PROVIDES THAT WHEN THE CONSTRUCTION IS IN A FOREIGN COUNTRY THE REQUIREMENT FOR A PERFORMANCE BOND MAY BE WAIVED, IT ALSO IS AWARE THAT A CONSIDERABLE PART OF THE ARCHITECTURAL SERVICES PERFORMED UNDER THE CONTRACTS IS RENDERED IN THE UNITED STATES.

ARTICLE 2 OF THE CONTRACT FORM PROVIDES THAT THE ARCHITECT SHALL GIVE HIS PROFESSIONAL SERVICES AS THEREIN AFTER DEFINED IN HE DESIGN AND CONSTRUCTION OF THE DESIGNATED MEMORIAL STRUCTURES TO BE ERECTED BY THE COMMISSION UNDER THE PROVISIONS OF THE ACTS OF MARCH 4, 1923, AND JUNE 26, 1946, SUPRA, AND IT IS STATED IN THE SUBMISSION THAT IT IS CUSTOMARY TO INSERT UNDER SAID ARTICLE 2 A DESCRIPTION OF THE PROJECT AS FOLLOWS:

CONSTRUCTION OF A MEMORIAL CHAPEL AND APPURTENANCES AT THE AMERICAN MILITARY CEMETERY AT ............; FOR WHICH ?....... HAVE BEEN TENTATIVELY ALLOTTED AS THE ESTIMATED COST OF CONSTRUCTION.

ARTICLE 3 OF THE CONTRACT FORM PROVIDES, AS FOLLOWS:

ARTICLE 3. NATURE OF SERVICES. THE ARCHITECT'S PROFESSIONAL SERVICES SHALL CONSIST OF THE NECESSARY CONFERENCES WITH THE CONTRACTING OFFICER OR HIS REPRESENTATIVE; THE PREPARATION AND SUBMISSION OF PRELIMINARY STUDIES AND DESIGNS; THE PREPARATION OF WORKING DRAWINGS, SPECIFICATIONS, LARGE SCALE AND FULL SIZE DETAILED DRAWINGS; THE DRAFTING OF FORMS OF PROPOSALS AND CONTRACTS AS REQUIRED; THE KEEPING OF ACCOUNTS AS REQUIRED; THE ISSUANCE OF CERTIFICATES OF PAYMENT; THE SUPERVISION OF THE WORK; THE FURNISHING OF THE SERVICES OF STRUCTURAL ENGINEERS AND OF SUCH MECHANICAL ENGINEERS AS THE CONTRACTING OFFICER MAY REQUIRE.

THE WORKING DRAWINGS, SPECIFICATIONS, LARGE SCALE AND FULL SIZE DETAILED DRAWINGS, FORMS OF PROPOSALS AND CONTRACTS MUST BE IN ACCORDANCE WITH STANDARD PRACTICE IN THE COUNTRY WHERE THE MEMORIAL STRUCTURE IS TO BE BUILT.

THE CONTRACTING OFFICER WILL PERFORM THE GENERAL ADMINISTRATION OF THE CONTRACTS FOR THE WORK TO BE PERFORMED.

THE ARCHITECT WILL BE REQUIRED TO GIVE BOND FOR THE FAITHFUL PERFORMANCE OF HIS CONTRACT FOR AN AMOUNT NOT EXCEEDING ....... DOLLARS, THE AMOUNT TO BE FIXED BY THE CONTRACTING OFFICER. THE BOND MAY BE CHANGED IN AMOUNT (NOT TO EXCEED THE AMOUNT ORIGINALLY REQUIRED), OR ELIMINATED ENTIRELY AT THE DISCRETION OF THE CONTRACTING OFFICER.

THE SELECTION OF SCULPTORS, MODELERS AND OTHER ARTISTS, IF THEIR SERVICES SHALL BE REQUIRED, WILL BE MADE BY THE ARCHITECT, SUBJECT TO THE APPROVAL OF THE CONTRACTING OFFICER AND THE FINE ARTS COMMISSION.

SECTION 1 OF THE MILLER ACT, 49 STAT. 793, CITED ABOVE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT (A) BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON, SUCH PERSON SHALL FURNISH TO THE UNITED STATES THE FOLLOWING BONDS, WHICH SHALL BECOME BINDING UPON THE AWARD OF THE CONTRACT TO SUCH PERSON, WHO IS HEREINAFTER DESIGNATED AS "CONTRACTOR: "

(1) A PERFORMANCE BOND WITH A SURETY OR SURETIES SATISFACTORY TO THE OFFICER AWARDING SUCH CONTRACT, AND IN SUCH AMOUNT AS HE SHALL DEEM ADEQUATE, FOR THE PROTECTION OF THE UNITED STATES.

(2) A PAYMENT BOND WITH A SURETY OR SURETIES SATISFACTORY TO SUCH OFFICER FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT FOR THE USE OF EACH SUCH PERSON. * * *

(B) THE CONTRACTING OFFICER IN RESPECT OF ANY CONTRACT IS AUTHORIZED TO WAIVE THE REQUIREMENT OF A PERFORMANCE BOND AND PAYMENT BOND FOR SO MUCH OF THE WORK UNDER SUCH CONTRACT AS IS TO BE PERFORMED IN A FOREIGN COUNTRY IF HE FINDS THAT IT IS IMPRACTICABLE FOR THE CONTRACTOR TO FURNISH SUCH BONDS.

IN VIEW OF THE NATURE OF THE SERVICES TO BE PERFORMED BY THE CONTRACTOR, WHICH ARE DESCRIBED IN ARTICLES 2 AND 3 OF THE CONTRACT FORM AS "PROFESSIONAL SERVICES," AND OF THE FACT THAT, AS STATED IN THE SECRETARY'S LETTER, THE ACTUAL CONSTRUCTION WORK IS PERFORMED BY OTHER CONTRACTORS ENGAGED BY THE COMMISSION, THE ARCHITECTURAL CONTRACTS IN QUESTION DO NOT APPEAR TO BE CONTRACTS "FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES," WITHIN THE PURVIEW OF THE MILLER ACT. CF. 16 COMP. GEN. 1055; 19 ID. 467. ACCORDINGLY, YOU ARE ADVISED THAT SAID ACT HAS NO APPLICATION TO THE INSTANT CONTRACTS IRRESPECTIVE OF WHERE THE SERVICE IS TO BE PERFORMED.