A-67002, JANUARY 2, 1936, 15 COMP. GEN. 577

A-67002, JANUARY 2, 1936, 15 COMP. GEN. 577

CONTRACTS AND LEASES - "PUBLIC WORK, OR SERVICE" - BITUMINOUS COAL CONSERVATION ACT OF 1935 LEASES UNDER WHICH THE LESSOR UNDERTAKES TO FURNISH HEAT, LIGHT, ELECTRIC CURRENT, OR ANY OTHER SERVICE, AND CONTRACTS FOR SUPPLYING ELECTRIC, GAS, WATER, OR STEAM SERVICES TO GOVERNMENT BUILDINGS OR LEASED QUARTERS, ARE CONTRACTS FOR "PUBLIC WORK, OR SERVICE" WITHIN THE MEANING OF SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, 49 STAT. 1007, AND MUST CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY BUT A CODE MEMBER PRODUCER, BUT LEASES UNDER WHICH THERE IS NO OBLIGATION ON THE PART OF THE LESSOR TO FURNISH EITHER HEAT, LIGHT, FUEL, OR OTHER SERVICE NEED NOT CONTAIN SUCH PROVISION. THE PURCHASE OF BITUMINOUS COAL BY THE FEDERAL GOVERNMENT FROM OTHER THAN A PRODUCER WHO HAS COMPLIED WITH THE PROVISIONS OF THE CODE SET FORTH IN THE BITUMINOUS COAL CONSERVATION ACT OF 1935, BEING PROHIBITED BY SECTION 14 (A) OF SAID ACT, 49 STAT. 1006, THERE MUST BE FURNISHED IN CONNECTION WITH LEASE AGREEMENTS UNDER WHICH THE LESSOR UNDERTAKES TO FURNISH BITUMINOUS COAL AS FUEL FOR USE BY THE GOVERNMENT, THE NAME AND ADDRESS OF THE PRODUCER AND A CERTIFICATE OF THE NATIONAL BITUMINOUS COAL COMMISSION THAT THE PRODUCER IS SUCH CODE MEMBER. IF THE FUEL FURNISHED IS OTHER THAN BITUMINOUS COAL, SECTION 14 (B) OF THE ACT IS ALONE FOR APPLICATION.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JANUARY 2, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 26, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, WHICH READS AS FOLLOWS:

"EACH CONTRACT MADE BY THE UNITED STATES, OR ANY DEPARTMENT OR AGENCY THEREOF, WITH A CONTRACTOR FOR ANY PUBLIC WORK, OR SERVICE, SHALL CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY PRODUCER EXCEPT SUCH PRODUCER BE A MEMBER OF THE CODE SET OUT IN SECTION 4 OF THIS ACT AS CERTIFIED TO BY THE NATIONAL BITUMINOUS COAL COMMISSION.'

HAVING IN MIND THE RESTRICTIVE INTERPRETATION ADOPTED IN THE CASE OF SUCH PHRASES AS "PUBLIC WORK" IN THE PAST, FOR EXAMPLE IN APPLYING THE EIGHT- HOUR LAW, YOUR DECISION IS DESIRED AS TO THE APPLICABILITY OF THE ABOVE QUOTED PROVISIONS OF THE ACT IN THE FOLLOWING INSTANCES:

1. IN CONNECTION WITH THE ENTERING INTO OF LEASES FOR POST OFFICE QUARTERS (A) WHERE THE LESSOR UNDERTAKES TO FURNISH HEAT; (B) WHERE THE LESSOR UNDERTAKES TO FURNISH FUEL; AND (C) WHERE THE LESSOR IS UNDER NO OBLIGATION TO FURNISH EITHER HEAT OR FUEL.

2. IN THE CASE OF CONTRACTS FOR SUPPLYING ELECTRIC, GAS, WATER, OR STEAM SERVICES TO GOVERNMENT BUILDINGS OR LEASED QUARTERS.

THE PROVISION REFERRED TO IS REQUIRED IN EVERY CONTRACT "FOR ANY PUBLIC WORK, OR SERVICE.' THIS REQUIREMENT OF THE STATUTE IS PLAIN AND MANDATORY. THE CONGRESS HAVING SEEN FIT TO IMPOSE THE REQUIREMENT WITH RESPECT TO SUCH CONTRACTS, NO OFFICIAL, AGENT, OR EMPLOYEE OF THE GOVERNMENT LEGALLY MAY EXECUTE A CONTRACT FOR ANY PUBLIC WORK, OR SERVICE WHICH DOES NOT CONTAIN THE PROVISION REQUIRED BY SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, APPROVED AUGUST 30, 1935, 49 STAT. 1007, QUOTED IN YOUR LETTER. WHETHER SUCH REQUIREMENT MAY IN SOME INSTANCES INCREASE THE COST OF SUCH WORK, OR SERVICE, CAUSE INCONVENIENCE TO ADMINISTRATIVE DEPARTMENTS, OR ACCOMPLISH NOTHING BECAUSE NO COAL WILL BE PURCHASED OR USED IN THE PERFORMANCE OF THE WORK, OR SERVICE, IS NOT FOR CONSIDERATION IN DETERMINING WHETHER THE CONTRACT SHALL CONTAIN THE PROVISION. THE MATTER HAVING BEEN DETERMINED BY THE CONGRESS, THERE IS NO CHOICE BUT TO COMPLY WITH THE REQUIREMENT OF THE LAW IN THE CLASSES OF CONTRACTS TO WHICH IT IS BY ITS PLAIN TERMS MADE APPLICABLE.

