A-52382, DECEMBER 14, 1933, 13 COMP. GEN. 171

A-52382, DECEMBER 14, 1933, 13 COMP. GEN. 171

CONTRACTS - CODES OF FAIR COMPETITION - COMPLIANCE WHERE THE PROVISIONS OF AN EXECUTIVE ORDER PROVIDE THAT ALL CONTRACTS SHALL CONTAIN A STIPULATION THAT IN THE PERFORMANCE THEREOF THE CONTRACTOR SHALL OBSERVE ALL OF THE REQUIREMENTS OF THE APPLICABLE APPROVED CODE OF FAIR COMPETITION, OR IF NO CODE, THEN THE PRESIDENT'S REEMPLOYMENT AGREEMENT "WITHOUT REGARD TO WHETHER THE CONTRACTOR IS HIMSELF A PARTY TO SUCH CODE OR AGREEMENT," NO PURCHASING OFFICER OF THE GOVERNMENT HAS AUTHORITY TO INSERT A PROVISION IN THE ADVERTISEMENT OR SPECIFICATIONS THAT THE CONTRACTOR SHALL HAVE SIGNED SUCH CODE OR AGREEMENT, AS THE CASE MAY BE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, DECEMBER 14, 1933:

THERE HAVE BEEN FORWARDED TO THIS OFFICE FOR EXAMINATION AND FILING IN ACCORDANCE WITH LAW, CONTRACTS A 6 FS-4902, DATED OCTOBER 11, 1933; A 6 FS -4907, DATED OCTOBER 13, 1933; AND A 6 FS-4910, DATED OCTOBER 14, 1933, WITH SWIFT AND CO.; A 6 FS-4909, DATED OCTOBER 14, 1933, WITH RYAN FRUIT CO.; AND A 6 FS-4911, DATED OCTOBER 14, 1933, WITH ARMOUR AND CO., FOR THE DELIVERY OF CERTAIN FOOD PRODUCTS AS THEREIN STIPULATED TO THE MOUNT HOOD NATIONAL FOREST, F.O.B. AUTO FREIGHT TERMINAL, PORTLAND, OREG. EACH OF THE ADVERTISED SPECIFICATIONS CONTAINED THE REQUIREMENT OF EXECUTIVE ORDER DATED AUGUST 10, 1933, QUOTED IN 13 COMP. GEN. 65, 66, TOGETHER WITH A FURTHER STATEMENT THAT:

NO BID WILL BE CONSIDERED UNLESS THE BIDDER STATES AFFIRMATIVELY ON THE LINE BELOW THAT HE HAS SIGNED AND IS COMPLYING WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION ADOPTED UNDER TITLE I OF THE NATIONAL INDUSTRIAL RECOVERY ACT FOR THE TRADE OR INDUSTRY OR SUBDIVISION THEREOF CONCERNED, OR, IF THERE BE NO SUCH APPROVED CODE OF FAIR COMPETITION THAT HE HAS SIGNED AND IS COMPLYING WITH THE PROVISIONS OF THE PRESIDENT'S REEMPLOYMENT AGREEMENT. (SEE SEC. 53, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS BULLETIN NO. 51.)

THE REQUIREMENT OF LAW, IN SECTION 3709, REVISED STATUTES, IS THAT THE NEEDS OF THE UNITED STATES BE STATED IN ADVERTISED SPECIFICATIONS IN SUCH TERMS AS TO PERMIT OF FULL AND FREE COMPETITION BY ALL RESPONSIBLE BIDDERS. THE REQUIREMENT IN THESE SPECIFICATIONS THAT ALL BIDDERS MUST SIGN AND BE COMPLYING WITH THE CODE, OR IF THERE BE NONE, WITH THE PRESIDENT'S REEMPLOYMENT AGREEMENT, IS NOT IN ACCORD WITH THE EXECUTIVE ORDER OF AUGUST 10, 1933, WHICH EXPRESSLY CONTEMPLATES THAT THERE MAY BE CONTRACTING WITH THE UNITED STATES IN INSTANCES WHERE THE BIDDER HAS NOT SIGNED THE REEMPLOYMENT AGREEMENT OR AFFIRMATIVELY SIGNIFIED HIS ASSENT TO ANY APPLICABLE APPROVED CODE--- THE LANGUAGE OF THE EXECUTIVE ORDER BEING THAT HE MUST COMPLY WITH SUCH CODE OR AGREEMENT IN THE PERFORMANCE OF THE CONTRACT "WITHOUT REGARD TO WHETHER THE CONTRACTOR IS HIMSELF A PARTY TO SUCH CODE OR AGREEMENT.'

THIS ENTIRE MATTER WAS CAREFULLY CONSIDERED IN DECISIONS OF NOVEMBER 10, 1933, 13 COMP. GEN. 127; ID. 132, WHERE IT WAS HELD THAT THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, DOES NOT REQUIRE THAT A BIDDER AFFIRMATIVELY ASSENT TO THE PROVISIONS OF ANY APPROVED CODE FOR THE REASON THAT SECTION 3 (B) OF SAID ACT PROVIDED THAT AFTER THE CODE HAS BEEN APPROVED, IT SHOULD BE THE STANDARD OF FAIR COMPETITION FOR SUCH TRADE OR INDUSTRY OR SUBDIVISION THEREOF.

THESE CONTRACTS FOR SUBSISTENCE SUPPLIES ARE NOT CONTRACTS FOR CONSTRUCTION WORK, BUT EVEN AS TO CONSTRUCTION WORK YOUR ATTENTION IS INVITED TO DECISION OF NOVEMBER 8, 1933, 13 COMP. GEN. 121, IN WHICH IT WAS STATED THAT IT WAS UNNECESSARY IN THAT CASE TO DETERMINE WHETHER AS URGED, THE PROVISIONS OF SECTION 53 OF BULLETIN 51, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, SO WENT BEYOND AND SUPPLEMENTED THE LAW AS TO BE WITHOUT FORCE OR EFFECT.

THESE FIVE CONTRACTS FOR SUBSISTENCE SUPPLIES WILL NOT BE FURTHER QUESTIONED BECAUSE OF THE UNAUTHORIZED REQUIREMENT OF THE SPECIFICATIONS, BUT APPROPRIATE INSTRUCTIONS SHOULD BE ISSUED TO THE PURCHASING OFFICERS OF YOUR DEPARTMENT THAT THERE IS NO AUTHORITY TO INSERT IN ADVERTISEMENTS OR SPECIFICATIONS CONDITIONS GOING BEYOND THE REQUIREMENT SET FORTH BY THE PRESIDENT IN THE EXECUTIVE ORDER.