A-90922, JANUARY 6, 1938, 17 COMP. GEN. 545

A-90922, JANUARY 6, 1938, 17 COMP. GEN. 545

BONDS - PROTECTION OF LABORERS AND MATERIALMEN - STATUTORY REQUIREMENTS "PUBLIC WORK" CONTRACTS DEFINED CONTRACTS FOR THE REPAIR OF SHOES AND FOR LAUNDRY SERVICE, NOT BEING FOR PUBLIC WORK REQUIRING CONSTRUCTION, SUCH AS A BUILDING, A SHIP, OR A LEVEE, ARE NOT CONTRACTS "FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES" WITHIN THE TERMS OF THE ACT OF AUGUST 24, 1935, 49 STAT. 793, AND THERE SHOULD NOT BE IMPOSED UPON THE UNITED STATES UNDER SUCH CONTRACTS ANY ADDITIONAL COST FOR SECURING A PAYMENT BOND FOR THE PROTECTION OF LABORERS AND MATERIALMEN AS PROVIDED FOR IN PROPER CASES IN SAID ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JANUARY 6, 1938:

THERE ARE BEFORE THIS OFFICE THE FOLLOWING CONTRACTS:

CHART

CONTRACT DATE CONTRACTOR

W-5807-QM-CIV-120 ------ SEPTEMBER 21, 1937 ----- NOGALES SHOE DOCTOR.

W-5807-QM-CIV-131 ------ SEPTEMBER 20, 1937 ----- GILA VALLEY LAUNDRY CO.

W-5807-QM-CIV-133 ------ SEPTEMBER 20, 1937 ----- BELL LAUNDRY.

W-5801-QM-CIV-128 ------ SEPTEMBER 14, 1937 ----- ELITE LAUNDRY COMPANY.

THE SPECIFICATIONS UNDER WHICH BIDS WERE SOLICITED WERE SUPPLEMENTED PRIOR TO THE OPENING DATE BY THE ISSUANCE OF ADDENDA ADVISING ALL BIDDERS THAT ANY AWARD OF A CONTRACT EXCEEDING $2,000 IN AMOUNT WOULD BE MADE SUBJECT TO THE PROVISIONS OF THE ACT APPROVED AUGUST 24, 1935, PUBLIC, NO. 321, SEVENTY-FOURTH CONGRESS, WHICH REQUIRES CONTRACTS FOR THE CONSTRUCTION, ALTERATION, AND REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES TO BE ACCOMPANIED BY A PERFORMANCE BOND PROTECTING THE UNITED STATES AND BY AN ADDITIONAL BOND FOR THE PROTECTION OF PERSONS FURNISHING MATERIAL AND LABOR FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF SAID PUBLIC BUILDING OR PUBLIC WORK.

THE ADDENDA TO THE SPECIFICATIONS WERE PRESUMABLY ISSUED IN COMPLIANCE WITH THE INSTRUCTIONS CONTAINED IN WAR DEPARTMENT PROCUREMENT CIRCULAR NO. 7, DATED NOVEMBER 27, 1935, WHICH QUOTES THE FIRST SECTION OF THE ACT AND STATES IN PARAGRAPH 2 THAT---

A CONTRACT FOR WORK, LABOR, OR MANUFACTURE UPON ARTICLES OF PROPERTY BELONGING TO THE UNITED STATES, * * * IS A CONTRACT FOR "PUBLIC WORK OF THE UNITED STATES" WITHIN THE SCOPE OF SAID ACT OF AUGUST 24, 1935, PROVIDED SUCH CONTRACT EXCEEDS $2,000 IN AMOUNT * * *.

CONTRACTING OFFICERS ARE INSTRUCTED IN THE CIRCULAR REFERRED TO TO REQUIRE THAT A PERFORMANCE AND PAYMENT BOND ACCOMPANY SUCH CONTRACTS.

A PERFORMANCE BOND AND A PAYMENT BOND ACCOMPANIED EACH OF THE FOREGOING CONTRACTS. THESE BONDS HAVE NOT AS YET BEEN APPROVED BY THE TREASURY DEPARTMENT.

CONTRACTS FOR THE REPAIR OF SHOES AND FOR LAUNDRY SERVICE ARE NOT CONTRACTS "FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES" WITHIN THE TERMS OF THE ACT OF AUGUST 24, 1935, 49 STAT. 793. THE PHRASE "PUBLIC WORK" WAS LIKEWISE CONTAINED IN THE ACT OF AUGUST 13, 1894, 28 STAT. 278, AS AMENDED BY THE ACT OF FEBRUARY 24, 1905, 33 STAT. 812, AND YOUR ATTENTION IS INVITED TO THE ANNOTATIONS OF THAT STATUTE AS CONTAINED IN THE MILITARY LAWS OF THE UNITED STATES (ANNOTATED), PAGE 361. BOTH THE ACT OF AUGUST 13, 1894, AS AMENDED BY THE ACT OF FEBRUARY 24, 1905, AND THE ACT OF AUGUST 24, 1935, RELATE TO CONSTRUCTION WORK AND CONTRACTS FOR THE REPAIR OF SHOES OR FOR LAUNDRY SERVICE ARE NOT PUBLIC WORK REQUIRING CONSTRUCTION, SUCH AS A BUILDING, A SHIP, OR A LEVEE, AND THERE SHOULD NOT BE IMPOSED UPON THE UNITED STATES THE ADDITIONAL COST, IF ANY, OF SECURING A PAYMENT BOND AS PROVIDED IN THE ACT OF AUGUST 24, 1935, FOR SUCH CONTRACTS AS THE FOUR ABOVE CITED ONES.