MAY 10, 1923, 2 COMP. GEN. 739

MAY 10, 1923, 2 COMP. GEN. 739

CONTRACTS PRIOR TO AVAILABILITY OF APPROPRIATIONS THE APPROPRIATION FOR PAVING PORTIONS OF STREETS AND ALLEYS ADJOINING THE OSAGE TRIBAL PROPERTY WITHIN THE INCORPORATED TOWN OF PAWHUSKA, OKLA., BEING EMBRACED WITHIN AN ORDINARY APPROPRIATION ACT, IS NOT AVAILABLE FOR EXPENDITURE PRIOR TO JULY 1, 1923, BUT CONTRACTS OBLIGATING THAT APPROPRIATION FOR PAYMENT TO BE MADE ON OR AFTER JULY 1, 1923, MAY BE ENTERED INTO AT ANY TIME AFTER THE DATE OF THE ACT CONTAINING THE APPROPRIATION, I.E., ACT OF JANUARY 24, 1923, 42 STAT., 1196.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MAY 10, 1923:

I HAVE YOUR LETTER OF APRIL 30, 1922, REQUESTING DECISION AS TO THE AUTHORITY FOR THE CONTEMPLATED ARRANGEMENTS IN THE EXPENDITURE OF THE APPROPRIATION OF $35,000, ACT OF JANUARY 24, 1923, 42 STAT., 1196, AS FOLLOWS:

FOR PAVING PORTIONS OF STREETS AND ALLEYS ADJOINING OSAGE TRIBAL PROPERTY WITHIN THE INCORPORATED TOWN OF PAWHUSKA, OKLAHOMA, $35,000, TO BE PAID FROM THE FUNDS HELD BY THE UNITED STATES IN TRUST FOR THE OSAGE TRIBE OF INDIANS IN OKLAHOMA AND TO BE EXPENDED UNDER AUTHORITY AND DIRECTION OF THE SECRETARY OF THE INTERIOR.

THE MATTERS SUBMITTED INVOLVE THE QUESTIONS (1) WHETHER THE APPROPRIATION THUS MADE IS IMMEDIATELY AVAILABLE, (2) WHETHER, IF NOT AVAILABLE UNTIL JULY 1, 1923, A CONTRACT FOR THE PAVING MAY BE ENTERED INTO PRIOR TO JULY 1, 1923, PROVIDING NO PAYMENTS THEREUNDER ARE CONTEMPLATED OR MADE PRIOR TO JULY 1, 1923, AND (3) WHETHER THE MANNER OF SECURING COMPETITION, HEREINAFTER EXPLAINED IN DETAIL, CONFORMS TO THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES.

THE FACTS APPEAR THAT THE BOARD OF CITY COMMISSIONERS OF THE CITY OF PAWHUSKA, OSAGE COUNTY, OKLA., ON FEBRUARY 26, 1922, PASSED A RESOLUTION FOR THE PAVING, GRADING, CURBING, GUTTERING, DRAINAGE, AND OTHERWISE IMPROVING CERTAIN DESIGNATED STREETS AND ALLEYS IN THE CITY OF PAWHUSKA, CONSTITUTING WHAT IS KNOWN AS "STREET IMPROVEMENT DISTRICT NO. 14," CERTAIN PORTIONS OF WHICH STREETS AND ALLEYS IN THE SAID IMPROVEMENT DISTRICT ABUT LANDS OWNED BY THE OSAGE TRIBE OF INDIANS WHICH ARE UNDER THE SUPERVISION OF THE UNITED STATES GOVERNMENT. RECOGNIZING ITS INABILITY TO ASSESS THE BENEFITS FOR THAT PORTION OF THE PAVING, ETC., ABUTTING THE INDIAN TRIBAL LANDS, THE CITY OF PAWHUSKA, THOUGH IT SOLICITED BIDS FOR THE WHOLE OF THE WORK, INCLUDING THE ABUTTING STREETS AND ALLEYS, CONTRACTED WITH THE LOWEST ACCEPTABLE BIDDER ONLY FOR THAT PORTION OF THE WORK FOR WHICH IT WAS COMPETENT TO ASSESS SUCH BENEFITS, PROVIDING IN ITS SPECIFICATIONS:

* * * THAT AS A MATTER OF FACT AND LAW SAID LANDS ARE NOT SUBJECT TO SPECIAL ASSESSMENT AND THAT THE CITY OF PAWHUSKA AND ITS OFFICERS ARE WITHOUT POWER TO SUBJECT SAID LANDS TO SPECIAL ASSESSMENT; THAT THE PORTIONS OF SAID STREETS AND ALLEYS, THE BENEFIT OF IMPROVING WHICH WOULD ORDINARILY BE APPORTIONED TO SAID INDIAN LANDS, ARE * * * THAT THE CONTRACTOR WILL ENDEAVOR TO MAKE A CONTRACT WITH THE U.S. GOVERNMENT AND OSAGE TRIBE OF INDIANS ACTING THROUGH THEIR PROPER REPRESENTATIVES * * * THAT IN THE EVENT THE CONTRACTOR CAN NOT MAKE AN AGREEMENT WITH THE U.S. GOVERNMENT AND OSAGE TRIBE OF INDIANS * * * THAT ALL STREETS AND ALLEYS HAVING ANY PORTIONS THEREOF ABUTTING ON SAID OSAGE INDIAN LANDS SHALL, INCLUDING THEIR ENTIRE WIDTH, BE EXEMPTED FROM THIS AGREEMENT AND CONTRACT.

