A-61225, JUNE 16, 1936, 15 COMP. GEN. 1095

A-61225, JUNE 16, 1936, 15 COMP. GEN. 1095

PERSONAL SERVICES - STENOGRAPHIC REPORTING UNDER EXPIRED CONTRACT - TEXTILE LABOR RELATIONS BOARD THERE IS NO AUTHORITY FOR THE PROCUREMENT OF STENOGRAPHIC REPORTING SERVICE BY THE TEXTILE LABOR RELATIONS BOARD UNDER THE TERMS OF AN EXPIRED CONTRACT ON THE BASIS OF AN EMERGENCY AND AN ADMINISTRATIVE DETERMINATION THAT THE PRICES THEREUNDER WERE LOWER THAN THAT FOR SIMILAR SERVICES CURRENTLY OFFERED, THE FUNCTIONS OF SAID BOARD BEING SUCH AS TO MAKE IT REASONABLE THAT THE NEED FOR SUCH SERVICES SHOULD HAVE BEEN ANTICIPATED, AND SECTION 3709, REVISED STATUTES, REQUIRING THE MATTER OF PRICE TO BE DETERMINED BY COMPETITION.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, TEXTILE LABOR RELATIONS BOARD, JUNE 16, 1936:

THERE WAS PRESENTED TO THIS OFFICE, FOR AUDIT IN ADVANCE OF ANY PAYMENT THEREON BY THE DISBURSING OFFICER, VOUCHER NO. 1056, STATED IN FAVOR OF THE SILLS REPORTING SERVICE IN THE SUM OF $620.10, COVERING THE FURNISHING OF COPIES OF PROCEEDINGS AT 12 CENTS PER FOLIO AND 2 DAYS' ATTENDANCE AT $15 PER DAY, INCIDENT TO REPORTING AN ARBITRATION HEARING IN CONNECTION WITH A LABOR DISPUTE AT THE PLANT OF THE PELZER MANUFACTURING CO., PELZER, S.C., FROM DECEMBER 9, 1935, TO JANUARY 22, 1936.

THE SILLS REPORTING SERVICE WAS AWARDED CONTRACT LTB-2, OCTOBER 29, 1934, FOR FURNISHING STENOGRAPHIC REPORTING SERVICE TO THE TEXTILE LABOR RELATIONS BOARD FOR THE PERIOD FROM OCTOBER 29, 1934, TO JUNE 16, 1935. IT APPEARING THAT THE SERVICES COVERED BY THE VOUCHER, SUPRA, WERE RENDERED SUBSEQUENT TO THE EXPIRATION OF THAT CONTRACT, THIS OFFICE REQUESTED AN EXPLANATION AS TO WHY BIDS WERE NOT SOLICITED IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, AND WRITTEN CONTRACT ENTERED INTO AS CONTEMPLATED UNDER SECTION 3743, REVISED STATUTES. THERE HAS BEEN RECEIVED IN RESPONSE TO SAID REQUEST A MEMORANDUM OF APRIL 2, 1936, FROM THE COUNSEL OF YOUR BOARD, IN PERTINENT PART AS FOLLOWS:

BY AGREEMENT BETWEEN SILLS REPORTING SERVICE AND THE TEXTILE LABOR RELATIONS BOARD STENOGRAPHIC SERVICE PERFORMED SUBSEQUENT TO THE 16TH DAY OF JUNE 1935 WAS TO BE AT THE SAME RATE ESTABLISHED IN THE AFORESAID CONTRACT. SINCE JUNE 16, 1935, THE TEXTILE LABOR RELATIONS BOARD HAS REQUIRED VERY LITTLE STENOGRAPHIC REPORTING SERVICE. THE PARTICULAR ITEM INVOLVED IN THIS ATTACHED SCHEDULE WAS FOR REPORTING AN ARBITRATION HEARING IN CONNECTION WITH A LABOR DISPUTE AT THE PLANT OF THE PELZER MANUFACTURING COMPANY, OF PELZER, S.C. THIS ITEM INVOLVES AN EMERGENCY SERVICE, AND IT WAS IMPOSSIBLE WITHIN THE TIME AVAILABLE TO ADVERTISE FOR ANY ADDITIONAL BIDS. THEREFORE, PUBLIC EXIGENCY AS DESCRIBED IN REVISED STATUTES NO. 3709 MADE IT NECESSARY TO OBTAIN THE SERVICES IN THE MANNER FOLLOWED. BECAUSE OF THE EXISTENCE OF THE FORMER CONTRACT, HEREIN REFERRED TO, NO ADDITIONAL CONTRACT WAS ENTERED INTO FOR THIS PARTICULAR SERVICE WITH THE SILLS REPORTING SERVICE.

IN THE EXPERIENCE OF THE TEXTILE LABOR RELATIONS BOARD THE CONTRACT PRICE FIXED IN THIS FORMER CONTRACT, WHICH WAS BASED ON THE LOWEST BID RECEIVED BY THE BOARD AT THE TIME THE CONTRACT WAS MADE, REPRESENTS A LOWER FIGURE THAN SIMILAR STENOGRAPHIC SERVICE OFFERED CURRENTLY.

