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A-15733, DECEMBER 31, 1926, 6 COMP. GEN. 430

A-15733 Dec 31, 1926
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REQUESTING DECISION WHETHER SUCH SERVICES ARE PERSONAL SERVICES OR WHETHER THE PROVISIONS OF SECTION 3709. ARE APPLICABLE TO CONTRACTS THEREFOR. ARE AS FOLLOWS: ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES. WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC EXIGENCY. AT THE PLACES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD. THE "PERSONAL SERVICES" EXCEPTED FROM THE REQUIREMENTS OF SAID SECTION 3709 EVIDENTLY WERE INTENDED TO MEAN THE SERVICES OF THE PARTICULAR PERSON WITH WHOM THE CONTRACT OR AGREEMENT IS MADE AND WITH REFERENCE TO WHICH THE ABILITY AND QUALIFICATIONS OF THE PERSON ARE THE PRINCIPAL MATTERS FOR CONSIDERATION IN DETERMINING TO WHOM THE CONTRACT SHALL BE AWARDED OR THE APPOINTMENT ISSUED.

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A-15733, DECEMBER 31, 1926, 6 COMP. GEN. 430

CONTRACTS - STENOGRAPHIC REPORTING - ADVERTISING STENOGRAPHIC REPORTING SERVICES ENGAGED FOR THE FURNISHING OF A COMPLETED PRODUCT--- THE TRANSCRIPT OF TESTIMONY, ETC.--- AS DISTINGUISHED FROM THE HIRE OF STENOGRAPHIC SERVICES TO BE PERFORMED BY A PARTICULAR PERSON SELECTED BY A PROPER OFFICER OF THE GOVERNMENT WITH REFERENCE TO ABILITY AND QUALIFICATIONS, WHERE AUTHORIZED BY STATUTE TO BE PROCURED BY CONTRACT, MUST BE OBTAINED THROUGH COMPETITIVE BIDS SOLICITED PURSUANT TO THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, THE CONTRACT TO BE AWARDED TO THE LOWEST QUALIFIED BIDDER, HAVING DUE REGARD TO THE FACILITIES, RELIABILITY AND REPUTATION OF THE RESPECTIVE BIDDERS.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN, BOARD OF TAX APPEALS, DECEMBER 31, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 28, 1926, REFERRING TO DECISION OF THIS OFFICE DATED OCTOBER 28, 1926, 6 COMP. GEN. 295, RELATIVE TO CONTRACTING FOR STENOGRAPHIC REPORTING SERVICE AS PROVIDED IN THE ACT OF APRIL 22, 1926, 44 STAT. 307, AND REQUESTING DECISION WHETHER SUCH SERVICES ARE PERSONAL SERVICES OR WHETHER THE PROVISIONS OF SECTION 3709, REVISED STATUES, ARE APPLICABLE TO CONTRACTS THEREFOR.

THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE AS FOLLOWS:

ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS AND RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. WHEN IMMEDIATE DELIVERY OR PERFORMANCE IS REQUIRED BY THE PUBLIC EXIGENCY, THE ARTICLES OR SERVICE REQUIRED MAY BE PROCURED BY OPEN PURCHASE OR CONTRACT, AT THE PLACES AND IN THE MANNER IN WHICH SUCH ARTICLES ARE USUALLY BOUGHT AND SOLD, OR SUCH SERVICES ENGAGED, BETWEEN INDIVIDUALS.

THE "PERSONAL SERVICES" EXCEPTED FROM THE REQUIREMENTS OF SAID SECTION 3709 EVIDENTLY WERE INTENDED TO MEAN THE SERVICES OF THE PARTICULAR PERSON WITH WHOM THE CONTRACT OR AGREEMENT IS MADE AND WITH REFERENCE TO WHICH THE ABILITY AND QUALIFICATIONS OF THE PERSON ARE THE PRINCIPAL MATTERS FOR CONSIDERATION IN DETERMINING TO WHOM THE CONTRACT SHALL BE AWARDED OR THE APPOINTMENT ISSUED. UNDOUBTEDLY THE STENOGRAPHIC REPORTING SERVICES HERE INVOLVED COULD BE PERFORMED BY INDIVIDUALS SELECTED FOR THEIR ABILITY AND QUALIFICATIONS AND ENGAGED BY CONTRACT OR FORMAL APPOINTMENT AS PERSONAL SERVICES, BUT WHAT IS HERE PROPOSED, AND FOR WHICH STATUTORY AUTHORITY HAS BEEN OBTAINED BY YOUR BOARD, IS THE CONTRACTING WITH A FIRM NOT FOR THE PERSONAL SERVICES OF INDIVIDUALS SELECTED BY THE GOVERNMENT ON THE BASIS OF THEIR ABILITY AND QUALIFICATIONS BUT FOR THE FURNISHING OF A COMPLETED PRODUCT--- THE TRANSCRIPT OF TESTIMONY, ETC. THEREFORE THERE WOULD APPEAR TO BE NO REASON WHY THE REQUIREMENTS OF SECTION 3709 SHOULD NOT BE COMPLIED WITH. EVEN IF SAID SECTION WERE NOT DIRECTLY APPLICABLE, THE INTERESTS OF THE GOVERNMENT WOULD REQUIRE THAT THERE BE COMPETITION IN THE MATTER OF SECURING SUCH SERVICES.

PERFORMANCE OF A CONTRACT IS GENERALLY SOUGHT TO BE ASSURED BY BOND AGAINST DEFAULT, BUT THERE MAY BE CONDITIONS EVEN IN A CONTRACTUAL MATTER WHERE THE COMPETENCY AND ABILITY OF A BIDDER TO PERFORM REQUIRE A SHOWING BY BIDDERS IN SUCH RESPECT, AND WHEN INVOLVED FOR CONSIDERATION THE REQUEST FOR BIDS SHOULD SO STATE. PARTICULARLY IS THIS SO WHERE, AS IN THE INSTANT SUBJECT MATTER OF REPORTING SERVICE, THE ASSURANCE MUST APPEAR BEFOREHAND THAT HEARINGS WILL BE PROPERLY REPORTED, AS IT IS OBVIOUS THAT DEFECTS OR DEFAULT IN REPORTING A HEARING, DEVELOPING ONLY AFTERWARDS, COULD NOT BE FULLY COMPENSATED FOR BY MONETARY DAMAGES OR PROPERLY PROTECTED AGAINST BY MEANS OF A PERFORMANCE BOND. THEREFORE THE FACILITIES (CLASS OF PERSONNEL, ETC.), RELIABILITY, REPUTATION, ETC., OF THOSE SUBMITTING BIDS FOR THE WORK ARE PROPER MATTERS FOR CONSIDERATION IN THE AWARDING OF THE CONTRACT, BUT THE REJECTION OF A LOWER BID WOULD NOT BE AUTHORIZED IN THE ABSENCE OF A SHOWING OF FACTS SUCH AS REASONABLY WOULD JUSTIFY A CONCLUSION THAT THOSE SUBMITTING SUCH BID COULD OR WOULD NOT RENDER SATISFACTORY SERVICES. A MERE PREFERENCE FOR A PARTICULAR PERSON OR FIRM WOULD NOT BE SUFFICIENT REASON FOR REJECTING A LOWER BID OF ANOTHER PERSON OR FIRM WITHOUT MAKING AN HONEST EFFORT TO ASCERTAIN WHETHER THE PERSON OR FIRM SUBMITTING THE LOWER BID COULD NOT BE RELIED UPON TO RENDER SATISFACTORY SERVICES.

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