B-85381, JULY 5, 1949, 29 COMP. GEN. 8

B-85381, JULY 5, 1949, 29 COMP. GEN. 8

CONTRACTS - SPECIFICATIONS - CONVICT LABOR THE PURCHASE AND USE OF PRODUCTS MADE IN A STATE PENITENTIARY AND INCORPORATED INTO A FEDERAL CONSTRUCTION PROJECT IN THAT STATE IN THE PERFORMANCE OF A CONTRACT CONTAINING A STIPULATION AGAINST THE EMPLOYMENT OF ANY PERSON UNDERGOING SENTENCE OF IMPRISONMENT AT HARD LABOR, AS REQUIRED BY EXECUTIVE ORDER NO. 325A, IS NOT PROHIBITED BY SAID EXECUTIVE ORDER OR THE ACT OF FEBRUARY 23, 1887, WHICH HAVE REFERENCE SOLELY TO THE EMPLOYMENT OF CONVICT LABOR; AND FEDERAL LAWS PROHIBITING THE MOVEMENT IN INTERSTATE COMMERCE OF CONVICT-MADE GOODS ARE INAPPLICABLE TO THE PURCHASE AND USE OF SUCH PRODUCTS. 28 COMP. GEN. 409, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, FEDERAL WORKS AGENCY, JULY 5, 1949:

REFERENCE IS MADE TO LETTER OF APRIL 7, 1949, FROM YOUR PREDECESSOR IN OFFICE REQUESTING TO BE ADVISED WHETHER THERE IS ANY PROHIBITION, STATUTORY OR OTHERWISE, WHICH PREVENTS A CONTRACTOR UNDER A FIXED PRICE CONTRACT WITH YOUR AGENCY FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF A PUBLIC BUILDING OR WORK FROM PURCHASING BRICK PRODUCED AT A STATE PENITENTIARY AND INCORPORATING THE SAME IN A FEDERAL PROJECT LOCATED IN THE SAME STATE AS SUCH PENITENTIARY.

IT APPEARS THAT ON OCTOBER 8, 1947, CONTRACT NO. WA2PB-4874 WAS AWARDED BY THE PUBLIC BUILDINGS ADMINISTRATION TO THE LEMBKE CONSTRUCTION COMPANY OF ALBUQUERQUE, NEW MEXICO, FOR THE INSTALLATION OF A NEW PASSENGER ELEVATOR IN THE UNITED STATES COURTHOUSE AT SANTA FE, NEW MEXICO, FOR A PRICE OF $36,700. THE CONTRACT CONTAINED A STIPULATION THAT THE CONTRACTOR SHOULD NOT EMPLOY ANY PERSON UNDERGOING SENTENCE OF IMPRISONMENT AT HARD LABOR. THE CONTRACT WORK INVOLVED THE CONSTRUCTION OF A BRICK ELEVATOR SHAFT, AND YOU STATE IT HAS COME TO YOUR ATTENTION THAT THE BRICK USED THEREFOR WAS PURCHASED BY THE CONTRACTOR FROM THE NEW MEXICO STATE PENITENTIARY.

YOU CITE AS RELEVANT TO THE GENERAL QUESTION INVOLVED VARIOUS FEDERAL STATUTES, EXECUTIVE ORDERS, AND NEW MEXICO STATUTES. THE BASIC ACT OF FEBRUARY 23, 1887, 24 STAT. 411, EXECUTIVE ORDERS 325A, 9196, AND 9859, DATED MAY 18, 1905, JULY 9, 1942, AND MAY 31, 1947, RESPECTIVELY, AND THE WALSH-HEALEY ACT OF JUNE 30, 1936, 49 STAT. 2036, 2037, AS AMENDED, WERE CONSIDERED IN DECISION B-79508, DATED JANUARY 12, 1949, 28 COMP. GEN. 409, WHEREIN IT WAS HELD THAT PURCHASES OF SUPPLIES FOR THE GOVERNMENT UNDER CONTRACTS WHICH DO NOT BY THEIR TERMS SHOW THE NECESSITY FOR THE EMPLOYMENT OF LABOR IN THEIR PERFORMANCE AND WHICH DO NOT EXCEED $10,000 IN AMOUNT, ARE NOT RENDERED INVALID BY REASON OF THE FACT THAT THE ARTICLES FURNISHED MAY HAVE BEEN PRODUCED IN STATE PENAL INSTITUTIONS. THE INSTANT CONTRACT, BEING ONE FOR CONSTRUCTION RATHER THAN FOR THE FURNISHING OF FINISHED ARTICLES, NECESSARILY INVOLVES THE EMPLOYMENT OF LABOR AND IS THEREFORE DISTINGUISHABLE FROM THE CONTRACT INVOLVED IN THAT DECISION.

THE PRESENT CONTRACT CONTAINS A STIPULATION, AS REQUIRED BY EXECUTIVE ORDER 325A, SUPRA, THAT THE CONTRACTOR SHALL NOT EMPLOY ANY PERSON UNDERGOING SENTENCE OF IMPRISONMENT AT HARD LABOR. HOWEVER, AS POINTED OUT IN YOUR LETTER OF APRIL 7, 1949, THE ACT OF FEBRUARY 23, 1887 (NOW, AS REVISED, SECTION 436, TITLE 18, U.S.C.), AND EXECUTIVE ORDER 325A DEAL SOLELY WITH THE EMPLOYMENT OF CONVICT LABOR AND ARE NOT PERTINENT TO THE QUESTION HERE INVOLVED, NAMELY, THE PURCHASE AND USE OF PRISON-MADE PRODUCTS BY A FEDERAL CONTRACTOR. FEDERAL LAW PROHIBITING THE MOVEMENT IN INTERSTATE COMMERCE OF CONVICT-MADE GOODS-- THE HAWES-COOPER ACT OF JANUARY 19, 1929, 45 STAT. 1084, AND SECTIONS 1761 AND 1762, TITLE 18, U.S.C.--- LIKEWISE IS INAPPLICABLE TO THE SITUATION HERE INVOLVED SINCE THE BRICK WAS PROCURED AND USED BY THE CONTRACTOR ENTIRELY WITHIN THE STATE OF NEW MEXICO. NOR DOES IT APPEAR THAT THE PURCHASE AND USE OF THE BRICK WAS IN VIOLATION OF THE NEW MEXICO STATUTES, SECTIONS 41-3309 AND 41 -3310 OF WHICH PROHIBIT THE SALE OR DISTRIBUTION IN NEW MEXICO OF GOODS MADE BY CONVICTS OR PRISONERS OF ANY OTHER STATE BUT PERMIT THE PRODUCTION, SALE, AND USE OF GOODS MADE BY INMATES OF PENAL INSTITUTIONS IN THE STATE.

ACCORDINGLY, YOU ARE ADVISED THAT THERE APPEARS TO BE NO LEGAL OBJECTION TO THE USE OF BRICK MADE IN THE NEW MEXICO STATE PENITENTIARY UNDER THE CONTRACT INVOLVED.