IT IS SUBMITTED, IN SUBSTANCE, THAT THE ACTION OF THE CITY OF PAWHUSKA IN SOLICITING BIDS FOR ALL THE PAVING, ETC., INCLUDING THAT OF THE STREETS ABUTTING THE INDIAN LANDS, WAS MOST DESIRABLE, IN FACT NECESSARY, BECAUSE THE PAVING, ETC., COSTS PROPERLY TO BE BORNE FROM INDIAN FUNDS COVERED ABUTTING STREETS AND ALLEYS TO THE CENTER THEREOF, AND SUCH COSTS PROPERLY TO BE BORNE BY THE CITY, FROM AND BEYOND SUCH CENTER, SO THAT IF SEPARATE BIDS WERE SOLICITED BY EACH AND SEPARATE AWARDS MADE IT MIGHT RESULT IN ONE BIDDER RECEIVING THE AWARD FOR ONE SIDE AND ANOTHER BIDDER FOR THE OTHER SIDE OF THE SAME STREET, A CONDITION TO BE AVOIDED, IF POSSIBLE.

IT APPEARS FROM THE PAPERS FORWARDED WITH THE SUBMISSION THAT THE GOVERNMENT WAS REPRESENTED IN THE PREPARATION OF THE SPECIFICATIONS; THAT IT WAS PRESENT AT THE OPENING OF THE BIDS; THAT THE MANNER AND FORM OF SECURING COMPETITION WAS IN ALL RESPECTS SUBSTANTIALLY SIMILAR TO THE PROCEDURE AS IT WOULD HAVE BEEN HAD THE ADVERTISING BEEN BY THE GOVERNMENT PURSUANT TO THE PROVISIONS OF SECTION 3709, REVISED STATUTES; AND THAT THE PRICES QUOTED IN THE LOWEST AND ACCEPTED BID WERE REASONABLE AND SATISFACTORY.

THE QUESTIONS (1), (2), AND (3) WILL BE CONSIDERED AND DISPOSED OF IN THAT ORDER.

(1) THE ITEM IN QUESTION IS CARRIED IN A REGULAR ANNUAL APPROPRIATION ACT, AND THE LANGUAGE THEREOF DOES NOT EXPRESS AN INTENTION THAT THE AMOUNT APPROPRIATED SHALL BE IMMEDIATELY AVAILABLE FOR EXPENDITURE.

(2) IF THE ADVERTISING FOR THE PAVING, ETC., SATISFIES THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, AND IT SO APPEARS, AS HEREINAFTER EXPLAINED UNDER (3), AND IF THE LAST CLAUSE OF THE CONTRACT FOR THE WORK, WHICH CONTRACT WAS FORWARDED WITH THE SUBMISSION, IS MODIFIED SO AS TO PROVIDE FOR PAYMENT, ON OR AFTER JULY 1, 1923, "WHEN AUTHORIZED BY THE SECRETARY OF THE INTERIOR," AFTER JOINT CERTIFICATE OF THE GOVERNMENT REPRESENTATIVE OR REPRESENTATIVES, DESIGNATED TO SUPERVISE ITS PART OF THE WORK, AND THE DESIGNATED REPRESENTATIVE OR REPRESENTATIVES OF THE CITY OF PAWHUSKA, THERE APPEARS NO REASON WHY THE PROJECT MAY NOT BE STARTED FORTHWITH, PROPER VOUCHERS TO BE SUBMITTED IN ACCOUNTING FOR PAYMENT TO BE MADE BY THE UNITED STATES. SEE 4 LAWRENCE, 1ST COMP., 136, WHEREIN IT WAS SAID:

UNDER AN ORDINARY APPROPRIATION ACT, PASSED PRIOR TO THE COMMENCEMENT OF THE FISCAL YEAR FOR THE SERVICE OF WHICH IT IS MADE, THE OFFICER CHARGED WITH THE DUTY OF EXECUTING IT MAY MAKE CONTRACTS AT ANY TIME AFTER ITS APPROVAL * * * SUBJECT TO THE LIMITATION THAT SUCH CONTRACTS CAN NOT CHARGE THE UNITED STATES WITH A LIABILITY TO MAKE PAYMENT PRIOR TO THE FISCAL YEAR.

SEE ALSO 6 COMP. DEC., 898; 8 ID., 695; 9 ID., 243.

(3) WHETHER SECTION 3709, REVISED STATUTES, REQUIRES THAT THE COMPETITIVE BIDS BE SECURED BY THE GOVERNMENT NEED NOT BE DETERMINED. THE MANNER IN WHICH BIDS SHALL BE PROCURED IS NOT FIXED AND IF THE FACTS SHOW THE BIDS WERE, IN FACT, PROCURED FOR THE USE OF THE UNITED STATES, IT MAY BE ACCEPTED AS A COMPLIANCE WITH SAID SECTION 3709, REVISED STATUTES, OTHER FACTS APPEARING SHOWING THE NECESSITY FOR PROCEEDING IN THE MANNER INDICATED.