A-63153, SEPTEMBER 5, 1935, 15 COMP. GEN. 170

A-63153, SEPTEMBER 5, 1935, 15 COMP. GEN. 170

CONTRACTS - SPECIFICATIONS - CODE COMPLIANCE BIDS RECEIVED IN CONNECTION WITH ADVERTISED SPECIFICATIONS CONTAINING CODE COMPLIANCE REQUIREMENTS MAY BE CONSIDERED, IF OTHERWISE VALID AND ACCEPTABLE, UNDER THE TERMS OF PUBLIC RESOLUTION NO. 65, APPROVED AUGUST 29, 1935, 49 STAT. 990.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 5, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 29, 1935, AS FOLLOWS:

I HAVE RECEIVED YOUR LETTER OF AUGUST 22 (A-63153) (A-63295), IN RESPONSE TO MINE OF AUGUST 17, REQUESTING YOUR DECISION AS TO THE PROPER DISPOSAL TO BE MADE OF CASES IN WHICH ADVERTISED SPECIFICATIONS CONTAINED CODE COMPLIANCE REQUIREMENTS.

YOU STATE THAT "WHILE IT IS REALIZED THERE HAS BEEN CONFUSION, PROPOSALS FOR SUPPLEMENTAL LEGISLATION, ETC., YOU WILL APPRECIATE THAT THIS OFFICE MAY NOT PROPERLY SANCTION DISREGARD OF THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, IN THE USES OF PUBLIC MONEYS--- THAT IS,FULL AND UNRESTRICTED COMPETITIVE BIDDING--- UNLESS THERE EXISTS IN FACT A CONDITION, EMERGENT IN CHARACTER, WHICH CLEARLY REQUIRES, IN THE PUBLIC INTEREST, SUCH PROMPT ACTION AS WILL NOT PERMIT OF THE DELAY INVOLVED IN ADVERTISING--- IN THE INSTANT MATTER, READVERTISING.'

THE CASES WHICH ARE AFFECTED BY YOUR PRIOR DECISIONS AND IN WHICH THE ADVERTISED SPECIFICATIONS CONTAINED CODE COMPLIANCE REQUIREMENTS ARE AS FOLLOWS:

"SPECIFICATIONS NO. 656-D, FIRE EXTINGUISHING EQUIPMENT--- BOULDER CANYON PROJECT.--- SPECIFICATIONS WERE ADVERTISED ON JANUARY 16, 1935, AND BIDS WERE OPENED FEBRUARY 14, 1935. THE CONTRACT HAS NOT AS YET BEEN AWARDED. THE INSTALLATION OF THE GENERATORS AND OTHER EQUIPMENT WILL BE STARTED AT AN EARLY DATE AND IT IS IMPERATIVE THAT THIS EQUIPMENT BE ON HAND AT THAT TIME TO PROPERLY SAFEGUARD THE MACHINERY AND STRUCTURES. WE HAVE BEEN ADVISED THAT AN ADVANCE IN THE PRICE OF THIS EQUIPMENT WAS MADE EFFECTIVE AUGUST 1 AND CONSEQUENTLY AN INCREASE IN PRICE TO THE GOVERNMENT WILL RESULT IF READVERTISED.

"SPECIFICATIONS 687-D, INSULATED WIRE AND CABLE--- BOULDER CANYON PROJECT.--- SPECIFICATIONS WERE ADVERTISED MAY 2, 1935, AND BIDS WERE OPENED MAY 27, 1935. THIS CONTRACT HAS NOT AS YET BEEN AWARDED. THE EQUIPMENT COVERED BY THESE SPECIFICATIONS IS URGENTLY NEEDED IN PLANT, WHICH IS NOW IN PROGRESS. FROM INFORMATION RECEIVED, WE HAVE EVERY REASON TO BELIEVE THAT READVERTISEMENT WILL RESULT IN AN INCREASE IN PRICE TO THE GOVERNMENT.

