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A-62758, JUNE 17, 1935, 14 COMP. GEN. 905

A-62758 Jun 17, 1935
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AS FOLLOWS: I HAVE THE HONOR TO TRANSMIT HEREWITH 11 OPEN BIDS RECEIVED UNDER THE CALL OF MAY 14. THE 12TH BID (UNOPENED) WAS NOT RECEIVED BY THE BOARD UNTIL 3:15 P.M. THE RESPONSIBILITY OF THIS BIDDER IS UNQUESTIONED. SHOULD HAVE BEEN DELIVERED IN TIME TO BE OPENED AT 12 NOON MAY 28. IT APPEARS UNNECESSARY AT THIS TIME TO DETERMINE WHETHER THE BID SHOULD BE OPENED FOR THE REASON THAT THE ADVERTISED SPECIFICATIONS CONTAINED A PROVISION THAT: NO BID WILL BE CONSIDERED UNLESS IT INCLUDES OR IS ACCOMPANIED BY A CERTIFICATE DULY EXECUTED BY THE BIDDER STATING THAT THE BIDDER IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION TO WHICH HE IS SUBJECT. IF ENGAGED IN ANY TRADE OR INDUSTRY FOR WHICH THERE IS NO APPROVED CODE OF FAIR COMPETITION.

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A-62758, JUNE 17, 1935, 14 COMP. GEN. 905

CONTRACTS - CODE COMPLIANCE - READVERTISEMENT BIDS SUBMITTED IN ANSWER TO ADVERTISED SPECIFICATIONS STIPULATING CODE COMPLIANCE OPENED AFTER MAY 27, 1935, DATE OF UNITED STATES SUPREME COURT DECISION HOLDING UNCONSTITUTIONAL THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 196, RELATIVE TO CODES AND CODE COMPLIANCE, SHOULD BE REJECTED AND THERE SHOULD BE READVERTISEMENT ON THE BASIS OF SPECIFICATIONS ELIMINATING SUCH REQUIREMENT.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, UNITED STATES BOARD OF TAX APPEALS, JUNE 17, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 10, 1935, AS FOLLOWS:

I HAVE THE HONOR TO TRANSMIT HEREWITH 11 OPEN BIDS RECEIVED UNDER THE CALL OF MAY 14, 1935, FOR BIDS COVERING STENOGRAPHIC REPORTING SERVICE FOR THE BOARD FOR THE FISCAL YEAR 1936. THE 12TH BID (UNOPENED) WAS NOT RECEIVED BY THE BOARD UNTIL 3:15 P.M. ON MAY 28, 1935.

ACCORDING TO THE STATEMENTS SUBMITTED BY SMITH AND HULSE, ONE OF THE BIDDERS, TRANSMITTED HEREWITH, AND MY OWN CALCULATIONS AS SET FORTH IN THE MEMORANDUM ALSO ENCLOSED, I AM OF OPINION THAT THE FIRM OF SMITH AND HULSE MAY BE CONSIDERED THE "LOWEST BIDDER.' THE RESPONSIBILITY OF THIS BIDDER IS UNQUESTIONED, AND WITH THESE CONSIDERATIONS I ASK YOUR DECISION AS TO WHETHER THE CONTRACT FOR THE COMING FISCAL YEAR MAY PROPERLY BE AWARDED TO THE FIRM OF SMITH AND HULSE.

WHILE THE UNOPENED BID OF HOWARD B. SMITH BEARS WASHINGTON, D.C., POSTMARK 7 P.M. MAY 27, 1935, AND SHOULD HAVE BEEN DELIVERED IN TIME TO BE OPENED AT 12 NOON MAY 28, 1935, INSTEAD OF AT 3:15 P.M. OF THAT DAY, AS INDICATED ON THE ENVELOPE, IT APPEARS UNNECESSARY AT THIS TIME TO DETERMINE WHETHER THE BID SHOULD BE OPENED FOR THE REASON THAT THE ADVERTISED SPECIFICATIONS CONTAINED A PROVISION THAT:

NO BID WILL BE CONSIDERED UNLESS IT INCLUDES OR IS ACCOMPANIED BY A CERTIFICATE DULY EXECUTED BY THE BIDDER STATING THAT THE BIDDER IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH EACH APPROVED CODE OF FAIR COMPETITION TO WHICH HE IS SUBJECT, AND IF ENGAGED IN ANY TRADE OR INDUSTRY FOR WHICH THERE IS NO APPROVED CODE OF FAIR COMPETITION, THEN STATING THAT AS TO SUCH TRADE OR INDUSTRY HE HAS BECOME A PARTY TO AND IS COMPLYING WITH AND WILL CONTINUE TO COMPLY WITH AN AGREEMENT WITH THE PRESIDENT UNDER SECTION 4 (A) OF THE NATIONAL INDUSTRIAL RECOVERY ACT. (EXECUTIVE ORDER OF MARCH 14, 1934.)

WHEN THE BIDS--- WHICH WERE REQUIRED TO BE ACCOMPANIED BY A CERTIFICATE THAT THE BIDDER WAS COMPLYING WITH, AND WOULD CONTINUE TO COMPLY WITH, THE APPLICABLE APPROVED CODES OF FAIR COMPETITION, OR IF NO CODE THEN WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT--- WERE OPENED, THE SUPREME COURT OF THE UNITED STATES HAD DECIDED ON MAY 27, 1935, IN THE SCHECHTER CASE THAT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 196, ET SEQ., RELATIVE TO CODES AND CODE COMPLIANCE WERE UNCONSTITUTIONAL. AND IN SUCH CONNECTION IT IS TO BE NOTED THE NATIONAL INDUSTRIAL RECOVERY BOARD ON MAY 29, 1935, AS AMENDED JUNE 3, 1935, SUSPENDED THE REQUIREMENTS OF EXECUTIVE ORDER NO. 6646 OF MARCH 14, 1934, AS REFERRED TO IN THE ABOVE-QUOTED EXTRACT FROM THE ADVERTISED SPECIFICATIONS OF MAY 14, 1935.

IT NECESSARILY FOLLOWS IT WOULD NOT BE PROPER TO NOW CONTRACT ON BIDS REQUIRED TO BE SUBMITTED ON THE BASIS OF CODE COMPLIANCE. CONSEQUENTLY, ALL OF THE BIDS SHOULD BE REJECTED AND THERE SHOULD BE READVERTISING ON THE BASIS OF SPECIFICATIONS ELIMINATING SUCH REQUIREMENTS.

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