ONE OF THE DEFINITIONS OF SERVICE, AS GIVEN IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, IS: ,ACT OR MEANS OF SUPPLYING SOME GENERAL DEMAND; AS RAILWAY SERVICE, TELEPHONE SERVICE, ETC.' WITHIN THE MEANING OF THE WORD "SERVICE" AS COMMONLY USED AND GENERALLY UNDERSTOOD, THE FURNISHING OF HEAT, ELECTRICITY, GAS, OR WATER IS A SERVICE. THEREFORE, ANY LEASE AGREEMENT UNDER WHICH THE LESSOR UNDERTAKES TO FURNISH HEAT, LIGHT, ELECTRIC CURRENT, OR ANY OTHER SERVICE IS A CONTRACT FOR A SERVICE WITHIN THE MEANING OF THE STATUTE AND MUST CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY PRODUCER EXCEPT SUCH PRODUCER BE A MEMBER OF THE CODE.

WHERE THE LESSOR UNDERTAKES TO FURNISH FUEL TO BE USED BY THE GOVERNMENT, THERE IS FOR CONSIDERATION, ALSO, THE PROVISION IN SECTION 14 (A) OF THE ACT, WHICH READS:

NO BITUMINOUS COAL SHALL BE PURCHASED BY THE UNITED STATES, OR ANY DEPARTMENT OR AGENCY THEREOF, PRODUCED AT ANY MINE, WHERE THE PRODUCER HAS NOT COMPLIED WITH THE PROVISIONS OF THE CODE SET OUT IN SECTION 4 OF THIS ACT.

IF THE FUEL TO BE FURNISHED UNDER SUCH A CONTRACT IS BITUMINOUS COAL, THERE SHOULD BE SHOWN THE NAME AND ADDRESS OF THE PRODUCER OF SUCH COAL FURNISHED AND A CERTIFICATE BY THE NATIONAL BITUMINOUS COAL COMMISSION THAT SUCH PRODUCER IS A MEMBER OF THE CODE AS SET OUT IN SECTION 4 OF THE ACT. IF THE FUEL FURNISHED IS OTHER THAN BITUMINOUS COAL, THAT IS, ANTHRACITE COAL, WOOD, ETC., SECTION 14 (A) IS NOT FOR APPLICATION, BUT THE LEASE AGREEMENT MUST CONTAIN THE PROVISION REQUIRED UNDER SECTION 14 (B).

WHERE THE LESSOR IS UNDER NO OBLIGATION TO FURNISH EITHER HEAT OR FUEL, OR OTHER SERVICE, THAT IS, WHERE THE LEASE AGREEMENT MERELY AUTHORIZES THE GOVERNMENT TO USE THE PREMISES, SUCH CONTRACT IS FOR NEITHER A PUBLIC WORK NOR SERVICE, AND THE STATUTE IS NOT FOR APPLICATION.

CONTRACTS "FOR SUPPLYING ELECTRIC, GAS, WATER, OR STEAM SERVICES TO GOVERNMENT BUILDINGS OR LEASED QUARTERS," ARE CONTRACTS FOR A SERVICE WITHIN THE MEANING OF THE STATUTE AND MUST CONTAIN THE PROVISION REQUIRED BY SECTION 14 (B) THEREOF.

IT IS NOTED THAT SECTION 14 (B) DIFFERS MATERIALLY FROM SECTION 14 (A) OF THE ACT. SECTION 14 (A) PROHIBITS THE PURCHASE OF BITUMINOUS COAL BY THE UNITED STATES, OR ANY DEPARTMENT OR AGENCY THEREOF, UNLESS SUCH COAL WAS PRODUCED AT A MINE WHERE THE PRODUCER HAS COMPLIED WITH THE CODE AS SET OUT IN THE ACT, WHEREAS SECTION 14 (B) PROHIBITS CONTRACTORS FOR ANY PUBLIC WORK, OR SERVICE, FROM BUYING BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM A PRODUCER WHO IS NOT A MEMBER OF SUCH CODE. A "PRODUCER" IS DEFINED IN SECTION 19 OF THE ACT AS BEING ANY PERSON, FIRM, CORPORATION, ETC., "ENGAGED IN MINING BITUMINOUS COAL.'