"SPECIFICATIONS NO. 628, NEEDLE VALVES--- BOULDER CANYON PROJECT.--- SPECIFICATIONS WERE ADVERTISED MAY 4, 1935, AND BIDS WERE OPENED JUNE 5, 1935. THIS CONTRACT HAS NOT AS YET BEEN AWARDED. THE EQUIPMENT COVERED BY THESE SPECIFICATIONS IS ALSO URGENTLY NEEDED IN ORDER TO PERMIT OF COMPLETION OF THE SYSTEM FOR CONTROLLING WATER FROM THE RESERVOIR. HAVE BEEN ADVISED OF AN ADVANCE IN THE PRICE OF THIS EQUIPMENT SINCE THE BIDS WERE OPENED, WHICH WILL RESULT IN INCREASED COST TO THE GOVERNMENT IN THE EVENT OF READVERTISING.'

IN VIEW OF THE URGENT NEED FOR THE EQUIPMENT COVERED BY THE ABOVE SPECIFICATIONS AND CONSIDERING THE INCREASED COST TO THE GOVERNMENT BY REASON OF READVERTISING, YOUR EARLY DECISION IS REQUESTED AS TO WHETHER WE SHOULD NEVERTHELESS REJECT ALL BIDS WITH READVERTISING, OR AWARD CONTRACTS TO THE LOW BIDDERS.

THE PRESIDENT APPROVED AUGUST 29, 1935, PUBLIC RESOLUTION NO. 65, 49 STAT. 990, AS FOLLOWS:

THAT NO BID SUBMITTED PRIOR TO THE ENACTMENT OF THIS JOINT RESOLUTION IN RESPONSE TO THE INVITATION OF ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR OTHER AGENCY OR INSTRUMENTALITY OF THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR ANY CORPORATION ALL THE STOCK OF WHICH IS OWNED BY THE UNITED STATES (ALL OF THE FOREGOING BEING HEREINAFTER DESIGNATED AS ,AGENCIES OF THE UNITED STATES"), IF OTHERWISE VALID AND ACCEPTABLE, SHALL BE REJECTED BECAUSE MADE SUBJECT TO THE PROVISIONS OF ANY CODE OR CODES OF FAIR COMPETITION, OR ANY RELATED REQUIREMENTS (AS PROVIDED IN EXECUTIVE ORDER NO. 6646 OF MAR. 14, 1934), IF THE BIDDER, WITH THE ASSENT OF HIS SURETY, SHALL AGREE IN WRITING THAT THE CONTRACT, IF ENTERED INTO, SHALL, IN LIEU OF SUCH CODE PROVISIONS OR OTHER RELATED REQUIREMENTS, BE SUBJECT TO ALL ACTS OF CONGRESS, ENACTED AFTER THE DATE OF ENACTMENT OF THIS JOINT RESOLUTION, REQUIRING THE OBSERVANCE OF MINIMUM WAGES, MAXIMUM HOURS, OR LIMITATIONS AS TO AGE OF EMPLOYEES IN THE PERFORMANCE OF CONTRACTS WITH AGENCIES OF THE UNITED STATES. IN SUCH CASES THE COMPENSATION PROVIDED FOR IN THE CONTRACT SHALL BE REDUCED FROM THAT STATED IN THE BID BY THE AMOUNT THAT THE CONTRACTING OFFICER, SUBJECT TO THE APPROVAL OF THE COMPTROLLER GENERAL, SHALL FIND THE COST OF PERFORMING THE CONTRACT IS REDUCED SOLELY BY REASON OF THE CONTRACTOR NOT COMPLYING WITH THE PROVISIONS OF SUCH CODE OR CODES OR RELATED REQUIREMENTS; AND THE COMPENSATION FOR THE PERFORMANCE OF THE CONTRACT SHALL BE INCREASED FROM THAT FIXED IN THE CONTRACT BY THE AMOUNT THAT THE CONTRACTING OFFICER, SUBJECT TO THE APPROVAL OF THE COMPTROLLER GENERAL, SHALL FIND THE COST OF PERFORMING THE CONTRACT HAS BEEN INCREASED SOLELY BY REASON OF COMPLIANCE WITH SUCH SUBSEQUENT ACTS OF CONGRESS, IF ANY, RELATING TO THE PERFORMANCE OF CONTRACTS WITH AGENCIES OF THE UNITED STATES.

THE BIDS RECEIVED UNDER THE THREE SPECIFICATIONS IN QUESTION MAY BE CONSIDERED, IF OTHERWISE VALID AND ACCEPTABLE, UNDER THE TERMS OF THE QUOTED PUBLIC RESOLUTION NO. 65, APPROVED AUGUST 29, 1935.