SECTION 3709, REVISED STATUTES, REQUIRES THAT, SUBJECT TO EXCEPTIONS SPECIFIED THEREIN, ALL CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT SHALL BE MADE AFTER ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME. IT HAS BEEN HELD BY THE COURTS THAT COMPLIANCE WITH THE STATUTE IS A CONDITION PRECEDENT, UPON PERFORMANCE OF WHICH, ONLY, CAN A BINDING CONTRACT WITH THE GOVERNMENT BE MADE BY ITS OFFICERS, AND THAT ALL CONTRACTS BETWEEN INDIVIDUALS AND CONTRACTING OFFICERS OF THE GOVERNMENT ARE VOID UNLESS THEY ARE BASED UPON ADVERTISEMENTS FOR PROPOSALS PREVIOUSLY MADE, SINCE THE POWERS AND DUTIES OF OFFICERS OF THE GOVERNMENT ARE PRESCRIBED AND LIMITED BY LAWS WHICH THEY MUST FOLLOW. PURCELL ENVELOPE COMPANY V. UNITED STATES, 51 CT.CLS. 211, 214, AFFIRMED 249 U.S. 313; SCHNEIDER V. UNITED STATES, 19 CT.CLS. 547.

THERE WAS NO LEGAL AUTHORITY IN ANY OFFICER OR AGENT OF THE GOVERNMENT TO ENTER INTO AN AGREEMENT WITH THE SILLS REPORTING SERVICE, WITHOUT ADVERTISING, TO CONTINUE TO PERFORM STENOGRAPHIC WORK SUBSEQUENT TO JUNE 16, 1935, THE DATE WHEN THE CONTRACT WITH THAT COMPANY EXPIRED. THE ONLY LAWFUL METHOD OF CONSUMMATING AN AGREEMENT WAS THAT PRESCRIBED BY THE STATUTE; AND THE OPINION OF THE BOARD THAT THE PRICES FIXED IN THE FORMER CONTRACT WERE LOWER THAN PRICES OFFERED CURRENTLY FOR SIMILAR SERVICE AFFORDED NO WARRANT FOR A DISREGARD OF THE LAW. THE PROPER WAY TO DETERMINE THE LOWEST PRICE IS BY COMPETITIVE BIDDING AS PROVIDED BY LAW. 14 COMP. GEN. 59.

THE ADMINISTRATIVE CONCLUSION THAT THE ITEM INVOLVED REPRESENTED AN EMERGENCY SERVICE DOES NOT APPEAR TO BE SUPPORTED BY THE FACTS. AS WAS POINTED OUT IN 14 COMP. GEN. 897, THE FUNCTIONS OF THE TEXTILE LABOR RELATIONS BOARD ARE NATION-WIDE IN CHARACTER, AND THE VERY NATURE OF ITS DUTIES IS SUCH AS TO MAKE IT REASONABLE TO ANTICIPATE THAT CONFERENCES, MEETINGS, AND HEARINGS MAY BE REQUIRED TO BE HELD FROM TIME TO TIME THROUGHOUT VARIOUS PARTS OF THE COUNTRY, NECESSITATING THE SERVICES OF STENOGRAPHIC REPORTERS. IT WAS, OF COURSE, KNOWN TO YOUR BOARD THAT THE CONTRACT WITH THE SILLS REPORTING SERVICE EXPIRED ON JUNE 16, 1935. WAS KNOWN, LIKEWISE, THAT THERE WAS NO LEGAL AUTHORITY FOR UNDERTAKING TO EXTEND THE CONTRACT BY AGREEMENT, OR OTHERWISE TO CONTINUE IT IN FORCE. 14 COMP. GEN. 59. THE ONLY PROPER PROCEDURE WAS TO ADVERTISE A SUFFICIENT TIME PREVIOUS TO EXPIRATION OF THE CONTRACT FOR BIDS FOR FURNISHING SUCH STENOGRAPHIC SERVICES AS MIGHT BE REQUIRED BY THE BOARD DURING THE CURRENT FISCAL YEAR. 14 COMP. GEN. 667. WHETHER THE PRICES BID WOULD BE HIGHER OR LOWER THAN THOSE UNDER THE EXPIRING CONTRACT COULD ONLY BE DETERMINED BY ADVERTISING, AND WAS, OF COURSE, NOT A MATTER OF ADMINISTRATIVE RESPONSIBILITY. THERE WAS NO AUTHORITY FOR THE BOARD TO AWAIT THE NEED FOR IMMEDIATE SERVICES--- IF IN FACT THERE WAS SUCH NEED--- THUS ADMINISTRATIVELY CREATING AN EMERGENCY TO AVOID COMPLIANCE WITH STATUTORY REQUIREMENTS. 14 COMP. GEN. 364; ID. 875; 3 COMP. DEC. 470.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES APPEARING, THIS OFFICE WILL NOT WITHHOLD PAYMENT ON THE SUBJECT VOUCHER, IF OTHERWISE CORRECT, THE AMOUNT THEREOF BEING ACCEPTED IN THIS INSTANCE AS REPRESENTING THE REASONABLE VALUE OF THE WORK DONE.

HOWEVER, ADMINISTRATIVE ACTION SHOULD BE TAKEN TO PREVENT THE OCCURRENCE OF A SIMILAR SITUATION HEREAFTER.