B-145475, APRIL 21, 1961, 40 COMP. GEN. 592

B-145475, APRIL 21, 1961, 40 COMP. GEN. 592

CONTRACTS - LEGISLATIVE BRANCH - NONDISCRIMINATION CLAUSES ALTHOUGH THE OFFICE OF THE ARCHITECT OF THE CAPITOL--- A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT--- IN THE LETTING OF CONTRACTS FOR CONSTRUCTION AND OTHER WORK IS NOT REQUIRED TO INCLUDE THE MANDATORY NONDISCRIMINATION CLAUSE PROVIDED IN EXECUTIVE ORDER NO. 10925, MARCH 6, 1961, WHICH WAS ISSUED PURSUANT TO THE GENERAL EXECUTIVE POWERS OF THE PRESIDENT UNDER THE CONSTITUTION RATHER THAN PURSUANT TO CONGRESSIONAL DIRECTIVE, SUCH NONDISCRIMINATION CLAUSES MAY BE INCLUDED IN CONTRACTS EXECUTED BY THE ARCHITECT OF THE CAPITOL WITHOUT VIOLATING SECTION 3709, REVISED STATUTES, 41 U.S.C. 5, WHICH REQUIRES CONTRACTS TO BE AWARDED ON THE BASIS OF THE MAXIMUM POSSIBLE COMPETITION.

TO THE ARCHITECT OF THE CAPITOL, APRIL 21, 1961:

WE HAVE YOUR LETTER OF MARCH 29, 1961, WITH ENCLOSURES, REQUESTING OUR VIEWS AS TO WHETHER YOU ARE REQUIRED IN LETTER CONTRACTS FOR CONSTRUCTION AND OTHER WORK TO FOLLOW THE PROVISIONS OF EXECUTIVE ORDER NO. 10925, DATED MARCH 6, 1961. THE EXECUTIVE ORDER MAKES MANDATORY THE INCLUSION IN GOVERNMENT CONTRACTS OF A PROVISION UNDER WHICH THE CONTRACTOR AGREES NOT TO DISCRIMINATE AGAINST ANY EMPLOYEE, OR PROSPECTIVE EMPLOYEE, ON ACCOUNT OF RACE, CREED, COLOR OR NATIONAL ORIGIN. IF IT IS DETERMINED THAT YOU ARE NOT REQUIRED TO OPERATE UNDER THE EXECUTIVE ORDER, YOU ASK ALSO WHETHER YOU MAY BY ADMINISTRATIVE ACTION INCLUDE IN CONTRACTS A PROVISION EMBODYING THE SAME OR SIMILAR LANGUAGE.

THE AUTHORITY OF THE PRESIDENT TO ISSUE AN EXECUTIVE ORDER MUST STEM EITHER FROM AN ACT OF CONGRESS OR FROM THE CONSTITUTION. YOUNGSTOWN CO. V. SAWYER, 343 U.S. 579, 585. IN THIS INSTANCE THE EXECUTIVE ORDER IS NOT BASED ON ANY CONGRESSIONAL DIRECTIVE. THE AUTHORITY TO ISSUE THE ORDER MUST, THEREFORE, STEM FROM THE GENERAL EXECUTIVE POWER UNDER ARTICLE II OF THE CONSTITUTION. IT HAS LONG BEEN HELD THAT THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT. COMP. GEN. 1132; 22 COMP. GEN. 565; 6 COMP. GEN. 565; 4 COMP. DEC. 125. SEE ALSO IN THIS CONNECTION HOUSE REPORT NO. 1333, 81ST CONGRESS. EXECUTIVE AUTHORITY OVER AGENCIES UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT SHOULD NEVER BE IMPLIED EXCEPT UPON A SHOWING THAT THE CONGRESS SO INTENDED. 34 COMP. GEN. 485. UNDER THE CIRCUMSTANCES IT IS OUR VIEW THAT YOU ARE BOUND BY THE PROVISIONS OF EXECUTIVE ORDER NO. 10925.

WE NEXT CONSIDER WHETHER YOU MAY INCLUDE IN CONTRACTS LET BY YOUR OFFICE PROVISIONS IDENTICAL WITH OR SIMILAR TO THOSE REQUIRED BY THE TERMS OF THE EXECUTIVE ORDER. AS NOTED IN YOUR LETTER OF MARCH 29, IN AWARDING CONTRACTS YOU ARE NORMALLY BOUND BY THE PROVISIONS OF SECTION 3709 OF THE REVISED STATUTES, 41 U.S.C. 5. IT IS WELL ESTABLISHED THAT THE SECTION REQUIRES THAT THE MAXIMUM POSSIBLE COMPETITION CONSISTENT WITH THE GOVERNMENT'S INTEREST BE OBTAINED IN THE AWARD OF A GOVERNMENT CONTRACT. ADVERTISED PROCUREMENTS UNDERTAKEN BY THE EXECUTIVE BRANCH ARE, IN THE VAST MAJORITY OF CASES, AWARDED PURSUANT TO THE PROVISIONS OF 41 U.S.C. 252 (C), AND 10 U.S.C. 2304 (A). THESE STATUTORY PROVISIONS HAVE BEEN INTERPRETED TO REQUIRE THE SAME BROAD COMPETITIVE BASE AS DOES SECTION 3709.

THE INCLUSION OF NONDISCRIMINATION CLAUSES IN CONTRACTS LET BY THE EXECUTIVE BRANCH HAS BEEN MANDATORY SINCE 1941. SEE EXECUTIVE ORDER NO. 8802, JUNE 25, 1941. SO FAR AS WE ARE AWARE THE PROPRIETY OF CLAUSES OF THE TYPE UNDER CONSIDERATION HAS NEVER BEEN SERIOUSLY QUESTIONED BY ANY RESPONSIBLE ADMINISTRATIVE OR JUDICIAL TRIBUNAL; NOR HAS THE CONGRESS SEEN FIT TO PROSCRIBE THE USE OF SUCH CLAUSES BY APPROPRIATE LEGISLATION. FURTHER, THE RESTRICTION ON COMPETITION, IF ANY, RESULTING FROM THE USE OF A NONDISCRIMINATION CLAUSE IS SO SPECULATIVE THAT WE CANNOT FIND ANY SUBSTANTIAL BASIS FOR THE VIEW THAT THE INCLUSION OF THE PROVISION WOULD VIOLATE THE REQUIREMENTS OF THE ADVERTISING STATUTES. THE NONDISCRIMINATION CLAUSE APPEARS TO BE NO MORE RESTRICTIVE OF COMPETITION THAN THE COVENANT AGAINST CONTINGENT FEES WHICH WAS REQUIRED TO BE INCLUDED IN GOVERNMENT CONTRACTS UNDER EXECUTIVE ORDER NO. 9001, DECEMBER 27, 1941, AND EXECUTIVE ORDER NO. 9519, FEBRUARY 7, 1945. AN ANALOGOUS SITUATION EXISTS WITH RESPECT TO EXECUTIVE ORDER NO. 235A, MAY 18, 1905, WHICH REQUIRES THE INCLUSION OF A PROVISION IN GOVERNMENT CONTRACTS FORBIDDING THE EMPLOYMENT OF STATE PRISONERS IN THE PERFORMANCE OF THOSE CONTRACTS. IN BOTH CASES THE EXECUTIVE ORDERS HAVE BEEN REGARDED AS VALID AND ENFORCEABLE NOTWITHSTANDING THAT THEY WERE NOT BASED ON ANY DIRECT CONGRESSIONAL AUTHORIZATION. SEE J. D. STREET AND CO. V. UNITED STATES, 256 F.2D 557; UNITED STATES V. J. D. STREET AND CO., 151 F.1SUPP. 469; 32 COMP. GEN. 32.

THEREFORE, IT IS OUR CONCLUSION THAT NONDISCRIMINATION CLAUSES MAY BE INCLUDED AT YOUR DISCRETION IN CONTRACTS AWARDED BY YOUR OFFICE WITHOUT VIOLATING THE PROVISIONS OF SECTION 3709, REVISED STATUTES, OR ANY OTHER LAW. WHERE A PROGRAM OF YOUR AGENCY IS CARRIED OUT UNDER THE DIRECTION OF A REVIEWING CONGRESSIONAL COMMITTEE OR COMMISSION, THE USE OF A NONDISCRIMINATION CLAUSE WOULD, OF COURSE, BE SUBJECT TO THE APPROVAL OF SUCH COMMITTEE OR COMMISSION.